Amicus Curiae Brief — Lockhart v. Fretwell

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No. 91-1393 JuL 2.4 We

In The

Supreme Court of the United States

October Term, 1992

A.L. LOCKHART,

Petitioner,

BOBBY RAY FRETWELL,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

BRIEF OF THE STATES OF CALIFORNIA,

ALABAMA, ALASKA, ARIZONA, COLORADO,

CONNECTICUT, DELAWARE, FLORIDA, IDAHO,

KENTUCKY, MONTANA, NEBRASKA, NEVADA,

NEW JERSEY, NORTH CAROLINA, OREGON,

PENNSYLVANIA, SOUTH CAROLINA, SOUTH

DAKOTA, VERMONT, WASHINGTON,

AND WYOMING AS AMICI CURIAE

IN SUPPORT OF PETITIONER

Danie. E. LUNGREN

Attorney General of California

Georce WILLIAMSON

Chief Assistant Attorney General

Warp A. CAMPBELL

Deputy Attorney General

Mark L. Krotoski

“Special Assistant Attorney General

1515 K Street, Suite 603

Sacramento, CA 95814

Telephone: (916) 324-5497

Attorneys for Amici

*Counsel of Record

July 24, 1992

[additional counsel on inside cover]

COCKLE LAW BRIEF PRINTING CO. (80D) 225 46964

OR CALL COLLECT (402) 42 2

COUNSEL

James H. Evans

Attorney General

of Alabama

Alabama State House

11 South Union Street

Montgomery, AL 36130

(205) 242-7300

CHaries E. Coie

Attorney General of

Alaska

P.O. Box 110300

Juneau, AK 99811-0300

(907) 465-3600

GRANT Woops

Attorney General of

Arizona

1275 West Washington

Phoenix, AZ 85007

(602) 542-5025

Gate A. Norton

Attorney General of

Colorado

110 Sixteenth Street

10th Floor

Denver, CO 80202

(303) 620-4500

RicHarp N. PacmMer

Chief State’s Attorney

State of Connecticut

340 Quinnipiac Street

Wallingford, CT 06492

(203) 265-2373

Charles M. Oberly, III

Attorney General of

Delaware

820 N. French Street

Wilmington, DE 19801

(302) 577-3838

Rosert A. BuTTeERWORTH

Attorney General

of Florida

The Capitol

Tallahassee, FL 32399-1050

(904) 487-1963

Larry EcHOH awk

Attorney General of Idaho

Statehouse, Room 207

Boise, ID 83720

(208) 334-2400

CrHris GORMAN

Attorney General

of Kentucky

State Capitol, Room 116

Frankfort, KY 40601

(502) 564-7600

Marc Racicot

Attorney General of

Montana

Justice Building

215 North Sanders

Helena, MT 59620

(406) 444-2026

Don STENBERG

Attorney General of

Nebraska

Department of Justice

2115 State Capitol

Building

Lincoln, NE 68509-8920

(402) 471-2682

Frankie Sue Dev Para

Attorney General of

Nevada

Heroes Memorial

Building

Carson City, NV 89710

(702) 687-4170

Rosert J. Det Turo

Attorney General

of New Jersey

Department of Law &

Public Safety

Richard J. Hughes

Justice Complex

Trenton, NJ 08625-0086

(609) 292-4925

Lacy H. THorNsuRG

Attorney General of

North Carolina

P.O. Box 629

Raleigh, NC 27602-0629

(919) 733-3377

CHarwes S. CrookHAM

Attorney General of

Oregon

100 Justice Building

Salem, OR 97310

(503) 378-4402

Ernest D. Prearte, Jr.

Attorney General

of Pennsylvania

16th Floor,

Strawberry Square

Harrisburg, PA 17120

(717) 787-3391

T. Travis Mepiock

Attorney General

of South Carolina

P.O. Box 11549

Columbia; SC 29211

(803) 734-3970

Mark Barnett

Attorney General

of South Dakota

500 East Capitol Avenue

Pierre, SD 57501-5070

(605) 773-3215

Jerrrey L. Amestox

Attorney General

of Vermont

109 State Street

Montpelier, VT 05609-1001

(802) 828-3171

KENNETH ©. EIKENBERRY

Attorney General of

Washington

Correction Division

P.O. Box 40116

Olympia, WA 98504-0116

(206) 586-1445

Josern B. Meyer

Attorney General

of Wyoming

123 Capitol Building

Cheyenne, WY 82002

(307) 777-7841

QUESTIONS PRESENTED

Whether the “prejudice” component of the Sixth Amend-

ment right to effective assistance of counsel is estab-

lished: (1) when counsel does not make an objection

based upon prevailing federal appellate court precedent

at the time of the state trial; (2) the federal appellate

court precedent is subsequently overruled by the time of

federal habeas review, and (3) the retroactive application

of the new precedent does not affect the fundamental

fairness or reliability of the state trial?

Whether States should be able to rely upon new prece-

dent on collateral review when a habeas petitioner con-

tends that his trial counsel failed to raise an objection

that would have been potentially meritorious at the time

' Of the state proceeding, but would no longer be valid in

light of the new precedent?

TABLE OF CONTENTS

Page

SD CE 6 cecvccccécsscedséectcceceseuues i

Be Oe Gs cen tccccdsevesicecccaccccecscces iv

Se Ge GED hevecccececesncocescocevcescessccess I

Statement of facts and proceedings .................. 2

i in 7 ic atdbededadesseestedeesesees 4

PEE wacccedeerecéccecesdcccccceséneéeeesaseee 5

I. Justice Powell's Standard in Kimmelman for Deter-

mining Prejudice Should Govern Ineffective Assis-

tance of Counsel Claims and Would Bar

ee Co cecadeweeuvess 5

Il. The Eighth Circuit Majority Ruling Fails To

Advance The Objectives Of Federal Habeas Review

And The Sixth Amendment and Undermines The

Principles Supporting The Retroactivity Analysis

REED GF Wee Gee cccccccccccccccsoscveces 8

A. The Ruling Does Not Promote the Objectives

OF CE GE ep caccccccccececesceses A)

B. The Ruling Erodes the Principles Underlying

Be He GED vincccaddevescnceocesens 10

C. The Ruling Fails to Advance the Objectives of

the Sixth Amendment Right to Effective Coun-

D. Unless the “Constitutional Windfall” Counte-

nanced By The Eighth Circuit Majority Is

Reversed, Substantial And Unjustifiable Costs

To The Criminal Justice System Will Be

PED voc ccdédcceccdsonceeeeeneeseeesens 16

Ill. Repercussions on the Teague Doctrine and the

in ct cestncuendeseeoneeeseetes 18

iii

TABLE OF CONTENTS - Continued

Page

A. Scenario One: Subsequent Precedent Is Not A

"HE GED cccccdcccasscescesceccesesuecns 20

1. Initial State Court Ruling Challenged As

P<. ct cn caeeecessasenoneesnoees 21

2. Sixth Amendment Ineffectiveness Claim . 22

B. Scenario Two: Petitioner Benefits By Prece-

dent Available At The Time of the State Pro-

ceedings But Not By The Subsequent “New

ET sedeeses pensdesooeseasnesesneeddsces« 24

1. Sixth Amendment Ineffectiveness Claim . 24

2. Initial State Court Ruling Challenged As

BIO « cccccccccegeccccoceoceeccces 26

C. Scenario Three: On Sixth Amendment Ineffec-

tiveness Claim, Petitioner Benefits By “New

Rule” On Collateral Review But Not By Prece-

dent At The Time of the State Proceedings... 27

BA. GRD cbceccccccsccccesasocncesencecess 28

TABLE OF AUTHORITIES

Page

FEDERAL CASES:

Barefoot v. Estelle, 463 U.S. 880 (1983)............... 11

Berry v. Phelps, 819 F.2d 511 (Sth Cir. 1987) .......... 9

Booth v. Maryland, 482 U.S. 496 (1987), rev'd, Payne

v. Tennessee, 111 S.Ct. 2597, 115 L.Ed.2d 720

Gees cbdncvasecacenééusaccdecdesecens 24, 26, 27, 28

Bouie v. City of Columbia, 378 U.S. 347 (1964) ... 23, 26, 29

Burger v. Kemp, 483 U.S. 776 (1987)................. 13

Butler v. McKellar, 494 U.S. 407 (1990) .......... passim

Coleman v. Thompson, 501 U.S. __, 111 S.Ct. 2546,

SOP Gee GU COED co ccccccecccvcccecces 10, 16, 22

Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert.

denied, 474 U.S. 1013 (1985) ................... passim

Desist v. United States, 394 U.S. 244 (1969)......... 8, 10

Engle v. Isaac, 456 U.S. 107 (1982) .............. 16, 17

Fretwell v. Lockhart, 946 F.2d 571 (8th Cir. 1991),

cert. granted, 112 S.Ct. 1935, 118 L.Ed.2d $42

PPasdssced kde ocdeckbeendnotenssesesnouéses passim

Fretwell v. Lockhart, 739 F. Supp. 1334 (B.D. Ark.

Dbbisaunbesédnhdasdtassdnbelesissedinesedececs 3

Griffith v. Kentucky, 479 U.S. 314 (1987) ...... 11, 18, 28

Hill v. Lockhart, 474 U.S. 52 (1985).................. 17

Hunt v. Vasquez, 899 F.2d 878 (9th Cir. 1990)...& 10, 29

Jurek v. Texas, 428 U.S. 262 (1976).......... 6, 9, 20, 21

Keeney v. Tamayo-Reyes, 112 $.Ct. 1715, 118 L.Bd.2d

GE CORR s dc cbctwsuakkuéguandidncereddaaed 17

TABLE OF AUTHORITIES ~- Continued

Page

Kimmelman v. Morrison, 477 U.S. 365 (1986)...... passim

Kuhlmann v. Wilson, 477 U.S. 436 (1986)............. 10

Lockhart v. Fretwell, 112 S.Ct. 1935, 118 L.Ed.2d $42

PARA bien Whndeubddcinoddidendscdedgestencincxc 3

Lowenfield v. Phelps, 484 U.S. 231 (1988). .3, 8, 9, 20, 21

Mackey v. United Siates, 401 U.S. 667 (1971) ..... 11, 17

Marks v. United States, 430 U.S. 188 (1977)....... 26, 29

McCleskey v. Zant. 499 U.S. __, 111 S.Ct. 1454, 113

REE SRE IRE ES SOA 10, 16, 17

McKenzie v. Risley, 842 F.2d 1525 (9h Cir.), cert.

denied, 488 U.S. 901 (1988) ..................... 9, 21

Murray v. Carrier, 477 U.S. 478 (1986).......... seoee Oe

Nix v. Whiteside, 475 U.S. 157 (1986)................. 15

Osborne v. Ohio, 495 U.S. 103 (1990) .............. . 26

Payne v. Tennessee, 111 S.Ct. 2597, 115 L.Fd.2d 720

Pb buble ebanecesddsenedsononseunceadéens passim

Penry v. Lynaugh, 492 U.S. 302 (1989) ........... 11, 12

Perry v. Lockhart, 871 F.2d 1384 (8th Cir), cert. ay

denied, 493 U.S. 959 (1989) ....... passim

Rault v. Butler, 826 F.2d 299 (Sth Cir.), cert. denied.

ke ae I a Et 9

Ritter v. Thigpen, 668 F. Supp. 1490 (S.D. Ala. 1987)... .. 9

Robison v. Maynard, 943 F.2d 1216 (10th Cir. 1991)... . 25

Rose v. Lundy, 455 U.S. 509 (1982)................... 10

TABLE OF AUTHORITIES — Continued

Page

Saffle v. Parks, 494 U.S. 484 (1990)............ 8, 11, 22

Sanders v. United States, 373 U.S. 1 (1963)........... 17

Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111

Se SP CU kc bc casnkecncenaveve 8, 9, 11, 12; 19

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)... 10, 17

Smith v. Murray, 477 U.S. 527 (1986).................. 6

Solem v. Stumes, 465 U.S. 638 (1984)................. 16

South Carolina v. Gathers, 490 U.S. 805 (1989),

rev'd, Payne v. Tennessee, 111 S.Ct. 2597, 115

SB + & fF : eerrrer rrr rrr ee 24, 26, 27, 28

Stone v.-Powell, 428 U.S. 465 (1976) ........... 9, 10, 17

Strickland v. Washington, 466 U.S. 668 (1984)..... passim

Stringer v. Black, 503 U.S. __, 112 S.Ct. 1130, 117

we Ff OT TT Te errr Tere 11, 19, 21

Sumner v. Mata, 449 U.S. 539 (1981)................. 10

Teague v. Lane, 489 U.S. 288 (1989) Fe er Pree passim

Washington v. Murray, 952 F.2d 1472 (4th Cir. 1991). ..23, 25

Wright v. West, 112 S.Ct. __, 118 L.Ed.2d __, 60

ef "Spain eO a ipsspie aes 18

Younger v. Harris, 401 U.S. 37 (1971) ..............4.. 17

STATE CASES:

Fretwell v. State of Arkansas, 292 Ark. 96, 728

EY ES IPE 6.6 44 cbc vcdvcracawesecceceses 2

Fretwell v. State of Arkansas, 289 Ark. 91, 708

ee ee EL cain ansnteeeeeecsnceceesceays 2

vii

TABLE OF AUTHORITIES — Continued

Ruiz v. State of Arkansas, 299 Ark. 144, 772 S.W.2d

Se SE diosa vdesksendedecerecseseeuee’

CONSTITUTION, STATUTES AND RULES:

U.S. Const. Art. VI, Cl. 2 (Supremacy Clause)...

CUE oo. cee endeneeeedduucent

a Ne tbeeeeeteues

i rr rn . . eeebenewecectet

ee EE po dandandeccseedevececes

Se Eo cb vane eee eeeeseeensusana

ee se ET ven dvocccsevececenceceevan

ee ae EE occ cksdvccctccvessucdevens

ee Eg a dctunsecsisesneenseens

Rule 37.5 of the Supreme Court ......cccccccecs

MISCELLANEOUS:

Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv. L. Rev. 441

SPs dndhuewenndseewdedseserasenseeceteess

Friendly, /s Innocence Irrelevant? Collateral Attack

on Criminal Judgments, 38 U. Chi. L. Rev. 142

Cad id aud uu awn as cdedyeunsesecebesceetnn

1 Rotunda, Nowak & Young, Treatise on Constitu-

tional Law: Substance & Procedure (3d ed. 1986)

No. 91-1393 :

In The

Supreme Court of the United States

October Term, 1992

A.L. LOCKHART,

Petitioner,

BOBBY RAY FRETWELL,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

BRIEF OF THE STATES OF CALIFORNIA,

ALABAMA, ALASKA, ARIZONA, COLORADO,

CONNECTICUT, DELAWARE, FLORIDA, IDAHO,

KENTUCKY, MONTANA, NEBRASKA, NEVADA, NEW

JERSEY, NORTH CAROLINA, OREGON,

PENNSYLVANIA, SOUTH CAROLINA, SOUTH

DAKOTA, VERMONT, WASHINGTON,

AND WYOMING AS AMICI CURIAE

IN SUPPORT OF PETITIONER

INTEREST OF AMICI

Amici States have a substantial interest in defending state

court judgments which are proven to be valid based upon

subsequent precedent. Ineffective assistance of counsel claims

are raised in a majority of federal habeas corpus petitions

challenging presumptively valid state court judgments, partic-

ularly in capital cases. To establish an ineffectiveness claim,

habeas petitioners must show that the attorney's performance

was both deficient and prejudicial, under Strickland v. Wash-

ington, 466 U.S. 668 (1984). This case presents a fundamental

question concerning the prejudice component of this standard.

More critically, the issue is whether on collateral review

the State may defend its judgment by relying on precedent

that was rendered after the state trial court judgment. If the

States cannot rely on subsequent precedent, then habeas peti-

tioners will be able to overturn their state court convictions

and sentences based upon a “constitutional windfall” even

though under current precedent the convictions and sentences

would be deemed both fundamentally fair and reliable. Unless

the Eighth Circuit majority holding is reversed, it will have

serious ramifications on the administration of justice; the

criminal justice interests in finality, comity, and judicial econ-

omy; the Teague doctrine; and the application of the prejudice

component of the Strickland standard.

This brief is submitted by amici through their respective

Attorneys General in accordance with Rule 37.5 of the Rules

of the Supreme Court.

STATEMENT OF FACTS AND PROCEEDINGS

In August, 1985, respondent Bobby Ray Fretwell was

convicted by an Arkansas jury of capital felony murder. At

the bifurcated sentencing hearing, the state trial court

instructed the jury on two aggravating circumstances

requested by the State and one mitigating circumstance urged

by Fretwell’s attorney. Fretwell’s attorney did not object to

either of the two aggravating circumstances instructions. The

second of these instructions, at issue here, provided that the

capital felony was committed for the purposes of ‘pecuniary

gain. A sentence of death was pronounced after the jury found

the pecuniary gain aggravating circumstance was present and

there were no mitigating circumstances. Fretwell’s conviction

and sentence were affirmed by the Arkansas Supreme Court,

Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630, 634 (Ark.

1986), and his state collateral challenge was unsuccessful.

Fretwell v. State, 292 Ark. 96, 728 S.W.2d 180, 181 (Ark.

1987) (per curiam).

The U.S. District Court granted habeas relief on the

ground that Fretwell was denicd effective assistance of coun-

sel under the Sixth and Fourteenth Amendments when his

counsel failed to object to the pecuniary gain aggravating

circumstance instruction based upon Collins v. Lockhart, 754

F.2d 258 (8th Cir.), cert. denied, 474 U.S. 1013 (1985). Seven

months before Fretwell’s trial, the Eighth Circuit held in

Collins that the pecuniary gain aggravating circumstance

could not be considered in the sentencing phase of robbery/

murder cases because it duplicated an element of the offense

of robbery/murder established in the guilt phase. However,

before federal habeas review in this case, the Eighth Circuit

overruled its Collins decision in Perry v. Lockhart, 871 F.2d

1384 (8th Cir.), cert. denied, 493 U.S. 959 (1989).!

Even though Collins was overruled at the time of federal

habeas review, the U.S. District Court issued the writ in this

case because Collins was the law of the circuit at the time of

the state trial. Fretwell v. Lockhart, 739 F. Supp. 1334, 1338

(E.D. Ark. 1990). A divided panel of the Eighth Circuit

affirmed the issuance of the writ. Fretwell v. Lockhart, 946

F.2d 571 (8th Cir. 1991). This Court granted writ of certiorari.

Lockhart v. Fretwell, 112 S.Ct. 1935, 118 L.Ed.2d 542 (1992).

! The Perry court concluded that Collins was inconsistent with this Court's

decision in Lowenfield v. Phelps, 484 U.S. 231 (1988), which held that the same

element could constitutionally be considered as part of the offense during the guilt

phase and also as an aggravating circumstance during the sentencing phase of a

capital trial. In Lowenfield, this Court concluded that the required narrowing

function under the Eighth Amendment could be fulfilled by either the Legislature

when it defined the substantive offense or by jury findings of aggravating

circumstances during the penalty phase. See id. at 246. Although Lowenfield

involved a Louisiana statute and Collins concerned an Arkansas statute, the Eighth

Circuit in Perry concluded the state sentencing schemes were “indistinguishable in

any significant detail.” See Perry, 871 F.2d at 1393; see also id. (concluding “that

Collins can neither be harmonized with nor distinguished from Lowenfield,” and

holding Collins was “overruled by Lowenfield’); and note 17, infra. Among other

things, the Fretwell majority attempted to distinguish the Louisiana statute in

Lowenfield from the Arkansas statute, notwithstanding the Eighth Circuit's hold-

ing in Perry. See Fretwell, 946 F.2d at 575-77.

SUMMARY OF ARGUMENT

Most federal habeas corpus petitions, particularly in cap-

ital cases, contain claims alleging ineffective assistance of

counsel. This case offers the Court an opportunity to provide

further guidance on the prejudice component of the Sixth

Amendment standard set forth in Strickland v. Washington,

466 U.S. 668 (1984). This case asks, in evaluating prejudice,

whether the original precedent at the time of the state pro-

ceeding or the new precedent at the time of federal habeas

review should be applied on collateral review when the funda-

mental fairness of the proceeding would not be affected by

the retroactive application of the new precedent. As Justice

Powell correctly framed the prejudice issue, “only errors that

call into question the basic justice of the defendant’s convic-

tion suffice to establish prejudice under Strickland. The ques-

tion, in sum, must be whether the particular harm suffered by

the defendant due to counsel’s incompetence rendered the

defendant’s trial fundamentally unfair.” Kimmelman v. Mor-

rison, 477 U.S. 365, 395 (1986) (Powell, J., concurring)

As this Court has already noted, “The object of an inef-

fectiveness claim is not to grade counsel’s performance.”

Strickland, 466 U.S. at 697. Here, the Eighth Circuit vacated

a State court decision because the respondent’s trial counsel

did not raise an objection based upon a federal appellate court

decision that had since been overruled. The prejudice test

proposed by Justice Powell in Kimmelman, 477 U.S. at

391-98, best advances the objectives of the Sixth Amendment

and federal habeas review by focusing on the fairness and

reliability of the proceeding, rather than simply grading coun-

sel for errors that would make no difference today.

Unless this Court reverses the Eighth Circuit majority

ruling, respondent will have obtained what the dissent accu-

rately called a “constitutional windfall.” The “windfall”

occurs where, as here, the habeas petitioner obtains the bene-

fit of a precedent in his favor even though that precedent has

been overruled and despite the fact that the state court trial

was reasonable and fair under current constitutional stan-

dards. This windfall thwarts the State's ability to enforce its

criminal laws and its interest in obtaining finality.

This case also concerns the ability of the States to uphold

State court judgments by defending against collateral attacks

based upon precedent which has ultimately been shown to be

valid even though the prior related precedent may have been

questioned at the time of the initial proceeding. This issue has

not previously been addressed by the Court and was not raised

in the related retroactivity analysis of Teague and its progeny.

The issue presented under the Teague doctrine is when deci-

sional law should not be retroactively applied. This case

presents the converse situation: when should decisional law

be retroactively applied.

Three scenarios are considered in this brief which

explore the ramifications of a rule which would enable the

State to rely upon subsequent precedent in limited situations

on collateral review. Such a rule is consistent with the objec-

tives of the Teague doctrine to preserve the integrity of state

court judgments and promote the criminal justice interests in

finality, comity and judicial economy. Just as the Teague

doctrine “validates reasonable, good-faith interpretations of

existing precedents made by state courts even though they are

shown to be contrary to later decisions,” Butler v. McKellar,

494 U.S. 407, 414 (1990), then, too, state court judgments

which are ratified by subsequent precedent should similarly

be vindicated. Only in this manner can the integrity of state

court judgments be respected consistent with the principles

underlying the Teague doctrine.

ARGUMENT

I. Justice Powell’s Standard in Kimmelman for Determin-

ing Prejudice Should Govern Ineffective Assistance of

Counsel Claims and Would Bar “Constitutional Wind-

falls”

In Kimmelman v. Morrison, Justice Powell noted that “it

would shake [the right to effective assistance of counsel]

loose from its constitutional moorings to hold that the Sixth

Amendment protects criminal defendants against errors that

merely deny those defendants a windfall.” 477 U.S. 365, 397

(1986) (Powell, J., concurring). In this case, the Eighth Cir-

cuit dissent correctly criticized the majority for affording

respondent Fretwell a “constitutional windfall” by granting

habeas relief on Sixth Amendment grounds. Fretwell, 946

F.2d at 579 (Loken, J., dissenting).

In Strickland v. Washington, this Court established two

prongs — a performance component and prejudice component

- both of which must be demonstrated in order for a defen-

dant or habeas petitioner to obtain Sixth Amendment relief

for ineffective assistance of counsel. See 466 U.S. 668, 687,

697 (1984). The parties have not disputed that the perfor-

mance component has been satisfied in this case.? The central

issue presented is whether the failure to object to the aggrava-

ting circumstance instruction — based upon prevailing federal

appellate authority at the time of the state trial which had

been reversed at the time of federal habeas review — preju-

diced the outcome of the sentencing hearing.

In concluding the prejudice component was met, the

Eighth Circuit majority emphasized that it was compelled to

apply the law in effect at the time of the state proceeding even

2 While the petitioner may have conceded this point below, the sole basis

for raising an objection during the state sentencing proceeding was premised on

the now discredited and overruled Collins decision. See note 6, infra (citing

numerous decisions rejecting or questioning Collins rule). The unfounded pre-

sumption of the Eighth Circuit majority was that Eighth Circuit precedent was

necessarily binding on the Arkansas state trial court. See Fretwell, 946 F.2d at

577. Consequently, the Eighth Circuit majority “graded” defense counsel's perfor-

mance in light of overruled Eighth Circuit precedent. Because the state court was

not obligated to follow the Collins rule, the performance prong of the Strickland

standard cannot be demonstrated. See text ummediately following note 6, infra

In fact, it may be in light of this Court's decision in Jurek v. Texas, 428 U.S.

262 (1976), that defense counsel decided not to assert a Collins objection. See

note 17, infra. Further, the failure to object or assert an issue does not aulomat-

ically establish the performance component. See, ¢.g., Smith v. Murray, 477 US.

527, 535-36 (1986). Nonetheless, the performance issue may not need to be

reconciled since respondent is unable to establish both the performance and

prejudice components in order to obtain Sixth Amendment relief. See Strickland,

466 U.S. at 697.

though this precedent had been subsequently overturned by

the Eighth Circuit. Fretwell, 946 F.2d at 577 & n.8. As the

dissent rightfully noted, “By focusing only on the probable

effect of counsel's error at the time of Fretwell’s sentencing,

the majority misses the broader and more important point that

his sentencing proceeding reached neither an unreliable nor

an unfair result.” Id. at 579 (Loken, J., dissenting) (emphasis

added) (citing Kimmelman, 477 U.S. at 396-97 (Powell, J.,

concurring)).

Under the performance component of the Strickland test,

this Court has noted that a reviewing court should assess “the

reasonableness of counsel's challenged conduct on the facts

of the particular case, viewed as of the time of counsel's

conduct.” Strickland, 466 U.S. at 690 (emphasis added); see

also Kimmelman, 477 U.S. at 381, 385. While this Court has

not addressed the point of time for assessing the prejudice

component, this Court has made clear that the Strickland

standard should not be mechanically applied and that “the

ultimate focus of inquiry must be on the fundamental fairness

of the proceeding whose result is being challenged.” Strick-

land, 466 U.S. at 696 (emphasis added); see also Kimmelman,

477 U.S. at 395 (Powell, J., concurring) (reiterating that the

standard “should not be applied too mechanically”).

The standard propounded by Justice Powell was not

applied to the facts presented in Kimmelman as it was not

briefed by the parties nor considered by the lower federal

courts. Kimmelman, 477 U.S. at 397-98 (Powell, J., concur-

ring). This case presents an opportunity for this Court to hold,

as Justice Powell urged in Kimmelman, that a habeas “wind-

fall” should never be granted under the prejudice component

of the Sixth Amendment Strickland standard where the fair-

ness or reliability of the proceeding has not been placed in

issue. See id. at 395, 396, 397 (Powell, J., concurring).*

3 Indeed, this case presents a more compelling reason for the adoption of

Justice Powell's prejudice test. In Kimmelman, the ineffectiveness claun was

based upon trial counsel's failure to file a Fourth Amendment suppression motion.

In that case, the motion was still potentially meritorious under existing precedent

(Continued on following page)

Il. The Eighth Circuit Majority Ruling Fails To Advance

The Objectives Of Federal Habeas Review And The

Sixth Amendment and Undermines The Principles

Supporting The Retroactivity Analysis Adopted By

This Court

A. The Ruling Does Not Promote the Objectives of

Collateral Review

Neither of the two central purposes of federal habeas

review is advanced by the Eighth Circuit majority application

of the repudiated Collins rule.* First, habeas review advances

a “deterrence function” by furnishing a “necessary additional

incentive” to state courts to ensure federal rights are applied

consistent with established constitutional standards at the

time of their application.> To the extent that Collins was

overruled and discredited, it is the Eighth Circuit majority

which ensured an inconsistent application of constitutional

standards. See note 17, infra.®

(Continued from previous page)

at the time of collateral review. In contrast, in this case there is no dispute that the

failure to object to the aggravating circumstance instruction was no longer

meritorious. Only because the Eighth Circuit majority insisted on applying the

overruled precedent was respondent able to obtain habeas relief.

4 Although the same standards apply in evaluating ineffectiveness claims on

direct or collateral revidw, Strickland, 466 U.S. at 697-98, most ineffectiveness

claims arise on collateral review. See Kimmelman, 477 US. at 378, 379 0.3.

5 Desist v. United States, 394 U.S. 244, 262-63 (1969) (Harlan, J., dissent-

ing) (quoted in Teague, 489 US. at 306-07 (plurality opinion)); see also Sawyer v.

Smith, 497 U.S. 227, __, 110 S.Ct. 2822, 2827, 2830, 111 L-Ed.2d 193, 206, 209

(1990), Saffle v. Parks, 494 U.S. 484, 488 (1990), Butler v. McKellar, 494 US.

407, 413 (1990), Hunt v. Vasquez, 899 F 2d 878, 880 (9th Cir 1990) (considering

deterrence funcuon of federal habeas review on ineffective assistance of counsel

claum seeking retroactive application of overruled state court ruling).

but numerous other courts, including the Arkansas Supreme Court, have either

explicitly rejected or quesuoned the Collins rule. The Arkansas Supreme Court

never followed Collins and applied Lowenfield rewoactively since “appellants [are

not] entided w preserve in place a principle of law which has been held w be

erroneous.” Ruiz v. State of Arkansas, 299 Ark. 144, 772 S.W.2d 297, 32 (Ark.

(Continued on following page)

Clearly, the sine qua non of the majority opinion is that

the Eighth Circuit precedent in Collins (even though subse-

quently overruled in Perry) was binding on the state court at

the time of the trial. State courts are not bound by lower

federal courts in interpreting federal constitutional law. See,

e.g., | Rotunda, Nowak & Young, Treatise on Constitutional

Law: Substance & Procedure § 1.6(c), at 33 (3d ed. 1986).

For example, the Collins rule would clearly not have been

binding on the Arkansas courts if it had been rendered in

another circuit; the fact that Collins was decided by the

Eighth Circuit should not make a difference. In our national

judicial system, state courts hold a co-equal status with the

federal judiciary and are as competent in applying and decid-

ing federal principles. See, e.g., Sawyer, 497 U.S. at __, 110

S.Ct. at 2831, 111 L.Ed.2d at 210-11; Stone v. Powell, 428

U.S. 465, 495 n.35. The duty of the Arkansas state trial court

was therefore not to apply Eighth Circuit precedent (as the

Fretwell majority explicitly dictated, see Fretwell, 946 F.2d at

577 & n.8), but to apply, reasonably and in good faith,

existing constitutional rules. Cf. Butler, 494 U.S. at 414.

At the time of federal habeas review, Collins obviously

was not a correct statement of law. Rather than serving the

deterrence function, the Eighth Circuit majority's insistence

(Continued from previous page)

1989) (and citing several Arkansas Supreme Court cases rejecting the Collins

rationale).

Other federal courts have expressly criticized and rejected Collins. See, e.g,

Rault v. Butler, 826 F.2d 299, 306-07 (Sth Cir.) (citing several Fifth Circuit cases

rejecting Collins), cert. denied, 483 U.S. 1042 (1987), Berry v. Phelps, 819 F.2d

Sil, 516-17 (Sth Cir. 1987) (“No circuit court has followed the Eighth Circuit

decisions in Collins, and we have expressly rejected it on several occasions.”)

(citations omitted), Ritter v. Thigpen, 668 F. Supp. 1490, 1495-96 (S_D. Ala. 1987)

(noting “the law in the Eleventh Circuit, both before and after the Collins

decision, is just the opposite”) (and cases cited therein).

At least one other circuit court has questioned and distinguished the Collins

holding. See, ¢.g.. McKenzie v. Risley, 842 F 2d 1525, 1539 0.30 (9th Cir.) (“We

read Collins as grounded in the peculiar statutory scheme employed by Arkansas

to define capital murder In any event, we note that Collins did not discuss Jurek

and was decided prior to Lowenfield.”), cert. denied, 488 US. 901 (1988).

on applying Collins undeniably and inexplicably confers a

constitutional windfall on respondent.

Second, habeas review “seeks to assure that no man has

been incarcerated under a procedure which creates an imper-

missibly large risk that the innocent will be convicted.”’

Respondent Fretwell’s innocence would not be affected by the

application of Perry on federal habeas review.

B. The Ruling Erodes the Principles Underlying the

Teague Doctrine

Substantial criminal justice interests — including the interests

in finality and comity — dictate that a presumptively valid convic-

tion and sentence should not be disturbed on collateral review

unless a showing can be made that the state prisoner is in custody

in violation of constitutional or federal rights, 28 U.S.C. § 2254(a),

and this showing conforms with established requirements for fed-

eral habeas review.* These interests are reflected in and promoted

by the framework of analysis adopted by this Court in determining

whether and when to apply decisional law retroactively. These

principles should be consistently maintained in this case.

? Desist, 394 US. at 262 (Harlan, J., dissenting); see also Stone, 428 US. at

491 nn.30 & 31, Schneckloth v. Bustamonie, 412 US. 218, 256 (Powell, J.

concurring ) (“Habeas corpus indeed should provide the added assurance for a free

society that no innocent man suffers an unconstitutional loss of liberty.”), Hunt,

899 F.2d at 880 (considering role of innocence on federal habeas review on

ineffective assistance of counsel claun seeking retroactive application of overruled

State court ruling).

8 Many of these habeas requirements promote the criminal justice interests

in comity and finality. See, ¢.g., Coleman v. Thompson, 501 U.S. __, 111 S.Ct

2546, 2554, 115 L.Ed.2d 640, 656 (1991) (applying independent and adequate

state ground doctrine); McCleskey v. Zant, 499 US. ___, 111 S.Ct. 1454, 1468,

1469, 113 L.Ed.2d 517, 542, 543 (1991) (abuse of the writ doctrine); Teague v.

Lane, 489 U.S. 288, 299-310 (1989) (plurality opinion) (general doctrine against

retroactive application of “new rules” on collateral review), Murray v. Carrier,

477 U.S. 478, 490-92 (1986) (procedural default doctrine); Kuhlmann v. Wilson,

477 U.S. 436, 452-54 (1986) (general bar against successive petitions), Rose v.

Lundy, 455 U.S. 509, 516, 518 (1982) (exhaustion doctrine under 28 U S.C.

§§ 2254(b), (c)); Sumner v. Mata, 449 US. 539, 550 (1981) (presumption of

correctness to state court findings of fact under 28 US.C. § 2254(d)).

Under our criminal justice system, a state defendant may

obtain the benefit of the retroactive application of any new rule at

any time during the direct review process before the conviction

becomes final. Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

However, upon the conclusion of the direct review process, see id.

at 321 n.6, “a presumption of finality and legality attaches to the

conviction and sentence.” Barefoot v. Estelle, 463 U.S. 880, 887

(1983); see also Strickland, 466 U.S. at 697 (noting “the presump-

tion that a criminal judgment is final is at its strongest in collateral

attacks on that judgment”).

The Teague doctrine advances the criminal justice inter-

ests in finality, predictability, and comity by emphasizing the

limited role and function of federal habeas review in our

criminal justice system.? Under the Teague doctrine, “new

rules” (i.e., rules which are not dictated by prior precedent or

which break new ground or impose a new obligation on the

States) may not be retroactively applied or announced on

collateral review unless the rule falls within one of two

exceptions.'° Concomitantly, under Teague and its progeny,

9 See Stringer v. Black, 503 U.S. at ___, 112 S.Ct. 1130, 1135, 117 L.Bd.2d

367, 377 (1992) (“The interests in finality, predictability, and comity underlying

our new rule jurisprudence may be undermined to an equal degree by the

invocation of a rule that was not dictated by precedent as by the application of an

old rule in a manner that was not dictated by precedent.”), Penry v. Lynaugh, 492

U.S. 302, 314 (1989) (noting finality concerns under retroactivity doctrine are also

applicable in capital sentencing proceedings), Teague, 489 US. at 308 (noting the

criminal justice interests of comity and finality bear direcly on the question of the

scope of habeas review).

The heart of the Teague doctrine is premised upon the nature, function, scope

and purpose of collateral review. See Teague, 489 U.S. at 306, 308, 312 (plurality

opinion), see also Saffle, 494 US. at 488; Butler, 494 U.S. at 413. As Justice

Harlan noted, “The relevant frame of reference [on the retroactivity question] is

not the purpose of the new rule whose benefit the [defendant] seeks, but instead

the purposes for which the writ of habeas corpus is made available.” Mackey v.

United States, 401 U.S. 667, 682 (1971) (emphasis added) (Harlan, J., concurring

in part and dissenting in part) (quoted in Sawyer, 497 US at ___, 110 S.Ct. at

2830, 111 L.Ed.2d at 209; Butler, 494 US. at 413; Teague, 489 US. at 306).

10 Teague, 489 US. at 310, 311-13 (plurality opinion); see also Stringer,

$03 U.S. at ___, 112 S.Ct. at 1135, 117 L.Ed.2d at 376; Sawyer, 497 US. at

(Continued on following page)

old rules (or rules which are not “new” within the meaning of

Teague) may be considered on collateral review. See, e.g.,

Penry, 492 U.S. cat 319-28 (considering and applying rule

sought by petitioner which was deemed not “new” under the

Teague doctrine). Therefore, only under limited circum-

stances (i.e., where the fundamental fairness and reliability of

the proceeding is in issue) may “new” decisional law be

retroactively applied to upset a presumptively valid state

court judgment.

This case raises a similar question regarding the applica-

tion of precedent to set aside a presumptively valid state court

sentence. By insisting on the application of overruled prece-

dent, the Eighth Circuit majority disregarded comity and

federalism concerns and the interest in finality. The costs of

this constitutional windfall for the respondent on the criminal

justice system simply cannot be rationalized, especially when

the windfall relief does not promote the fundamental fairness

and reliability of the proceeding in any manner.

Viewed in this context, the concerns addressed by the

Teague doctrine and the Powell-Kimmelman standard inter-

sect. In essence, Teague and its progeny hold that a habeas

petitioner should not obtain a “constitutional windfall” which

would result from the retroactive application of a “new rule”

on collateral review because such a windfall cannot be war-

ranted in light of its effect on the interests in finality and

comity. For identical reasons, the rule proposed by Justice

(Continued from previous page)

110 S.Ct. at 2831, 111 L.Ed.2d at 211; Butler, 494 U.S. at 412; Penry, 492 US. at

313, 329.

The Teague doctrine, which is not an absolute bar to the announcement or

application of new rules of law on collateral review, contains two umportant

exceptions: (1) rules that place a class of conduct beyond the reach of the criminal

law, or which prohibit the imposition of certain punishment fer certain defendants

because of their status or offense; and (2) watershed rules of criminal procedure

concerning the accuracy and fairness of a criminal proceeding. Sawyer, 497 U.S.

at__, 110 S.Ct. at 2831, 111 L.Ed.2d at 211; Saffle, 494 US. at 494-95; Butler,

494 US. at 415-16; Penry, 492 U.S. at 329-30; Teague, 489 US. at 311-12

(plurality opinion).

Powell in Kimmelman avoids constitutional windfalls to peti-

tioners on Sixth Amendment grounds. Compare Teague, 489

U.S. at 309-10 with Kimmelman, 477 U.S. at 397 (Powell, J.,

concurring). Further, the Teague doctrine seeks to vindicate

reasonable state court interpretations of constitutional law at

the time of the state trial. Butler, 494 U.S. at 414. In this case,

this Court can vindicate a challenged state court sentence

which has been validated by subsequent precedent, notwith-

standing any alleged deficiency of defense counsel at the time

of the state trial.

C. The Ruling Fails to Advance the Objectives of the

Sixth Amendment Right to Effective Counsel

As this Court noted in Strickland, the substantive content

of the Sixth Amendment right is guided by its purpose “to

ensure a fair trial.”'' The key to promoting a fair proceeding

is the adversarial process: “The Sixth Amendment recognizes

the right to the assistance of counsel because it envisions

counsel’s playing a role that is critical to the ability of the

adversarial system to produce just results.” Strickland, 466

U.S. at 685; see also Kimmelman, 477 U.S. at 374 (“The

essence Of an ineffective-assistance claim is that counsel’s

unprofessional errors so upset the adversarial balance

11 466 U.S. at 686; see also Burger v. Kemp, 483 U.S. 776, 788 (1987);

Kimmelman, 477 U.S. at 392-93 (noting “the right to effective assistance of

counsel is personal to the defendant, and is explicitly tied to the defendant's right

to a fundamentally fair trial — a trial in which the determination of guilt or

innocence is ‘just’ and ‘reliable’ ") (Powell, J., concurring) (citation omitted);

Strickland, 466 U.S. at 684 (“[T]he Sixth Amendment right to counsel exists, and

is needed, in order to protect the fundamental right to a fair trial.) (emphasis

added); id. at 689; id. at 691-92; id. at 696 (“the ultimate focus of inquiry must be

on the fundamental fairness of the proceeding whose result is being challenged”)

(emphasis added); id. at 697 (“An ineffectiveness claim . . . is an attack on the

fundamental fairness of the proceeding whose result is challenged.”) (emphasis

added); id. at 700 (An ineffectiveness claim requires a habeas prisoner to show

that “the justice of his sentence was rendered unreliable by a breakdown in the

adversary process caused by deficiencies in counsel's assistance.”) (emphasis

added).

between defense and prosecution that the trial was rendered

unfair and the verdict rendered suspect.”); Strickland, 466

U.S. at 686-87 (noting defense counsel fulfills an adversarial

role in a capital sentencing proceeding); id. at 696.

Outside of a narrow class of errors in which prejudice is

presumed,'? the effect of most defense counsel errors on the

proceeding must be assessed in light of their impact on the

proceeding. Just as “[t]here are countless ways to provide

effective assistance in any given case,” Strickland, 466 U.S.

at 689, errors of counsel may arise in an “infinite” manner. /d.

at 693. Certainly, to some extent, “any error. . . ‘impairs’ the

presentation of the defense.” /d. (emphasis added). But not

every error by defense counsel calls into question the out-

come of the adversarial hearing.

To address these concerns, the prejudice standard serves

the Sixth Amendment purpose by supplying a screening func-

tion: permitting habeas relief only where the fundamental

fairness or reliability of the trial is implicated by the alleged

error. In the absence of this threshold showing, it cannot be

said that the challenged error was “sufficiently serious to

warrant setting aside the outcome of the proceeding.” /d. In

the context of a sentencing hearing, the prejudice determina-

tion turns on “whether there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that

the balance of aggravating and mitigating circumstances did

not warrant death.” Jd. at 695.

The habeas petitioner has the burden of establishing

prejudice. Jd. at 693, 694, 696. In this case, the focus of the

Sixth Amendment inquiry should be whether the respondent

has met his burden by showing that retroactive application of

the new precedent in Perry would render his sentence funda-

mentally unfair or unreliable. Where retroactive application

of precedent would affect the fundamental fairness of the

12 This is not a case where prejudice is presumed, such as an actual or

constructive denial of the assistance of counsel, or where counsel holds an actual

conflict of interest leading to a breach of the duty of loyalty. See Strickland, 466

U.S. at 692: see also Kimmelman, 477 U.S. at 381 n.6; id. at 395 n.2 (Powell, J.,

concurring )

proceeding, the new precedent should not be applied retroac-

tively. As Justice Powell put it, “only errors that call into

question the basic justice of the defendant’s conviction suf-

fice to establish prejudice under Strickland. The question, in

sum, must be whether the particular harm suffered by the

defendant due to counsel’s incompetence rendered the defen-

dant’s trial fundamentally unfair.” Kimmelman, 477 U.S. at

395 (Powell, J., concurring); see also Nix v. Whiteside, 475

U.S. 157, 184-85 (1986) (Blackmun, J., concurring) (coun-

sel’s efforts to preclude perjured testimony could not cast

doubt on the reliability of the trial).

Ordinarily a reviewing court might assess prejudice in

the context of precedent prevailing at the time of the trial. But

as this Court has already recognized, the Strickland standard

is not to be mechanically applied. Strickland, 466 U.S. at 696;

see also Kimmelman, 477 U.S. at 395 (Powell, J., concurring).

Only in limited circumstances where prejudice may be pre-

sumed is a “fairly rigid rule” of prejudice applied. Strickland,

466 U.S. at 692; see also note 12, supra. This case demon-

Strates, under the prejudice component, why artificial applica-

tion of precedent available at the time of the state proceeding

is inconsistent with the objectives of federal habeas review

and the Sixth Amendment. To apply Collins rigidly on collat-

eral review only perpetuates the erroneous holding of that

opinion, which has been rejected by other courts considering

the issue. See note 6, supra.

In this case, respondent has not satisfied his burden of

establishing prejudice because he has not met the threshold

showing that the sentencing proceeding was fundamentally

unfair or unreliable as a result of his trial counsel’s error. The

record shows that respondent’s defense counsel did not object

to the aggravating circumstance instruction during the sen-

tencing phase of the state trial. The only legal basis for

raising an objection rested upon the Collins holding. How-

ever, precedent of this Court, and other federal courts, as well

as the Arkansas Supreme Court and a subsequent ruling of the

Eighth Circuit, have removed any basis that may have existed

under Collins for asserting an objection during the state

sentencing proceeding. See note 6, supra, & note 17, infra.

Consequently, the challenged error in this case is the type

which ultimately “had no effect on the judgment.” Strickland,

466 U.S. at 691. The adversarial balance has not been upset

where defense counsel fails to raise an objection that subse-

quent precedent has rendered meritless. Under these circum-

stances, neither the reliability nor the fairness of the

sentencing proceeding has been called into question.

D. Unless the “Constitutional Windfall” Counte-

nanced By The Eighth Circuit Majority Is

Reversed, Substantial And Unjustifiable Costs To

The Criminal Justice System Will Be Incurred

Federal habeas review and the Sixth Amendment guaran-

tee of the right to effective assistance of counsel both seek to

ensure that the petitioner has received a constitutionally fair

and reliable trial. Both the Teague doctrine and the Pow-

ell-Kimmelman standard preserve these guarantees without

compromising the interests of the criminal justice system in

finality, comity and judicial economy. In this manner, they

minimize unjustifiable costs on the administration of jus-

tice.'3 Under both standards, only when the requisite showing

has been made should habeas relief be granted.

For example, granting habeas relief in this case merely

on the basis of a non-prejudicial windfall certainly does not

13 In determining the scope of collateral review, several decisions of this

Court have considered the “costs” of collateral review on our criminal justice

system and on the States. See, ¢.g., Coleman, 501 U.S. at ___., 111 S.Ct. at 2559,

115 L.Ed.2d at 662 (noting “most of the price paid for federal review of state

prisoner claims is paid by the States”) (emphasis added); McCleskey, 499 U.S. at

___, 111 S.Ct. at 1468, 113 L.Ed.2d at 542 (discussing “the significant costs of

federal habeas corpus review"), Teague, 489 U.S. at 310 (noting costs imposed on

States from retroactive application of new rules on habeas review) (citation

omitted); Engle v. Isaac, 456 U.S. 107, 126 (1982) (noting collateral review

“entails significant costs”) (emphasis added); see also Solem v. Stumes, 465 US.

638, 654 (1984) (Powell, J., concurring) (“The costs imposed upon the State by

retroactive application of new rules of constitutional law on habeas corpus thus

generally far outweigh the benefits of this application.”) (emphasis added).

advance the interest in finality.'* The granting of habeas relief

in this case disregards sovereignty and comity interests, as the

enforcement of state law is frustrated. See, e.g., McCleskey,

499 U.S. at __, 111 S.Ct. at 1469, 113 L.Ed.2d at 543;

Teague, 489 U.S. at 309 (plurality opinion).

Federal-state relations are particularly exacerbated where

the State is precluded from resentencing Fretwell, as the

Eighth Circuit majority expressly held in remanding the case.

See Fretwell, 946 F.2d at 577-78. The interest in judicial

economy is also not promoted, especially where the funda-

mental fairness of the initial sentencing hearing has not been

questioned, and limited judicial resources have been unneces-

sarily expended.'> For these reasons, the Eighth Circuit

majority ruling, if left undisturbed, may, as applied in some

Cases, “be more intrusive than the enjoining of criminal pros-

ecutions.” Teague, 489 U.S. at 310 (citing Younger v. Harris,

401 U.S. 37, 43-54 (1971)).

'4 See Hill v. Lockhart, 474 U.S. 52, 58 (1985) (noting the prejudice

requirement in challenging the validity of a guilty plea on grounds of ineffective-

ness “serve[s] the fundamental interest in the finality of guilty pleas”); but see

Strickland, 466 U.S. at 694 (in determining that the prejudice standard for

ineffectiveness claims should not be governed by a preponderance of the evidence

standard, noting that the interest in finality must be counterbalanced to some

extent by the interest in reliability).

Numerous opinions of this Court and commentators have noted the role of

finality in the federal habeas process. See, ¢.g., McCleskey, 499 U.S. at __, 111

S.Ct. at 1468-69, 113 L.Ed.2d at 542-43; Teague, 489 U.S. at 309 (plurality

opinion); Engle, 456 U.S. at 127; Stone, 428 U.S. at 491 n.31; Mackey, 401 U.S.

at 683, 690-91 (Harlan, J., concurring and dissenting); Sanders v. United States,

373 U.S. 1, 24-25 (1963) (Harlan, J., dissenting); Friendly, Js Innocence Irrele-

vant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 147

(1970); Bator, Finality in Criminal Law and Federal Habeas Corpus for State

Prisoners, 76 Harv. L. Rev. 441, 450-51 (1963).

1S See Keeney v. Tamayo-Reyes, 112 S.Ct. 1715, 1719, 118 L.Ed.2d 318,

329 (1992) (noting interest in judicial economy); McCleskey, 499 U.S. at__, 111

S.Ct. at 1469, 113 L.Ed.2d at 543 (noting “heavy burden on scarce federal judicial

resources” which impacts the ability “of the system to resolve primary disputes’’);

Stone, 428 U.S. at 491 n.31 (noting impact of habeas review on “the most

effective utilization of limited judicial services”); Schneckloth, 412 U.S. at 261

(Powell, J., concurring) (“After all, the resources of our system are finite: their

overextension jeopardizes the care and quality essential to fair adjudication.”).

Ill. Repercussions on the Teague Doctrine and the Strick-

land Standard

The Teague doctrine addresses the frequent situation

when a habeas petitioner seeks the benefit of a “new rule” of

constitutional law to overturn his conviction or sentence — a

rule not available when the state conviction became final.

Griffith, 479 U.S. at 321 n.6. The Teague doctrine does not

deal with the converse situation: when the State asserts subse-

quent precedent (either a “new rule” or old rule clarifying or

overturning prior lower federal court precedent) to uphold the

presumptively valid state court judgment. That issue is pre-

sented in this case.

Normally, a habeas petitioner would not seek the

announcement or application of a new rule on collateral

review unless the petitioner benefitted by it. See, e.g., Wright

v. West, 112 S.Ct. __, 118 L.Ed.2d __, 60 U.S.L.W. 4639,

4648 (1992) (Souter, J., concurring). Consequently, this issue

will not arise in most habeas proceedings since petitioners

generally lack sufficient incentives to present the question.

However, in a small class of cases, the State will not only

have the incentives to seek application of the new rule, but

the criminal justice interests in finality and comity will call

for its application.

This “converse” circumstance where the State (instead of

the habeas petitioner) would seek to apply subsequent prece-

dent on collateral review will ordinarily arise in two manners:

(1) when a state court has made a ruling against a defendant

that is challenged as erroneous at the time of the state trial,

but would not be invalid in light of subsequent precedent on

federal habeas review; or (2) as in this case, when a haheas

petitioner or defendant contends that his counsel failed to

raise an objection or investigate an issue that would have

been meritorious at the time of the state proceeding, but

would no longer be valid in light of subsequent precedent.'©

16 While this Court has already suggested in passing that “a State

could . .. rely on a decision announced after a petitioner's conviction and sentence

(Continued on following page)

The ability of the States to rely on the new precedent is

consistent with the finality and comity interests underlying

the Teague doctrine. If, under the Teague doctrine, States may

correctly defend state court judgments that were reasonable at

the time of the state court proceeding, but subsequently

proven to be erroneous, then concomitantly States should be

able to defend those state court judgments when the subse-

quent precedent has proven to be correct and reasonable under

current law as long as the fundamental fairness of the pro-

ceeding has been unaffected by the retroactive application of

the subsequent precedent. As this Court has established this

proposition in the related situation where habeas petitioners

seek retroactive application of a new rule, the Teague doctrine

“serves to ensure that gradual developments in the law over

which reasonable jurists may disagree are not later used to

upset the finality of state convictions valid when entered.”

Sawyer, 497 U.S. at 234, 110 S.Ct. at 2827, 111 L.Ed.2d at

206; see also Butler, 494 U.S. at 415 (considering whether

proposed rule “was susceptible to debate among reasonable

minds”). It only follows that if the Teague doctrine “validates

reasonable, good-faith interpretations of existing precedents

made by state courts even though they are shown to be

contrary to later decisions,” Butler, 494 U.S. at 414

(emphasis added), then the finality and comity principles

underlying the Teague doctrine should also serve to ratify

State court applications of law which are subsequently proven

to be correct, notwithstanding, as here, contrary intermediate

federal precedent.

Three scenarios illustrate the potential ramifications of

the Eighth Circuit majority ruling on the Strickland standard

and the principles underlying the Teague doctrine. These

examples include the circumstances where:

(Continued from previous page)

became final to defeat his claim on the merits,” it has not dwectly considered this

issue. Stringer, 112 S.Ct. at 1139, 117 L.Bd.2d at 382. This case therefore presents

an opportunity for this Court to hold that States may assert subsequent corrective

precedent on Sixth Amendment claims where the fundamental fairness and

reliability of the proceeding would not be affected.

(1) as under the facts of this case, the subsequent

precedent did not establish a “new rule” within

the meaning of Teague (and the State would

benefit by the retroactive application of this

precedent);

(2) the habeas petitioner would benefit by prece-

dent available at the time of the State proceed-

ing but would not by the subsequent “new

rule” (and the State would benefit by the retro-

active application of the “new rule”); and

(3) the petitioner would benefit by a “new rule”

but would not by precedent at the time of the

State proceedings.

Under each scenario, the two hypothetical situations where

the State would seek to apply subsequent precedent on collat-

eral review are considered: first, when the state court makes a

ruling which is challenged as erroneous at the time of the

State trial but which is subsequently proven to be correct; and

second, when an ineffectiveness claim is asserted for the

failure of defense counsel to raise an objection based upon

precedent applicable at the time of the trial but which prece-

dent is subsequently invalidated.

A. Scenario One: Subsequent Precedent Is Not A

“New Rule”

The first scenario pertains to the facts of the instant case.

In Perry v. Lockhart, the Eighth Circuit overruled its decision

in Collins and noted that the Perry ruling is not a “new rule”

within the meaning of Teague.'’ Under either hypothetical

'? The Perry court held that its holding did not constitute a “new rule”

because overruling Collins was a direct extension of this Court's decision in

Lowenfield v. Phelps, 484 U.S. 231 (1988). See Perry, 871 Fld at 1394 & n8

(noting Lowenfield “did not announce a new rule” because it “merely applied a

rule that had been announced in Jurek [v. Texas, 428 U.S. 262 (1976)]"); see also

Fretwell, 946 F.2d at 579 (Loken, J., dissenting) (noting under Perry, Lowenfield

did not establish a new rule and should be applied retroactively).

Arguably then, even prior to Lowenfield, the Perry bolding was an extension

of Jurek. It could be because of this Court's holding in /urek that defense counsel

(Continued on following page)

situation, the State should be permitted to assert the Perry

holding on collateral review since the fundamental fairness or

the reliability of the sentencing phase of the trial will not be

affected by doing so.

1. Initial State Court Ruling Challenged As

Erroneous

The first hypothetical involves the situation where the

State court makes an initial ruling which is challenged as

erroneous based upon precedent at the time of the state

proceeding. We may assume that — unlike the specific facts of

this case — defense counsel actually objected to the jury

instruction On pecuniary gain as an aggravating circumstance,

relying upon Collins. The state court nonetheless overrules

the objection and gives the instruction. After the state trial,

but before collateral review, the Perry decision is announced,

which permits the pecuniary gain instruction. Nevertheless,

the defendant files a habeas petition challenging the state trial

court’s instruction in light of Collins.

In this situation, consistent with the Teague doctrine, the

State would properly assert the Perry holding, which would

apply retroactively on collateral review because Perry is not a

new rule. Although Perry did not rely directly upon the

Teague doctrine, there is no doubt that Lowenfield is not a

“new rule” since it did not constitute the application of an

“old rule” (i.e., Jurek) in a manner that was not dictated by

precedent. Stringer, 112 S.Ct. at 1135, 117 L.Ed.2d at 377.

Since Perry is clearly an “old rule,” no retroactive application

of a “new” rule is raised by its application. Importantly, only

by applying Perry retroactively on collateral review may a

constitutional windfall be avoided and may the criminal jus-

tice interests in comity and finality be promoted in this

Situation.

(Continued from previous page)

did not raise a Collins objection at the time of the sentencing hearing (ic., the

motion would have been futile) At least one federal court has distinguished

Collins for failing. in part, wo discuss Jurek. See McKenzie, 842 F.2d at 1539 0.30.

2. Sixth Amendment Ineffectiveness Claim

The alternative hypothetical situation concerning an inef-

fective assistance of counsel claim represents the facts actu-

ally presented in this case. Here, defense counsel failed to

raise a Collins objection during the state sentencing phase.

Prior to collateral review, Collins was overruled in Perry,

which, as already noted, is not a new rule within the meaning

of Teague. See note 17, supra. On federal habeas review,

respondent has alleged ineffective assistance of counsel

because his trial attorney failed to raise the Collins objection.

In contrast to the prior example, involving review of a

State court ruling, this illustration places the conduct of

defense counsel in issue."* Specifically, under the Sixth

'S At first glance it might appear that the focus of Sixth Amendment

ineffecuve assistance of counse! habeas clauns is wholly disunct from other non-

Sixth Amendment habeas clauns In fact, these clams are closely related for two

separate reasons

First, «ws ue that other habeas claums may call into question the conduct of

other actors, including the judge. prosecutor, jury, law enforcement, or other

officials. See, ¢.¢.. note 22, infra (noting myriad of ways by which similar habeas

issues may be presented concerning sumilar questions of law) In contrast, Siath

Amendment habeas clams require review of the conduct of the petitioner's

defense counsel However. the common thread among these claims is the umpact

these collateral attacks may have on the criminal justice in‘erests in finality and

comuty

Second, there is a common thread between clauns reviewed under the Teague

doctnine and Sixth Amendment clauns in that both involve review of State action.

For example, in considering the application or announcement of a rule on

collateral review sought by a habeas peuuoner, a federal habeas court, under the

Teague doctrine, focuses on the rulings of the state court. See Saffie, 494 US. at

whether a stale court considerng [the] claum at the ume [the] conviction became

final would have felt compelled by existing precedent to conclude that the rule

[the petitioner] seeks was required by the Constitution”) (emphasis added).

Butler, 494 US. at 414 (“The ‘new rule’ principle therefore validates reasonable.

good-faith wterpretaiions of existing precedents made by stale courts even though

they are shown to be contrary to later decisions.”) (emphasis added). While it is

defense counsel's conduct that precipitates a Siuth Amendment violation, this

conduct is imputed w the State. See, ¢.g.. Coleman, 501 US at __, 111 S.Ct at

2567, 115 L.Ed 2d at 672 (noting that “it is not the gravity of the attorney's error

(Contunved on following page)

Amendment Strickland standard, the question is whether the

failure to object prejudiced the outcome of the sentencing

proceeding. Only because the Eighth Circuit majority

required the application of Collins as the law at the time of

the state trial and precluded the application of Perry on

collateral review for purposes of determining prejudice under

the Strickland standard, was respondent able to obtain a

constitutional windfall on grounds of ineffective assistance of

counsel.

For reasons analogous to the first hypothetical, the State

should be able to rely on Perry to rebut the Sixth Amendment

claim. The failure of defense counsel to object to the pecuni-

ary gain instruction has not affected the fundamental fairness

and reliability of the trial — there is no reason to lose confi-

dence in its outcome. See Kimmelman, 477 U.S. at 395 (Pow-

ell, J., concurring). There is no reason why Perry, an “old

rule,” should not apply and its application does not raise any

due process questions.'?

As demonstrated by this first scenario, unless the Eighth

Circuit majority ruling is reversed by this Court, two related

consequences will expectedly follow in the Sixth Amendment

context. First, absent a contrived Sixth Amendment claim, the

constitutional windfall will not be available since the case

will be governed by the precedent, the “old rule,” in place at

the time of collateral review. Second, and concomitantly, such

(Continued from previous page)

that matters, but that it constitutes a violation of petitioner's nght to counsel, so

that the error must be seen as an external factor, i¢., ‘imputed w the State’ ”),

Kimmelman, 477 U.S. at 379 (“The Sixth Amendment mandates that the State

bear the risk of constitutionally deficient assistance of counsel.) (and citations

therein).

19 See, e.g. Bowie v. City of Columbia, 378 US. 347, 353-54 (1964)

(retroactive application of new precedent may not offend due process), see also

Hunt, 899 F.2d at 881 (retroactive application of state court ruling did not

constitute a change in the law and therefore did not violate any due process

rights); accord Washington v. Murray, 952 F.2d 1472, 1480-81 (4th Cir. 1991)

(retroactive application of Payne v Tennessee would not offend due process).

Sixth Amendment claims will be used to undermine the final-

ity and comity interests of the state explicated in Teague

without advancing the purpose of federal habeas review.

B. Scenario Two: Petitioner Benefits By Precedent

Available At The Time of the State Proceedings

But Not By The Subsequent “New Rule”

A new hypothetical example also at the capital sentenc-

ing stage demonstrates that, in limited circumstances, the

State should be able to assert “new rules” retroactively on

collateral review to uphold presumptively valid state court

judgments. As will be shown, this retroactive application of a

new rule to uphold state court judgements is actually consis-

tent with the Teague doctrine and the Powell-Kimmelman

approach of balancing finality and comity with the Constitu-

tion’s interest in ensuring a fundamentally fair and reliable

proceeding.

1. Sixth Amendment Ineffectiveness Claim

In Booth v. Maryland, 482 U.S. 496 (1987), and South

Carolina v. Gathers, 490 U.S. 805 (1989), this Court held that

the Eighth Amendment precludes the admission of victim

impact evidence or a prosecutor's statements concerning the

personal qualities of the victim during the sentencing phase of

a capital trial. Suppose, for purposes of the hypothetical, that

the ineffective assistance of counsel claim was predicated on

a failure to object to the introduction of victim impact evi-

dehce or prosecutorial statements during the penalty stage of

“a Capital case under either Booth or Gathers, which governed

at the time of the state capital proceeding. Assume further

that at the time of federal habeas review, Payne v. Tennessee,

111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), had been rendered,

which explicitly overruled Booth and Gathers, and removed

the bar against the admission of such victim impact evidence

or statements. Finally, assume that the evidence introduced

into the penalty phase proceeding was clearly admissible as it

was identical to that presented and upheld in Payne.

It is clear that Payne constitutes a new rule under the

Teague doctrine, as it was not dictated by prior precedent and

certainly broke new jurisprudential ground.2° Analogous to

the facts of the present case, the contention of the hypotheti-

cal habeas petitioner would be that ineffective assistance of

counsel was rendered by the failure to object under Booth or

Gathers, which applied during the state sentencing phase.

Normally, under the Teague doctrine, a new rule is not retro-

actively applied on collateral review unless the rule falls

within one of two narrow exceptions. See note 10, supra.

However, in light of the subsequent holding in Payne, grant-

ing Sixth Amendment relief on habeas review on the basis of

Booth and Gathers would be nothing other than a constitu-

tional windfall. Simply put, in the absence of sa unfair or

unreliable proceeding, no showing of prejudice has been dem-

onstrated for purposes of the Sixth Amendment.?!

Realistically, because the new rule in Payne would not

benefit the typical habeas petitioner, it is unlikely that a

habeas petitioner would seek its application on collateral

review. But see Robison, 943 F.2d at 1217-18 (determining

whether Payne required reversal of prior federal appellate

court holding concerning admissibility of victim impact evi-

dence). However, under this scenario the habeas petitioner

who can present a Sixth Amendmert claim based upon the

rationale of the Eighth Circuit majority opinion would be

20 See, ¢.g., Saffle, 494 US. at 488 (The explicit overruling of an earlier

holding no doubt creates a new rule.”), Butler, 494 US. at 412 ("A new decision

that explicitly overrules an earlier holding obviously ‘breaks new ground’ or

‘umposes a new obligation.’ "), Teague, 489 U.S. at 301 (plurality opinion), see

also Robison v. Maynard, 943 F.2d 1216, 1217-18 (10th Cir. 1991) (suggesting, in

alternative holding, that Payne constitutes a “new rule” under the Teague doc-

trine).

21 See Kimmelman, 477 US. at 395 (Powell, J, concurring); see also

Washington, 952 F.2d at 1480-81 (on ineffectiveness claim for failure w object

under Booth, holding that even assuming arguendo that ( ) counsel should have

anticipated Booth, or (2) Booth was rewoactively applicable at the ume of tnal, no

prejudice could be demonstrated because Booth had subsequently been overruled

by Payne which would apply on resentencing).

rewarded with habeas relief.2? This scenario, similar to the

facts currently before the Court, demonstrates one of the rare

situations when the State should be able to rely on a new rule

in order to uphold the state court judgment as long as the

fundamental fairness of the proceeding is not put into ques-

tion. The costs to the criminal justice interests in finality and

comity cannot otherwise be justified.

2. Initial State Court Ruling Challenged As

Erroneous

Although these facts are not currently before the Court,

for the sake of completeness, we may consider the situation

where the state trial court erroneously permits the introduc-

tion of victim impact evidence or prosecutorial statements

over defense counsel's objection. It is clear under our hypo-

thetical that at the time of the state trial this ruling violated

Booth or Gathers. However, at the time of federal habeas

review, Payne had been rendered. In our hypothetical, there is

no dispute over the admissibility of the evidence as the

evidence is identical to that found admissible in Payne. The

State would seek to rely on the new rule in Payne to defend

the state court judgment. Only where the fundamental fairness

or reliability of the proceeding would be undermined by the

retroactive application should the State be barred from assert-

ing the new rule.??

22 A myriad of habeas claims might be asserted, including challenges to: (1)

the admission of evidence; (2) the trial court's jury instruction; (3) the statements

of the prosecutor, (4) the failure of defense counsel to object to the jury

instruction; or (5) the failure of defense counsel to object to the admission of

evidence.

23 Compare Bouie, 378 U.S. at 353-54 (retroactive application of new

precedent may not offend due process) and Marks v. United States, 430 US. 188,

196 (1977) (Due Process Clause precludes retroactive application of judicially

announced standards which may impose criminal liability for conduct not previ-

ously punishable) with Osborne v. Ohio, 495 U.S. 103, 116-17 (1990) (due

process not offended where there is fair notice that the conduct is criminal).

C. Scenario Three: On Sixth Amendment Ineffec-

tiveness Claim, Petitioner Benefits By “New

Rule” On Collateral Review But Not By Prece-

dent At The Time of the State Proceedings

Finally, assume that the holding in Payne applied at the time

of the state sentencing phase and permitted the introduction of

victim impact evidence. Our hypothetical counsel fails to object to

two separate pieces of victim impact evidence, one which meets

the Eighth Amendment admissibility standard under Payne, the

other violating the more stringent Due Process Clause standard

reiterated in Payne, 111 S.Ct. at 2608, 115 L.Ed.2d at 735. Then

assume, arguendo, that at the time of federal habeas review, the

Booth and Gathers decisions had been rendered, expressly overrul-

ing the Eighth Amendment rule of admissibility of Payne. The new

Booth and Gathers decisions would constitute a new rule within

the meaning of Teague, compare note 20, supra, and would not

apply retroactively on collateral review unless one of the two

Teague exceptions were satisfied. See note 10, supra.

Under this example, the habeas petitioner would seek the

benefit of the new rules under Booth and Gathers in an ineffective

assistance of counsel claim, relying upon the rationale of the

Eighth Circuit majority ruling. As to the evidence which would

have been admissible under Payne, no ineffective assistance of

counsel claim can be established since no lawyer could have

anticipated either Booth or Gathers and no prejudice could be

established. In contrast, an objection should have been raised to the

evidence which would have violated the long-standing due process

standard repeated in Payne. Under this latter situation, it would not

necessarily constitute a windfall to grant relief on Sixth Amend-

ment grounds as the fundamental fairness and reliability of the

State sentencing proceeding arguably may have been affected by

the introduction of the victim impact evidence in violation of the

Due Process Clause.?*

24 Alternatively, assume that the hypothetical defense counsel objected to

the introduction of both pieces of victim impact evidence at the sentencing

(Continued on following page)

D. Summary

- These three scenarios illuminate the potential impact of

the Eighth Circuit majority ruling on the principles underly-

ing the Teague doctrine and the prejudice component of

Strickland. In the limited circumstances noted, in order to

avoid a constitutional windfall, States should be permitted to

assert subsequent precedent on collateral review to uphold

presumptively valid state court judgments. Only where the

fundamental fairness of the state proceeding would be under-

mined by this retroactive application of precedent should the

State be precluded from asserting the subsequent precedent.

In assessing prejudice on a Sixth Amendment claim, the

fundamental fairness of the retroactive application of the

intervening precedent can be measured under the standard

proposed by Justice Powell. See Kimmelman, 477 U.S. at 396,

397 (Powell, J., concurring). Although the issue is not raised

in this case, it is worth noting the parallelism with the situa-

tion where a State would seek to rely upon new precedent

where an initial state court ruling is challenged. In this con-

text, the fundamental fairness of the retroactive application

(Continued from previous page)

hearing. At the time of the trial, the first evidence would be admissible under

Payne, while the second evidence would not be. Assume, then, that the state trial

court admits both pieces of evidence, overruling defense counsel's objection.

Before federal habeas review, Booth and Gathers are handed down.

On collateral review, the habeas petitioner might seek retroactive application

vf Booth and Gathers. In this situation, unless the petitioner could successfully

argue that one of the Teague exceptions would permit the retroactive application

of the new rule, neither Booth nor Gathers would be retroactively applied. This is

consistent with the retroactivity analysis adopted by this Court. If Booth and

Gathers had come down at any point during the direct review process, then the

hypothetical defendant would be able to obtain the benefit of these new rules. See

Griffith, 479 U.S. at 328. Because in the hypothetical example the new rules were

rendered after the conviction became final, the Teague doctrine advances the

interests in finality and comity by barring the retroactive application of the new

rules unless one of the two narrow exceptions applies. See Teague, 489 US. at

309-10 (noting finality and comity interests). Independent of requesting applica-

tion of the new rules, the habeas petitioner may challenge the propriety of the

State court ruling admitting evidence which violated the due process standard

reaffirmed in Payne.

would be governed by the due process standard. See Marks,

430 U.S. at 196; Bouie, 378 U.S. at 353-54; see also Hunt,

899 F.2d at 881. In both circumstances, where the fundamen-

tal fairness would not be implicated, the criminal justice

interests in finality and comity would be promoted by the

retroactive application.

Unless the States can assert the subsequent precedent in

this case and under similar circumstances, several conse-

quences will likely follow. First, neither the purpose of

habeas review nor of the Sixth Amendment will be advanced

and the presumptively valid state court convictions and sen-

tences will be upset. Arguably, the interests in finality and

comity under these circumstances is even more compelling

than that noted in Teague, since subsequent precedent has

established the legitimacy of the initial state court ruling or

conduct of counsel in question.

Second, the finality and comity interests underlying the

Teague doctrine will be undermined. Further, because of the

constitutional windfall at stake under the Eighth Circuit

majority opinion, habeas petitioners will have tremendous

incentives to dress up claims based on “old rules” in the

clothes of ineffective assistance of counsel claims in order to

obtain habeas relief.

Third, the Eighth Circuit majority ruling will also under-

mine the prejudice component of the Strickland standard. The

Eighth Circuit majority presumed that both prongs of the

Strickland test required a mechanical application and evalua-

tion of precedent prevailing at the time of the state trial. In a

footnote, the Eighth Circuit majority observed that the Eighth

Circuit’s Perry decision overruling Collins was not disposi-

tive since “the question before us is whether Fretwell’s [state]

trial court, at the time of his trial, would have followed

Collins.” Fretwell, 946 F.2d at 577 n.8 (emphasis in original).

The majority concluded “that a reasonable state trial court”

would have sustained a Collins objection if one had been

made since Collins constituted valid precedent at the time of

the trial and “state courts are bound by the Supremacy Clause

to obey federal constitutional law.” /d. at 577.

Instead, Strickland only teaches that hindsight and sec-

ond-guessing of counsel's performance must be eliminated in

assessing the performance component of Strickland. See

Strickland, 466 U.S. at 689. The Strickland standard does not

dictate — nor should it — such a constrained and rigid applica-

tion of the prejudice prong. Because “the ultimate focus of

inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged,” this Court rejected such a

mechanical approach. /d. at 696 (emphasis added).

As has been demonstrated, it is entirely consistent with

the principles of the Teague doctrine and the Sixth Amend-

ment to allow the State to seek application of what would

constitute a “new rule” in some habeas cases for purposes of

assessing prejudice under the Strickland standard. Both the

Powell-Kimmelman prejudice standard and the Teague doc-

trine seek to preclude a “constitutional windfall” which would

undermine the function of habeas review and disregard the

Criminal justice interests in finality and comity.

CONCLUSION

For the foregoing reasons, amici respectfully request that

the decision of the court below be reversed.

Dated: July 24, 1992

Respectfully submitted,

Danie. E. LUNGREN

Attorney General of California

GEORGE WILLIAMSON

Chief Assistant Attorney General

Warp A. CAMPBELL

Deputy Attorney General

*Mark L. Kroroski

Special Assistant Attorney General

1515 K Street, Suite 603

Sacramento, CA 95814

(916) 324-5497

Attorneys for Amici

*Counsel of Record

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