# Amicus Curiae Brief — Lockhart v. Fretwell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0247%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1993 - **Citation:** 506 U.S. 364 ## Text No. 91-1393 JuL 2.4 We In The Supreme Court of the United States October Term, 1992 . A.L. LOCKHART, Petitioner, V. 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? ii 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 iv 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 Vv 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 vi 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 : e 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 S 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 2 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). 3 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. 4 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 5 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 6 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. 7 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). © In fact, not only did the Eighth Circuit finally overrule Collins in Perry. 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) 9 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). 10 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) 12 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). 13 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). 14 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 ) 15 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. 16 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). 17 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.”). 18 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) 19 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. 20 (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) 21 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. 22 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 488 (In determining “what constitutes a new rule, [the] task is © determine 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) 23 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). 24 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. 25 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). 26 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). 27 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) 28 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. 29 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. 30 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0247%3A10. Public record. Not legal advice.