Amicus Curiae Brief — Schriro v. Summerlin

JAN 16 2904

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OFFICE OF THE CLE

er

No. 03-526

In the Supreme Court of the Gnited States

DoRA B. SCHRIRO, DIRECTOR,

ARIZONA DEPARTMENT OF CORRECTIONS, PETITIONER

WARREN WESLEY SUMMERLIN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Re cord

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor Ge nera /

JAMES A. FELDMAN

Assistant to the Solicitor

General

STEVEN L. LANE

Attorney

Depa riment of Justice

Washington, D C”. 20530-0001

202) 514-2217

a> ~~

BEST AVAILABLE COPY

sa FILED |

QUESTIONS PRESENTED

The Court granted certiorari limited to the following

questions:

1. Whether the rule announced by the Court in Ring v.

Arizona, 536 U.S. 584, 589 (2002), is substantive, rather than

procedural, and therefore exempt from the retroactivity

analysis of Teague v. Lane, 489 U.S. 288 (1989) (plurality

opinion).

2. Whether Ring applies retroactively to cases on collat-

eral review under Teague’s exception for watershed rules of

criminal procedure that alter bedrock procedural! principles

and seriously enhance the accuracy of the proceedings.

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

I. Ring did not announce a substantive rule for pur-

poses of Teague’s retroactivity analysis

A. Substantive rules that are applicable retro-

actively without regard to Teague are those

that alter the scope of criminal liability ..............

B. Ring did not alter the scope of criminal

VimbGRity FOr SAY CHEMO .....0.0.cececescecesessessscsseseseceseseses

1. Apprendi is not a “substantive” rule

under Bousley, and it is therefore sub-

ject to Teague retroactivity principles ........

2. Ring, as an application of Apprendi,

is also subject to Teague ..........cccccceseesesereeeevees

3. The limits on federal courts’ authority

support the application of Teague .................

C. The court of appeals’ bases for finding Ring

to be substantive are UNSOUNG ............ccsssereserees

II. Ring does not fall within Teague’s narrow

exception for “watershed” rules of criminal

Te

A. Infringement of the rule in Ring does not

seriously diminish the likelihood of obtain-

ing an accurate deterMination .............ssesererees

1. Ring was not based on the rationale that

jury findings are more accurate than

ID «ensitcssinceepeemmmmmnscsscsssscsnssees

2. Courts may make accurate factual

findings in capital cases, as in other

(IIT)

10

10

11

12

21

21

IV

Table of Contents—Continued: Page

B. Ring did not announce a “bedrock” or

“watershed” rule

1. Apprendi and Ring were refinements of

pre-existing principles 3

2. The court of appeals erred in concluding

that Ring errors are retroactively applic-

able becaue they are “structural” ..............+

3. The court of appeals’ other rationales are

mistaken 29

Conclusion 30

TABLE OF AUTHORITIES

Cases:

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

a 19

Apprendi v. New Jersey, 530 U.S. 466 (2000) ......... 4, 7, 12, 13,

19, 20, 25, 26

Arizona v. Fulminante, 499 U.S. 279 (1991) «0.0.0.0... 27

Bailey v. United States, 516 U.S. 137 (1995) 0.0... 10

Blanton v. City of North Las Vegas, 489 U.S.

SE CED cennezssssessssssecssreenamnnenesnemsemmenets 19

Bourjaily v. United States, 483 U.S. 171 (1987) .............. 22

Bousley v. United States, 523 U.S. 614 (1998) ........ 5, 7, 10, 16

Brandenburg v. Ohio, 395 U.S. 444 (1969) ........ccccccceeceeeees 17

Brecht v. Abrahamson, 507 U.S. 619 (1998) ..............00. 27

Butler v. McKellar, 494 U.S. 407 (1990) .........ccccccccceseeeeeeee 30

Cannon v. Mullin, 297 F.3d 989 (10th Cir. 2002) ............ 16

Caspari v. Bohlen, 510 U.S. 383 (1994) .........ccecssevees 21, 25, 30

Coleman v. United States, 329 F.3d 77 (2d Cir.),

cert. denied, 124 S. Ct. 840 (2008) .............cscesssssesseseesenees 14, 28

Colwell v. State, 59 P.3d 463 (Nev. 2002), cert. denied,

SOS. CR. GER GRIND cccneenmnemennsemnnnen 16

Curtis v. United States, 294 F.3d 841 (7th Cir.),

cert. denied, 537 U.S. 976 (2002) ..........cccceccssseresescseenenseeennes 14

oom oo ous o-<me

ee | ee ee ee es |

V

Cases—Continued: Page

Davis v. United States, 417 U.S. 333 (1974) 10

Dobbert v. Florida, 432 U.S. 282 (1977) 12

Duncan v. Lousiana, 391 U.S. 145 (1968) 22, 25

Enmund v. Florida, 458 U.S. 782 (1982) 17

Gideon v. Wainwright, 372 U.S. 335 (1963) 24

Gilmore v. Taylor, 508 U.S. 333 (1993) 30

Goeke v. Branch, 514 U.S. 115 (1995) 30

Goode v. United States, 305 F 3d 378 (6th Cir.),

cert. denied, 537 U.S. 1096 (2002) 14

Graham v. Collins, 506 U.S. 461 (1993) 21, 24, 30

Gray v. Netherland, 518 U.S. 152 (1996) 30

Harris v. Alabama, 513 U.S. 504 (1995) 22

Head v. Hill, 587 S.E.2d 613 (Ga. 2003) 16

Johnson v. United States, 520 U.S. 461 (1997) «2... 27

Jones v. United States, 526 U.S. 227 (1999) 13

Lambrix v. Singletary, 520 U.S. 518 (1997) 30

Mackey v. United States, 401 U.S. 667 (1971) .............. 20, 24

McCleskey v. Kemp, 481 U.S. 279 (1987) 22

McCoy v. United States, 266 F.3d 1245 (11th Cir.

2001), cert. denied, 536 U.S. 906 (2002) - 14

McNally v. United States, 483 U.S. 350 (1987) ................ 11

Mullaney v. Wilbur, 421 U.S. 684 (1975) 17, 25

Neder v. United States, 527 U.S. 1 (1999) .............. 9, 27, 28, 29

Nguyen v. United States, 123 S. Ct. 2130 (2003) .............. 29

Niz .. Williams, 467 U.S. 431 (1984) 22

Northern Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50 (1982) ...... 29

O'Dell v. Netherland, 521 U.S. 151 (1997) 30

Ornelas v. United States, 517 U.S. 690 (1996) ............. 22

Patterson v. New York, 432 U.S. 197 (1977) 25

Penry v. Lynaugh, 492 U.S. 302 (1989) 7,10

Proffitt v. Florida, 428 U.S. 242 (1976) 3

Ratzlaf v. United States, 510 U.S. 135 (1994) 20.0... ll

Ring v. Arizona:

534 U.S. 1103 (2002) 3

536 U.S. 584 (2002)

1, 4, 7, 8, 14-15, 16, 22

VI

Cases—Continued: Page

Saffle v. Parks, 494 U.S. 484 (1990) 17, 24, 30

Sawyer v. Smith, 497 U.S. 227 (1990) 5, 21, 25, 30

Sepulveda v. United States, 330 F.3d 55 (1st Cir.

2003) 14

Spaziano v. Florida, 468 U.S. 447 (1984) 22-23

State v. Jordan, 614 P.2d 825 (Ariz.), cert. denied,

449 U.S. 986 (1980) | 2, 26

State v. Lotter, 664 N.W.2d 892 (Neb. 2008) 2.0... 16

State v. Ring:

25 P.3d 1139 (Ariz. 2001) sneesdennmemmeemmmee 15

EL IID ecrnsnnnsernsieemmnnenmeeemeen 28

ee A NED crnemnenenneen 28

State v. Summerlin, 675 P.2d 686 (Ariz. 1983) ................. 3

State v. Towery, 64 P.3d 828 (Ariz. 2003), cert. dis-

ee, Ba Ge centernietertmmenneenenemnen 6, 16

State v. Whitfield, 107 S.W.3d 253 (Mo. 2003) ................ 16

Sullivan v. Louisiana, 508 U.S. 275 (1993) .............000+- 25, 27

Summerlin v. Stewart:

fe ES ee 3

be 4

ee ED ntniccctrcitnnenecniinmmmmmntinn 4

Teague Vv. Lane, 489 U.S. 288 (1989) ..........ccccssceseseeeseenees passim

Turner v. Crosby, 339 F.3d 1247 (11th Cir.

TET curninnsseneseesheserennneenntnienmnnmmenemeees 16

Tyler v. Cain, 533 U.S. 656 (2001) ........ccccccceseesesenenees 21, 24, 27

United States v. Anderson, 236 F 3d 427 (8th Cir.

2001), cert. denied, 534 U.S. 956 (2001) ......cccccccccceeeeeeeee 28

United States v. Brown, 305 F.3d 304 (5th Cir.

2002), cert. denied, 123 S. Ct. 1919 (20038) 0.0... .eececceseeeees 13-14

United States v. Canderlario, 240 F.3d 1300

(11th Cir.), cert. denied, 533 U.S. 922 (2001) .................... 28

United States v. Clinton, 256 F.3d 311 (5th Cir.),

cert. denied, 534 U.S. 1008 (2001) .........-ccscssssesesssenseereneees 28

'nited States v. Gaudin, 515 U.S. 506 (1995) .............. 22, 25

United States v. Mackins, 315 F.3d 399 (4th Cir.),

cert. denied, 123 S. Ct. 2099 (2008) .............eccceeseecsesenseenees 28

Vil

Cases—Continued: Page

United States v. Matthews, 312 F.3d 652 (5th Cir.

2002), cert. denied, 123 S. Ct. 1604 (2003) 28

United States v. Mora, 293 F.3d 1213 (10th Cir.),

cert. denied, 537 U.S. 961 (2002) 14

United States v. Moss, 252 F.3d 993 (8th Cir.

2001), cert. denied, 534 U.S. 1097 (2002) 14

United States v. Nance, 236 F.3d 820 (7th Cir.

2000), cert. denied, 534 U.S. 832 (2001) 28

United States v. Sanchez-Cervantes, 282 F.3d 664

(9th Cir.), cert. denied, 537 U.S. 939 (2002) - 14,28

United States v. Sanders, 247 F.3d 139 (4th Cir.),

cert. denied, 534 U.S. 1032 (2001) 14

United States v. Stewart, 306 F.3d 295 (6th Cir.

2002), cert. denied, 537 U.S. 1138 (2008) ..........cccccceceneees 28

United States v. Swinton, 333 F.3d 481 (3d Cir.),

cert. denied, 124 S. Ct. 458 (2003) 14

United States v. Terry, 240 F.3d 65 (1st Cir.),

cert. denied, 532 U.S. 1023 (2001) _ 28

United States v. White, 240 F.3d 127 (2d Cir.

2001), cert. denied, 124 S. Ct. 157 (2003) _ _ 28

Walton v. Arizona, 497 U.S. 639 (1990) ..........ccccseeceeeeseees 14

Williams v. Florida, 399 U.S. 78 (1970) ... 8, 22

Winship, In re, 397 U.S. 358 (1970) : ; 26

Constitution, statutes and rule:

U.S. Const.:

TET ccaissncriatictnenniannssatianieniibigebessiameipiaaspiaebeniinneenetiininn 17

Amend. IV - 22

Amend. V (Due Process Clause) ............00000 — 25

Amend. VI . 3, 4, 6, 8, 14, 17, 21, 25, 30

Amend. VIII 7 17

Amend. XIV 17

Federal Death Penalty Act of 1994, 18 U.S.C. 3591

et seq.:

18 U.S.C. 3593(D)-(€) .......0e000+ oie 1

VII

Statutes and rule—Continued:

BD EAE, SCR IO ccccscscnssccnesssnsnssenscsssssencsmsecezezscssssesses

BD EB TDD cccnsensesussassssnssssesescsvesccnscssnsnssnsesnssssensensesenssssneansess

Ariz. Rev. Stat. Ann. § 13-703 (West 1978) ..........cccccssseeeeeee

a CT Oe

Miscellaneous:

2 Joseph Story, Commentaries on the Constitution

of the United States (4th ed. 1878) .......cccscssssesesesseseseseneseees

In the Supreme Court of the Gnited States

No. 03-526

DORA B. SCHRIRO, DIRECTOR,

ARIZONA DEPARTMENT OF CORRECTIONS, PETITIONER

Vv.

WARREN WESLEY SUMMERLIN

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The issue in this case is whether the rule of Ring v. Ari-

zona, 536 U.S. 584, 589 (2002), is retroactively applicable on

collateral review of capital sentences. The specific new rule

announced in Ring—that aggravating circumstances that

make a defendant eligible for the death penalty must, under

the Sixth Amendment, be found by a jury—has little direct

effect on federal capital practice. At the time of Ring, the

Federal Death Penalty Act already required that juries find

those aggravating circumstances. See 18 U.S.C. 3593(b)-(c).

The questions presented in this case, however, require the

Court to consider more generally the standards governing

the availability of new rules in collateral attacks on convic-

tions and sentences. The United States thus has a substan-

tial interest in this case.

(1)

2

STATEMENT

1. On the morning of April 29, 1981, Brenna Bailey, an

account investigator for Finance America, left her office to

visit respondent’s home to speak with respondent’s wife

about an overdue account. She did not, however, return as

scheduled, and her disappearance was reported to the police.

Later that evening, police received a tip trom a female caller,

later identified as respondent’s mother-in-law, who stated

that respondent had murdered the missing woman from

“Pacific Finance,” rolled up her body in a carpet, and placed

it in the trunk of a car. Pet. App. C2. Early the following

morning, Bailey’s car was found in a parking lot located ap-

proximately one mile from respondent’s home. /bid. A pair

of panties, pantyhose, and shoes were located on the floor of

the car’s back seat. Jd. at A4. Bailey’s partially-nude body

was found in the trunk, alongside a bloody bedspread. Her

skull had been crushed. /d. at C2.

Police executed a warrant to search respondent’s home,

where they found numerous incriminating items. Respon-

dent was arrested after he made incriminating statements

and his wife identified the bloody bedspread found with

Bailey’s body as having come from their household. Respon-

dent made additional incriminating statements at the police

station. Pet. App. A4.

2. In 1982, following a jury trial in the Superior Court of

Maricopa County, Arizona, respondent was found guilty of

first degree murder and sexual assault. Pet. App. C3. State

law required the trial judge, sitting alone, to determine the

presence or absence, under the reasonable-doubt standard,

of aggravating circumstances necessary to impose the death

penalty and to weigh those circumstances against any miti-

gating circumstances calling for leniency. Ariz. Rev. Stat.

Ann. § 13-703 (West 1978); State v. Jordan, 614 P.2d 825, 828

(Ariz.), cert. denied, 449 U.S. 986 (1980). The court found

two aggravating circumstances that rendered respondent

meme

3

eligible for a death sentence: (1) respondent had a prior

felony conviction involving the use or threatened use of

violence against another person; and (2) respondent

committed the murder under especially cruel, heinous, or

depraved circumstances by crushing Bailey’s skull after

raping her and by causing her mental terror. Pet. 3. After

finding no mitigating circumstances calling for leniency, the

court sentenced respondent to death for the murder and to

28 years of imprisonment for the assault. Pet. App. A13, C3.

3. The Arizona Supreme Court affirmed. State v. Sum-

merlin, 675 P.2d 686 (1983). On direct appeal, petitioner ar-

gued, inter alia, that Arizona’s death penalty statute vio-

lated the Sixth Amendment jury trial guarantee because it

required the trial judge to determine the circumstances nec-

essary for imposition of the death penalty. Relying on Prof-

fitt v. Florida, 428 U.S. 242 (1976), the Arizona Supreme

Court rejected that argument. Swmmerlin, 675 P.2d at 695.

4. In 1986, respondent filed a petition for federal habeas

corpus relief in the United States District Court for the Dis-

trict of Arizona. The court stayed proceedings to allow peti-

tioner to exhaust his claims in state court. Pet. App. C3.

Over the next decade, respondent filed several petitions for

postconviction relief in the Arizona courts, all of which were

denied. After lifting the stay, the district court denied re-

spondent’s federal habeas petition. Jd. at C4. The court re-

jected petitioner’s argument that “the Sixth, Eight(h], and

Fourteenth Amendments require a jury determination of

[the] aggravating factors” supporting his death sentence,

because “(t]he United States Supreme Court rejected this

same argument in Walton v. Arizona, 497 U.S. 639, 647-649

(1990).” Id. at C23-C24 (citation omitted).

5. A divided panel of the Ninth Circuit affirmed in part,

reversed in part, and remanded. Summerlin v. Stewart, 267

F.3d 926 (2001). The panel withdrew its opinion, however,

after this Court granted the petition for a writ of certiorari

in Ring v. Arizona, 534 U.S. 1103 (2002), to consider whether

4

Walton should be overruled. Summerlin v. Stewart, 281

F.3d 836 (9th Cir.-2002)

6. In Ring v. Arizona, 536 U.S. 584, 609 (2002), this

Court overruled Walton in part and held that the aggra-

vating circumstances that make a defendant eligible for the

death penalty under Arizona law “operate as ‘the functional

equivalent of an element of a greater offense,” which, under

the Sixth Amendment, must be found by a jury. Thereafter,

the court of appeals granted respondent a stay to allow him

to move the Arizona Supreme Court to recall the mandate in

his direct appeal and consider Ring’s retroactive application

to his conviction. Pet. App. Al5. After the Arizona Supreme

Court denied the motion, the Ninth Circuit voted to rehear

respondent’s case en banc. Summerlin v. Stewart, 310 F.3d

1221 (2002).

a. In an 8-3 decision, the en banc panel reversed the dis-

trict court’s order denying respondent habeas corpus relief

with respect to his sentence. Pet. App. Al-A64. After

rejecting respondent’s claim that his lawyer rendered consti-

tutionally ineffective assistance during the guilt phase of the

trial, id. at Al7-A22, the court concluded that Ring applies

retroactively to cases on collateral review and requires that

respondent’s death sentence be vacated. Jd. at A2. The ma-

jority held that the presumption under Teague v. Lane, 489

U.S. 288 (1989), against the retroactive application of new

rules of constitutional procedure to cases on collateral re-

view did not bar respondent’s claim, because Ring was not a

procedural rule. Pet. App. A28-A42. In that respect, the

court distinguished the rule of Apprendi v. New Jersey, 530

U.S. 466 (2000), which it agreed was not retroactive. Id. at

A40-A41. The court concluded that Ring worked a “restruc-

turing of Arizona murder law” and a “redefinition of the

separate crime of capital murder.” Jd. at A42. For that rea-

son, the court concluded that the rule announced in Ring “is

necessarily a ‘substantive’ rule” whose application on collat-

EE - ee <eee

5

eral review is not barred by Teague. Ibid. (citing Bousley v.

United States, 523 U.S. 614, 620 (1998)).

Alternatively, the majority held that insofar as the new

rule announced by Ring is a procedural rule, it falls within

Teague’s exception for “watershed rules” that “seriously en-

hance the accuracy of the proceeding” and “alter our under-

standing of bedrock procedural elements essential to the

fairness of the proceeding.” Pet. App. A44 (citing Sawyer v.

Smith, 497 U.S. 227, 242 (1990)). The court stated that

“there is little doubt that the rule announced in Ring will

significantly improve the accuracy of capital trials in Ari-

zona,” id. at A54, because, in the court’s view, penalty-phase

presentations to judges may be “extremely truncated af-

fairs,” id. at A46; judges are exposed to “inadmissible evi-

dence,” ibid.; judges may confront a number of death penalty

cases and are “less likely” than juries “to reflect the current

conscience of the community and more likely to consider im-

posing a death penalty as just another criminal sentence,” id.

at A52; and “[jjudges who face election [like those in Ari-

zona] are far more likely to impose the death penalty than

* * * juries,” id. at A52-A53. The court then asserted that

Ring “establishes bedrock procedural requirements that

affect the structure of every penalty-phase hearing in a

capital case.” Jd. at A62. A “critical consideration,” id. at

A60, for the court was its view that errors under Ring are

“structural” errors that are not subject to harmless-error

review. See id. at A55-A60. The court concluded that its

position that Ring is “bedrock” is consistent with the

position that it had previously taken that Apprendi is not.

See id. at A63.

b. Judge Rawlinson, joined by Judges O’Scannlain and

Tallman, dissented. Pet. App. A69-A83. Judge Rawlinson

explained that Ring did not announce a new “rule of sub-

stance.” Jd. at A71. If it had, she added, “Apprendi [also]

would have been a substantive rather than a procedurai

ruling,” because “the ‘hate crime’ aggravator in Apprendi

6

operated in the same manner as the death penalty factors in

Walton to establish a ‘greater offense.’” Jd. at A72. Judge

Rawlinson noted that Ring “affected neither the facts

necessary to establish Arizona’s aggravating factors nor the

state’s burden to establish the factors beyond a reasonable

doubt.” Jd. at A75. Instead, Ring merely “altered who

decides whether any aggravating circumstances exist,

thereby altering the fact-finding procedures used in capital

sentencing hearings.” Jbid. (quoting State v. Towery, 64 P.3d

828, 833 (Ariz. 2003)).

Judge Rawlinson also concluded that the rule adopted by

the Court in Ring is not a watershed procedural rule subject

to retroactive application under Teague. Pet. App. A77-A83.

She disputed the majority’s “facile conclusion that transfer

of capital sentencing responsibility to a jury will enhance the

accuracy of the process,” id. at A80, citing studies suggesting

that many jurors make up their minds about punishment

before the penalty phase, often basing their decision on

factors such as the quantum of proof of guilt, sympathy and

pity, and race. Jd. at A79-A80. Judge Rawlinson concluded

that because “the jury is still out on the question of whether

the decision in Ring enhances the accuracy of the capital

sentencing process,” the second Teague exception did not

apply. Jd. at A82.

Judge Rawlinson also disagreed with the majority’s con-

clusion that Ring alters our understanding of bedrock pro-

cedural principles. Pet. App. A82-A83. She explained that,

by expressly declining in Ring to reach the State’s assertion

that any Sixth Amendment error was harmless, this Court

“strongly implied, if not outright held, that harmless error

analysis is * * * applicable to any imposition of the death

penalty by a judge rather than a jury.” Jd. at A73; see also

id. at A82.

—

7

SUMMARY OF ARGUMENT

Under the analysis in Teague v. Lane, 489 U.S. 288 (1989),

subject to narrow exceptions, “new constitutional rules of

criminal procedure will not be applicable to those cases

which have become final before the new rules are an-

nounced.” Jd. at 310 (plurality opinion); Penry v. Lynaugh,

492 U.S. 302, 313-314 (1989) (adopting Teague plurality’s

approach to retroactivity). The rule that this Court an-

nounced in Ring v. Arizona, 536 U.S. 584 (2002), falls

squarely within that principle and is not available to respon-

dent on his collateral attack on his criminal conviction. Nei-

ther of the court of appeals’ reasons for refusing to apply

Teague’s bar on retroactive application of new rules—that

Ring announced a “substantive” rule and that its rule is a

“bedrock” principle of our system of justice—is correct.

I. The court of appeals mistakenly held that Teague does

not apply, on the theory that the Ring rule is a substantive,

not a procedural, rule under Bousley v. United States, 523

U.S. 614, 620 (1998). Bowsley held that decisions of this

Court narrowing the scope of federal criminal statutes are

substantive, not procedural, rules that are not subject to

Teague. Such decisions are retroactively applicable because

they raise the risk that a defendant has been convicted for

committing an act that the law in fact does not make crimi-

nal.

This Court’s decision in Ring, like the decision in Ap-

prendi v. New Jersey, 530 U.S. 466 (2000), before it, does not

present the risk that underlay the Bowsley principle of ret-

roactive application of substantive rules. The question of

what facts must be proved in order to impose a particular

punishment, as in Bousley, is a substantive one, but the

question of who must be the decisionmaker on a particular

fact, or how that decisionmaker should go about deciding the

fact, presents a quintessentially procedural issue. Both

Apprendi and Ring concern the latter question; both address

8

the question of “‘who decides,’ judge or jury,” about the

existence of certain facts. Ring, 536 U.S. at 605. Indeed,

because federal courts do not have the authority to reach

authoritative interpretations of the substance of state crimi-

nal prohibitions, federal court decisions in state criminal

cases are never “substantive” decisions that defy Teague

analysis entirely.

Il. Under Teague, new rules of constitutional criminal

procedure are not retroactively applicable to cases on collat-

eral review unless they satisfy one of two narrow exceptions.

First, a new rule is retroactively applicable if it places cer-

tain primary conduct beyond the reach of the State to prose-

cute or represents a categorical prohibition against imposi-

tion of a particular punishment. Ring does not satisfy that

standard. Second, a new rule is retroactively applicable if it

is a “watershed rule[] of criminal procedure” that is “central

to an accurate determination of innocence or guilt.” Teague,

489 U.S. at 311, 313. The court of appeals erred in holding

that Ring announced such a rule.

A. The rule in Ring is not “central to an accurate deter-

mination of innocence or guilt,” since it has long been recog-

nized that accurate findings may be made by judge or jury:

Instead, the rationale of Ring rests on the need under the

Sixth Amendment for “the interposition between the ac-

cused and his accuser of the commonsense judgment of a

group of laymen.” Williams v. Florida, 399 U.S. 78, 100

(1970). That rationale, although important, is not based on

the relative accuracy of findings by a judge or jury. More-

over, contrary to the court of appeals’ conclusion, the fact

that this is a capital proceeding does not alter that result.

This Court has long recognized that the ultimate sentencing

decision in capital cases may be entrusted solely to the

judge. Given that judges may be entrusted with that

determination, and with accurately assessing the facts

necessary to that determination, it follows a fortiori that

judges are capable of making the more modest factual

9

determination under Ring of whether the defendant’s crime

was accompanied by a statutory aggravating factor.

B. In any event, the rule in Ring was an application of

Apprendi. The principle that a defendant has the right to a

trial by jury on every essential element of the offense was

established long before Apprendi or Ring. Apprendi was es-

sentially a line-drawing decision that developed the standard

for determining how to distinguish between facts that must

be submitted to a jury and facts that may be decided by the

judge. Ring, in turn, simply applied Apprendi to Arizona’s

capital sentencing procedure. Ring and Apprendi are ac-

cordingly refinements of long-settled legal principles. Al-

though such refinements may be important, they do not alter

our understanding of the “bedrock procedural elements” that

are essential to a fair trial.

The court of appeals’ primary support for its conclusion

that Ring announced a “watershed” rule was its view that

Ring error is “structural” because it is not subject to harm-

less-error review. The fact that an error is “structural” in

that sense, however, does not mean that it is “watershed”

under the second Teague exception. An error can be both

significant and its effect difficult or impossible to determine

without leading to the conclusion that the legal rule violated

was of “bedrock” proportions. In any event, a Ring error,

like an Apprendi error, is not “structural.” Such an error

consists merely in the failure to submit a single factual issue

to the jury for determination. This Court’s cases establish

that a failure to submit a single element of an offense to a

jury is subject to harmless-error review. Neder v. United

States, 527 U.S. 1 (1999). Accordingly, the court of appeals’

conclusion that Ring error is structural—along with its ac-

companying conclusion that such an error is “watershed”

under Teague’s second exception—is mistaken.

10

ARGUMENT

I. RING DID NOT ANNOUNCE A SUBSTANTIVE

RULE FOR PURPOSES OF TEAGUE’S RETRO-

ACTIVITY ANALYSIS

A. Substantive Rules That Are Applicable Retroac-

tively Without Regard To Teague Are Those That

Alter The Scope Of Criminal Liability

1. Under Teague v. Lane, 489 U.S. 288 (1989), “new con-

stitutional rules of criminal procedure will not be applicable

to those cases which have become final before the new rules

are announced.” Jd. at 310 (plurality opinion); Penry v. Ly-

naugh, 492 U.S. 302, 313-314 (1989) (adopting Teague plural-

ity’s approach to retroactivity). In Bousley v. United States,

523 U.S. 614 (1998), this Court held that “because Teague by

its terms applies only to procedural rules, we think it is in-

applicable to the situation in which this Court decides the

meaning of a criminal statute enacted by Congress.” Jd. at

620. Accordingly, non-procedural decisions under Bousley

may be applied retroactively, notwithstanding Teague.

The issue in Bousley was whether Bailey v. United States,

516 U.S. 137 (1995), which had held that “use” of a firearm

under 18 U.S.C. 924(c)(1) (1994), required active employment

as opposed to mere possession, was retroactively applicable

on collateral review. The Court reasoned that Bailey, by

narrowing the meaning of the term “use,” created “a signifi-

cant risk that a defendant stands convicted of ‘an act that the

law does not make criminal.’” 523 U.S. at 620 (quoting Davis

v. United States, 417 U.S. 333, 346 (1974)). For that reason,

the Court concluded that it would be “inconsistent with the

doctrinal underpinnings of habeas review,” id. at 621, to bar

collateral relief based on a decision like Bailey—i.e., a hold-

ing that “a substantive federal criminal statute does not

reach certain conduct.” /d. at 620.

1]

2. The risk that a person’s conviction of an offense rests

on a finding that he has committed an act that does not con-

stitute that offense is present when an authoritative decision

has narrowed the substantive scope of criminal liability.

Bailey, for example, narrowed the scope of liability because,

after Bailey, a defendant’s mere possession of a gun during

and in relation to a drug trafficking offense was not a viola-

tion of the statute. In such an instance, the conclusion of the

finder of fact and the original reviewing courts that the de-

fendant’s conduct was subject to the criminal prohibition

enacted by the legislature is no longer trustworthy, because

those entities were all acting under a mistaken view of the

scope of criminal liability. Accordingly, the Bousley prin-

ciple applies to permit retroactive application of decisions

like Bailey, which narrowed the understanding of what con-

duct is punishable under the criminal law. See, e.g., Ratzlaf

v. United States, 510 U.S. 135 (1994) (narrowing scope of

“willfulness” element of 31 U.S.C. 5322); McNally v. United

States, 483 U.S. 350 (1987) (narrowing scope of “scheme or

artifice to defraud” element of 18 U.S.C. 1341).

By contrast, the risk that a person’s conviction of an of-

fense rests on commission of an act that does not constitute

that offense does not arise when a later decision merely

clarifies procedural rights. In that instance, the later

judicial decision has no effect on the criminality of the con-

duct that the defendant was found to have engaged in.

Therefore, Teague—and not Bousley—continues to prohibit

(subject to narrow exceptions) retroactive application of this

Court’s numerous procedural decisions, which do not alter

the scope of criminal liability.

B. Ring Did Not Alter The Scope Of Criminal Liability

For Any Crime

With respect to the specific rule at issue in this case, it is

clear that Ring, like Apprendi before it, did not alter the

substantive scope of criminal liability under applicable state

12

law. Ring is therefore a procedural rule subject to Teague.

Both before and after Ring, a defendant who committed

murder with at least one aggravating circumstance was sub-

ject to the possibility that he would be sentenced to death

under Arizona law. Cf. Dobbert v. Florida, 432 U.S. 282

(1977) (post-offense death penalty statute providing for in-

creased procedural protections may be applied to earlier

committed offense). Like Apprendi, Ring merely answered

the question of who—judge or jury—was to decide the fac-

tual question of whether such an aggravating circumstance

was present. Because Ring did not alter the substantive law

governing capital murder in Arizona, but merely placed a

constitutional constraint on the identity of the decisionmaker

for one element of that offense, Ring, like Apprendi, is a

quintessentially procedural rule subject to Teague retroac-

tivity principles.

1. Apprendi is not a “substantive” rule under Bousley,

and it is therefore subject to Teague retroactivity principles.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), this Court

held that, “[o}ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Jd. at 490. The defendant in

Apprendi had been convicted of unlawful possession of a

firearm under a New Jersey statute that set a maximum

punishment of imprisonment for ten years. A judge, how-

ever, had also found that the defendant was eligible under a

“hate crime” law for an additional term of imprisonment of

ten years because he had acted with a purpose to intimidate

an individual because of race. This Court reasoned that the

“hate crime” provision increased the statutory maximum

sentence that could be imposed on the defendant based on a

legislatively specified fact—the defendant’s purpose to in-

timidate because of race. Accordingly, the Court ruled that

the increased sentence could not be imposed unless the de-

Ly lt lt lle yl, ——— ee

13

fendant’s purpose to intimidate was submitted to a jury and

proved beyond a reasonable doubt.

a. Because the issue in Apprendi was “the adequacy of

New Jersey’s procedure,” 530 U.S. at 475 (emphasis added),

the Apprendi rule is not a substantive rule under Teague.

Apprendi did not address whether or how severely a State

could or did punish unlawful possession of a firearm accom-

panied by a purpose to intimidate because of race. Both be-

fore and after Apprendi, the State of New Jersey remained

free to subject a defendant who so possessed a firearm to an

enhanced sentence. Apprendi simply held that, if New Jer-

sey wants to hinge enhanced statutory maximum penalties

on a particular fact, it must do so in accordance with proce-

dures that allow the defendant the opportunity to have the

fact proved to a jury beyond a reasonable doubt.

Apprendi therefore announced a procedural, not a sub-

stantive, rule. Cf. Jones v. United States, 526 U.S. 227, 243

n.6 (1999) (explaining that “(t]he constitutional safeguards

that figure in our analysis concern not the identity of the

elements defining criminal liability but only the required

procedures for finding the facts that determine the maxi-

mum permissible punishment”). It follows under Teague

that, unless the Apprendi rule falls within one of Teague’s

exceptions, it may not be applied retroactively to cases on

collateral review.

b. All of the federal courts of appeals that have consid-

ered the issue—including the Ninth Circuit—have held that

the Apprendi rule is a procedural rule for purposes of

Teague retroactivity analysis. As the Fifth Circuit explained

in considering the application of Apprendi to federal drug

offenses, Apprendi “did not change what the government

must prove [to establish a drug offense under 21 U.S.C.

841(a)], only that the jury, rather than the judge must decide

the question of drug quantity.” United States v. Brown, 305

14

F.3d 304, 309 (5th Cir. 2002), cert. denied, 123 S. Ct. 1919

(2003).’

2. Ring, as an application of Apprendi, is also subject to

Teague. In Ring, the Court applied the Sixth Amendment

component of the procedural rule announced in Apprendi to

Arizona’s capital sentencing scheme, in which, “following a

jury adjudication of a defendant’s guilt of first-degree mur-

der, the trial judge, sitting alone, determine[d] the presence

or absence of the aggravating factors required by Arizona

law for imposition of the death penalty.” 536 U.S. at 588.

The Court observed in Ring that, in Walton v. Arizona, 497

U.S. 639, 649 (1990), it had upheld “Arizona’s sentencing

scheme” as “compatible with the Sixth Amendment because

the additional] facts found by the judge qualified as sentenc-

ing considerations, not as ‘element([s] of the offense of capital

murder.’” 536 U.S. at 588 (quoting Walton, 497 U.S. at 649).

The Court noted, however, that under Arizona law as

announced by the Arizona Supreme Court, “‘{a] defendant

convicted of first-degree murder in Arizona cannot receive a

death sentence unless a judge makes the factual determina-

tion that a statutory aggravating factor exists.’” 536 U.S. at

! See Curtis v. United States, 294 F.3d 841, 843 (7th Cir.) (“Apprendi

does not alter which facts have what legal significance, let alone suggest

that conspiring to distribute [drugs] is no longer a federal crime unless the

jury finds that some particular quantity has been sold.”), cert. denied, 537

U.S. 976 (2002); see also, e.g., United States v. Swinton, 333 F.3d 481, 488-

489 (3d Cir.), cert. denied, 124 S. Ct. 458 (2003); Sepulveda v. United

States, 330 F.3d 55, 62 (1st Cir. 2003); Coleman v. United States, 329 F.3d

77, 83-84 (2d Cir.), cert. denied, 124 S. Ct. 840 (2003); Goode v. United

States, 305 F.3d 378 (6th Cir.), cert. denied, 537 U.S. 1096 (2002); United

States v. Mora, 293 F.3d 1213, 1218-1219 (10th Cir.), cert. denied, 537 U.S.

961 (2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th

Cir.), cert. denied, 537 U.S. 939 (2002); McCoy v. United States, 266 F 3d

1245, 1256 (11th Cir. 2001), cert. denied, 536 U.S. 906 (2002); United States

v. Moss, 252 F.3d 993, 997-998 (8th Cir. 2001), cert. denied, 534 U.S. 1097

(2002); United States v. Sanders, 247 F 2d 139, 147 (4th Cir.), cert. denied,

534 U.S. 1032 (2001).

it ee ge i A me —— me

—————— eS

15

596 (quoting State v. Ring, 25 P.3d 1139, 1151 (Ariz. 2001)).

Because the Arizona statute required the trial! court to find

facts necessary to increase the defendant’s sentence from a

term of imprisonment to the death penalty, the Court held

that “Walton, in relevant part, cannot survive the reasoning

of Apprendi.” Id. at 603.

Ring thus simply applied the procedural rule announced in

Apprendi to the particular circumstances of the Arizona sen-

tencing scheme. Just as in Apprendi the Court did not alter

whether or how severely the State could punish gun posses-

sion accompanied by the specified intent to intimidate, the

Court in Ring did not alter whether or how severely the

State of Arizona could punish murder accompanied by the

specified aggravating circumstances. Both before and after

Ring, the State of Arizona remained free to determine that

individuals who commit murder accompanied by an aggra-

vating circumstance may receive the death penalty. The

Court in Ring simply held that, if Arizona wants to hinge

eligibility for the death penalty on the presence of particular

aggravating circumstances, it must permit the defendant the

opportunity to have the question of whether those circum-

stances exist decided by the jury, rather than the judge. As

the Court explained, “[cJapital defendants, no less than non-

capital defendants, * * * are entitled to a jury determina-

tion of any fact on which the legislature conditions an in-

crease in their maximum punishment.” 536 U.S. at 589.

The Court itself described the question before it in Ring

as “‘who decides,’ judge or jury.” 536 U.S. at 605; see also

id. at 597 (“The question presented is whether [an]

aggravating factor may be found by the judge, as Arizona

law specifies, or whether the Sixth Amendment’s jury trial

guarantee * * * requires that the aggravating factor

determination be entrusted to the jury.”). That is a pro-

cedural question, and the Teague bar on retroactive appli-

16

cation of new procedural rvles accordingly applies to the rule

announced in Ring.”

3. The limits on federal courts’ authority support the ap-

plication of Teague. Indeed, the fact that Ring is a proce-

dural rule subject to Teague follows from the fact that it is a

federal decision in a state criminal case. In Bousley itself,

this Court described the decisions that apply retroactively

notwithstanding Teague as decisions “in which this Court

decides the meaning of a criminal statute enacted by Con-

gress” or a decision that “a substantive federal criminal stat-

ute does not reach certain conduct.” 523 U.S. at 620 (empha-

sis added). That limitation of the Bousley principle to cases

narrowing the scope of federal criminal statutes is appropri-

ate, because federal courts exercise distinctly different

authority in federal and state criminal cases.

In federal criminal cases, federal courts have the authority

to construe the substantive reach of federal criminal stat-

utes. They occasionally reach decisions that narrow the

scope of criminal liability under such statutes, as this Court

did in Bailey. Bousley established that such decisions are

“substantive” and not subject to Teague analysis.

Federal courts have entirely different authority in re-

viewing state criminal laws. This Court (like other federal

courts) lacks the authority to make substantive changes to

state law or to reject an authoritative interpretation of a

state criminal statute. See Ring, 536 U.S. at 603 (“This

2 The courts of appeals for the Tenth and Eleventh Circuits and the

highest courts of several States have all concluded that Ring announced a

procedural rule, rather than a substantive rule, for purposes of Teague.

Turner v. Crosby, 339 F.3d 1247, 1283-1284 (11th Cir 2003); Cannon v.

Mullin, 297 F.3d 989, 993 (10th Cir. 2002); State v. Lotter, 664 N.W. 2d 892,

908 (Neb. 2003); Head v. Hill, 587 S.E.2d 613, 619 (Ga. 2003); State v.

Towery, 64 P.3d 828 (Ariz.), cert. dismissed, 124 S. Ct. 44 (2003); Colwell v.

State, 59 P.3d 463, 470-473 (Nev. 2002), cert. denied, 124 S. Ct. 462 (2003);

see also State v. Whitfield, 107 S.W.3d 253, 268-270 (Mo. 2003) (suggesting

that Ring announced a procedural rule, but declining to adopt Teague

framework and electing to apply Ring retroactively).

17

Court * * * repeatedly has held that state courts are the

ultimate expositors of state law.”) (quoting Mullaney v.

Wilbur, 421 U.S. 684, 691 (1975)). Federal courts may of

course invalidate state criminal laws where those laws run

afoul of the Constitution. But state criminal laws ordinarily

are found to violate the Constitution because they violate

one of the procedural requirements of the Constitution—for

example, the procedural right to a jury trial embodied in the

Sixth Amendment (as made applicable to the States through

the Fourteenth Amendment) that is at issue in this case.

Decisions holding state criminal laws invalid accordingly are

procedural and not substantive, and their retroactivity is

governed by Teague.

There are some constitutional limitations applicable to

state criminal cases that govern the nature of conduct that

may be made criminal or that may be subject to certain pun-

ishment, such as those in the First Amendment, e.g., Bran-

denburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam), or the

Eighth Amendment, e.g., Enmund v. Florida, 458 U.S. 782

(1982). Those limitations were not at issue in Ring. But

when those limitations are applied in state criminal cases,

the result is still not a “substantive” decision under Bousley.

Instead, the result is a decision placing “certain kinds of pri-

mary, private individual conduct beyond the power of the

criminal law-making authority to proscribe,” Teague, 489

U.S. at 311 or “address[ing] a substantive categorical guar-

ante[e] accorded by the Constitution, such as a rule prohib-

iting a certain category of punishment for a class of defen-

dants because of their status or offense,” Saffle v. Parks, 494

U.S. 484, 494 (1990) (citation and internal quotation marks

omitted). The retroactivity of such decisions is determined

under the first Teague exception. Accordingly, the category

of “substantive” decisions not subject to Teague at all is lim-

ited to federal court decisions narrowing the scope of federal

criminal statutes. Ring involved a state criminal statute,

18

and its retroactivity accordingly must be analyzed under

Teague.

C. The Court Of Appeals’ Bases For Finding Ring To Be

Substantive Are Unsound

The court of appeals conceded that “[iJn one sense,

Ring—like Apprendi—announced a procedural rule: Ring

mandated that a jury, rather than a judge, must find aggra-

vating circumstances in a capital case.” Pet. App. A31. The

court noted that “Ring’s holding thus addressed, at least in

part, the procedure by which any capital trial must be con-

ducted.” Jbid. Thus far, the court of appeals was correct.

The court went on, however, to hold that Ring nevertheless

announced a substantive rule. None of the court’s reasons

for reaching that further conclusion is sound.

1. The court of appeals believed that Ring was “[mJore

than a procedural holding” because it “effected a redefinition

of Arizona capital murder law, restoring, as a matter of sub-

stantive law, an earlier Arizona legal paradigm in which

murder and capital murder are separate substantive offenses

with different essential elements and different forms of po-

tential punishment.” Pet. App. A32.° That is mistaken. This

Court did not—and, indeed, had no authority to—“redefin[e]

Arizona capital murder law” in Ring. The Court in Ring in-

stead held unconstitutional the assignment, under Arizona’s

then-current capital murder sentencing scheme, of the task

of determining whether an aggravating circumstance was

present to the judge, rather than the jury. After Ring, Ari-

zona remained free to impose the death penalty on the same

substantive basis as before—i.e., where, as a necessary pre-

3 See also Pet. App. A37 (“{WJhen Ring overruled Walton,

* * ™ it necessarily altered both the substance of the offense of capital

murder in Arizona and the substance of Arizona murder law more

generally.”); id. at A40 (Ring “restructured Arizona law and it redefined,

as a substantive matter, how that law operates.”).

——_—— ttt tl

19

condition, the murder was accompanied by an aggravating

circumstance.

2. The court of appeals also believed that Ring an-

nounced a substantive rule because Ring involved a “deter-

mination of the meaning of a criminal statute” and it “ad-

dress[ed] the criminal significance of certain facts.” Pet.

App. A40 (internal quotation marks omitted). Procedural

rights, in criminal law as elsewhere, may frequently turn on

the nature or provisions of the substantive law at issue in a

case, and the adjudication of procedural rights accordingly

may depend on a construction of the civil or criminal statute.

See, e.g., Blanton v. City of North Las Vegas, 489 U.S. 538,

542-543 (1989) (right to jury trial only for “serious” offenses);

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 60

(1999) (procedural due process rights depend on existence of

property interest). Thus, this Court in Ring and in

Apprendi had to determine the meaning of the criminal

statutes at issue, in order to determine which facts

“increase[d] the penalty * * * beyond the prescribed

statutory maximum” and therefore had to be submitted to

the jury. Apprendi, 530 U.S. at 490. That has nothing to do,

however, with whether those decisions were substantive.

The only reason that the Court construed the scope of the

state statutes in either case was in order to determine a

procedural question—which facts could be decided by the

judge or, instead, had to be submitted to the jury.

3. Finally, the efforts of the court of appeals to distin-

guish Apprendi, which the court accepted as announcing a

procedural rule, from Ring, which the court viewed as an-

nouncing a “substantive” rule not subject to Teague, were

mistaken. As the court of appeals noted, this Court in Ap-

prendi had stated that “(t]he substantive basis for New Jer-

sey’s enhancement [was] not at issue.” Pet. App. A40

(quoting 530 U.S. at 475). The same point, however, was

true in Ring. This Court in Ring did not suggest that there

was any legal defect in Arizona’s aggravating circumstances,

EEE

20

or that Arizona could not hinge eligibility for the death pen-

alty on the presence of at least on of those circumstances.

The only point at issue in Ring was precisely the same point

at issue in Apprendi—whether the defendant was entitled to

have the “substantive basis” for the increased punishment

submitted to the jury, rather than decided by the judge. The

court of appeals conceded that this Court’s decision in Ap-

prendi was “procedural.” This Court’s decision in Ring was

“procedural” for precisely the same reasons.‘

Il. RING DOES NOT FALL WITHIN TEAGUE’S

NARROW EXCEPTION FOR “WATERSHED”

RULES OF CRIMINAL PROCEDURE

Under the Teague framework, new constitutional rules of

criminal procedure are not retroactively applicable to pro-

ceedings on collateral review. That is because “(a]pplication

of constitutional rules not in existence at the time a convic-

tion became final seriously undermines the principle of final-

ity which is essential to the operation of our criminal justice

system.” Teague, 489 U.S. at 309. Nonetheless, if a new rule

satisfies one of two exceptions, society’s interest in finality

can legitimately be subordinated to the defendant’s interest

in relitigating his claim. The first exception permits retroac-

tive application of new rules that place “certain kinds of pri-

mary, private individual conduct beyond the power of the

criminal law-making authority to proscribe.” Teague, 489

U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667,

692 (1971)). The court of appeals correctly concluded that

* The court of appeals also erred in attempting to distinguish Ring

from the procedural rule announced in Apprendi on the ground that,

“({u)nlike the result in Ring, Apprendi did not cause the relevant statute to

be declared unconstitutional.” Pet. App. A63. Just as Ring invalidated

Arizona’s death penalty procedures, Apprendi invalidated the procedures

used in New Jersey to impose the hate crime enhancement—procedures

that the New Jersey Supreme Court had authoritatively interpreted to

allow the trial judge alone to sentence the defendant above the otherwise

applicable statutory maximum verdict. See Apprendi, 530 U.S. at 473.

21

Ring does not fall within that exception. Pet. App. A44. The

second exception allows retroactive application of “water-

shed rules of criminal procedure” that implicate the funda-

mental fairness and accuracy of the criminal proceeding.

Teague, 489 U.S. at 311-313. The court of appeals erred in

holding (Pet. App. A44-A63) that the rule announced in Ring

falls within that exception.

This Court has made clear that “[t]o fall within [the sec-

ond Teague] exception, a new rule must meet two require-

ments: [i]nfringement of the rule must ‘seriously diminish

the likelihood of obtaining an accurate conviction,’ and the

rule must ‘alter our understanding of the bedrock procedural

elements’ essential to the fairness of a proceeding.” Tyler v.

Cain, 533 U.S. 656, 665 (2001) (quoting Sawyer v. Smith, 497

U.S. 227, 242 (1990), and Teague, 489 U.S. at 311). There has

been no sufficient showing that the rule in Ring satisfies the

first, “accuracy” element. Nor is the rule in Ring, applying

the Sixth Amendment’s jury trial right to a particular cir-

cumstance, one of “a small core of rules,” Graham v. Collins,

506 U.S. 461, 478 (1993), that mark a “groundbreaking

occurrence,” Caspari v. Bohlen, 510 U.S. 383, 396 (1994), in

our understanding of what constitutes a fair trial. Accord-

ingly, the rule in Ring does not fall within the second Teague

exception.

A. Infringement Of The Rule In Ring Does Not Seriously

Diminish The Likelihood Of Obtaining An Accurate De-

termination

1. Ring was not based on the rationale that jury findings

are more accurate than findings by a court. The court of ap-

peals concluded that the rule in Ring “enhances the accuracy

of the determination of capital murder in Arizona.” Pet.

App. A45. Although the rule in Ring was based on the Sixth

Amendment, the Court made clear in Ring itself that the

“Sixth Amendment jury trial right * * * does not turn on

the relative rationality, fairness, or efficiency of potential

22

factfinders.” 536 U.S. at 607. The right to jury trial is in-

stead based on the interest in having “the interposition be-

tween the accused and his accuser of the commonsense

judgment of a group of laymen,” Williams v. Florida, 399

U.S. 78, 100 (1970), thereby “guard[ing] against a spirit of

oppression and tyranny on the part of rulers,” United States

v. Gaudin, 515 U.S. 506, 511 (1995) (quoting 2 Joseph Story, _

Commentaries on the Constitution of the United States 541

& n.2 (4th ed. 1873)). As a general matter, therefore, the

jury-trial right is not based on a particular view on whether

juries or judges are more likely to determine facts accu-

rately.

Indeed, it has long been accepted that judges are able to

make accurate factual determinations in criminal cases, both

in deciding non-jury questions, see, e.g., Ornelas v. United

States, 517 U.S. 690 (1996) (probable cause and reasonable

suspicion under Fourth Amendment); Bourjaily v. United

States, 483 U.S. 171, 176 (1987) (existence and scope of con-

spiracy under Federal Rule of Evidence 801(d)(2)); Nix v.

Williams, 467 U.S. 431, 444-445 n.5 (1984) (inevitable discov-

ery rule), and in conducting bench trials, see Duncan v. Lou-

isiana, 391 U.S. 145, 158 (1968). A determination of the pre-

sence of an aggravating factor is in itself no different from a

determination of the presence of any other fact in the case.

There is no reason why a judge cannot be an accurate deci-

sionmaker on any such fact.

2. Courts may make accurate factual findings in capital

cases, as in other cases. The fact that the aggravating factor

in this case was essential to imposition of a capital sentence

does not alter that conclusion. To the contrary, even with

respect to the ultimate question whether to sentence a de-

fendant to death, this Court has made clear that “(t]he Con-

stitution permits the trial judge, acting alone, to impose a

capital sentence,” without any participation by the jury.

Harris v. Alabama, 513 U.S. 504, 515 (1995); see McCleskey

v. Kemp, 481 U.S. 279, 303-304 n.25 (1987); Spaziano v. Flor-

23

ida, 468 U.S. 447, 457-465 (1984). If a judge may make a suf-

ficiently accurate determination on that ultimate question

and on the subsidiary facts on which it may turn, it follows a

fortiori that a judge may reach an accurate determination of

the existence of a particular fact in a capital case, such as the

presence of an aggravating circumstance.

The court of appeals observed that factual presentations

to a judge “are capable of being extremely truncated affairs

with heavy reliance on presentence reports and sentencing

memoranda” and the court may “receive an inordinate

amount of inadmissible evidence.” Pet. App. A46. Those

observations, however, have nothing to do with whether

Ring enhances the accuracy of capital sentencing pro-

ceedings. Ring did not impose requirements on the

structure and length of capital sentencing hearings or set

standards for the admissibility of evidence in such proceed-

ings, and the rationale and applicability of Ring had nothing

to do with the desirability of any such limitations.

The court of appeals also believed that “[a] second pri-

mary accuracy-enhancing role of a jury in capital cases is to

make the important moral decisions inherent in rendering a

capital verdict.” Pet. App. A50. As noted above, however,

this Court has held, in decisions not called into question by

Ring, that the Constitution permits the ultimate decision

about punishment in a capital case to be made by the court,

without participation by the jury. That ultimate decision is

far more a product of “moral decisions” than the factual

question whether an aggravating circumstance was present.

The court of appeals’ conclusion that judges cannot render

sufficiently accurate capital sentencing decisions is mistaken.

B. Ring Did Not Announce A “Bedrock” Or “Watershed”

Rule

Even aside from whether the pre-Ring procedure in Ari-

zona “seriously diminish[{ed] the likelihood of obtaining an

accurate conviction,” Ring did not “alter our understanding

24

of the bedrock procedural elements essential to” a fair trial.

See Tyler, 533 U.S. at 665 (citations and internal quotation

marks omitted). The Court has identified the rule of Gideon

v. Wainwright, 372 U.S. 335 (1963), as the best example of

such a rule. See Saffle, 494 U.S. at 495; see also Mackey, 401

U.S. at 694 (Harlan, J., concurring). Before Gideon, it was

thought that an indigent defendant charged with a felony

offense could in some cases receive a fair trial without the

opportunity for assistance of appointed counsel. In Gideon,

the Court repudiated that notion when it recognized that,

absent a waiver of counsel, a felony trial conducted without a

defense lawyer was an inherently unfair vehicle for adjudi-

cating the defendant’s guilt or innocence. In that way,

Gideon altered our understanding of the universe of proce-

dures that are indispensable to a fair trial; it added the right

to appointed counsel to that core set of rules that define an

American criminal trial.

Beyond Gideon, the Court has noted that rules within the

second Teague exception “are best illustrated by recalling

the classic grounds for the issuance of a v rit of habeas cor-

pus—that the proceeding was dominated by mob violence;

that the prosecutor knowingly made use of perjured testi-

mony; or that the conviction was based on a confession ex-

torted from the defendant by brutal methods.” Teague, 489

U.S. at 313 (plurality opinion; citation and internal quotation

marks omitted). The exception “is clearly meant to apply

only to a small core of rules” that have the “primacy and cen-

trality” of those examples. Graham, 506 U.S. at 478. Be-

cause the “premise” of the second Teague exception is “that

such procedures would be so central to an accurate deter-

mination of innocence or guilt,” the Court has concluded that

it is “unlikely that many such components of basic due proc-

ess have yet to emerge.” Teague, 489 U.S. at 313. The rules

in Apprendi and in Ring, which involve applications of the

long-settled general principle that a defendant is entitled to

25

have the essential elements of his offense submitted to a

jury, do not fit within the exception.

1. Apprendi and Ring were refinements of pre-existing

principles. Apprendi announced the rule that any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum (other than the fact of a prior conviction)

must be submitted to the jury and proved beyond a reason-

able doubt. 530 U.S. at 490. Before Apprendi, the Court had

made clear that the Due Process Clause of the Fifth

Amendment and jury trial guarantee of the Sixth Amend-

ment required a jury finding on all essential elements of an

offense. See, ¢.g., Sullivan v. Lousiana, 508 U.S. 275, 277-

278 (1993) (citing cases); United States v. Gaudin, 515 U.S. at

510. Indeed, the fundamental importance of the jury trial

right in criminal cases was well established. See Duncan v.

Louisiana, 391 U.S. at 148-154. Apprend?s contribution was

not to announce a new “watershed” rule, but to clarify pre-

cisely which facts that enhance punishment must be submit-

ted to the jury and which facts need not be—an issue that

had previously been the subject of finely graduated distinc-

tions. Compare Mullaney v. Wilbur, 421 U.S. 684 (1975),

with Patterson v. New York, 432 U.S. 197 (1977). Such line-

drawing decisions may be of substantial importance, but

they are not the kind of “groundbreaking” decisions, Caspari

v. Bohlen, 510 U.S. at 396, comparable to Gideon v.

Wainwright, that “‘alter our understanding of the bedrock

procedural elements’ essential to the fairness of a proceed-

ing.” Sawyer, 497 U.S. at 242 (quoting Teague, 489 U.S. at

311).

It follows a fortiori that Ring did not announce a new bed-

rock rule. Ring did not alter the substantive standard an-

nounced in Apprendi for determining which facts must be

submitted to the jury, but simply applied the Apprendi rule

to Arizona’s capital sentencing statute. The rule applied in

Ring was that “(i]f a State makes an increase in a defen-

dant’s authorized punishment contingent on the finding of a

26

fact, that fact—no matter how the State labels it—must be

found by a jury beyond a reasonable doubt.” 536 U.S. at 602.

In announcing that rule, the Court cited Apprendi, and the

Court’s statement of the rule is a paraphrase of the rule an-

nounced in Apprendi. See 530 U.S. at 490 (“Other than the

faci of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable

doubt.”). Cases such as Ring, which apply general legal

principles to particular circumstances, are not “watershed

rules” that come within Teague’s second exception.”

2. The court of appeals erred in concluding that Ring er-

rors are retroactively applicable because they are “struc-

tural.” The court of appeals drew support for its conclusion

that Ring stated a “watershed” rule from its view that a

Ring error is a “structural” error that requires reversal on

direct review without any consideration of whether the error

was harmless in the particular case. Pet. App. A55-A60. In

the court’s view, “structural error indisputably arises” in

cases of Ring error, id. at A58, and that fact is a “critical con-

sideration in determining whether the second Teague excep-

tion has been satisfied.” Jd. at A60.

a. The fact that an error is “structural” and not subject

to harmless error review does not establish that it satisfies

the second Teague exception. To the contrary, “(cJlassifying

an error as structural does not necessarily alter our under-

5 Likewise, neither Apprendi nor Ring made a fundamental change by

requiring “that guilt of a criminal charge be established by proof beyond a

reasonable doubt”; that principle “dates at least from our early years as a

Nation.” Jn re Winship, 397 U.S. 358, 361 (1970). Apprendi involved an

application of that bedrock principle to penalty-enhancing facts; the rule it

articulated is not one of watershed proportions precisely because it

applied that principle and did not announce it. Neither Ring nor this case

directly implicates the Winship rule, because under Arizona law before

Ring, the judge made the determination of the existence of aggravating

factors using the reasonable doubt standard. See State v. Jordan, 614

P.2d 825, 828 (Ariz. 1980), cert. denied, 449 U.S. 986 (1980).

27

standing of the[{] bedrock procedural elements” under the

Teague exception, “[nJor can it be said that all new rules re-

lating to due process (or even the ‘fundamental requirements

of due process’) alter such understanding.” Tyler, 533 U.S.

at 666-667 n.7 (citation omitted). An error qualifies as

“structural” when it is impossible to determine the effect of

the error on the jury’s verdict, see Arizona v. Fulminante,

499 U.S. 279, 309-310 (1991) , and the error “infect[s] the en-

tire trial process,” Brecht v. Abrahamson, 507 U.S. 619, 630

(1993). Even if Ring error were “structural” in that sense,

however, it would not establish that Ring was a “watershed”

decision. A decision holding that a given element must be

entrusted to the jury does not have the “primacy and cen-

trality” of the Gideon rule, and it would not “necessarily al-

ter our understanding of the bedrock procedural elements

essential to” a fair trial under Teague.

b. In any event, the court of appeals erred in classifying

Ring error as “structural.” This Court has made clear that

“most constitutional errors can be harmless,” Neder v.

United States, 527 U.S. 1, 8 (1999), and has “found an error to

be ‘structural,’ and thus subject to automatic reversal, only

in a ‘very limited class of cases,”” such as those involving a

complete denial of counsel, a biased trial judge, or racial dis-

crimination in jury selection. IJbid. (quoting Johnson v.

United States, 520 U.S. 461, 468 (1997)). In Sullivan v. Lou-

isiana, 508 U.S. 275 (1993), the Court held that a defective

reasonable doubt instruction is “structural,” because that

instruction “vitiates all the jury’s findings’ and produces

‘consequences that are necessarily unquantifiable and inde-

terminate.’” Neder, 527 U.S. at 11 (quoting Sullivan, 508

U.S. at 281-282). In Neder, however, the Court held that a

failure to submit an element of the offense to the jury was

not a structural error. The Court held that “where a re-

viewing court concludes beyond a reasonable doubt that [an]

omitted element was uncontested and supported by over-

whelming evidence, such that the jury verdict would have

been the same absent the error, [an] erroneous instruction

{omitting the element] is properly found to be harmless.”

527 U.S. at 17.

Error under Apprendi or Ring is essentially the same as

the error in Neder and differs from the error in Sullivan.

While the error in Sullivan infected all of the jury’s findings,

the errors in Neder, Apprendi, and Ring involved the mis-

taken submission of a single fact that should have been de-

cided by the jury to a judge instead.® An appellate court

may review an Apprendi or Ring error for harmlessness in

the same way as a court would review the error in Neder: “a

court, in typica! appellate court fashion, asks whether the

record contains evidence that could rationally lead to a con-

trary finding with respect to the” penalty-enhancing fact

found by the court beyond a reasonable doubt at sentencing.

527 U.S. at 19.’

6 Relying on Neder, the courts of appeals—including the Ninth Circuit

itself—have uniformly and correctly rejected the argument that Apprendi

errors are “structural” and have applied harmless-error analysis to

Apprendi claims. See, e.g., Coleman, 329 F.3d at 89-90; United States v.

Mackins, 315 F.3d 399, 408-409 (4th Cir.), cert. denied, 123 S. Ct. 2099

(2003); United States v. Matthews, 312 F.3d 652, 665 (5th Cir. 2002), cert.

denied, 123 S. Ct. 1604 (2003); United States v. Stewart, 306 F.3d 295, 321

(6th Cir. 2002), cert. denied, 537 U.S. 1138 (2008); Sanchez-Cervantes, 282

F.3d at 670; United States v. Clinton, 256 F 3d 311, 315-316 (5th Cir.), cert.

denied, 534 U.S. 1008 (2001); United States v. Candelario, 240 F.3d 1300,

1307 (11th Cir.), cert. denied, 533 U.S. 922 (2001); United States v. Terry,

240 F.3d 65, 74-75 (1st Cir.), cert. denied, 532 U.S. 1023 (2001); United

States v. White, 240 F.3d 127, 133-134 (2d Cir. 2001), cert. denied, 124 S.

Ct. 157 (2003); United States v. Anderson, 236 F.3d 427, 429 (8th Cir.

2001), cert. denied, 534 U.S. 956 (2001); United States v. Nance, 236 F.3d

820, 823-825 (7th Cir. 2000), cert. denied, 534 U.S. 832 (2001).

7 On remand from this Court’s decision in Ring, the Arizona Supreme

Court held that error under Ring is susceptible to harmless-error review.

State v. Ring, 65 P.3d 915, 936 (Ariz. 2003). The court then had no

difficulty applying that analysis in concluding that the failure to submit

the aggravator at issue in Ring to the jury was not harmless and the

sentence thus had to be reversed. State v. Ring, 76 P.3d 421, 423 (Ariz.

2003).

The court of appeals’ failure to follow Neder resulted from

its misapprehension of the nature of the error in this case.

The court of appeals stated that “{hJere, as in Sullivan, there

was no jury verdict within the meaning of the Sixth

Amendment” and the court characterized the error in this

case as “[a] complete deprivation of the right to a jury.” Pet.

App. A56. See id. at A59 n.20 (“There is a vast difference

between not submitting the element of materiality to the

jury for decision [in Neder] and having no jury decision at all

{in this case].”) In the instant case, however, all of the ele-

ments necessary to support respondent’s guilt of a crime

subject to the death penalty were found by a jury beyond a

reasonable doubt, with the single exception of the presence

of an aggravating circumstance. Accordingly, there was no

“complete deprivation of the right to a jury” in this case, and

harmless-error review is applicable under the rule of Neder.*

8. The court of appeals’ other rationales are mistaken.

Beyond its attempt to draw support from its mistaken hold-

ing that harmless-error review is inapplicable to Ring er-

rors, the court of appeals offered little additional basis for its

conclusion that Ring error falls within the Teague exception

for “watershed” rules. See Pet. App. A61-A63. The court

repeatedly stated that the Ring rule “affects the structure of

every capital trial,” id. at A60; see id. at A62, but the court

itself conceded that only a limited number of States had en-

acted schemes that entrusted aggravating-circumstance

8 The other decisions relied on by the court of appeals (Pet. App. A57-

A58) in support of its conclusion that error under Ring is structural error

are inapposite. Both Nguyen v. United States, 123 S. Ct. 2130 (2003)

(rendering of appellate judgments by panels that included non-Article III

judges), and Northern Pipeline Construction Co. v. Marathon Pipe Line

Co., 458 U.S. 50 (1982) (delegation of Article III authority to non-Article

III judges), involved improperly constituted courts. Neither case involved

the issue in Neder, Apprendi, or this case, which concerns the review of

incomplete jury findings in proceedings before a properly constituted

court.

30

determinations to the judge and were therefore subject to

Ring. See ibid. Although the Ring rule does implicate the

“fundamental right” to a jury trial under the Sixth Amend-

ment, see id. at A62, the same can be said of every decision of

this Court defining the content of that right and applying it

to particular circumstances. If the fact that a decision of this

Court interprets and applies a “fundamental right” were

sufficient to make that decision “bedrock” or “watershed”

under the second Teague exception, then the exception

would swallow the rule, and this Court’s frequent refusals to

hold that the exception applies would be mistaken.’ This

Court has consistently rejected that kind of broad construc-

tion of the second Teague exception, and it should do so

again in this case.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

STEVEN L. LANE

Attorney

JANUARY 2004

9 See O'Dell v. Netherland, 521 U.S. 151, 167 (1997); Lambriz v.

Singletary, 520 U.S. 518, 539-540 (1997); Gray v. Netherland, 518 U.S. 152,

170 (1996); Goeke v. Branch, 514 U.S. 115, 120-121 (1995) (per curiam);

Caspari v. Bohlen, 510 U.S. at 396; Gilmore v. Taylor, 508 U.S. 333, 345-

346 (1993); Graham v. Collins, 506 U.S. at 478; Sawyer v. Smith, 497 U.S.

at 241-245; Saffle v. Parks, 494 U.S. at 495; Butler v. McKellar, 494 U.S.

407, 416 (1990); Teague v. Lane, 489 U.S. at 314-315 (plurality opinion).