# Amicus Curiae Brief — Schriro v. Summerlin

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0714%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 348

## Text

JAN 16 2904

= Fal
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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0714%3A13. Public record. Not legal advice.