Amicus Curiae Brief — Whorton v. Bockting

Supreme Cour, US}

FILED

r JUL 2 0 2006

| OFFICE OF THE CLERK |

}

No. 05- 595

In the

Supreme Court of the United States

GLEN WHORTON, DIRECTOR,

NEVADA DEPARTMENT OF CORRECTIONS,

Petitioner,

MARVIN HOWARD BOCKTING,

Respondent.

On Writ of Certiorari to the

‘United States Court of Appeals for the Ninth Circuit

BRIEF OF TEXAS, CALIFORNIA, ALABAMA, ALASKA, ARIZONA,

COLORADO, CONNECTICUT, DELAWARE, GEORGIA, HAWAII,

IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS, KENTUCKY,

LOUISIANA, MARYLAND, MASSACHUSETTS, MICHIGAN,

MISSISSIPPI, MONTANA, NEBRASKA, NEW HAMPSHIRE,

NEW MEXICO, OHIO, OKLAHOMA, OREGON, PENNSYLVANIA,

RHODE ISLAND, SOUTH DAKOTA, TENNESSEE, UTAH,

VIRGINIA, WASHINGTON, WEST VIRGINIA, WISCONSIN, AND

WYOMING AS AMICI CURIAE IN SUPPORT OF PETITIONER

GREG ABBOTT

Attorney General of Texas

R. TED CRUZ

Solicitor General

Counsel! of Record

KRISTOFER S. MONSON

Assistant Solicitor General

FREDERICKA SARGENT

Assistant Attorney General

Office of the Attorney General

P.(). Box 12548

Austin, Texas 78711-2548

(512) 936-1700

BILL LOCKYER

Attorney General of

California

BRIAN MEANS

Supervising Deputy

Attorney General

Office of the Attorney General

P.O. Box 944255

Sacramento, CA 94244-2550

(916) 324-5254

COUNSEL FOR AMICI CURIAE

[Additional counsel listed on

inside cover]

TROY KING

Attorney General of Alabama

DAVID W. MARQUEZ

Attorney General of Alaska

TERRY GODDARD

Attorney General of Arizona

JOHN W. SUTHERS

Attorney General of Colorado

RICHARD BLUMENTHAL

Attorney General of Connecticut

CARL C. DANBERG

Attorney General of Delaware

THURBERT E. BAKER

Attorney General of Georgia

MARK BENNETT

Attorney General of Hawaii

LAWRENCE WASDEN

Attorney General of Idaho

LISA MADIGAN

Attorney General of Illinois

STEVE CARTER

Attorney General of Indiana

TOM MILLER

Attorney General of lowa

PHILL KLINE

Attorney General of Kansas

GREGORY D. STUMBO

Attorney General of Kentucky

CHARLES C. FOTI, JR.

Attorney General of Louisiana

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

TOM REILLY

Attorney General of Massachusetts

MIKE COX

Attorney General of Michigan

JIM HOOD

Attorney General of Mississippi

MIKE McGRATH

Attorney General of Montana

JON BRUNING

Attorney General of Nebraska

KELLY A. AYOTTE

Attorney General of New Hampshire

PATRICIA A. MADRID

Attorney General of New Mexico

JIM PETRO

Attorney General of Ohio

W.A. DREW EDMONDSON

Attorney General of Oklahoma

HARDY MYERS

Attorney General of Oregon

TOM CORBETT

Attorney General of Pennsylvania

PATRICK C. LYNCH

Attorney General of Rhode Island

LARRY LONG

Attorney General of South Dakota

PAUL G. SUMMERS

Attorney General of Tennessee

MARK SHURTLEFF

Attorney General of Utah

BOB MCDONNEL

Attorney General of Virginia

ROB McKENNA

Attorney General of Washington

DARRELL V. MCGRAW, JR.

Attorney General of West Virginia

PEGGY A. LAUTENSCHLAGER

Attorney General of Wisconsin

PATRICK J. CRANK

Attorney General of Wyoming

i

QUESTIONS PRESENTED

Whether the Ninth Circuit erred in holding that the court’s

decision in Crawford v. Washington, 541 U.S. 36 (2004),

regarding the admissibility of testimonial hearsay evidence

under the Sixth Amendment, applies retroactively to cases

on collateral review.

Whether the Ninth Circuit’s ruling that Crawford applies

retroactively to cases on collateral review violates Teague

v. Lane, 489 U.S. 288 (1989).

Whether the Ninth Circuit erred in holding that 28 U.S.C.

§2254(d)(1) and (2) adopted the Teague exceptions for

watershed rules and for private conduct that is beyond

criminal proscription.

Questions Presented

Table of Authorities

Interest of Amici Curiae

il

TABLE OF CONTENTS

Summary of the Argument.............

Argument ........ ‘deeeeh ad ne eee kes

RFR gee eRe RES | RP ee ee

Under Teague, Crawford Announced A New Rule

That Does Not Apply Retroactively

Sixth

A. Crawford’s Change in

to

Amendment Analysis Created a

a ee ees

The Teague Exception for

“Watershed Rules” Does Not Apply

LeU ed ss ec acene kéues oes

Crawford does not implicate a trial’s

fundamental fairness ................

The Crawford rule’s absence did not

seriously diminish the likelihood of

obtaining accurate convictions .........

An issue that goes only to trial error

- and is therefore subject to

harmless-error analysis — cannot

mark a watershed rule ...............

The Practical Impact of Applying

Crawford Retroactively Should

Inform the Teague Analysis ...........

ill

1. Applying Crawford Retroactively

Would Significantly Disrupt the

States’ Ability to Administer

Pda cnensiuarnbedeenesebenrien'eedeus 16

2. Because the scope of the

testimonial-evidence requirement

remains unclear, convicted criminals

would be all the more encouraged to

SIE 36 ens vésdbaueyaceuasenes 17

3. Any resulting retrials based on

Crawford would be hampered by

problems of lost evidence, faulty

memory, and missing witnesses ............ 18

The Court of Appeals Erred in Granting Habeas

Relief Based on a Constitutional Right Not Clearly

Established at the Time the State Court Adjudicated

Bockting’s Sixth Amendment Claim .............. 19

A. Section 2254(d)(1)’s “Clearly

Established Federal Law”

Restriction Does Not Incorporate the

ED 5c hdbcunewdteedenncedcs 19

B. Crawford Was Not “Clearly

Established” Federal Precedent

When the Nevada Supreme Court

Adjudicated Bockting’s Claim on

EE £6ko she bosusdhbes een stances es 25

id The Court Should Decide the

Important Issue of Whether

§2254(d)(1) Incorporates the 7eague

ED ws Shah adannnnemeehvnneasetes 25

Conclusion

SS eeesegesesveeCecee eeee ee eeeeee eee eee 8 e2.e 8 6 8 86 8 '6

v

TABLE OF AUTHORITIES

Cases:

Almendarez-Torres v. United States,

J Se Pree

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............

Arizona v. Fulminante,

ane PER os ccuccanees

Beard v. Banks,

542 U.S. 406 (2004) ............

Berger v. California,

4 ee

Bilzerian v. United States,

127 F.3d 237 (CA2 1997) .......

Bintz v. Bertrand, 403 F.3d 859 (CA7),

cert. denied, 126 S. Ct. 174 (2005)

Blakely v. Washingion,

$42 U.S. 296 (2004) ............

Blanton v. State,

880 So.2d 798 (Fla. 2004) .......

Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005)

as amended, 408 F.3d 127,

and rehearing denied, 418 F.3d 1055 .............. 7,13

vi

Brown v. Uphoff,

381 F.3d 1219 (CA10 2004), cert. denied sub nom.

Brown v. Lampert, 543 U.S. 1079 (2005) ........... 7,12

Caspari v. Bohlen,

AP rrr ees Pe err er es Tee re 3,4

Chandler v. Crosby,

SS TUE: SE oo 6 0 00.64 Ubi bb6 we 6600 5-08s 7

Cockerham v. Cain,

SP CEM: eins 4d bekddn ne 6h s4050% 26

Coy v. lowa,

= bos oe cts bn kaa on eeketansen 13

Crawford v. Washington,

541 U.S. 36 (2004) Sit titsantieeaes passim

Davis v. Washington,

PEE op csenvntcuvedscbchnsewes 5,9, 17

Delaware v. Van Arsdall,

ED oss tk is go's 6A 4 ORS pa 13

Dorchy v. Jones,

ea ee oer rere y tere T 7

Drach v. Bruce,

No. 93,654, 2006 WL 1562105 (Kan. June 9, 2006)...... 7

Duckworth v. Eagan,

PPP ee er ee ree re 18

vii

Duncan v. Walker,

4 re err a eres ate 20, 21

Durning v. Citibank, N.A.,

ae ER EOE ceesieucnyens¥ees evebass 26

Edwards v. Arizona,

SE cs coc cktaen téad babweseeeenews 14

Edwards v. People,

129 P.3d 977 (Colo. 2006) (en banc)............ 7,12

Espy v. Massac,

DEP Pa SOUR EEE HUME ceckcdccdecsvesetecues 7

Evans v. Luebbers,

371 F.3d 438 (CA8 2004) cert. denied sub nom.

Evans v. Roper, 543 U.S. 1067 (2005) .......... 7,25

Felker v. Turpin,

PE PT UNO cas vie cn asus veticecdrenvecas 25

Ford v. Wainwright,

re I 6.0 6.6 uk 08600 e ee cewkeve adnen 4

Gideon v. Wainwright,

PE ai acs red dndeteaecenns ee 2, 8,9

Gosier v. Welborn,

ocho ub 6s SK EKO ROM 25

Hartford Underwriters Ins. Co. Union Planters Bank, N. A.,

RE I oS i ie Se oe 21

vill

Horn v. Banks,

Se ES ov cs cance aeeued eb es 19, 22-23

In re Markel,

111 P.3d 249 (Wash. 2005) (en banc) .............. 7

Jenkins v. Delaware,

as cee etebhh oe Ses awe bene es 15

Johnson v. McKune,

Be Oe BURT GRU SUMED cc cc cece rreccceses 9-10

Keene Corp. v. United States,

ee rr re ere 23

Kuhlmann v. Wilson,

Ne ok oe 18

Lave v. Dretke,

ee ee ED kava bk t0ceedenuces 6-7, 10

Lee v. Illinois,

ire ii eas dehanteebduce bbws 13

Lee v. State, 143 S.W.3d 565

(Tex. App.—Dallas 2004, pet. ref'd) .............. 13

Lewis v. Johnson,

Pe ED oo pihdcdbdcaee 1600 bee's 26

Lilly v. Virginia,

ED oon ee kath cueh ene wees : ican Te

Lindh v. Murphy,

96 F.3d 856 (CA7 1996) (en banc),

rev'd on other grounds, 521 U.S. 320 (1997) ....... 24

Linkletter v. Walker,

rr rr erry ree )

Mackey v. United Staies,

ee ET ITU sc dnvkwes dodetnévbecndnaues 14

McCleskey v. Zant,

rer ee Pek are 18

McGonagle v. United States,

137 Fee, Apee. S73 (CAL BOGS) onc cccceseuseeces. 7

McKaskle v. Wiggins,

fe By re 14

Mungo v. Duncan,

393 F.3d 327 (CA2 2004), cert. denied sub nom.

Mungo v. Greene, 544 U.S. 1002 (2005) ...... 7, 11, 26

Murillo v. Frank,

G02 F.36 TOG (CAT BOGS) occ cece esses 6, 10-11

N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,

Fe es PCRS racine busccadesesunseusess 24

Nix v. Williams,

ey Gt Se ED. hoe Gacuréaddurenenseusaeues 25

Ohio v. Roberts,

RR OTe er eT re ere 5

O'Dell v. Netherland,

tn Es 6 on ks bn ote one hod 40 bea e ean 8

People v. Cage,

15 Cal.Rptr.3d 846 (Cal. Ct. App. 2004) ........... 13

People v. Pirwani,

14 Cal.Rptr.3d 673 (Cal. Ct. App. 2004) ........... 13

People v. Shepherd,

689 N.W.2d 721 (Mich. 2004) ................... 13

People v. Vigil, 127 P.3d 916 (Colo. 2004),

petition for cert. filed, May 12, 2006 (No. 05-11122) . 13

Ramadass v. Angelone, 187 F.3d 396 (CA4 1999)

I Say TOG on vec ecccnnecccacvces 26

Roberts v. Russell,

NS, CNG wd ae 4b nardaresh hacked Secs )

Robinson v. Shell Oil Co.,

Serer ee errr re eT 20

Rock v. Arkansas,

EI. pc td anda eeeenannu ea da kees 4

Russello v. United States,

ee NS i ys ere tN URS tele wene chores 22

Saffle v. Parks,

ee EE x 6 6-4 ts ke Rene vaste kay 4, 6, 8-9

xi

Sawyer v. Smith,

ee Es dc buda sere uedeneave 8, 14, 15, 17

Schriro v. Summerlin,

IE so a dun oasecusencees ae 8, 11-12

Solem v. Stumes,

ED 6 aii cd, oe ek wee ek Rane 8,9, 15

State v. Bell,

Se a Pee as AED 68 «ip orca eee ebndoameeus 13

State v. Johnson,

98 P.3d 998. 1006-012 (N.M. 2004) ............... 13

Stone v. Powell,

Se OED 0 ont ah du ndeweiaeebhekeaeuks 25

Sullivan v. Louisiana,

Es bv data wea ewe dd beeeeka 14

Teague v. Lane,

ts BF ee ar eee reer passim

Truesdale v. Aiken,

eR I 5s in Wein ou aes ewan hae wie 4

Tumey v. Ohio,

i oy oy A ee el et aes 14

Tyler v. Cain,

eer ee err rr ee 14

xii

United States v. Gaudin,

oR ER ee eA 11

United States v. Leon,

I I 6 So ea i. 25

United States v. Sanders,

a I aks cena Ween ees 12

Vasquez v. Hillery,

et aS 6 ors Cand ou a eae ary 14

Wall v. State,

184 S.W.3d 730 (Tex. Crim. App. 2006) ........... 13

Waller v. Georgia,

a oho aveele sa keaanerewanen 14

Williams v. Cain,

A os ode visadoednencuwewe 26

Williams v. Taylor,

og ee Ee ee rere 19, 20, 23, 26

Constitutional Provisions, Statutes, and Rules:

I oe inc kad eunteaaee 19

ES CORRE ar re PER TSS te 21

ORR ne invade 21

es EEE 660 Sin KS 6 Seca see rss oreneens iv, 3

I ee Se Oa ie

re oh ee aes

es OE oie ie a css

ES Seer PRA rn Meee AST

I a cae

Other Authorities:

Robert William Best, To Be Or Not To Be Testimonial?,

2005 ARMY LAWYER 65 (2005) .............000005

Sharad Sushil Khandelwal,

The Path to Habeas Corpus Narrows:

Interpreting 28 U.S.C. § 2254(da)(1),

ree ere

INTEREST OF AMICI CURIAE

The amici States, through their Attorneys General,

respectfully submit this brief in support of Petitioner. In Crawford

v. Washington, 541 U.S. 36, 53-54 (2004), the Court held that the

Sixth Amendment’s Confrontation Clause bars “admission of

testimonial statements of a witness who did not appear at trial unless

he was unavailable to testify, and the defendant had a prior

opportunity for cross-examination.” This case presents the question

whether the Crawford rule should be applied retroactively in federal

habeas review. The States have a substantial stake in this question

because the finality of innumerable state criminal judgments turns on

the outcome.

The Court has long recognized the States’ interest in the

finality of criminal convictions. See Beard v. Banks, 542 U.S. 406,

413 (2004). The presumption that new rules of criminal procedure

do not apply retroactively furthers this interest by limiting the power

of federal courts to issue habeas relief. See id, at 412-13.

Otherwise, “the application of new rules to cases on collateral

review .. . [would] continually force[] the States to marshal

resources in order to keep in prison defendants whose trials and

appeals conformed to then-existing constitutional standards.”

Teague v. Lane, 489 U.S. 288, 310 (1989).

The present controversy fully implicates these concerns for

finality and the preservation of state resources. A decision that

Crawford applies retroactively would have an immediate and far-

reaching effect on the States’ criminal justice systems. Such a

holding would potentially expose to collateral attack any conviction

involving a Confrontation Clause issue that was resolved under prior

law. The number of cases in this category is undoubtedly immense.

Relitigating these long-final criminal convictions through federal

habeas proceedings would stretch the States’ already limited

resources and force a serious realignment of prosecutorial priorities.

For these reasons, 38 states urge the Court to reverse the judgment

of the Ninth Circuit Court of Appeals.

2

SUMMARY OF THE ARGUMENT

Crawford Established a New Rule of Federal Law.

Crawford imposed a new analytical question in Confrontation

Clause jurisprudence. A court must now determine whether

evidence is “testimonial” in order to determine whether it can be

introduced in a criminal prosecution without live testimony. As a

result, all of the courts to address this issue — including two of the

judges on the panel opinion in this case — have determined that

Crawford is a new rule under Teague that presumptively does not

apply retroactively to final convictions under federal habeas review.

Under Teague, Crawford does not apply retroactively

because it is not a “watershed rule”: Crawford changed the

analysis by which a court determines whether evidence can be

introduced at trial. But that change does not constitute a “watershed

rule” excepted from Teague’s nonretroactivity principle. <A

watershed rule is one that creates an entirely new principle of

criminal due process, on the level of magnitude of the right to

counsel announced in Gideon v. Wainwright, 372 U.S. 355 (1963).

Crawford’s incremental change in the test for determining whether

evidence can be introduced without the testimony of a live witness

does not meet that high standard.

Retroactive application of Crawford would frustrate the

States’ interest in administering the criminal justice system in a

fair and efficient manner. The Crawford test has created a

significant amount of appellate litigation attempting to delineate the

scope of the testimonial-evidence requirement. The potential

number of collateral habeas claims is, accordingly, enormous.

Relitigation of these convictions would place a major strain on the

resources of the state and federal courts. That strain would be

completely out of a proportion to the change effected by Crawford.

And it provides a compelling reason why the Court should hold that

Crawford does not apply retroactively in federal habeas cases.

3

Under §2254(d)(1) of the AEDPA, the new rule

announced in Crawford cannot apply retroactively. Under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

a federal court cannot grant a writ of habeas corpus unless the state

court’s merits decision was contrary to or an unreasonable

application of clearly established Supreme Court precedent as of the

time the state court denied relief. 28 U.S.C. §2254(d)(1). And,

contrary to what the court of appeals held, Section 2254(d)(1) does

not incorporate the 7eague exceptions. A plain reading of the statute

establishes the absence of these exceptions: the “clearly established”

requirement in that section is unqualified. And a comparison of the

text of §2254(d)(1) with the language of other AEDPA provisions

provides strong evidence that Congress did not intend to incorporate

the 7eague exceptions into §2254(d)(1).

Here, Bockting relies on Crawford as the basis for his Sixth

Amendment claim. But Crawford was not clearly established

precedent in 1993 when the Nevada Supreme Court denied relief.

And because the Teague exceptions are not incorporate into

§2254(d)(1), Bockting cannot circumvent the statute’s “clearly

established” requirement by seeking to prove that Crawford

constitutes a watershed rule of criminal procedure.

ARGUMENT

I. UNDER TEAGUE, CRAWFORD ANNOUNCED A NEW RULE

THAT DOES NoT ApPLy RETROACTIVELY.

The Teague principle of nonretroactivity “prevents a federal

court from granting habeas corpus relief to a state prisoner based on

a rule announced after his conviction and sentence became final.”

Caspari v. Bohlen, 510 U.S. 383, 389 (1994). Application of this

principle involves three steps. First, “the court must ascertain the

date on which the defendant's conviction and sentence became final

for Teague purposes.” /d., at 390. Next, “the court must survey the

legal landscape as it then existed, and determine whether a state

4

court considering the defendant’s claim at the time his conviction

became final would have felt compelled by existing precedent to

conclude that the rule he seeks was required by the Constitution.”

/d. (citations and quotations omitted). Stated differently, the Court

must assess whether the defendant “seeks the benefit of a new rule.”

See id. “Finally, even if the court determines that the defendant

seeks the benefit of a new rule, the court must decide whether that

rule falls within one of the two narrow exceptions to the

nonretroactivity principle.” /d.

[tis undisputed that Bockting’s conviction and sentence were

final at the time Crawford was decided. Thus, this case involves

only the second and third inquiries in the Teague analysis: whether

Crawford announced a new rule and, if so, whether Crawford

nevertheless falls within one of Teague’s exceptions that would

permit a federal court to apply Crawford retroactively to Bockting’s

habeas proceeding. The answer to these questions is plain: by its

terms, Crawford announced a new rule, and it does not come within

either of Teague’s exceptions.

A. Crawford’s Change in Sixth Amendment Analysis

Created a “New Rule.”

“[A] case announces a new rule when it breaks new ground

or imposes a new obligation on the States or the Federal

Government.” Teague, 489 U.S., at 301 (citing Rock v. Arkansas,

483 U.S. 44, 62 (1987); Ford v. Wainwright, 477 U.S. 399, 410

(1986)). Put another way, a rule is new when its result was not

“dictated by precedent existing at the time the defendant's

conviction became final.” /d. (citing Truesdale v. Aiken, 480 U.S.

$27, 528-29 (1987) (Powell, J., dissenting)); see also Saffle v. Parks,

494 U.S. 484, 488 (1990).

For a quarter-century prior to Crawford, federal courts

determined the admissibility of hearsay evidence in a criminal

5

proceeding under the “reliability” standard announced in Ohio v.

Roberts, 444 U.S. 56 (1980):

“|W ]hen a hearsay declarant is not present for cross-

examination at trial, the Confrontation Clause

normally requires a showing that he is unavailable.

Even then, his statement is admissible only if it bears

adequate ‘indicia of reliability.’ Reliability can be

inferred without more in a case where the evidence

falls within a firmly rooted hearsay exception. In

other cases, the evidence must be excluded, at least

absent a showing of particularized guarantees of

trustworthiness.” /d., at 66 (footnote omitted).

In Crawford, the Court abandoned the Roberts standard for

hearsay evidence classified as “testimonial.” For such evidence, the

Court held that the Sixth Amendment requires a showing of both

unavailability and a prior opportunity for cross-examination before

the evidence will be admitted. Crawford, 541 U.S., at 68. Crawford

did not fully define what evidence qualifies as “testimonial,”

explaining that “[w|hatever else the term [‘testimonial’] covers, it

applies at a minimum to prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and to police interrogations.”

Id.‘ But the Court left no doubt that its decision was a departure

1. Subsequently, in two consolidated cases on direct review, the Court

adopted a case-specific standard for determining whether a particular

statement, in a particular situation, should be considered “testimonial” for

Crawford purposes. Davis v. Washington, 126 S.Ct. 2266 (2006). The

Court’s narrowly drawn opinion held that statements made in a police

investigation are non-testimonial when the purpose of seeking police

assistance is to deal with an ongoing emergency, but are testimonial when

there is no such emergency and the interrogation is intended to establish

or prove past events. /d., at 2273-74. Davis did not elucidate a broader

principle for recognizing testimonial statements.

6

from prior law: Crawford expressly overruled Roberts to the extent

it applied to “testimonial” evidence. 541 U.S., at 60-61; see also id ,

at 69, Rehnquist, C.J., concurring) (“I believe that the Court’s

adoption of a new interpretation of the Confrontation Clause is not

backed by sufficiently persuasive reasoning to overrule

long-established precedent.”).

It is difficult to conceive a truer hallmark of a new rule than

the express overruling of precedent. Indeed, when a rule is born

from these circumstances, it by definition qualifies as a “new rule”

for Teague purposes. See Saffle, 494 U.S. at 488.’ For this reason

alone, Crawford satisfies the second step in the Teague analysis.

Moreover, Crawford represents a clear break from Roberts

because, for testimonial evidence, it redirects the focus of the

Confrontation Clause analysis from indicia of reliability to “the

principal evil at which the Confrontation Clause was directed] :] the

civil-law mode of criminal procedure, and particularly its use of ex

parte examinations as evidence against the accused.” Crawford, 541

U.S., at 50. This analytical distinction further cements Crawford's

status as a new rule.

Finally, the near unanimity of lower courts on this issue

corroborates the States’ position. Every federal circuit to reach the

question has concluded that Crawford announced a new rule under

Teague,’ and even those that have not addressed it have consistently

2. Indeed, the concurring justices explicitly characterized the rule as

“new.” Crawford, 541 U.S., at 75 (Rehnquist, C.J., and O'Connor, J.,

concurring in the judgment).

3. The Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits have held that

Crawford announces a new rule and that it does not apply retroactively.

Lave v. Dretke, 444 F.3d 333, 335 (CAS 2006), petition for cert. filed,

June 13, 2006 (No. 05-1 1552); Dorchy v. Jones, 398 F.3d 783, 788 (CA6

2005); Bintz v. Bertrand, 403 F.3d 859, 866 (CA7), cert. denied, 126S.

7

declined to apply Crawford retroactively.* State courts considering

the question have reached the same result.’ In stark contrast to this

broad consensus, Judge Noonan’s concurrence in this case appears

to be the only judicial opinion to treat Crawford as though it did not

create anew rule. Bockting v. Bayer, 399 F.3d 1010, 1023 (9th Cir.

2005) (“Bockting I’) (Noonan, J., concurring), as amended, 408 F.3d

127, and rehearing denied, 418 F.3d 1055.

Ct. 174 (2005); Murillo v. Frank, 402 F.3d 786, 790 (CA7 2005); Brown

v. Uphoff, 381 F.3d 1219, 1226 (CA10 2004), cert. denied sub nom.

Brown v. Lampert, 543 U.S. 1079 (2005); Espy v. Massac, 443 F.3d

1362, 1366-67 (CA11 2006). :

4. The Second Circuit assumed without deciding that Crawford

announced a new rule. See Mungo v. Duncan, 393 F.3d 327, 335 (CA2

2004), cert. denied sub nom. Mungo v. Greene, 544 U.S. 1002 (2005).

The Eighth and First Circuits likewise assumed that Crawford did not

merit retroactive application. Evans v. Luebbers, 371 F.3d 438, 444-45

(CA8 2004) (noting that the rule did not appear to fit within either of

Teague’s exceptions), cert. denied sub nom. Evans v. Roper, 543 U.S.

1067 (2005); McGonagle v. United States, 137 Fed. Appx. 373, 380

(CA1 2005) (unpublished opinion) (“It is doubtful that Crawford applies

retroactively to cases on collateral review.”).

5. See, e.g., In re Markel, 111 P.3d 249, 270 (Wash. 2005) (en banc)

(“[W]hile the reasoning in Crawford relied upon the historical

underpinnings of the [C]onfrontation [C]lause, the rule itself is a

departure from previous United States Supreme Court precedent.”);

Edwards v. People, 129 P.3d 977, 984-86 (Colo. 2006) (en banc) (same);

see also Drach v. Bruce, No. 93,654, 2006 WL 1562105 (Kan. June 9,

2006); Chandler v. Crosby, 916 So.2d. 728, 729-31 (Fla. 2005).

8

B. The Teague Exception for “Watershed Rules”

Does Not Apply to Crawford.

The two “narrow” exceptions to the Teague non-retroactivity

principle are (1) rules forbidding punishment “of certain primary

conduct... prohibiting a certain category of punishment for a class

of defendants because of their status or offense,” or (2) “watershed

rules of criminal procedure implicating the fundamental fairness and

accuracy of the criminal proceeding.” O'Dell v. Netherland, 521

U.S. 151, 157 (1997). This case does not implicate the first

exception because Crawford regulates “only the manner of

determining the defendant’s culpability.” See Schriro v. Summerlin,

542 U.S. 348, 353 (2004).

Crawford also does not satisfy the second exception because

it is not a “watershed rule.” Such rules “require[{] the observance of

those procedures that... are implicit in the concept of ordered

liberty.” Teague, 489 U.S., at 311. For this exception to apply, “the

procedure at issue must implicate the fundamental fairness of the

trial” or its absence must “seriously diminish the likelihood of

obtaining an accurate conviction.” /d., at 312, 315. That is, a

“watershed rule” must do more than “preserve the accuracy” of

criminal convictions; it must also recognize the emergence of “a

component of basic due process.” Sawyer v. Smith, 497 U.S. 227,

242 (1990) (citing Solem v. Stumes, 465 U.S. 638, 654 (1984)). Itis

thus insufficient that the “new procedural rule is ‘fundamental’ in

some abstract sense[.]” Summerlin, 542 U.S., at 352 (citation

omitted). Measured against this high standard Crawford is not a

watershed rule.

1. Crawford does not implicate a trial’s fundamental

fairness.

To assess whether a new rule implicates a trial’s “fundamental

fairness,” the Court may compare it to the paradigmatic watershed

rule, Gideon v. Wainwright, 372 U.S. 335 (1963). See Saffle, 494

9

U.S. at 495 (the rule in Gideon is “usually cited . . . to illustrate the

type of rule coming within the exception.”). In Gideon, the Court

announced, for the first time, that the Sixth Amendment’s guarantee

of counsel “in all criminal prosecutions” was a fundamental and

essential part of due process and that the States were bound by this

command through the Fourteenth Amendment. 372 U.S., at 342-45.

This bright-line, fundamental rule — that all defendants were entitled

to counsel — definitively altered the courts’ understanding of what

constitutes basic due process.

In sharp contrast to Gideon, Crawford “did not confer a

substantive constitutional right that had not existed before.” Solem,

465 U.S. 648, at 644 n.4 (1984) (internal quotation marks and

citations omitted). Rather, it simply changed the standard for

determining whether evidence is sufficiently reliable that it can be

introduced at trial without live testimony while satisfying the

Confrontation Clause. Stated differently, Crawford “created a

protective umbrella serving to enhance a constitutional guarantee.”

Id. To be sure, the right established by the Confrontation Clause is

a “bedrock procedural guarantee.” Crawford, 541 U.S., at 42. But

not every rule effectuating such rights necessarily acquires that

fundamental character.° See Johnson v. McKune, 288 F.3d 1187,

6. The Court has twice before given retroactive effect to rules

effectuating the guarantee of the right of confrontation. Both are easily

distinguishable. First, in Roberts v. Russell, 392 U.S. 293 (1968) (per

curiam), the Court’s decision to apply its holding retroactively derived

from its earlier analysis in Linkletter v. Walker, 318 U.S. 618 (1965).

Teague expressly rejected Linkletter. 489 U.S., at 302 (“The Linkletter

retroactivity standard has not led to consistent results.”), 303

(“Application of the Linkletter standard has led to disparate treatment of

similarly situated defendants on direct review.”). Thus, Roberts’

precedential value after Teague is in doubt. Second, Berger v.

California came to the Court on direct appeal. 393 U.S. 314 (1969) (per

curiam), and there is no such bar on the retroactive application of new

10

1199 (CA10 2002) (“Not every holding that draws on a wellspring

rule is itself a wellspring holding.”’).

Moreover, unlike Gideon, Crawford did not announce a

categorical rule, but refined a case-specific standard — as the Court’s

recent decision in Davis illustrates. Determining whether evidence

is “testimonial,” and thus subject to Crawford's heightened

admissibility requirements, will typically require a case-by-case

inquiry turning on the factual circumstances in which the evidence

was developed. See Davis, 126 S. Ct., at 2270, 2273-74; see also

id., at 2283 (Thomas, J., concurring in the judgment in part and

dissenting in part) (arguing that this test is as unpredictable as the

Roberts test that was criticized in Crawford). Such a fact-intensive

rule defies characterization as “fundamental.”

2. The Crawford rule’s absence did not seriously

diminish the likelihood of obtaining accurate

convictions,

Similarly, the absence of the Crawford rule in earlier cases did

not “seriously diminish the likelihood of obtaining an accurate

conviction.” Teague, 489 U.S., at 312. Although in Crawford the

Court criticized the displaced Roberts test as “unpredictable,” id.,

at 68 n.10, that assessment does not necessarily undermine the

accuracy of convictions involving testimonial evidence admitted

under that test. ‘Under Roberts, only statements adjudged reliable

were admissible. That Crawford may have raised the bar for

admissibility does not demonstrate that the Roberts test created an

impermissible risk of false conviction. See Lave, 444 F.3d, at 336.

As Judge Easterbrook explained in Murillo:

“(I]t would be a close question whether Crawford helps or

hinders accurate decisionmaking. Live testimony is

rules for cases on direct appeal.

11

preferable to affidavits and transcribed confessions, but

recorded testimony may be better than silence, when death or

incapacity or threats or loyalty to one’s confederates keep

witnesses off the stand. The point of Crawford is not that

only live testimony is reliable, but that the [S]ixth

[A]mendment gives the accused the right to insist on live

testimony, whether that demand promotes or frustrates

accuracy. Like the [S]elf-incrimination [C]lause and other

provisions in the Bill of Rights, the [CJonfrontation [C]lause

can be invoked to prevent the conviction of persons who are

guilty in fact. What Crawford holds is that defendants enjoy

this right even when the hearsay is trustworthy.” 402 F.3d at

790-91.’

Although cross-examination is now the constitutionally

recognized tool for determining the reliability of testimony in

criminal trials. Crawford, 541 U.S., at 67, the Roberts test was

likewise a test for determining the reliability of testimony. /d., at 61.

The difference between the two methodologies is largely whether the

judge determines reliability by application of a multi-factored test or

whether the jury determines reliability through the process of

adversarial testing. As the Court and other courts have already

recognized, a shift from judge to jury as factfinder does not

substantially increase the accuracy of the ultimate factual

determination. See Summerlin, 542 U.S., at 356 (“When so many

7. See also Bintz, 403 F.3d at 867 (observing that the rule of Crawford

is “not a guarantee of accuracy, but an extension of the full constitutional

protections of the Sixth Amendment.”); Mungo, 393 F.3d at 336

(reasoning that while Crawford will improve a trial’s accuracy by barring

the admission of some unreliable evidence, it will, by the same token,

“deprive[] [juries] of highly reliable evidence of guilt [that would have

been admissible under the old rules}, and cases that otherwise would have

resulted in well-deserved convictions will now result in acquittals or hung

juries.”).

12

presumably reasonable minds continue to disagree over whether

_-‘ juries are better factfinders ar all, we cannot confidently say that

judicial factfinding seriously diminishes accuracy.”); see also United

States v. Sanders, 247 F.3d 139, 149 (CA4 2001) (holding that

Apprendi v. New Jersey, 530 U.S. 466 (2000), should not be applied

retroactively because “a new rule mandating a jury to decide an issue

rather than a judge cannot fall within the scope of the second Teague

exception”);* Bilzerian v. United States, 127 F.3d 237, 241 (CA2

1997) (“The rule in [ United States v.| Gaudin [515 U.S. 506 (1995)}

merely shifts the determination of materiality from the judge to the

jury. This shifting does not ‘alter our understanding of the bedrock

procedural elements’ essential to the fairness of a trial.” (citation

omitted)). For this additional reason, Crawford is not within the

Teague exception for “watershed rules.”

3. An issue that goes only to trial error — and is

therefore subject to harmless-error analysis — cannot

mark a watershed rule.

Finally, the fact that Crawford is subject to harmless-error -

analysis undermines the proposition that it could be a “watershed

rule.” A harm that can be cured by the introduction of evidence at

another point in the same trial cannot be so fundamental that it

changes the bedrock principles of criminal due process.’

8. See also Blakely v. Washington, 542 U.S. 296, 323 (2004) (O’Connor,

J., concurring) (“[WJe [held] in [Summerlin] that Ring (and a fortiori

Apprendi) does not apply retroactively to cases on habeas review([.]”’).

9. See Brown, 381 F.3d, at 1226-27 (finding that Crawford cannot be a

“watershed rule” because “Confrontation Clause violations are subject to

harmless error analysis and thus may be excused depending on the state

of the evidence at trial.”); see also Edwards, 129 P.3d, at 988.

13

And Crawford is subject to harmless-error analysis. In Delaware

v. Van Arsdall, the Court reiterated that “the Constitution entitles a

criminal defendant to a fair trial, not a perfect one” 475 U.S. 673,

681 (1986). Most errors in criminal proceedings — such as the

erroneous admission of evidence — “occur during the presentation of

the case to the jury” and “may be qualitatively assessed in the

context of other evidence to determine” the effect on the trial.

Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991). Violations of

the Confrontation Clause fall within this category. See, e.g., Lilly v.

Virginia, 527 U.S. 116, 139-40 (1999) (finding admission of non-

testifying accomplice’s confession, containing both statements

against the accomplice’s penal interest and statements inculpating

the defendant subject to harm analysis); Coy v. Jowa, 487 U.S. 1012,

1021-22 (1988) (noting that “denial of face to face to confrontation”

in violation of the Confrontation Clause subject to harm analysis);

Lee v. Illinois, 476 U.S. 530, 547 (1986) (admission of statement

may still be “harmless when assessed in the context of the entire case

against [the defendant].”).'°

10. The State in Crawford did not challenge the lower court’s holding

that the violation in that case was not harmless, and the Court

“express[ed] no opinion” on the matter. 541 U.S., at 42 nl.

Nevertheless, state courts applying Crawford on direct appeal have done

so using a harm analysis. See, e.g., People v. Cage, 15 Cal.Rptr.3d 846,

857-58 (Cal. Ct. App. 2004) (partial publication); People v. Pirwani, 14

Cal.Rptr.3d 673, 688 (Cal. Ct. App. 2004); People v. Vigil, 127 P.3d 916,

929-30 (Colo. 2004), petition for cert. filed, May 12, 2006 (No. 05-

11122); Blanton v. State, 880 So.2d 798, 802 (Fla. 2004); People v.

Shepherd, 689 N.W.2d 721, 672 (Mich. 2004); State v. Bell, 603 S.E.2d

93, 116 (N.C. 2004); State v. Johnson, 98 P.3d 998, 1006-012 (N.M.

2004); Wall v. State, 184 S.W.3d 730, 745-47 (Tex. Crim. App. 2006);

Lee v. State, 143 S.W 3d 565, 571 (Tex. App.—Dallas 2004, pet. ref’d).

Also, after determining that Crawford should be given retroactive

application, the Ninth Circuit employed a harm analysis. See Bockting

1, 399 F.3d, at 1022.

14

A rule subject to harmless-error analysis necessarily does not

implicate principles of fundamental fairness such that courts should

apply it retroactively under Teague. Indeed, even errors that are

considered structural and therefore require mandatory reversal

without a harm analysis are not automatically applied retroactively.

See Tyler v. Cain, 533 U.S. 656, 666-67 (2001) (“The standard for

determining whether error is structural . . . is not coextensive with

the second 7eagve exception, and a holding that a particular error is

structural error does not logically dictate the conclusion that the

second Teague exception has been met.” (citations omitted)). The

other five instances — apart from Gideon — in which the Court has

recognized a structural error requiring automatic reversal have not

been found to be watershed rules. See Tumey v. Ohio, 273 U.S. 510

(1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254 (1986)

(racial discrimination in grand-jury selection); McKaskle v. Wiggins,

465 U.S. 168 (1984) (denial of self-representation at trial); Waller v.

Georgia, 467 U.S. 39 (1984) (denial of public trial); Sullivan v.

Louisiana, 508 U.S. 275 (1993) (defective reasonable-doubt

instruction). If even a rule considered to be so fundamental that it

requires mandatory reversal is not automatically a watershed rule,

then a decision, such as Crawford, that is subject to harm analysis is

all the less appropriate for retroactive application.

C. The Practical Impact of Applying Crawford Retroactively

Should Inform the Teague Analysis.

The Court should not assess Crawford’s retroactivity under

Teague ina vacuum. ‘*The relevant frame of reference . . . is not the

purpose of the new rule whose benefit the [defendant] seeks, but

instead the purpose for which the writ of habeas corpus is made

available.”” Teague, 489 U.S., at 306 (quoting Mackey v. United

States, 401 U.S. 667, 682 (1971) (Harlan, J., concurring in

judgments in part and dissenting in part)). Federal habeas review

should not upset the finality of state convictions that were valid

when entered on the basis of subsequent, gradual developments in

15

the law over which reasonable jurists may disagree. Sawyer v. Smith,

497 U.S. 227, 234 (1990). Thus, the Teague analysis contemplates

not only considerations regarding the substance of the rule, but also

the effects on state criminal proceedings if the rule is retroactively

applied.

Indeed, even before Teague, the Court recognized and respected

these strong state interests when evaluating the retroactive

implementation of criminal procedure rules:

“The retroactive application of Edwards {v. Arizona, 451

U.S. 477 (1981)] would have a disruptive effect on the

administration of justice. We can only guess at the number

of cases where Edwards might make a difference in the

admissibility of statements made to the police, but the

number is surely significant. In all of those, some inquiry

would be required to assess the substantiality of any

Edwards claim. That investigation, and the possible retrial,

would be hampered by problems of lost evidence, faulty

memory, and missing witnesses.” Solem, 465 U.S., at 650

(citing Jenkins v. Delaware, 395 U.S. 213, 220-220

(1969)).

These concerns apply equally in this case, and so the Court’s

determination should likewise account for the States’ interest in the

finality of their criminal convictions. See Sawyer, 497 U.S., at 242-

43 (“The costs imposed upon the State[s] by retroactive application

of new rules of constitutional law on habeas corpus thus generally

far outweigh the benefits of this application.”) (quoting Solem, 465

U.S., at 654)). These interests strongly weigh against Crawford's

retroactive application.

16

1. Applying Crawford Retroactively Would Significantly

Disrupt the States’ Ability to Administer Justice.

Retroactive application of Crawford could imperil countless

criminal convictions entered under the prior Roberts standard. As

Chief Justice Rehnquist observed, “thousands of federal prosecutors

and . . . tens of thousands of state prosecutors need answers as to

what beyond the specific kinds of ‘testimony’ the Court lists, is

covered by the [Crawford majority's] new rule. They need them

now, not months or years from now.” 541 U.S., at 75 (Rehnquist,

C.J., concurring in judgment) (citations omitted). And even that

estimate presumed that Crawford would apply only prospectively.

Id.

The sheer volume of judicial citations to Crawford attests to the

magnitude of the potential fallout if its holding applies retroactively.

See Robert William Best, To Be Or Not To Be Testimonial? , 2005

ARMY LAWYER 65, 87 (2005) (noting that “[e]very week, at least

twenty opinions are released that make a citation to Crawford’). As

of July 7, 2006, nearly 1,900 reported court decisions had cited

Crawford. The citing courts represented all fifty States, the District

of Columbia, Puerto Rico, the Virgin Islands, the First through

Eleventh Circuits, the District of Columbia Circuit, and federal

district courts within all of those circuits.

The vast majority of these cases have raised the Crawford issue

on direct appeal — only about 200 cases have addressed the issue on

state or federal habeas review. But, if the Court holds that Crawford

applies retroactively, the ratio between Crawford claims on direct

review and those on habeas review could well be reversed. The

resulting litigation would be staggering, straining the capacity of the

state and federal courts.

17

2. Because the scope of the testimonial-evidence

requirement remains unclear, criminal defendants

would be all the more encouraged to seek habeas

relief.

Crawford declined to provide “a comprehensive definition of

‘testimonial,’” evidence. 541 U.S., at 75; see also id, at 6

(Rehnquist, C.J., concurring in judgment) (arguing that Crawford's

test “casts a mantle of uncertainty over future criminal trials in both

federal and state courts”). And Davis confirmed that whether

evidence qualifies as testimonial will be a fact-specific inquiry. See

Davis, 126 S. Ct., at 2270, 2273-74. Consequently, the federal

courts will have to define Crawford's scope experientially,

developing its parameters over time on a case-by-case basis. In the

interim, if Crawford applies retroactively, habeas counsel can be

expected to make every effort to expand Crawford's evolving

definition of “testimonial evidence,” thus further multiplying the

number of habeas challenges to long-settled convictions.

The expected proliferation of habeas challenges springing from

the still-evolving Crawford test not only would burden state

prosecutors, but also would raise serious jurisprudential concerns.

If federal courts decide Crawford’s scope principally in cases on

collateral review, they will be developing the contours of a new test

~ one about which reasonable jurists by definition could disagree —

based on records established in cases that were unquestionably

constitutional when they became final. To do so would “seriously

undermine[] the principle of finality which is essential to the

operation of our criminal justice system.” Sawyer, 497 U.S., at 242

(citing Teague, 489 U.S., at 309).

18

3. Any resulting retrials based on Crawford would be

hampered by problems of lost evidence, faulty

memory, and missing witnesses.

Finally, as in any case on collateral review, remand for a new

trial on Crawford grounds would entail a new proceeding using old

evidence, which may have deteriorated, become lost, or been

destroyed. When ‘a habeas petitioner obtains a new trial, the

“erosion of memory and dispersion of witnesses that occur with the

passage of time prejudice the government and diminish the chances

of a reliable criminal adjudication.” McCleskey v. Zant, 499 U.S.

467, 490 (1991) (citing Kuhlmann v. Wilson, 477 U.S. 436, 453

(1986)) (internal citations omitted). In this context, habeas review

“disturbs the State’s significant interest in repose for concluded

litigation, denies society the right to punish some admitted offenders,

and intrudes on state sovereignty to a degree matched by few

exercises of federal judicial authority.” Duckworth v. Eagan, 492

U.S. 195, 210 (1989) (O’Connor, J., concurring).

These problems would only be exacerbated in a new trial

predicated on the retroactive application of Crawford Because a

Crawford remand would be made specifically for the purpose of

having a witness testify about a fact that was otherwise proved at

trial, it would necessarily require fresh testimony of witnesses

regarding incidents long-past. Any such trial would be subject to the

fading of memory and the loss of key witnesses. Ironically, then, the

results of these proceedings could be considerably less reliable than

the original trials conducted under the Roberts standard. The States’

substantial interest in avoiding widespread uncertainty weighs

heavily against C rawford’ $ retroactivity.

19

Il. THE COURT OF APPEALS ERRED IN GRANTING HABEAS

RELIEF BASED ON A CONSTITUTIONAL RIGHT NOT CLEARLY

ESTABLISHED AT THE TIME THE STATE COURT ADJUDICATED

BOCKTING’S SIXTH AMENDMENT CLAIM.

Even if the Court concludes that Crawford falls within Teague’s

exception for “watershed rules,” it should still reverse the court of

appeals’s judgment granting habeas relief. Congress has adopted a

comprehensive statutory scheme governing federal habeas

proceedings, the Antiterrorism and Effective Death Penalty Act of

1996, 28 U.S.C. §§2241-2266 (AEDPA). Bockting’s petition is

governed by §2254(d)(1) of the AEDPA, which by its terms does not

incorporate the Teague exceptions. Rather, this provision conditions

habeas relief on a showing that the petitioner’s conviction was

contrary to or an unreasonable application of “clearly established”

precedent from this Court, and it is beyond dispute that the Crawford

rule was not clearly established at the time the state court

adjudicated Bockting’s Sixth Amendment claim.

A. Section 2254(d)(1)’s “Clearly Established Federal Law”

Restriction Does Not Incorporate the Teague Exceptions.

Under §2254(d)(1) of the AEDPA, habeas relief is conditioned

on a showing that the state court merits adjudication was contrary to

or an unreasonable application of “clearly established” Supreme

Court precedent. The statute provides no exception to the “clearly

established” requirement. The court of appeals, however, interpreted

§2254(d)(1) as incorporating the Teague exceptions. Under the

court’s ruling, the phrase “clearly established” law includes new

rules of constitutional law — rules not dictated by precedent — if these

new rules fall within a Teague exception. As a result, some habeas

petitioners will be able to circumvent §2254(d)(1)’s “clearly

established” requirement. This interpretation of the statute is

incorrect.

20

In determining whether the Teague exceptions are incorporated

into §2254(d)(1), the “task is to construe what Congress has

enacted.” Duncan v. Walker, 533 U.S. 167, 172 (2001). The first

step “is to determine whether the language at issue has a plain and

unambiguous meaning with regard to the particular dispute in the

case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The

inquiry ceases “if the statutory language is unambiguous and the

statutory scheme is coherent and consistent.” /d. (quotations

omitted).

The Court has recognized that the inquiries under §2254(d)(1)

and Teague are “distinct.” Horn v. Banks, 536 U.S. 266, 272 (2002)

(per curiam). Some similarity exists because, with the exception of

the source of controlling precedent, whatever would qualify as an

“old rule” under Teague will constitute “clearly established” federal

law under §2254(d)(1). Williams v. Taylor, 529 U.S. 362, 412

(2000). But otherwise, the “clearly established law” and Teague

determinations are very different. For example, the two differ with

respect to the timing at which the legal landscape is considered.

Under §2254(d)(1), the federal court reviews only controlling

precedents existing at the time the state court adjudicated the claim.

Teague, on the other hand, focuses on precedents as of the date the

defendant’s conviction and sentence became final on direct review.

“In this respect, the ‘clearly established Federal law’ phrase bears

only a slight connection to [the Court’s] 7eague jurisprudence.”

Williams, 529 U.S., at 412. The two also differ in that §2254(d)(1)

restricts the source of clearly established law to the Court’s

precedent. /d.

These differences extend to the 7eague exceptions. A plain

reading of §2254(d)(1) establishes that the 7eague exceptions are not

incorporated into that statute. Section 2254(d)(1) bars habeas relief

when the federal law governing the prisoner's claim was not “clearly

established” by the Court’s precedent when the state court

adjudicated the claim on the merits. Whereas the Teague doctrine

21

provides two exceptions to its bar against the application of new

rules, the text of §2254(d)(1) does not: if the law was not “clearly

established” — the rule was not dictated by precedent — §2254(d)(1)

precludes habeas relief. And “when the statute’s language is plain,

the sole function of the courts — at least where the disposition

required by the text is not absurd — is to enforce it according to its

terms.” Hartford Underwriters Ins. Co. Union Planters Bank, N. A.,

530 U.S. 1, 6 (2000) (internal quotations omitted).

A comparison of the text of §2254(d)(1) with the language of

other AEDPA provisions confirms that Congress did not intend to

include exceptions to the “clearly established” limitation. In other

AEDPA provisions where Congress sought to incorporate Teague

retroactivity principles (along with the 7eague exception), it did so

explicitly in the text of the statute. For example, §2244(b)(2)(A)

states that a second petition is permitted where “the applicant shows

that the claim relies on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court. . .

”” 28 U.S.C. §2244(b)(2)(A) (emphasis added); see also 28 U.S.C.

§2255 7,1) (comparable provision for federal prisoners).

Likewise, Section 2244(d)(1)(C) provides that, with respect to a

right that “has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review,” the

one-year limitations period for state prisoners begins to run on the

date the Court initially recognized that right. 28 U.S.C.

§2244(d)(1)(C) (emphasis added); see also 28 U.S.C. §2255 96,(3)

(comparable provision for federal prisoners). And, under

§2254(e)(2 Ai), when the prisoner fails to develop the factual

basis of his claim in state court, a federal evidentiary hearing is

nevertheless permitted if, among other things, the claim relies on “a

new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court... .” 28 U.S.C.

§2254(e)(2)(A)(i) (emphasis added). Finally, under §2264(a)(2), a

federal court may consider a claim not raised and decided on the

22

merits in state court if the failure to raise the claim properly was “the

result of the Supreme Court’s recognition of a new Federal right that

is made retroactively applicable.” 28 U.S.C. §2264(a)(2) (emphasis

added). Each of these statutory provisions explicitly accommodates

new rules that would apply retroactively under Teague.

By contrast, §2254(d)(1) does not permit consideration ofa “new

rule,” regardless of whether the rule is judicially subject to

retroactive application on collateral review. The statute limits the

scope of controlling law to clearly established Supreme Court

precedent — that is, precedent that would constitute an “old rule”

under Jeague. If Congress had intended for federal courts to

consider new rules subject to retroactive application in making the

§2254(d)(1) determination, it would have used phrases like “new

rule of constitutional law” and “made retroactive to cases on

collateral review,” as it did elsewhere in the AEDPA. But it did not.

“[W ]here Congress includes particular language in one section of a

statute but omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.” Russello v. United States, 464

U.S. 16, 23 (1983); cf Walker, 533 U.S., at 172 (comparison of

Section 2244(d)(2) to other AEDPA provisions supplies “strong

evidence” that, had Congress intended to allow tolling of the

one-year limitations period during pendency of federal collateral

review, it would have expressly mentioned federal review).

The Ninth Circuit offered three justifications for incorporating

the Teague exceptions into §2254(d)(1). First, the court claimed

that, in directing lower courts to undertake both inquiries in an

AEDPA case, the Court “impliedly endorsed the application of

Teague in the AEDPA context.” Pet. App. C at 35a (citing Horn,

536 U.S., at 272). But in Horn, the Court stated that “if our

post-AEDPA cases suggest anything about AEDPA’s relationship to

Teague, it is that the AEDPA and Jeague inquiries are distinct.”

536 U.S., at 272; see also Williams, 529 U.S., at 412 (noting that in

23

one respect, “the ‘clearly established Federal law’ phrase bears only

a slight connection to our Teague jurisprudence.”)

Second, the Ninth Circuit asserted that the language of

§2254(e)(2)(A)(i) showed “Congress intended to preserve the

Teague exceptions because AEDPA explicitly provides for their

application in proceedings involving state habeas petitions.” Pet.

App. C at 35a. This conclusion does not follow. Section

2254(e)(2)(A)(i) has nothing to do with state habeas petitions; it

concerns the appropriateness of federal evidentiary proceedings.

The court may have presumed that, because Congress included

Teague retroactivity principles in §2254(e)(2)(A)(i), Congress must

have intended to incorporate them into §2254(d)(1). But the correct

presumption is just the opposite. Section 2254(e)(2)(A)(i) provides

for an evidentiary hearing where the claim is based on “a new rule

of constitutional law, made retroactive to cases on collateral review

by the Supreme Court.” Section 2254(d)(1), on the other hand,

narrows the types of available claims to those premised on “clearly

established” federal law, as determined by the Court. While the

former explicitly embraces new rules and retroactivity principles, the

latter does not.'!

11. Alternatively, the court of appeals may have deduced that, as one

commentator has argued, if §2254(e)(2)(A)i) “is to have any meaning,

then the 7eague exceptions must still exist.” Sharad Sushil

Khandelwal, Zhe Path to Habeas Corpus Narrows: Interpreting 28

U.S.C. § 2254(d)(1), 96 Micu. L. Rev. 434, 459 n.45 (1997). But this

argument is also wrong. Section 2254(d)(1) does not apply when the

state court did not decide the claim on the merits. And §2254(e)(2)(A)(i)

authorizes federal evidentiary hearings regardless of whether the state

court adjudicated the federal claim on the merits. Thus, even if

§2254(d)(1) does not incorporate the Teague exceptions, there are

clearly some circumstances when §2254(e2)AXi) would operate

meaningfully — such as when the state court denied the claim on

procedural grounds. But more importantly, under §2254(e)(2)(A)(i), an

24

Finally, the Ninth Circuit concluded that “the constitutional

doubt canon of construction mandates that we read the statute to

incorporate the Teague exceptions to avoid the serious constitutional

problem raised by depriving individuals of bedrock principles of

Due Process.” Pet. App. C at 35a. But this canon has two important

prerequisites. First, the “statute must be genuinely susceptible to

two constructions,” a determination that is made “after, and not

before, [the statute’s] complexities are unraveled.”

Almendarez-Torres v. United States, 523 U.S. 244, 238 (1998). And

second, the constitutional question must be one that leads the court

to have grave doubt about the statute’s constitutionality. /d., at 239.

Section 2254(d)(1) is not genuinely susceptible to two

constructions. As demonstrated, §2254(d)(1) provides that if the law

was not “clearly established” — that is, the rule was not dictated by

precedent — habeas relief is foreclosed. The statutory text contains

no exception for new rules that apply retroactively. /.dditionally,

other AEDPA provisions enacted at the same time as §2254(d)(1)

demonstrate that when Congress intended to incorporate new rule

and retroactivity principles, it knew how to do so.

Nor does the absence of retroactivity exceptions in §2254(d)(1)

create grave doubt about the statute’s constitutionality. As the Court

recognized in Felker v. Turpin, 518 U.S. 651 (1996), “the power to

award the writ by any of the courts of the United States, must be

written by law” and “judgments about the proper scope of the writ

are normally for Congress to make.” /d, at 664 (quotations

omitted). Section 2254(d)(1) does nothing more than regulate the

relief prisoners may obtain in federal habeas, and “Congress has

evidentiary hearing is permitted only when the Court has held that the

new rule of constitutional law applies retroactively to cases on collateral

review. When this occurs, the same new rule that authorizes an

evidentiary hearing under §2254(e)(2)(A)(i) will constitute clearly

established precedent for purposes of §2254(d)(1).

25

“ample power to adjust the circumstances under which the remedy of

the writ of habeas corpus is employed.” Lindh v. Murphy, 96 F.3d

856, 872 (CA7 1996) (en banc), rev'd on other grounds, 521 U.S.

320 (1997); cf N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,

458 U.S. 50, 83 (1982) (plurality opinion) (“{W]hen Congress

creates a statutory right, it clearly has the discretion, in defining that

right, to. . . prescribe remedies. . . .”).'? And the court’s continuing

ability to consider original writs for habeas corpus eliminates any

constitutional doubt. Felker, 518 U.S., at 664.

B. Crawford Was Not “Clearly Established” Federal

Precedent When the Nevada Supreme Court Adjudicated

Bockting’s Claim on the Merits.

The Nevada Supreme Court decided Bockting’s Sixth

Amendment claim on the merits in 1993. At that time, Roberts — not

Crawford — was controlling Confrontation Clause precedent.

Therefore, unless Bockting can show that the state court’s merits

adjudication was contrary to or an unreasonable application of

Roberts, §2254(d)(1) forecloses his application for habeas relief.

12. Innumerous contexts the Court has recognized that habeas relief may

not be available even when the underlying constitutional claim is

meritorious. See, e.g., United States v. Leon, 468 U.S. 897 (1984)

(rejecting habeas claim based on good faith exception to Fourth

Amendment exclusionary rule); Nix v. Williams, 467 U.S. 431 (1984)

(same for independent discovery doctrine); Stone v. Powell, 428 U.S. 465

(1976) (holding that Fourth Amendment claims capable of full and fair

litigation in state court are not generally cognizable in federal habeas

review).

26

C. The Court Should Decide the Important Issue of

Whether §2254(d)(1) Incorporates the Teague

Exceptions.

The Court should resolve whether §2254(d)(1) of the AEDPA

incorporates the Teague exceptions, for several reasons. See Pet. at

i (Questions Presented III). First, resolution of this issue is needed

to settle a conflict among the federal circuits and thereby ensure

consistent application of §2254(d)(1). The Ninth Circuit explicitly

read §2254(d)(1) “to incorporate the Teague exceptions. ...” Pet.

App. C at 35a. And the Third, Fifth, and Eighth Circuits have

uncritically incorporated the Teague exceptions into their

§2254(d)(1) determinations.’ Conversely, the Fourth and Seventh

Circuits have expressed the view that the Teague exceptions play no

part in the §2254(d)(1) analysis.'* The Second Circuit has

recognized the existence of this debate, but has not yet resolved the

issue.'* Because the success of a habeas petition should not hinge on

which circuit a State falls within, the Court should settle this dispute.

Second, §2254(d)(1) is an important federal statute affecting s

multitude of cases. The AEDPA altered the landscape for state

13. See, e.g., Lewis v. Johnson, 359 F.3d 646, 653-54 (CA3 2004);

Cockerham vy. Cain, 283 F.3d 657, 660-61 (CAS 2002): Williams v. Cain,

229 F.3d 468, 474-75 (CAS 2000); Evans, 371 F.3d at 444-45.

14. Ramdass v. Angelone, 187 F.3d 396, 406 n.4 (CA4 1999)

(Ҥ2254(d)(1) can be seen as stricter [than Teague] in that it does not

recognize Teague’s two traditional exceptions. .. .”), aff'd, 530 U.S. 156

(2000); Gosier v. Welborn, 175 F.3d 504, 510 (CA7 1999) (noting that

§2254(d)(1) “closes the escape hatches in Teague... .”); but cf Bintz v.

Bertrand, 403 F.3d 859, 864-867 (CA7 2005) (considering Teague

exceptions in §2254(d)(1) context).

15. Mungo v. Duncan, 393 F.3d 327, 334-35 (CA2 2004).

27

prisoners challenging their criminal convictions, and, at the center

of that legislation lies §2254(d)(1), which provides the standard by

which state court merits decisions are reviewed in federal habeas

proceedings. As explained above, the court of appeals interpreted

§2254(d)(1) in a manner inconsistent with the language of the statute

and the purposes underlying the AEDPA’s enactment. There is a

pressing need for the Court’s guidance on the correct application of

this important statute. Cf Williams, 529 U.S., at 362 (providing

broad guidance on the proper interpretation of various aspects of

§2254(d)(1)).

And finally, if the Court does not resolve this question, the court

of appeals’s holding that §2254(d)(1) incorporates the Teague

exceptions may remain precedential authority, even if the decision

is reversed on other grounds. See Durning v. Citibank, N.A., 950

F.2d 1419, 1424 n.2. (CA9 1991). Thus, the Court’s resolution of

the issue is especially important to the nine States located in the

Ninth Circuit.

For these reasons, the amici States urge the Court to reach the

third question presented and hold that §2254(d)(1) of the AEDPA

does not incorporate the Teague exceptions.

CONCLUSION

The Court should reverse the judgment of the Ninth Circuit.

Respectfully submitted,

GREG ABBOTT

Attorney General of Texas

R. TED CRUZ

Solicitor General

Counsel of Record

KRISTOFER S. MONSON

Assistant Solicitor General

FREDERICKA SARGENT

Assistant Attorney General

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700 3

July 20 2006

28

BILL LOCKYER

Attorney General of

California

BRIAN MEANS

Supervising Deputy

Attorney General

Office of the Attorney General

P.O. Box 944255

Sacramento, CA 94244-2550

(916) 324-5254

COUNSEL FOR AMICI CURIAE