Amicus Curiae Brief — Montgomery v. Louisiana, 135 S. Ct. 1546 (2015) (No. 14-280)
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JUL 29 201
No. 14-280
In the Supreme Court of the Thick rates
HENRY MONTGOMERY, PETITIONER
v.
S™ .TE OF LOUISIANA
UN \8IT OF CERTIORARI
TO THE SUPREME COURT OF LOUISIANA
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PETITIONER
DONALD B. VERRILLI, JR.
Soltcitor General
Counsel of Record
LESLIE R. CALDWELL
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
ROBERT A. PARKER
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the rule announced in Miller v. Ala-
bama, 132 S. Ct. 2455, 567 U.S. _ (2012), applies
retroactively under the framework set out in Teague
v. Lane, 489 U.S. 288 (1989).
2. The Court added the following question: Do we
have jurisdiction to decide whether the Supreme
Court of Louisiana correctly refused to give retroac-
tive effect in this case to our decision in Miller v. Ala-
bama, 567 U.S. _ (2012)?
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TABLE OF CONTENTS
Page
a lemea blaine 1
EERIE ERE IRD ee eae ERC ORE EO 2
NII ccinccnesssenisnedncmmecnnsenimnemmennnncinenmmntvsnenenits 4
Argument:
I. Miller announced a new substantive rule that
applies retroactively on collateral review ....................+ 8
A. Under Teague, new rules apply on collateral
review only when they are substantive rules
or watershed procedural rulles.............:ssseseseseseesees 9
B. Miller prescribes a “new” constitutional rule .....10
C. The Miller rule is substantive ....................cccceeee 13
II. This Court has jurisdiction to review the Louisiana
Supreme Court’s reliance on Teague to find Miller
A. Louisiana has adopted federal Teague law
to govern retroactivity on state collateral
i icasintintatnitesntenencenesinsmnneeeenimninapetn 25
B. This Court has jurisdiction to review Louisiana’s
interpretation of federal Teague law...................- 26
I i sininiitiercniatiaieaainaniinniniinadianaiainiaaanemaninipeieneneiitd 34
Appendix A — Federal juvenile offenders who have
been resentenced since Miller................-.-. la
Appendix B — State approaches to retroactivity .................. 4a
TABLE OF AUTHORITIES
Cases:
Atkins v. Virginia, 536 U.S. 304 (2002) 0.0.0... cceesescseneeees 9,14
Bailey v. United States, 516 U.S. 137 (1995) .........ccccseeeseees 14
Beard v. Banks, 542 U.S. 406 (2004) .0.........cccecescesseeeeeees 10, 20
Bousley v. United States, 523 U.S. 614 (1998)... 14
Chaidez v. United States, 133 S. Ct. 11038 (2013) .......... 10, 13
Coleman v. Thompson, 501 U.S. 722 (1991) ........ccccec000 26, 34
(ITT)
Cases—Continued: Page
Collins v. Youngblood, 497 U.S. 37 (1990).......c.ccccsesesererenrees 8
Danforth v. Minnesota, 552 U.S. 264
SEIT ccehiiianiaatesinaeaceaibasideeeansiiaianiiiaeerinatssdnanaseenl 6, 7, 25, 28, 33
Gideon v. Wainwright, 372 U.S. 335 (1963) .......ccccsccceeesees 19
Graham v. Collins, 506 U.S. 461 (1998)..............cccccccceceeseees 20
Graham v. Florida, 560 U.S. 48 (2010)...............cccccccceeseeeeees 11
Griffith v. Kentucky, 479 U.S. 314 (1987) .........cccceceseeeeseeeees i)
Jackson v. Hobbs, 132 S. Ct. 2455 (2012)... eceeeceeseeseeeeees 8
Jackson v. Norris, 378 S.W.3d 103 (Ark. 2011), rev'd
sub nom. Miller v. Alabama, 132 S. Ct. 2455 (2012)....... 13
Jones v. State, 122 So. 3d 698 (Miss. 2013)..............cccc0cceeees 18
Lambriz v. Singletary, 520 U.S. 518 (1997) .................. 10, 11
Mackey v. United States, 401 U.S. 667 (1971).............0000- 14
Meadouz v. State, 325 S.W.3d 189 (Tex. Crim. App.
2010), cert. denied, 131 S. Ct. 1827 (2011) 0... 13
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804
hice asieniianiamsetentnsiaaienpenenatininehntapinmmnenmnameneinisil 29, 31
Michigan v. Long, 463 U.S. 1082 (1983)............... 6, 26, 27, 30
Miller v. Alabama, 132 S. Ct. 2455 (2012) .........c.cccse0 passim
Miller v. State, 63 So. 3d 676 (Ala. Crim. App. 2010),
es, Se es els CIE crcocticecnncrnensecscessncmnnenssseesnsesszesens 13
O’Dell v. Netherland, 521 U.S. 151 (1997)...........ccccceseeecenees 20
Ohio v. Reiner, 5382 U.S. 17 (2001) ...........ccccccceeeeeeeeee 28, 30, 31
Penry v. Lynaugh, 492 U.S. 302 (1989), overruled on
other grounds by Atkins v. Virginia, 536 U.S. 304
Gre ciaiesindinincniecticpeessuesnanisiniiaitnasnieumenninanndcnmsinetstinanenenmanee: 9,14
People v. Davis, 6 N.E.3d 709 (Ill.), cert. denied, 135
I es, It ccieshinseininiieeinlipeeaninneineeniadstnemmncianssnenmmnneaties 18
Ring v. Arizona, 536 U.S. 584 (2002).........ccccseeeserseseesenees 15
Roberts v. Louisiana, 428 U.S. 325 (1976) ...........cccccsseceneeees 24
Roper v. Simmons, 543 U.S. 551 (2005) ...........:eccssesceseeseeees 11
Cases—Continued: Page
Saffle v. Parks, 494 U.S. 484 (1990) ..........ccccssseeseseeensesessnens 20
Sawyer v. Smith, 497 U.S. 227 (1990) .........ccccccseseseeeeeeees 12, 20
Schriro v. Summerlin, 542 U.S. 348 (2004) ............00 passim
Smith v. Texas, 550 U.S. 297 (2007)........scsessscssssesssereeeessnsees 28
Standard Oil Co. v. Johnson, 316 U.S. 481 (1942)........ 28, 29
State v. Andrews, 329 S.W.3d 369 (Mo. 2010),
cert. denied, 131 S. Ct. 3070, and 132 S. Ct.
ID ceccomnnsnsinpusrvitiaiciiesininpiiansiitiainialeatapaiitaiibipinisammaiidis 13
State v. Kelly, 46 So. 3d 229 (La. Ct. App. 2010),
writ denied, 56 So. 3d (Lia. 2011) .......ccecccsesesceseneerereneessees 13
State v. Montgomery:
FO 2
Ee ae Be eh Fee icercneentinmmnnmmniaiin 2
State v. Tate, 130 So. 3d 829 (La. 2013),
cert. denied, 134 S. Ct. 2663 (2014) .........scccceseees 3, 4, 18, 26
State ex rel. Taylor v. Whitley, 606 So. 2d 1292
(La. 1992), cert. denied, 508 U.S. 962
CEI ccscsscsisensericinteiitisiiiiiaiiiinaasabainadaatidiiaisaiaanibal 3, 25, 26, 27
Sumner v. Shuman, 483 U.S. 66 (1987) ......ccccceccceceeeees 23, 24
Teague v. Lane, 489 U.S. 288 (1989) ...........cccccceeeceeeee passim
Three Affiliated Tribes of the Fort Berthold Reserva-
tion v. Wold Eng’g, P.C., 467 U.S. 138 (1984)............. 30, 31
United States v. Booker, 543 U.S. 220 (2005) ...........cccccsccesees 1
Whorton v. Bockting, 549 U.S. 406 (2007)..........ccccccccse0 10, 19
Woodson v. North Carolina, 428 U.S. 280
(GI UTED eccccnsncccenictisiatsintepedtnnaiapaciaaiimasaniadivinhieniaisiiaiiiidnlaiaua’ 11, 12, 23, 24
Constitutions and statutes:
U.S. Const.:
VI
Constitution and statutes—Continued: Page
Teed dericercctamtennecsesnsnsnanescesesee 1, 2, 5, 8, 11
EE 3
ET 17
sancti tarmempnesnnneemeneesemmtennenenesanents 17
esi nncciresesenentensanensanemmnnnnnsessssnecsnnenemvessasins 17
ET 17
a 17
18 U.S.C. 924(c)(1) (Supp. 1] 1990)............ccccccceserneeeseeneneees 14
TT cc cnpnrnesetcnnceneunnnnsesensccencenesesasesne 17
Ts TTT tcerseeerenenennnnenninnsnosnesssessnenanesqnessessusscsssaseseeetst 17
ee a encrrreeasnmnnrrsasnmnncnmansensnscssecsensenetiensses 17
IT To seeennacienpemnsnsnsnmennenenssnnsenssnsensensnunecnsmsasestantte 17
5 17
I ane pssrrrcentcnnsesrsasemeannscemmsnsessennnsnsesecssesetn 17
nino rarsersenmntngnenenenpenesseectneumenssenecsnseneseneenens 17
IT Tien dgncetemmennsanemnemnsesnmesenncennenatnescsensonsanasanes 17
orca sestepseemnnderetnsennestncenenenensnecesnensnesensnenis 17
ES 17
i occa nreceersstenanannanenscaniscensnensscmsteseseesenanenensten 17
a TTT ince erenareedinennnennenenssccnsnsnseanessenssenesenseunests 17
srs rerancensttneenenesnnmnnennanennenseneaenaane 17
ne 17
I end rte siascnnsemsenesennemennscennnsesnenncnsseanannnennen 17
a 17
III ITI cencserecsensnssenssenanssnnsnsngnsnnscascnnustnecsusvsenneess 17
ne 17
Fai rreengnneatrnanneenmnnansennmmenses 17
LEN 17
To cs ncrtenseetnarrnsenennenctnsscenancenacasneeesnanesneentses 17
BD CEFR, BI cece ccnssvscscsccszsnscsnssrcsssecscsessecscsnessssccsesesseses 17
VII
Statutes—Continued: Page
eel 17
eee 17
S&T nn TN RE 17
kA FREE We eam enee Sore Ae 17
| RC SEN ice: aie: 17
Be acre cara csancsinianinrteiennmeneniieeiaiaainintel 17
Lk EON SOMERSET CEE 17
RE ana er ET 17
TE SE a ee 17
EN a Ae eS ane a OI 17
a Sven —
EERIE PR SER nae: Sees eR NONE aera wae 17
EN OE ae TT 17
Ark. Code Ann. § 5-4-104(b) (Supp. 2013) ee ee ee 23
Del. Code Ann. tit. 11 (Supp. 2014):
ES LEAS Seven eee eae nme 23
§ 4209A sehiteiimintiinitiititeaiichtainaiinatahintatidnaiaiatsiieaasbiaiaill 23
Fla. Stat. Ann. § 921. 1402 (West 2015) saseinetiinaidineenininianibasiinesiaal 23
La. Code Crim. Proc. Ann.:
iit ictitiiialataiceeataaiasiiaiataiaiaie 18, 22
TEES nnn ee re a RIES 2
ET See eee TEIN 2
| ET Sc nO TEEN, 2
TTL A a aE 23
ae 18
N.C. Gen. Stat. § 15A-1340.19A (2013)........ iiaiciinlatiiadiaall 23
18 Pa. Cons. Stat. § 1102.1 (West 2015)... ceceesceeccnees 23
Utah Code Ann.:
§ 76-3-207.7 (LexisNexis 2012)..............cscsssssssssessssseeessees 23
Vill
Statutes—Continued: Page
§ 76-5-202(3)(e) (LexisNexis Supp. 2014) ............ccecsseees 23
Wyo. Stat. Ann. § 6-10-301(€) (2013) ...........ccererenenenenesennees 23
Miscellaneous:
16B Charles Alan Wright et al., Federal Practice and
ee 32
Jn the Supreme Court of the Gnited States
No. 14-280
HENRY MONTGOMERY, PETITIONER
v.
STATE OF LOUISIANA
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF LOUISIANA
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
In Miller v. Alabama, 132 S. Ct. 2455 (2012), this
Court held that the Eighth Amendment forbids man-
datory sentences of life imprisonment without parole
for homicide offenses committed by juveniles (persons
under age 18). Jd. at 2460. The United States has
identified at least 27 federal prisoners serving manda-
tory life sentences for homicide offenses that they
committed when they were juveniles who may be
entitled to relief under Miller.’ The United States has
a substantial interest in whether Miller applies retro-
actively to these defendants under the framework in
Teague v. Lane, 489 U.S. 288 (1989), which the state
courts applied in this case.
' This estimate includes juvenile offenders who were sentenced
before United States v. Booker, 543 U.S. 220 (2006), under Sen-
tencing Guidelines that provided for mandatory life sentences.
(1)
2
STATEMENT
1, When he was 17 years old, petitioner killed
Charles Hurt, a deputy sheriff in East Baton Rouge,
Louisiana. Pet. App. 1; State v. Montgomery, 181 So.
2d 756, 757 (La. 1966). Petitioner was tried as an
adult in state court, convicted of murder, and sen-
tenced to death. See ibid.
The Louisiana Supreme Court vacated petitioner’s
conviction and sentence and remanded for a new trial.
Montgomery, 181 So. 2d at 762. A jury convicted
petitioner of murder but did not recommend a death
sentence. State v. Montgomery, 242 So. 2d 818, 818
(La. 1970). Petitioner’s conviction subjected him to
mandatory life imprisonment without the possibility of
parole. See La. Rev. Stat. Ann. §§ 14:30 & cmt.,
15:409 (1951). The trial court imposed that sentence,
and the Louisiana Supreme Court affirmed. Mont-
gomery, 242 So. 2d at 820.
2. After petitioner’s conviction and sentence be-
came final, this Court decided Miller v. Alabama, 132
S. Ct. 2455 (2012). In Miller, the Court held that
“mandatory life without parole for those under the age
of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual’ pun-
ishments.” Jd. at 2460. The Court explained that a
sentencer must “have the ability to consider the miti-
gating qualities of youth” rather than imposing man-
datory life without parole. Jd. at 2467 (citation and
internal quotation marks omitted).
3. Petitioner sought collateral review in state
court, challenging his sentence under Miller. See Pet.
App. 1-2; J.A. 12-17; see also La. Code Crim. Proc.
Ann. art. 882(A) (2008). Respondent opposed resen-
tencing on the ground that Miller does not apply ret-
3
roactively to cases on collateral review. See J.A. 45-
57.
The trial court denied petitioner’s motion. Pet.
App. 1-2. It concluded that Miller does not apply
retroactively because it does not “completely remove ]
a particular punishment from the list of punishments
that can be constitutionally imposed on a class of de-
fendants,” id. at 1, or qualify as a “watershed rule{] of
criminal procedure” that “implicat(es}] the fundamen-
tal fairness and accuracy of the criminal proceeding,”
id. at 2 (citation omitted).
Petitioner sought appellate review, and his case
was transferred to the Louisiana Supreme Court. Pet.
App. 3; J.A. 87, 132; see La. Const. Art. V, § 5(E).
4. Meanwhile, the Louisiana Supreme Court held
in another case that Miller does not apply retroactive-
ly to cases on state collateral review. State v. Tate,
130 So. 3d 829, 841 (2013), cert. denied, 134 S. Ct. 2663
(2014). The court noted that it uses the retroactivity
standards in Teague v. Lane, 489 U.S. 288 (1989), for
“all cases on collateral review in our state courts.”
Tate, 130 So. 3d at 834 (quoting State ex rel. Taylor v.
Whitley, 606 So. 2d 1292, 1297 (La. 1992), cert. denied,
508 U.S. 962 (1993)).
Applying Teague, the court concluded that Miller
is not retroactive. The court classified Miller’s rule as
procedural, rather than substantive, because “[iJt did
not alter the range of conduct or persons subject to
life imprisonment without parole for homicide offens-
es” but “simply altered the range of permissible
methods for determining whether a juvenile could be
sentenced to life imprisonment without parole for [a
homicide] conviction.” Tate, 130 So. 3d at 836-837
(emphasis omitted). The court also concluded that
4
Miller did not establish a “watershed” procedural
rule. /d. at 839 (citations omitted).
Two Justices dissented. See Tate, 130 So. 3d at
844-849 (Johnson, C.J., dissenting). The dissent found
that Miller announced a substantive rule because it
“invalidates mandatory sentencing regimes that per-
mit only one sentencing outcome” and “requir[es] that
an alternative sentencing option be made available to
juvenile defendants convicted of homicide.” Jd. at 845-
846. The dissent also concluded that Miller sets out a
“watershed” procedural rule. Jd. at 847.
5. In light of Tate, the Louisiana Supreme Court
summarily denied relief in petitioner’s case. Pet. App.
3; see J.A. 6. One Justice dissented, arguing that
Miller states a substantive rule that should apply
retroactively. Pet. App. 4 (Johnson, C.J., dissenting).
SUMMARY OF ARGUMENT
I. Miller v. Alabama, 132 S. Ct. 2455 (2012), an-
nounced a new substantive rule that applies retroac-
tively to cases on collateral review.
A. Under Teague v. Lane, 489 U.S. 288 (1989), a
new rule announced by this Court generally does not
apply retroactively to cases that have become final on
direct review. But a new rule applies retroactively in
two circumstances. First, a new substantive rule, such
as a rule that limits the conduct that is criminal or the
punishment for certain offenders, is not subject to
Teague and applies retroactively. Schriro v. Summer-
lin, 542 U.S. 348, 351-352 & n.4 (2004). Second, a new
rule of procedure applies retroactively when it falls
within the narrow category of “watershed” rules that
“alter our understanding of the bedrock procedural
elements” essential to a fair trial. Teague, 489 U.S. at
5
311 (plurality opinion) (emphasis and citation omit-
ted).
B. The Miller rule is a “new” constitutional rule: it
was not “dictated by” prior precedents. Teague, 489
U.S. at 301 (plurality opinion) (emphasis omitted).
Rather, Miller combined and extended two strands of
precedent—decisions that categorically preclude cer-
tain punishment for juvenile offenders because of
their youth, and decisions that require individualized
sentencing in capital cases—to conclude that the
Eighth Amendment prohibits mandatory life-without-
parole sentences for juvenile homicide offenders.
That lower courts had rejected such a rule before the
Court’s decision further signals that Miller’s rule is
new.
C. The Miller rule is substantive, not merely pro-
cedural. Miller's holding that “the Eighth Amend-
ment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile
offenders,” 132 S. Ct. at 2469, requires jurisdictions to
provide a broader range of sentences than is available
under a mandatory-life-imprisonment regime. Invali-
dating mandatory life-without-parole sentences for
juvenile homicide offenders means that less severe
sentences must be allowed. That expansion of sen-
tencing outcomes is a substantive change in the law.
Experience since Miller—in which juvenile homicide
defendants have been resentenced to lesser sentences
and jurisdictions have changed their laws—confirms
that the decision worked a substantive change in the
law.
Miller does have a procedural component, in that it
requires individualized consideration of the appropri-
ate sentence for a juvenile homicide offender. And
6
that component is not a “watershed” procedural rule.
But Miller is not essentially procedural, because Mil-
ler changes not only the process of sentencing, but
also the range of sentences that are available.
Characterizing Miller as substantive aligns with
Teague’s objectives. Rules with only procedural ef-
fects ordinarily are not retroactive because the inter-
est in finality outweighs the speculative effect of the
new rule on a conviction or sentence. But substantive
rules that expand the available sentences raise a real
risk that a person has been subjected to an unjustified
punishment—a situation serious enough to justify
reopening final cases. And recognizing that Miller
announced a substantive rule is unlikely to lead to
other rulings that would upset the finality of criminal
sentences.
II. This Court has jurisdiction to review the Loui-
siana Supreme Court’s refusal to give retroactive
effect to Miller.
A. The Louisiana Supreme Court has adopted all
aspects of the Teague doctrine to govern the retroac-
tivity of new federal constitutional rules to cases on
state collateral review. Although a State may choose
to give broader retroactive effect to federal constitu-
tional decisions than would be afforded under Teague,
see Danforth v. Minnesota, 552 U.S. 264, 282 (2008),
the Louisiana Supreme Court has chosen to use
Teague and to rely exclusively on federal decisions.
B. In Michigan v. Long, 463 U.S. 1032 (1983), this
Court determined that when a state court’s decision
rests primarily on, or is interwoven with, federal law,
with no clear reliance on an independent state ground,
this Court has jurisdiction to review the federal-law
issue. Jd. at 1040-1041. Here, the Louisiana Supreme
7
Court’s decision finding Miller non-retroactive did
rely exclusively on federal law, and not on any inde-
pendent state retroactivity standard.
Long’s test does not conclusively resolve this case
because an antecedent question exists: whether it
matters that Louisiana chose to adopt Teague as its
own test for retroactivity. In a typical Long case,
federal law applies of its own force; here, Louisiana
chose to apply federal law. But that does not preclude
jurisdiction here, because, as this Court has explained,
when a state court adopts federal standards and bases
its decision on its interpretation of federal law, this
Court has jurisdiction to review the application of
those federal standards. Although no prior decision
has addressed a situation entirely like this one, the
principles animating this Court’s conclusion that it has
certiorari jurisdiction to review embedded questions
of federal law justify review of the federal question
here. The Louisiana Supreme Court based its retro-
activity determination on its understanding of Teague
principles, and this Court may correct that under-
standing if it is mistaken.
It is particularly appropriate for this Court to cor-
rect the Louisiana Supreme Court’s mistaken under-
standing of federal law in this case for two reasons.
First, correcting the state court’s Teague error avoids
deciding a significant constitutional question: wheth-
er Teague’s exceptions to the general rule of non-
retroactivity define a constitutional floor that a State
must observe in its collateral review of federal consti-
tutional claims. See Danforth, 552 U.S. at 269 n.4
(reserving this issue). Second, exercising jurisdiction
based on the State’s incorporation of federal law fur-
thers federalism principles by avoiding potentially
8
intrusive federal habeas review, instead allowing the
state court to correctly apply the federal law it has
incorporated. This Court should reverse the judg-
ment of the Louisiana Supreme Court and remand for
further proceedings.
ARGUMENT
I. MILLER ANNOUNCED A NEW SUBSTANTIVE RULE
THAT APPLIES RETROACTIVELY ON COLLATERAL
REVIEW
In Miller v. Alabama, 132 S. Ct. 2455 (2012), this
Court held that the Eighth Amendment bars sentenc-
ing juvenile offenders to mandatory sentences of life
imprisonment without the possibility of parole. Jd. at
2460. Under Teague v. Lane, 489 U.S 288 (1989), that
rule applies retroactively to cases on collateral review
because it is substantive. Miller does not simply alter
sentencing procedures; it expands the range of possi-
ble sentencing outcomes for a category of defendants
by requiring the possibility of a sentence less than life
without parole.’
* In a companion case to Miller, Jackson v. Hobbs, 132 S. Ct.
2455 (2012), the Court granted relief to a juvenile offender who
challenged the state court’s denial of collateral relief. Jd at 2461,
2475. The Court’s disposition of Jackson does not control the
outcome here. Even assuming that Teague applies on this Court’s
review of a state collateral-review decision, the State did not
challenge retroactivity in Jackson and the issue was not before the
Court. See Collins v. Youngblood, 497 U.S. 37, 41 (1990) (Teague
is not jurisdictional).
9
A. Under Teague, New Rules Apply On Collateral Review
Only When They Are Substantive Rules Or Watershed
Procedural Rules
Retroactivity principles apply differently to cases
pending on direct and collateral review. In Griffith v.
Kentucky, 479 U.S. 314 (1987), the Court held that a
“new rule for the conduct of criminal prosecutions is
to be applied retroactively to all cases, state or feder-
al, pending on direct review or not yet final.” Jd. at
328. In Teague v. Lane, supra, the Court took a dif-
ferent approach to retroactivity for criminal convic-
tions that have become final on direct review and are
challenged in federal habeas corpus proceedings. The
Court explainea that “new” constitutional rules—
those not “dictated by precedent existing at the time
the defendant’s conviction became final”—generally
“will not be applicable to those cases which have be-
come final before the new rules are announced.” 489
U.S. at 301, 310 (plurality opinion) (emphasis omitted);
see id. at 319-320 (Stevens, J., concurring in part and
concurring in the judgment).* But Teague, and cases
following it, identify two circumstances in which a new
rule will apply retroactively to cases on collateral
review.
First, “[nJew substantive rules generally apply ret-
roactively” and are “not subject to [Teague’s] bar.”
Schriro v. Summerlin, 542 U.S. 348, 351-352 & n.4
(2004) (emphasis omitted); see Teague, 489 U.S. at 311
(plurality opinion). Such rules “include[] decisions
that narrow the scope of a criminal statute by inter-
* The Court adopted the Teague plurality’s approach to retroac-
tivity in Penry v. Lynaugh, 492 U.S. 302, 313-314 (1989), overruled
on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).
10
preting its terms, as well as constitutional determina-
tions that place particular conduct or persons covered
by the statute beyond the State’s power to punish.”
Summerlin, 542 U.S. at 351-352 (citations omitted).
Second, although “{nJew rules of procedure” gener-
ally “do not apply retroactively,” an exception exists
for “watershed rules” that “implicat[e] the fundamen-
tal fairness and accuracy of the criminal proceeding.”
Summerlin, 542 U.S. at 352 (citations omitted); see
Teague, 489 U.S. at 311-314 (plurality opinion). That
exception is limited to procedural rules that are “nec-
essary to prevent an impermissibly large risk of an
inaccurate conviction” and that “alter our understand-
ing of the bedrock procedural elements essential to
the fairness of a proceeding.” Whorton v. Bockting,
549 U.S. 406, 418 (2007) (citations and internal quota-
tion marks omitted).
B. Miller Prescribes A “New” Constitutional Rule
Whether a rule applies retroactively depends ini-
tially on whether it is “new.” Chaidez v. United
States, 133 S. Ct. 1103, 1107 (2013). A rule is new if it
“breaks new ground or imposes a new obligation” on
the government, meaning that it was not “dictated by
precedent existing at the time the defendant’s convic-
tion became final.” Teague, 489 U.S. at 301 (plurality
opinion). A rule is dictated by precedent if the rule
“would have been apparent to all reasonable jurists”
who considered the issue. Chaidez, 133 S. Ct. at 1107
(citation and internal quotation marks omitted). It is
not enough that a rule was “support[ed]” by prece-
dent, Beard v. Banks, 542 U.S. 406, 414 (2004), or even
that it represents the “most reasonable” interpreta-
tion of precedent, Lambrix v. Singletary, 520 U.S.
518, 538 (1997). Unless “all reasonable jurists” who
11
considered the legal landscape when the defendant’s
conviction became final would have recognized the
rule, the rule is new. Jd. at 527-528.
The rule announced in Miller is a “new” rule. The
Court’s holding that “the Eighth Amendment forbids
a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders,”
Miller, 132 S. Ct. at 2469, was not dictated by existing
precedent. The Miller Court reached its holding by
combining and extending “two strands of precedent.”
Id. at 2463. The first line involved “categorical bans”
on sentences found disproportionate for classes of
offenders. Jbid. Two such holdings involved juvenile
offenders: Roper v. Simmons, 543 U.S. 551, 574-575
(2005), which categorically banned capital punishment
for juvenile offenders, and Graham vy. Florida, 560
U.S. 48, 82 (2010), which prohibited life-without-parole
sentences for juvenile offenders convicted of non-
homicide offenses. See also id. at 60-61 (citing other
cases). That line of precedent did not dictate the
result in Miller, because the Court had limited its
prohibition on life-without-parole sentences to non-
homicide offenses. See zd. at 68-69.
A second line of precedent, however, was also rele-
vant: decisions “prohibit[ing] mandatory imposition of
capital punishment” without individualized considera-
tion of the characteristics of the defendant and his
offense. Miller, 132 S. Ct. at 2463-2464; see, e.g.,
Woodson v. North Carolina, 428 U.S. 280, 301 (1976)
(plurality opinion) (prohibiting mandatory death sen-
tences). Those decisions reasoned that because capi-
tal punishment is “different from all other sanctions in
kind rather than degree,” the sentencer must consider
“the character and record of the individual offender
12
and the circumstances of the particular offense.”
Woodson, 428 U.S. at 303-304 (plurality opinion).
Miller extended the first line of precedent—the
Roper-Graham line—to conclude that juveniles are
“constitutionally different” for sentencing purposes
even when they commit homicide. 132 8S. Ct. at 2464.
The Court then extended the second line of precedent
—the Woodson line—beyond the death-penalty con-
text to hold that sentencers must consider the charac-
teristics of juvenile offenders and the circumstances of
their offenses before imposing the most severe sen-
tence available—life without parole. /d. at 2467.
While the Miller rule was supported by those prec-
edents, it was not dictated by them. The Court re-
peatedly noted the limits of prior decisions, indicating
that its rule extended those decisions.‘ The Court also
explained that the “confluence” of lines of precedent
“le[d] to” the Court’s conclusion, not that the conclu-
sion was dictated by prior decisions. 132 S. Ct. at
2464; see, e.g., id. at 2465, 2467 (Graham line of cases
is “implicate{d],” and Woodson line of cases is “rele-
vant,” to the Court’s analysis); see also Sawyer v.
Smith, 497 U.S. 227, 236 (1990) (rule may be new even
though prior cases “lent general support” to the con-
clusion later reached). The conclusion that Miller
announced a new rule is supported by the lower
courts’ rejection, before Miller, of constitutional chal-
lenges to mandatory life-without-parole sentences for
* See, eg., Miller, 132 S. Ct. at 2465 (Graham rule “applied only
to nonhomicide crimes”; the Court “took care to distinguish those
offenses from murder, based on both moral culpability and conse-
quential harm”); id. at 2466 n.6 (“Graham established one rule (a
flat ban) for nonhomicide offenses, while we set out a different one
(individualized sentencing) for homicide offenses.”).
13
juvenile homicide offenders, even after Roper and
Graham.® See Chaidez, 133 S. Ct. at 1109 (rule was
new where “state and lower federal courts * * *
[had] almost unanimously” rejected it).
C. The Miller Rule Is Substantive
Because Miller sets out a new rule, the next ques-
tion is whether the rule is substantive or procedural.
Although Miller has a procedural component, its pri-
mary effect is substantive: it forecloses mandatory
life-without-parole sentences for juvenile homicide of-
fenders, thereby expanding the range of possible sen-
tencing outcomes. That makes the Miller rule sub-
stantive under Teague.
1. The distinction between substantive and proce-
dural rules under Teague reflects the fundamental
difference between the way a case is adjudicated (pro-
cedure) and the possible outcomes of the case (sub-
stance). The Court’s cases reflect that a rule that
alters the range of permissible outcomes is substan-
tive, while a rule that alters only the manner of de-
termining the defendant’s guilt or sentence is proce-
dural. See, e.g., Summerlin, 542 U.S. at 353 (a sub-
stantive rule “alters the range of conduct or the class
of persons that the law punishes,” while a procedural
rule “regulate[s] only the manner of determining the
defendant’s culpability”).
® See, eg., Miller v. State, 63 So. 3d 676, 691 (Ala. Crim. App.
2010), rev'd, 132 S. Ct. 2455 (2012); Jackson v. Norris, 378 S.W.3d
103, 106 (Ark. 2011), rev’d sub nom. Miller v. Alabama, supra;
State v. Kelly, 46 So. 3d 229, 233-234 (La. Ct. App. 2010), writ
denied, 56 So. 3d (La. 2011); State v. Andrews, 329 S.W.3d 369,
377-378 (Mo. 2010), cert. denied, 131 S. Ct. 3070, and 132 S. Ct. 260
(2011); Meadoux v. State, 325 S.W.3d 189, 193-196 (Tex. Crim.
App. 2010), cert. denied, 131 S. Ct. 1827 (2011).
14
The Teague Court originally described a substan-
tive rule as a rule that “places ‘certain kinds of prima-
ry, private individual conduct beyond the power of the
criminal law-making authority to proscribe.’” 489
U.S. at 307 (plurality opinion) (quoting Mackey v.
United States, 401 U.S. 667, 692 (1971) (Harlan, J.,
concurring in the judgment)). Although Teague con-
sidered a constitutional rule, the Court later applied
the same general principles to new rules that narrow
the scope of a federal criminal statute by statutory
interpretation. See Bousley v. United States, 523 U.S.
614, 616, 620-621 (1998) (holding that the rule in Bai-
ley v. United States, 516 U.S. 137 (1995), that “us[e]”
of a firearm in violation of 18 U.S.C. 924(c)(1) (Supp.
II 1990) requires “active employment of the firearm,”
applies retroactively to cases on collateral review).
The Court also expanded the category of substan-
tive rules to include rules that categorically preclude a
particular type of punishment for all offenders or for a
certain class of offenders. See Penry v. Lynaugh, 492
U.S. 302, 329-330 (1989) (“[A] new rule placing a cer-
tain class of individuals beyond the State’s power to
punish by death is analogous to a new rule placing
certain conduct beyond the State’s power to punish at
all.”), overruled on other grounds by Atkins v. Virgin-
ia, 586 U.S. 304 (2002). Accordingly, the Court has
described “[njew substantive rules” as including “de-
cisions that narrow the scope of a criminal statute
by interpreting its terms,” as well as decisions “that
place particular conduct or persons covered by
the statute beyond the State’s power to punish.”
Summerlin, 542 U.S. at 351-352 (emphasis omitted).
Those types of rules do more than affect how a case is
decided; they alter the range of possible outcomes.
15
Procedural rules, by contrast, “regulate only the
manner of determining the defendant’s culpability.”
Summerlin, 542 U.S. at 353. Procedural rules “do not
produce a class of persons convicted of conduct the
law does not make criminal” or subjected to an illegal
sentence. /d. at 352. For example, the rule that a
jury, rather than a judge, must find the aggravating
factors required to render a capital defendant death-
eligible is a procedural rule because it “alter{s} the
range of permissible methods for determining wheth-
er a defendant’s conduct is punishable by death” with-
out “alter[ing] the range of conduct [state] law sub-
jected to the death penalty.” /d. at 353 (addressing
retroactivity of Ring v. Arizona, 536 U.S. 584 (2002)).
Taken together, the Court’s descriptions of “sub-
stantive” and “procedural” rules under Teague explain
that rules that go beyond regulating only the “man-
ner” of determining culpability—and instead categori-
cally change the range of outcomes—dqualify as sub-
stantive rules.
2. The rule that juveniles may not receive manda-
tory life-without-parole sentences for homicide is a
substantive rule because it expands the range of per-
missible sentencing outcomes for those offenders.
Before Miller, a juvenile convicted of homicide in a
jurisdiction that mandated life without parole could
receive only one possible sentence—life imprisonment
without the possibility of release. Under Miller, how-
ever, a juvenile offender convicted in the same juris-
diction for the same offense now could receive a range
of sentences—not only life imprisonment without
parole but also some lesser sentence (either life im-
prisonment with parole or a term of years). That is a
substantive change in the law.
16
Miller differs from previous decisions in which this
Court has announced substantive rules in that those
decisions narrowed, rather than expanded, the range
of permissible outcomes of the criminal process. In
prior decisions, the Court has deemed certain rules
retroactive because they “narrow the scope of a crimi-
nal statute” or “place particular conduct or persons
* * * beyond the State’s power to punish.” Sum-
merlin, 542 U.S. at 351-352. But the Court has not
precluded characterizing as substantive a new rule
that expands the range of sentencing outcomes for a
class of defendants. And recognizing such an expan-
sion as a substantive rule makes sense. Rules that
narrow the range of sentencing options and rules that
expand them alter the substantive law: to comply with
the rule, a jurisdiction must change the permissible
punishments, not just how to determine them.
Although the Court has not considered the retroac-
tive effect of a constitutional rule that expanded pos-
sible sentencing outcomes, the Court’s descriptions of
substantive and procedural rules support categorizing
an outcome-expanding rule as substantive. The Court
has been careful to say that the category of substan-
tive rules “includes” rules that make certain conduct
non-criminal or that preclude certain sentences, with-
out restricting the category to such rules. Summer-
lin, 542 U.S. at 351-352. And the expansion over time
of what constitutes a substantive rule, see p. 14, su-
pra, confirms that the category of substantive rules is
not limited to the original formulation in Teague itself.
At the same time, the Court has used precise language
to delineate the category of procedural rules that are
ordinarily non-retroactive, stating that procedural
rules are those regulating “only the manner of deter-
17
mining culpability.” Summerlin, 542 U.S. at 353 (em-
phasis omitted). The Miller rule does not affect “only
the manner of determining culpability,” but mandates
consideration of more lenient substantive outcomes.
The experience post-Miller confirms that the Mil-
ler rule is substantive. Miller invalidated existing
state and federal mandatory life-without-parole sen-
tencing regimes for juvenile offenders, requiring
States and the federal government to provide a range
of sentencing outcomes that includes the possibility of
a sentence of less than life imprisonment. For exam-
ple, Congress has mandated sentences of at least life
imprisonment for dozens of homicide offenses under
federal law® and has prohibited parole or early release
for individuals serving life sentences.’ After Miller,
those statutes may not be enforced as written. See
App. A, infra (collecting cases in which federal courts
have resentenced juvenile offenders after Miller).
Several States have also recognized that Miller
narrowed their mandatory-life-imprisonment statutes
by excluding juveniles from their scope. For example,
the Mississippi Supreme Court explained that before
Miller, “everyone convicted of murder in Mississippi
was sentenced to life imprisonment and was ineligible
* 18 U.S.C. 34, 115(b)\(3), 175e(c)(3), 229A, 351(a), 924(e)(1)(Cii),
930(c), 1091(b\(1), 1111, 1114, 1116(a), 1118(a), 1119(b), 1120(a),
1121(a), 1201(a), 1208(a), 15038(b)(1), 1512(a), 1513(a), 1651,
1716(j)(3), 1751(a), 1841(aX(2), 1958(a), 2113(e), 2332g(c)(3),
2332h(c)(3), 3559(d)(1) and (f)(1); 21 U.S.C. 461(c), 675, 1041(b); 42
U.S.C. 2272(b); 49 U.S.C. 46502.
Congress also has mandated sentences of life imprisonment for
certain serious non-homicide offenses. See 18 U.S.C. 3559(c)(1);
21 U.S.C. 841(b)(1M A){C), 960(b)(1)-(3).
7 18 U.S.C. 3624(a)-b).
18
for parole,” but after Miller, “Mississippi’s current
sentencing and parole statutes could not be followed
in homicide cases involving juvenile defendants.”
Jones v. State, 122 So. 3d 698, 702 (2013) (“Miller
modified our substantive law by narrowing its applica-
tion for juveniles.”); see also, e.g., People v. Davis, 6
N.E.3d 709, 722 (Ill.) (“Miller mandates a sentencing
range broader than that provided by statute for mi-
nors convicted of first degree murder who could oth-
erwise receive only natural life imprisonment.”) (cita-
tion omitted), cert. denied, 135 S. Ct. 710 (2014).
Likewise, Louisiana’s legislature recognized Mil-
ler’s effect on existing statutes by enacting new legis-
lation that permits a sentencer to sentence a juvenile
homicide offender to either life imprisonment without
parole or life imprisonment with eligibility for parole.
See State v. Tate, 130 So. 3d 829, 841-843 (La. 2013),
cert. denied, 134 S. Ct. 2663 (2014); see also La. Code
Crim. Proc. Ann. art. 878.1 (2015) (requiring a court to
conduct a hearing before sentencing a juvenile homi-
cide offender to “determine whether the sentence
shall be imposed with or without parole eligibility”);
La. Rev. Stat. Ann. § 15:574.4(E)(1) (2015) (setting
out conditions for parole eligibility for a juvenile hom-
icide offender who received a life-with-parole sen-
tence). Consequently, Louisiana now has a new sen-
tencing option for juvenile homicide offenders—life
imprisonment with the possibility of parole.
3. The Miller rule does have a procedural compo-
nent: it requires the sentencer to give individualized
consideration to a juvenile homicide offender to ac-
count for “how children are different, and how those
differences counse] against irrevocably sentencing
them to a lifetime in prison.” 132 S. Ct. at 2469. The
19
requirement to consider certain sentencing factors
bears on the procedures a court must employ before
imposing sentence. This aspect of Miller states a
procedural rule, although not a “watershed” rule.*
But characterizing the Miller rule as entirely pro-
cedural under Teague would overlook the rule’s neces-
sary implications for the substantive criminal law.
Miller does not regulate “only the manner of deter-
mining the defendant’s culpability” or sentence.
Summerlin, 542 U.S. at 353 (first emphasis added).
Instead, Miller gives juvenile offenders the opportuni-
ty to obtain different and more favorable outcomes
than before Miller. That is a substantive change in
the law.
Miller’s alteration of the range of available sen-
tencing outcomes distinguishes it from decisions that
this Court has recognized are purely procedural. For
example, the rule in Ring that the jury, rather than
the judge, must decide aggravating factors in capital
* Petitioner contends (Br. 28-30), in the alternative, that Miller
is a watershed rule. To qualify as watershed, a procedural rule
“must be necessary to prevent an impermissibly large risk of an
inaccurate conviction” and “must alter our understanding of the
bedrock procedural elements essential to the fairness of a proceed-
ing.” Whorton, 549 U.S. at 418 (citations and internal quotation
marks omitted). Miller does not fundamentally “alter our under-
standing of the rock” procedures necessary for a fair trial.
Even assuming that a watershed rule could bear only on sentenc-
ing, Miller applies only to the sentencing of a narrow category of
offenders—juvenile homicide defendants. And its expansion of the
factors that must be considered before sentencing does not work
the sort of “profound and sweeping change” on our system of
criminal justice that Gideon v. Wainwright, 372 U.S. 335 (1963),
produced, nor does it share “the primacy and centrality of the
Gideon rule.” Whorton, 549 U.S. at 421 (citations and internal
quotation marks omitted).
20
sentencing “allocate[s] decisionmaking authority” but
does not change the sentencing options available.
Summerlin, 542 U.S. at 353; see id. at 355 n.5 (Ring
did not change “the actual content of state law”).
Similarly, this Court has several times held that rules
addressing the material to be considered by capital
sentencing juries are procedural and thus not retroac-
tive.” The rules at issue in those cases concerned the
manner in which the sentencer decides whether a
death sentence is appropriate; none altered the range
of punishments the jury may impose.
Respondent contends (Br. in Opp. 19-20) that the
Miller rule is procedural because the Court noted
that its rule “does not categorically bar a penalty for
a class of offenders or type of crime” but “man-
dates only that a sentencer follow a certain process—
considering an offender's youth and attendant
characteristics—before imposing a particular penal-
ty.” Miller, 132 S. Ct. at 2471. But that language did
not address retroactivity under Teague; it simply
contrasted the reach of Miller with the effects of the
* See, e.g., Banks, 542 U.S. at 408, 420 (rule that juries may con-
sider mitigating factors even if not found unanimously is not
retroactive); O’Dell v. Netherland, 521 U.S. 151, 153, 167 (1997)
(rule that capital defendant may introduce evidence of his parole
ineligibility to rebut argument about future dangerousness is not
retroactive); Sawyer, 497 U.S. at 229, 232, 244-245 (rule that
capital sentence may not be imposed when the jury is led to believe
that responsibility for the death penalty lies elsewhere is not
retroactive); see also Graham v. Collins, 506 U.S. 461, 477-478
(1993) (proposed rule that would require special instruction to
capital sentencing jury about mitigating factors would not be
retroactive); Saffle v. Parks, 494 U.S. 484, 486, 494-495 (1990)
(proposed rule about jury instruction not to rely on sympathy for
the defendant would not be retroactive).
21
Court’s decision in Graham, which barred sentences
of life imprisonment for juveniles convicted of non-
homicide offenses. See ibid. And it does not address
the fact that Miller mandated that new and more
favorable sentencing outcomes be available to defend-
ants who previously had faced only one outcome—
which is a substantive (not procedural) rule under
Teague.
4. Characterizing a rule that expands the range of
sentencing outcomes as substantive accords with
Teague’s objectives. The Teague principles balance
the respect accorded to a final judgment and the in-
terest in fundamental faiphess in criminal proceed-
ings. The Court has explained that procedural rules
generally do not apply retroactively because the in-
terest in finality outweighs the speculative effect of
the new rule on a conviction or sentence. See Sum-
merlin, 542 U.S. at 352; see also Teague, 489 U.S. at
310 (plurality opinion).
Substantive rules, in contrast, apply retroactively
because their effects on the fairness of a defendant’s
conviction or sentence are sufficiently profound to
justify upsetting final judgments. The Court has
observed that the substantive rules it has recognized
“necessarily carry a significant risk that a defendant
stands convicted of an act that the law does not make
criminal or faces a punishment that the law cannot
impose upon him,” and that risk is sufficient to over-
come a State’s interests in finality and comity. Sum-
merlin, 542 U.S. at 352 (citations and internal quota-
tion marks omitted).
The same reasoning applies to Miller. Although
the Court did not preclude a life-without-parole sen-
tence for a juvenile homicide defendant, the Court
22
expected that, in light of juveniles’ “diminished culpa-
bility and heightened capacity for change,” life with-
out parole would be an “uncommon” sentence. Miller,
132 S. Ct. at 2469. The Louisiana legislature has
made the same judgment, stating in its new sentenc-
ing statute for juvenile homicide offenders that
“{sjentences imposed without parole eligibility should
normally be reserved for the worst offenders and the
worst cases.” La. Code Crim. Proc. Ann. art. 878.1
(2015). And the federal experience proves this point:
all of the federal juvenile offenders who have been
resentenced under Miller have received sentences
less severe than life imprisonment without parole.
See App. A, infra. Because Miller makes available
new, less severe sentences to juveniles who otherwise
will spend the rest of their lives in prison, it should
apply retroactively even to those judgments that have
already become final on direct review.
Respondent contends (Br. in Opp. 32-34) that Mil-
ler should not apply retroactively to cases on collat-
eral review because it will require new sentencing
hearings, which may be difficult because the relevant
witnesses and records may be unavailable. But this
Court already considered the potentially disruptive
effects of applying a new substantive rule retroactive-
ly and has concluded, as a categorical matter, that the
costs of retroactive application are justified by the
effects of the rule. See Teague, 489 U.S. at 306-307
(plurality opinion). Respondent’s practical arguments
could also be raised against the rules in Roper and
Graham—rules that respondent acknowledges have
been applied retroactively. See Br. in Opp. 29-30.
Just as with those decisions, the potential costs of
resentencings in the wake of Miller do not warrant a
23
departure from the Court’s longstanding holding that
substantive rules apply retroactively on collateral
review. And in any event, a State may remedy a Mil-
ler violation by permitting juvenile homicide offenders
to be considered for parole, rather than by resentenc-
ing them. Several States have done so."
5. Reeognizing that Miller is substantive is unlike-
ly to open the door to additional substantive rules that
will impair the finality of convictions. Miller applies
substantively only because it eliminates a mandatory
punishment. If the punishment were not mandatory—
if, for example, the Court had held that sentencers
must be permitted to consider the mitigating effects of
youth before selecting a sentence from an existing
range—then Miller would fit comfortably within this
Court’s definition of a procedural rule and would not
apply retroactively on collateral review. See pp. 18-
21, supra.
In only one prior context has the Court invalidated
a sentence because of its mandatory character: the
imposition of mandatory capital punishment. See
Woodson, 428 U.S. at 305 (plurality opinion); see also
Sumner v. Shuman, 483 U.S. 66, 77-78, 85 (1987);
” See, e.g., Ark. Code Ann. § 5-4-104(b) (Supp. 2013) (juvenile
homicide offenders eligible for parole after 28 years); Del. Code
Ann. tit. 11, §§ 4204A(d), 4209A (Supp. 2014) (parole eligibility
after 30 years); Fla. Stat. Ann. § 921.1402 (West 2015) (parole
consideration after 25 years); La. Rev. Stat. Ann. § 15:574.4(E)
(2015) (parole eligibility after 35 years); N.C. Gen. Stat. § 15A-
1340.19A (2013) (parole eligibility after 25 years); 18 Pa. Cons.
Stat. § 1102.1 (West 2015) (parole eligibility after 25 or 35 years,
depending on offender’s age); Utah Code Ann. § 76-3-207.7
(LexisNexis 2012); id. § 76-5-202(3)(e) (LexisNexis Supp. 2014)
(parole eligibility after 25 years); Wyo. Stat. Ann. § 6-10-301(c)
(2013) (parole eligibility after 25 years).
24
Roberts v. Louisiana, 428 U.S. 325, 336 (1976) (plural-
ity opinion). Like the Miller rule, the rule in Woodson
has a procedural component, in that the Court deter-
mined that capital sentencing juries must be permit-
ted to make an individualized analysis of the offender
and the offense. See Woodson, 428 U.S. at 303-305
(plurality opinion). But that was not the full effect of
the ruling. By requiring individualized consideration
before imposing the harshest penalty available by law,
Woodson also required that a more lenient sentencing
option be available. Both the Miller rule and the
prohibition on mandatory death sentences in Woodson
do more than alter the sentencing process; they also
change the range of permissible sentences for defend-
ants exposed to the harshest penalty allowed by law.
This Court never considered whether the Woodson
rule was “substantive” and thus retroactive because
its mandatory capital-punishment decisions predated
Teague and, by the time of Sumner, only three indi-
viduals in the United States were under mandatory
death sentences. Sumner, 483 U.S. at 72-73 n.2. But
it is unlikely that, after holding mandatory death
sentences unconstitutional, the Court would have
denied collateral relief on non-retroactivity grounds
for a capital defendant who never had an opportunity
to argue for a sentence less than death. The same
should be true for Miller, where the Court extended
Woodson because it viewed the “juvenile life sentenc-
es as analogous to capital punishment.” 132 S. Ct. at
2467 (citation omitted). Just as Woodson expanded
the range of sentencing outcomes for adults convicted
of capital crimes, Miller expanded the range of sen-
tencing outcomes for juveniles convicted of homicide
25
crimes. That substantive effect justifies the retroac-
tive application of Miller.
Il. THIS COURT HAS JURISDICTION TO REVIEW THE
LOUISIANA SUPREME COURT’S RELIANCE ON
TEAGUE TO FIND MILLER NON-RETROACTIVE
The Louisiana Supreme Court has adopted federal
Teague standards to govern its retroactivity deci-
sions, and it applied those standards to decide this
case. This Court has jurisdiction to review that de-
cision and correct the state court’s misunderstanding
of federal law.
A. Louisiana Has Adopted Federal Teague Law To Gov-
ern Retroactivity On State Collateral Review
1. Teague establishes the standards for application
of new constitutional and statutory rules to cases on
collateral review in federal habeas corpus, and its re-
troactivity framework does not preclude state courts
from granting greater retroactive effect to federal
decisions. Danforth v. Minnesota, 552 U.S. 264, 282
(2008). The Louisiana Supreme Court, however, relies
exclusively on the Teague framework to determine
when new rules will be applied to criminal cases on
state collateral review.
In State ex rel. Taylor v. Whitley, 606 So. 2d 1292
(1992), cert. denied, 508 U.S. 962 (1993), the Louisiana
Supreme Court explained that, although it is “not
bound to adopt the Teague standards,” it would do so
because “the consideration of finality in criminal pro-
ceedings” underlying the Teague framework “is equal-
ly applicable in state proceedings as well as federal
proceedings.” Jd. at 1296-1297. The court therefore
“adopt[ed] Justice Harlan’s views on retroactivity, as
modified by Teague and subsequent decisions, for all
26
cases on collateral review in our state courts.” /d. at
1297.
2. In its decision governing the issue in this case,
State v. Tate, supra, the Louisiana Supreme Court
relied exclusively on the Teague framework as the
relevant source of law. See 130 So. 3d at 834. The
court noted that “the standards for determining ret-
roactivity set forth in Teague v. Lane apply to all
cases on collateral review in our state courts,” and so
the court’s “analysis is directed by the Teague in-
quiry.” Jbid. (citation and internal quotation marks
omitted). The court then concluded that Miller is not
retroactive because it does not set out a “substantive”
rule within the meaning of this Court’s decisions. /d.
at 836-838. In reaching that conclusion, the Louisiana
Supreme Court relied entirely on this Court’s deci-
sions to provide the relevant legal rules, rather than
on any Louisiana law sources. /d. at 834-838.
B. This Court Has Jurisdiction To Review Louisiana's
Interpretation Of Federal Teague Law
1. In Michigan v. Long, 463 U.S. 1032 (1983), this
Court adopted a framework to determine whether the
judgment in a state case is supported by an adequate
and independent state ground. If a state-law basis for
the judgment is adequate and independent, then this
Court lacks jurisdiction because its review of the fed-
eral question would be purely advisory. Coleman v.
Thompson, 501 U.S. 722, 729 (1991). Long adopted a
conclusive presumption that when “a state court deci-
sion fairly appears to rest primarily on federal law, or
to be interwoven with the federal law, and when the
adequacy and independence of any possible state law
ground is not clear from the face of the opinion,” the
Court “will accept as the most reasonable explanation
27
that the state court decided the case the way it did
because it believed that federal law required it to do
so.” 463 U.S. at 1040-1041.
In this case, the Louisiana Supreme Court unques-
tionably applied federal Teague principles to decide
the retroactivity of Miller. The court relied solely on
federal precedents; applied solely federal reasoning;
and gave every indication that it reached the conclu-
sion it did because it believed that federal law
(Teague) “required it to do so.” Long, 463 U.S. at
1041. It did not apply an independent state standard
of retroactivity, but sought to apply this Court’s juris-
prudence to resolve the case.
That analysis under Long does not conclusively
resolve the adequate-and-independent-state-ground
question because there is an antecedent question:
whether it matters that Louisiana chose to adopt
Teague as its own test for retroactivity. Here, Louisi-
ana “recognize[d] that [it was] not bound to adopt the
Teague standards,” but chose to do so because Teague
produced more consistent results than prior law and
better advanced finality interests. Whitley, 606 So. 2d
at 1296-1297. Accordingly, while Louisiana incorpo-
rated federal Teague standards into its collateral-
review jurisprudence, it did not do so because it be-
lieved federal law required that approach.
That situation presents a novel question under
Long. The Court-Appointed Amicus argues (Br. 10-
20) that the Long presumption does not apply because
the Louisiana Supreme Court has established that
state law (not federal law) governs the retroactivity
issue and that a decision about whether that court
correctly applied Teague would be advisory because
the state could adopt a different retroactivity stand-
28
ard on remand. It may well be that Long does not
fully resolve the issue in this case, because federal
standards of non-retroactivity do not apply of their
own force to state collateral review proceedings. See
Danforth, 552 U.S. at 278-282. But it is not correct
that this Court’s review of the state court’s application
of Teague would be advisory or that this Court lacks
jurisdiction to correct a state court’s interpretation of
incorporated federal law." As explained below, this
Court has recognized that it has certiorari jurisdiction
to review certain embedded federal-law issues in state
eases because those cases raise federal questions.
2. In Standard Oil Co. v. Johnson, 316 U.S. 481
(1942), for example, the Court exercised its jurisdic-
tion to review a federal question on which the state
law depended. California law imposed a tax on the
sale of fuel but it exempted sales to the government or
departments of the United States. Jd. at 482-483. The
Court recognized that it would not have been able to
review whether sales to military post exchanges were
"' If this Court determines that the Louisiana Supreme Court
misinterpreted federal Teague standards that controlled the state
judgment, it should vacate the decision and remand for further
proceedings not inconsistent with the Court’s decision. On re-
mand, the state court could abandon Teague as a matter of state
law and apply a different standard, subject to federal constitution-
al review. But that possibility no more renders this Court’s deci-
sion advisory than if this Court resolved a federal issue on review
of a state case, then remanded, thus allowing the state courts to
consider a new state-law ground for affirming a conviction (e.g., a
state-law forfeiture). See Smith v. Texas, 550 U.S. 297, 325 (2007)
(Alito, J., dissenting); see also, e.g., Ohio v. Reiner, 532 U.S. 17, 22
(2001) (per curiam). This Court’s decision resolving the meaning
of Teague would correct the federal law applied in this case, even if
the ultimate result is affirmance on an alternative state-law
ground.
29
exempt under state law if the state court had based its
decision “purely on local law.” Jd. at 483. But because
the state court had relied on federal law to find the
post exchanges non-exempt, its determination was
“controlled by federal law” and was a “determination
of a federal question,” reviewable by this Court. /bid.
The Court then clarified the federal-law nature of the
relationships and remanded to allow California to
construe its law in light of a corrected federal-law
understanding. /d. at 485.
in Merrell Dow Pharmaceuticals Inc. v. Thomp-
son, 478 U.S. 804 (1986), this Court explained that it
has jurisdiction on certiorari to review federal ques-
tions embedded in state-court decisions in order to
correct misunderstandings of federal law. In that
case, the Court considered whether a State’s incorpo-
ration of federal drug-labeling standards into a state-
law cause of action made an action under the state
statute one “arising under” the laws of the United
States for purposes of federal-court jurisdiction. /d.
at 805; see 28 U.S.C. 1331. The Court concluded that
such a state-law claim may not be brought in federal
district court, primarily because Congress “did not
intend a private federal remedy” for violations of the
federal drug-labeling law. 478 U.S. at 811-812; see id.
at 814. But the Court recognized that, “even if there
is no original district court jurisdiction” to review the
state court’s interpretation of federal law, “th{e]
Court retains power to review the decision of a federal
issue in a state cause of action” in state court through
certiorari jurisdiction. /d. at 816 & n.14; see also id.
at 807 (noting that the federal-question statute “con-
fer[s] a more limited power” than Article III of the
Constitution).
30
And in Three Affiliated Tribes of the Fort Berthold
Reservation v. Wold Engineering, P.C., 467 U.S. 138
(1984), the Court reviewed a decision of the North
Dakota Supreme Court about whether its courts have
jurisdiction to consider certain claims brought by an
Indian Tribe because the decision “was influenced by
a misunderstanding of federal law.” Jd. at 158. The
Court explained that. although it “has no authority to
revise the North Dakota Supreme Court’s interpreta-
tion of state jurisdictional law,” the Court “retains a
role when a state court’s interpretation of state law
has been influenced by an accompanying interpreta-
tion of federal law.” Jd. at 151-152. The Court ex-
plained that “[iJf the state court has proceeded on an
incorrect perception of federal law,” the Court’s
“practice [is] to vacate the judgment of the state court
and remand the case” so the state court may reconsid-
er the issue “free of misapprehensions about the scope
of federal law.” Jd. at 152.
The Court recognized that it has jurisdiction to re-
view an embedded question of federal law in a case
decided under Michigan v. Long. See Ohio v. Reiner,
532 U.S. 17, 20 (2001) (per curiam). In Reiner, the
Court reviewed a determination of the Ohio Supreme
Court about the scope of the Fifth Amendment, which
was a threshold requirement for a state immunity
statute. Jbid. Relying on Long, the Court noted that
the state court’s decision “‘fairly appears to
be interwoven with the federal law’” and “no adequate
and independent state ground is clear from the face of
the opinion.” Jbid. (quoting Long, 463 U.S. at 1040).
Relying on Merrell Dow and Three Affiliated Tribes,
the Court then explained that it has “jurisdiction over
a state-court judgment that rests, as a threshold mat-
31
ter, on a determination of federal law.” J/bid. (citing
Merrell Dow, 478 U.S. at 816, and Three Affiliated
Tribes, 467 U.S. at 152). After correcting the Ohio
court’s misconstruction of federal law, the Court re-
manded, expressing no opinion on “whether immunity
from suit under [state law] was appropriate.” Jd. at
22.
3. The Court’s cases thus recognize that the Court
has the power to review a state court’s interpretation
of federal law, even when the state court did not have
to apply that law in administering state causes of
action or in interpreting state statutes. In each of the
decisions discussed, the State chose to refer to a dis-
crete portion of federal law, and this Court deter-
mined that it was appropriate to exercise its power of
review in order to ensure that mistaken interpreta-
tions of federal law did not improperly influence state
decisions. Although those decisions differ from this
case in certain respects (for example, they concerned
federal law that independently governed state or
federal officials or private actors), they all recognize
that this Court has the power to review, on certiorari,
discrete federal questions that arise in state-court
decisions when the state has elected to resolve state-
law issues by applying federal law.
Applying that-principle, this Court has jurisdiction
to review the Louisiana Supreme Court’s interpreta-
tion of Teague doctrine. Teague’s framework was not
formulated to govern state collateral review; it devel-
oped to interpret the federal habeas statute. But
here, the state court expressly incorporated Teague’s
federal standard into its law, with no independent
state element. And it based its decision in this case
entirely on an application of that federal-law standard.
32
Under those circumstances, the Court has the authori-
ty to correct an erroneous understanding of federal
law, leaving the state court free to reconsider the
issue in light of that corrected understanding on re-
mand. See 16B Charles Alan Wright et al., Federal
Practice and Procedure § 4031, at 550-551 (3d ed.
2012) (concluding that a state court’s “mistaken con-
clusions of federal law” “justify Supreme Ceurt review
after a completed state court decision has made it
clear that federal questions control the outcome”).
The situation in this case is not akin to a State’s
adoption of state counterparts to the Federal Rules of
Evidence or the Federal Rules of Civil Procedure and
its decision to construe those codes in light of this
Court’s decisions. See Br. of Court-Appointed Amicus
15-16. This case is unique because Louisiana relies
solely on federal law, with no independent state com-
ponent in its retroactivity analysis. State rules mod-
eled on federal rules, by contrast, would remain ones
of purely state law and could be given content through
state decisions (as opposed to federal decisions). In
addition, just because the Court has the power to
review a state-court decision on certiorari, that does
not mean that the Court must exercise that jurisdic-
tion. Here, federalism and constitutional-avoidance
issues would be furthered by this Court’s correction of
the State’s misunderstanding of Teague. Those con-
siderations do not exist when a State construes a cog-
nate body of its own procedural law that resembles
independent federal law.
4. For two reasons, it is particularly appropriate
for this Court to review the Teague question that
controlled the decision below.
33
First, exercising jurisdiction based on _ the
incorporated-federal-law principle permits the Court
to avoid deciding the substantial constitutional ques-
tion of whether the Constitution compels retroactivity
in state collatera] review when an exception to Teague
applies. This Court expressly reserved that constitu-
tional question in Danforth, see 552 U.S. at 269 n.4,
and it is a difficult one. If this Court does not review
Louisiana’s application of Teague principles, then it
will have to confront that question here. But if the
Court decides the jurisdictional issue on the narrower
basis described above, it may avoid that question
entirely." Accordingly, avoidance principles counsel
in favor of this Court’s reviewing the state court’s
interpretation of Teague and leaving the question
reserved in Danforth for another day.
Second, exercising jurisdiction based on the State’s
incorporation of federal law respects the role of the
States in our federal system. This Court’s review of
the Louisiana Supreme Court’s application of Teague
would promote comity interests by avoiding intrusive
federal habeas litigation. For prisoners in Louisiana,
Teague principles will control the retroactivity of
Miller on state collateral review and on federal habeas
corpus review. If the Court finds jurisdiction and
decides the merits in this case, it will provide a defini-
tive interpretation that will apply in both forums. In
the absence of a uniform rule, state prisoners will
inevitably seek an intrusive round of federal habeas
review in the hope that they will obtain Miller relief
A majority of States use the Teague framework (at least in
part) to decide questions of retroactivity on state collateral review.
See App. B, infra (setting out the States’ approaches to retroactiv-
ity).
34
from federal courts after failing to obtain it in state
court. But “it would be unseemly in our dual system
of government for a federal district court to upset a
state court conviction without an opportunity to the
state courts to correct a constitutional violation.”
Coleman, 501 U.S. at 731 (citation omitted). Correct-
ing the state court’s error affords the State the oppor-
tunity to provide a remedy for Miller violations in its
own courts, thus avoiding the federalism costs of a
second round of habeas litigation.”
CONCLUSION
The judgment of the Supreme Court of Louisiana
should be reversed and the case remanded for further
proceedings.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
LESLIE R. CALDWELL
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
ROBERT A. PARKER
Attorney
JULY 2015
'S In the event the Court wishes to avoid or remove any question
about its jurisdiction to decide the retroactivity issue, a certiorari
petition is pending that raises the issue in the context of federal
collateral review. See Johnson v. Manis, petition for cert. pend-
ing, No. 15-1 (filed June 29, 2015).
APPENDIX A
FEDERAL JUVENILE OFFENDERS WHO HAVE
BEEN RESENTENCED SINCE MILLER
1. Angel Alejandro
Resentenced to 20 years of imprisonment for his
homicide offenses and 25 years of imprisonment total
for all offenses. See 7:98-CR-290-CM-LMS Am.
Judgment 2 (S.D.N.Y. May 23, 2014).
2. Donnie Bryant
Resentenced to 40 years of imprisonment for his
homicide offenses and 80 years of imprisonment total
for all offenses. See 2:06-CR-234-PMP-GWF Am.
Judgment 2 (D. Nev. Jan. 17, 2014), aff’d, No.
14-10047, 2015 WL 1884376 (9th Cir. Apr. 27, 2015).
3. Harold Evans-Garcia™
Resentenced to 32 years of imprisonment for his
homicide offense and 37 years of imprisonment total
for all offenses. See 3:96-CR-105-GAG Am. Judg-
ment 2 (D.P.R. Mar. 3, 2015), appeal pending, No.
15-1392 (1st Cir. filed Apr. 7, 2015).
4. Robert James Jefferson®
Resentenced to 50 years of imprisonment for his
homicide offenses and 50 years of imprisonment total
for all offenses. See 0:97-CR-276-MJD-JGL Third
* These offenders were sentenced before United States v. Book-
er, 543 U.S. 220 (2005), under Sentencing Guidelines that mandated
sentences of life imprisonment. See note 1, supra.
(la)
2a
Am. Judgment 2 (D. Minn. Feb. 4, 2015), appeal pend-
ing, No. 15-1309 (8th Cir. filed Feb. 11, 2015).
5. Kamil Hakeem Johnson
Resentenced to 42 years of imprisonment for his
homicide offenses. See 0:02-CR-013-PJS-FLN Am.
Judgment 2 (D. Minn. Mar. 27, 2015), appeal dis-
missed, No. 15-1753 (8th Cir. June 1, 2015).
6. Robert Lawrence
Resentenced to 317 months (26.4 years) of impris-
onment for his homicide offenses and 377 months (31.4
years) of imprisonment total for all offenses. See
5:92-CR-035-DNH Am. Judgment 2 (N.D.N.Y. Jan. 17,
2014).
7. David Perez-Montanez*®
Resentenced to 25 years of imprisonment for his
homicide offense and 30 years of imprisonment total
for all offenses. See 3:96-CR-244-PG Am. Judgment
2 (D.P.R. Feb. 10, 2014).
8. Branden Bruce Pete
Resentenced to 59 years of imprisonment for his
homicide offenses. See 3:03-CR-355-SMM Am.
Judgment 1 (D. Ariz. July 28, 2014), appeal pending,
No. 14-10370 (9th Cir. oral argument scheduled for
Sept. 18, 2015).
9. Dwayne Stone
Resentenced to 10 years of imprisonment for his
homicide offenses and 40 years of imprisonment total
for all offenses. See 1:05-CR-401-ILG Am. Judgment
3a
3-4 (E.D.N.Y. Aug. 13, 2014), appeal pending, No.
14-3102 (2d Cir. filed Aug. 19, 2014).
10. Jerome Williams
Resentenced to 35 years of imprisonment for his
kidnapping offenses. See 4:94-CR-056-ICH Second
Am. Judgment 2 (E.D. Mo. June 5, 2015).
4a
APPENDIX B
STATE APPROACHES TO RETROACTIVITY
1. The following States use the framework in Teague
v. Lane, 489 U.S. 288 (1989), to decide retroactivity on
collateral review:
Alabama. See Ex Parte Williams, No. 1131160,
2015 WL 1388138, at *4 (Ala. Mar. 27, 2015) (not yet
released for publication).
Colorado. See Edwards v. People, 129 P.3d 977,
981-983 (Colo. 2006), cert. denied, 549 U.S. 1265 (2007).
Delaware. See Richardson v. State, 3 A.3d 233,
238 (Del. 2010).
Georgia. See State v. Sosa, 733 S.E.2d 262, 264
(Ga. 2012).
Illinois. See People v. Davis, 6 N.E.38d 709,
720-721 (Ill.), cert. denied, 135 S. Ct. 710 (2014).
Indiana. See Membres v. State, 889 N.E.2d 265,
271-273 (Ind. 2008).
Iowa. See Perez v. State, 816 N.W.2d 354, 358 n.2
(lowa 2012).
Kansas. See Whisler v. State, 36 P.3d 290, 299-300
(Kan. 2001), cert. denied, 535 U.S. 1066 (2002).
Kentucky. See Leonard v. Commonwealth, 279
S.W.3d 151, 159-160 (Ky. 2009).
Louisiana. See State ex rel. Taylor v. Whitley, 606
So. 2d 1292, 1296-1297 (La. 1992), cert. denied, 508
U.S. 962 (1993).
5a
Maine. See Carmichael v. State, 927 A.2d 1172,
1179 (Me.), cert. denied, 552 U.S. 1029 (2007).
Mississippi. See Jones v. State, 122 So. 3d 698,
700-702 (Miss. 2013).
Montana. See Beach v. State, 348 P.3d 629,
635-636 (Mont. 2015).
Nebraska. See State v. Mantich, 842 N.W.2d 716,
724 (Neb.), cert. denied, 135 S. Ct. 67 (2014).
New Hampshire. See State v. Tallard, 816 A.2d
977, 980 (N.H. 2003) (using Teague framework to de-
cide retroactivity of federal rules but reserving ques-
tion whether to use Teague for state rules).
New York. See People v. Baret, 16 N.E.3d 1216,
1229-1230 (N.Y. 2014), cert. denied, 135 S. Ct. 961
(2015).
North Dakota. See Clark v. State, 621 N.W.2d
576, 578-579 (N.D.), cert. denied, 532 U.S. 1048 (2001).
Oklahoma. See Burleson v. Saffle, 46 P.3d 150,
151 (Okla. Crim. App. 2002).
Pennsylvania. See Commonwealth v. Cunning-
ham, 81 A.3d 1, 8-9 (Pa. 2013) (using Teague as the
“default” test for retroactivity but noting that court
will entertain arguments in favor of “broader retro-
spective extension of a new federal constitutional
rule”), cert. denied, 134 S. Ct. 2724 (2014).
Rhode Island. See Pierce v. Wall, 941 A.2d 189,
195 (R.I. 2008).
South Carolina. See Aiken v. Byars, 765 S.E.2d
572, 575 & n.4 (S.C. 2014) (using Teague without “ad-
6a
dress{ing] whether it should employ a more expansive
analysis for determining retroactivity after Danforth
(v. Minnesota, 552 U.S. 264 (2008)]”), cert. denied, 135
S. Ct. 2379 (2015).
South Dakota. See Siers v. Weber, 851 N.W.2d
731, 740-742 (S.D. 2014).
Tennessee. See Bush v. State, 428 S.W.3d 1, 20
(Tenn. 2014) (using retroactivity standard set out in
Tenn. Code. Ann. § 40-30-122, which court has inter-
preted to codify Teague).
Vermont. See State v. White, 944 A.2d 203,
207-208 (Vt. 2007).
Virginia. See Mueller v. Murray, 478 S.E.2d 542,
546-549 (Va. 1996).
2. The following States and the District of Columbia
follow Teague in part to decide retroactivity on collat-
eral review:
Arizona. See State v. Towery, 64 P.3d 828, 835
(Ariz.) (applying both Teague and an approach based
on Linkletter v. Walker, 381 U.S. 618 (1965)), cert.
dismissed, 539 U.S. 986 (2003).
California. See Jn re Gomez, 199 P.3d 574, 576-577
& n.3 (Cal. 2009) (applying Teague to decide retroac-
tivity of federal constitutional rule, while noting that
court can “give greater retroactive impact to a decision
than the federal courts choose to give”); see also Jn re
Hansen, 174 Cal. Rptr. 3d 146, 153 (Ct. App. 2014)
(stating that California Supreme Court “has not artic-
ulated a single test to determine when and under what
Ta
circumstances a decision should be given retroactive
effect to convictions that are final on appeal”).
Connecticut. See Thiersaint v. Commissioner of
Corr., 111 A.3d 829, 840-843 (Conn. 2015) (“adopt[ing]
the framework established in Teague” but stating that,
“while federal decisions applying Teague may be in-
structive, this court will not be bound by those deci-
sions in any particular case, but will conduct an inde-
pendent analysis and application of Teague”).
District of Columbia. See Gathers v. United
States, 977 A.2d 969, 971-973 (D.C. 2009) (beginning
with Teague principles but also applying D.C. retroac-
tivity law).
Hawaii. Compare State v. Gomes, 113 P.3d 184,
189 (Haw. 2005) (applying Teague to decide retroactiv-
ity of new federal rule), with State v. Jess, 184 P.3d
133, 154 n.20 (Haw. 2008) (applying Linkletter-based
test to decide retroactivity of new state rule).
Idaho. See Rhoades v. State, 233 P.3d 61, 64, 70
(Idaho 2010) (starting with the Teague framework but
noting that the court will apply its “independent
judgment, based upon the concerns of this Court and
the uniqueness of our state, our Constitution, and our
long-standing jurisprudence” (citation and internal
quotation marks omitted)), cert. denied, 562 U.S. 1258
(2011).
Massachusetts. See Commonwealth v. Sylvain,
995 N.E.2d 760, 765-766, 768-770 (Mass. 2013) (apply-
ing Teague but using a different apj roach to deter-
mine whether a rule is “new”).
8a
Michigan. See People v. Carp, 852 N.W.2d 801,
808, 818-819, 832-833 (Mich. 2014) (using both Teague
and a separate, Linkletter-based state test to decide
retroactivity), petitions for cert. pending, No. 14-824
(filed Jan. 9, 2015), No. 14-8106 (filed Jan. 20, 2015).
Minnesota. See Danforth v. State, 761 N.W.2d
493, 498-500 (Minn. 2009) (adopting Teague but noting
that court is “not bound by the U.S. Supreme Court’s
determination of fundamental fairness” and “will in-
dependently review cases to determine whether they
meet our understanding of fundamental fairness”).
Nevada. See Colwell v. State, 59 P.3d 463, 471-472
(Nev. 2002) (per curiam) (“adoptiing] the general
framework of Teague” but “reservi[ing] our preroga-
tive to define and determine within this framework
whether a rule is new and whether it falls within the
two exceptions to nonretroactivity (as long as we give
new federal constitutional rules at least as much ret-
roactive effect as Teague does)”), cert. denied, 540 U.S.
981 (2003).
New Jersey. See State v. Gaitan, 37 A.3d 1089,
1103-1104, 1108-1109 & n.11 (N.J. 2012) (applying
Teague and Linkletter-based test to decide retroactiv-
ity of federal rules), cert. denied, 133 S. Ct. 1454
(2013).
New Mexico. See Kersey v. Hatch, 237 P.3d 683,
688-691 (N.M. 2010) (applying Teague to decide retro-
activity of federal and state rules); but see State v.
Forbes, 119 P.3d 144, 146-147 (N.M. 2005) (applying
Teague to decide retroactivity of federal rule but also
9a
relying on state-specific considerations), cert. denied,
549 U.S. 1274 (2007).
North Carolina. See State v. Zuniga, 444 S.E.2d
443, 446 (N.C. 1994) (applying Teague to decide retro-
activity of federal rules and applying a state test for
state rules).
Oregon. See Page v. Palmateer, 84 P.3d 133,
136-137 & n.1 (Or.) (applying Teague to decide retro-
activity of federal rules but noting that it has applied
different standards for state rules), cert. denied, 543
U.S. 866 (2004).
Texas. See Ex parte Maxwell, 424 S.W.3d 66,
70-71 (Tex. Crim. App. 2014) (following Teague “as a
general matter of state habeas practice”); but see
Taylor v. State, 10 S.W.3d 673, 679-681 (Tex. Crim.
App. 2000) (applying Linkletter-based test to decide
retroactivity of new state rules).
Washington. See /n re Tsai, 351 P.3d 138, 143-144
(Wash. 2015) (applying Teague to decide retroactivity
of a federal rule but also relying on state-specific con-
siderations).
Wisconsin. See State v. Lagundoye, 674 N.W.2d
526, 531-5383 & n.11 (Wis. 2004) (applying Teague,
except that court allows non-retroactive new rules to
be created and applied on collateral review).
Wyoming. See State v. Mares, 335 P.3d 487,
499-504 (Wyo. 2014) (applying Teague to decide retro-
activity of new constitutional rules but reserving the
right to “apply the Teague analysis more liberally than
the United States Supreme Court would otherwise
10a
apply it where a particular state interest is better
served by a broader retroactivity ruling”).
3. The following States use frameworks different
from Teague to decide retroactivity on collateral re-
view:
Alaska. See State v. Smart, 202 P.3d 1130,
1136-1138, 1140 (Alaska 2009) (using Linkletter-based
test).
Florida. See Falcon v. State, 162 So. 3d 954, 956,
960-961 (Fla. 2015) (using Linkletter-based test).
Missouri. See State v. Whitfield, 107 S.W.3d 253,
267-268 (Mo. 2003) (using Linkletter-based test).
Utah. See Labrum v. Utah State Bd. of Pardons,
870 P.2d 902, 911-912 (Utah 1993) (using Linkletter-
based test).
West Virginia. See State v. Kennedy, 735 S.E.2d
905, 923-924 (W. Va. 2012) (using Linkletter-based
test).
4. The following States have not decided whether to
follow Teague or have not clearly stated their approach
to retroactivity on collateral review:
Arkansas. See Kelley v. Gordon, No. CV-14-1082,
2015 WL 3814285, at *6 (Ark. June 18, 2015) (“We have
never expressly adopted the Teague rule, and we hold
that the particular posture of this case makes it un-
necessary to decide as a general matter whether this
court will do so.”).
Maryland. See Miller v. State, 77 A.3d 1030,
1042-1044 (Md. 2013) (noting that Maryland “ha[s]
lla
never expressly adopted Teague,” then applying
Teague and state-law standards).
Ohio. See State v. Bishop, 7 N.E.3d 605, 610 (Ohio
Ct. App. 2014) (per curiam) (noting that, although
“several Ohio appellate districts have applied Teague,”
the Ohio Supreme Court used the Linkletter test in a
1965 case and “has not yet had an opportunity to apply
Teague”).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.