# Amicus Curiae Brief — Montgomery v. Louisiana, 135 S. Ct. 1546 (2015) (No. 14-280) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0348%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2015 ## Text apres ae Oe 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)? (I) 7 Py " = + - : Drag rent snl wie tr - On re se - as be A os a : bah) = a oe o. 7 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”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0348%3A10. Public record. Not legal advice.