Petition for Writ of Certiorari — Danforth v. Minnesota

~~

CG

Z Dee G Zeof-

No. O C y SA 73

In the

SUPREME COURT OF THE UNITED STATES

DECEMBER TERM, 2006

Stephen Danforth, Petitioner,

v.

State of Minnesota, Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Minnesota

PETITION FOR A WRIT OF CERTIORARI

BENJAMIN J. BUTLER

Assistant Minnesota State Public Defender

Office of the Minnesota State Public Defender

2221 University Avenue SE

Suite 425

Minneapolis, Minnesota 55414

(651) 627-6980

Counsel of Record

Attorney for Petitioner

QUESTIONS PRESENTED

. Are state supreme courts required to use the standard announced in Teague v.

Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court

decisions apply retroactively to state-court criminal cases, or may a state court

apply state-law- or state-constitution-based retroactivity tests that afford

application of Supreme Court decisions to a broader class of criminal defendants

than the ciass defined by Teague?

. Did Crawford v. Washington, 541 U.S. 36 (2004), announce a “new rule of

constitutional criminal procedure,” as Teague defines that phrase and, if it did, was

it a watershed rule of procedure subject to full retroactive application?

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner Stephen Danforth respectfully prays that a writ of certiorari issue to

review the judgment below.

OPINION BELOW

The opinion of the Minnesota Supreme Court appears at appendix A to this

petition. The court’s opinion is published at 718 N.W.2d 451 (Minn. 2006).

JURISDICTION

The Minnesota Supreme Court issued its decision on July 27, 2006. A copy is

attached at appendix A. The Minnesota Supreme Court entered final judgment on the

appeal on October 10, 2006. A copy of the judgment is attached at appendix B. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTICN VISIONS

U.S. Const. Amend. VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense.

U.S. Const. Amend. XIV, sec. 1:

All persons born or naturalized in the United States and subject to the jurisdiction thereof,

are citizens of the United States and of the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the equal protection of

the laws.

STATEMENT OF THE CASE

Petitioner Stephen Danforth was convicted by a jury in Minneapolis, Hennepin

County, Minnesota, of first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd.

1(a) (1994), on March 6, 1996. (App. A-1). The conviction arose out of the alleged

sexual abuse of J.S., then a six-year-old boy. (/d.). The district court judge found that

J.S. was incompetent to testify at petitioner’s trial. In lieu of live testimony subject to

cross-examination, therefore, the jury saw and heard a videotaped interview of J.S.

conducted at a “non-profit center.” (/d.). During the interview, J.S. accused petitioner

of sexually abusing him. (App. C-3).'

' The Minnesota Court of Appeals’ opinion in petitioner’s direct appeal is published at

573 N.W.2d 369 (Minn. Ct. App. 1997), and is attached at appendix C.

2

Petitioner appealed his conviction. Among other claims, he argued that the

admission of the videotape of J.S.’s statement violated his rights under the Confrontation

Clause of the Sixth Amendment to the United States Constitution. (App. C-6). The

Minnesota Court of Appeals considered the issue under the balancing test set forth in

Ohio v. Roberts, 448 U.S. 56 (1980), along with /daho v. Wright, 497 U.S. 805 (1990),

and attendant Minnesota caselaw. (App. C-6-7). The Court of Appeals affirmed the

admission of the tape and the conviction, holding that “the videotape was sufficiently

reliable to be admitted into evidence.” (/d.). The Minnesota Supreme Court denied

review and, following an appeal after a resentencing, petitioner’s case became final in

1999,”

In 2004, this Court released Crawford v. Washington, 541 U.S. 36 (2004). In

Crawford, the Court “impose[d] an absolute bar to [the admission of] statements that are

testimonial, absent a prior opportunity to cross-examine [the declarant].” Crawford, 541

U.S. at 62. Believing that the statement at issue in his case was testimonial and thus was

admitted in violation of his right of confrontation, petitioner, acting pro se, filed a second

petition for postconviction relief to challenge his conviction.’ The district court denied

the petition and the Minnesota Court of Appeals affirmed. Danforth v. State, 700

? In late 2000, petitioner filed a petition for postconviction relief to challenge his

conviction and sentence. The petition was denied and it is not at issue here. See

Danforth v. State, 2000 WL-1780244 (Minn. Ct. App. 2000), rev. denied (Minn. Feb. 13,

2001) (attached in Appendix E).

> See Deegan v. State, 711 N.W.2d 89, 93-96 (Minn. 2006) (discussing Minnesota’s

Post-Conviction Relief Act); See Minn. Stat. § 590.01, et seg. (2004) (providing for

petitions for postconviction relief).

N.W.2d 530 (Minn. Ct. App. 2005). Petitioner petitioned for further review, and the

Minnesota Supreme Court granted the petition and assigned him counsel.’ :

Petitioner encouraged the Minnesota Supreme Court to consider the issue of

Crawford’s application to his case under a standard different from the one used in federal

court to determine whether new rules of constitutional criminal procedure apply

retroactively to cases pending on federal habeas corpus review. (App. A-4); see also

Teague v. Lane, 489 U.S. 288 (1988). Petitioner argued that because the Minnesota

Supreme Court has the authority to offer its citizens greater protections under the state

constitution than those offered by the federal constitution, the court could apply

Crawford to a broader class of cases than the class required by Teague. In the alternative,

petitioner argued that Crawford applied to his case under the Teague standard. (App. A-

4-5).

The Minnesota Supreme Court disagreed with both arguments. The court held

that petitioner “is incorrect when he asserts that state courts are free to give a [United

States] Supreme Court decision of federal constitutional criminal procedure broader

retroactive application than that given by the Supreme Court.” (App. A-5). Citing two of

this Court’s decisions, American Trucking Associations v. Smith, 469 U.S. 167, 178

(1990) (plurality opinion), and Michigan v. Payne, 412 U.S. 47, 49 (1973), as authority,

the Minnesota court held that it “cannot apply state retroactivity principles when

* During the course of these proceedings, petitioner has had a federal habeas corpus

challenge to his conviction pending. The district court denied the petition but granted

petitioner a certificate of appealability to the United States Court of Appeals for the

Eighth Circuit on the Crawford issue. Danforth v. Crist, 2005 WL 2105502 (D. Minn.

Aug. 26, 2005). The undersigned does not represent petitioner in that process.

4

eh, Ee om ey ee Oe ee re

oti ot me Me

8} te. . -

Ble

ns

an

aa

determining the retroactivity of a new rule of federal constitutional criminal procedure if

the Supreme Court has already provided relevant federal principles.” (App. A-5-6). The

court recognized that several other state supreme courts had reached the opposite

conclusion and noted that the policy concerns underlying Teague may not apply to state

postconviction proceedings. (App. A-6-7). But ultimately, the court held that it was “not

free to fashion [its] own standard of retroactivity for Crawford.” (App. A-7).

Applying Teague, the Minnesota Supreme Court held that Crawford had

announced a new rule of constitutional criminal procedure and that the rule was not a

watershed rule. (App. A-7-14). Therefore, the court held that Crawford did not apply to

petitioner’s case. It affirmed the denial of his post-conviction petition. (App. A-14).

Petitioner now seeks a writ of certiorari from this Court on the two important

questions presented in this case.

REASON FOR GRANTING THE PEGITION

I.

THE COURT SHOULD GRANT THE WRIT TO DECIDE

WHETHER A STATE COURT MUST APPLY THE TEAGUE

STANDARD WHEN DETERMINING THE RETROACTIVE

EFFECT OF UNITED STATES SUPREME COURT DECISIONS,

OR WHETHER STATE COURTS MAY USE A BROADER

STANDARD FOR RETROACTIVE APPLICATION.

Deepening a split of authority in the state courts, the Minnesota Supreme Court

held that it was absolutely prohibited from applying any test for retroactive application of

new rules of federal constitutional criminal procedure other than the test announced in

Teague v. Lane, 489 U.S. 288, 310 (1989). This Court should grant certiorari in this case

because this important issue, a question of federal law, is subject to an intractable split of

authority in the lower courts and it has not been, but should be, resolved by this Court.

U.S. Sup. Ct. Rule 10.

A. The Teague Standard Is Based on Principles Unique to State Cases

Being Considered Under Federal Habeas Corpus Review.

In Teague v. Lane and subsequent decisions, this Court announced and applied a

test for determining whether the holding of one of this Court’s cases could be applied

retroactively to cases pending on federal habeas corpus review. This Court recently

summarized the test as follows:

Under Teague, the determination whether a constitutional rule of criminal

procedure applies to a case on collateral review involves a three-step

process. First, the court must determine when the defendant's conviction

became final. Second, it must ascertain the legal landscape as it then

existed, and ask whether the Constitution, as interpreted by the precedent

then existing, compels the rule. That is, the court must decide whether the

rule is actually new. Finally, if the rule is new, the court must consider

whether it falls within either of the two exceptions to nonretroactivity.

6

:

)-

od

r

se) APs ee eee eee et ey eee ee eee Pe ee ee ee ae oe se ae Fe a —

Beard v. Banks, 542 U.S. 406, 411 (2004) (citations omitted).

In Teague, the Supreme Court, instead of focusing on the purpose and

impact of a new constitutional rule, looked to the function of federal habeas

review, which is to ensure that state courts conscientiously follow federal

constitutional standards. The Court determined that this function is met by

testing state convictions against the constitutional law recognized at the

time of trial and direct appellate review,...|.] Therefore, once a conviction

has become final, federal courts should generally not interfere with the state

courts by applying new rules retroactively.

Colwell v. State, 59 P.3d 463, 470 (Nev. 2002) (citations omitted). The Teague Court

based the test upon its conclusion that “the interests of comity and finality” precluded a

federal court from altering a state court conviction based upon a newly announced rule of

federal constitutional law. Teague, 489 U.S. at 308. The Court was also concerned with

3 the “costs imposed upon the States by retroactive application of new rules of

constitutional law on habeas corpus.” /d. at 310 (quotation omitted). Finally, the Court

recognized that “‘[s}tate courts are understandably frustrated when they faithfully apply

existing constitutional law only to have a federal court discover, during a [habeas]

proceeding, new constitutional commands.” /d. (quoting Engle v. Isaac, 456 U.S. 108,

128 n. 33 (1982)).

B. There is a split of authority over whether state courts are required

to use the Teague standard or whether they are free to fashion their

own broader test retroactive application of United States Supreme

Court decisions.

Given that the reasons behind the Teague test apply primarily, if not exclusively,

to federal habeas corpus cases, many state courts have declined to use the Teague

standard and instead have considered the retroactive effect of this Court’s holdings under

their own, broader tests. See Smart v. State, __ ~P.3d __, 2006 WL 3042821 (Alaska

7

? -

a eee ee ee | Se Ae ee ee OP eee ee ei eee se Ae ee ee eee

ee, Meee ee eee. Oe Sees Pe ee ee ee ee “ a a i i eli cr SS. 7s . a ee "> See. ee

App. Oct. 27, 2006); s/ughes v. State, 901 So.2d 837, 839-48 (Fla. 2004); State v. :

| Whitfield, 107 S.W.3d 253, 266-68 (Mo. 2003); Colwell v. State, 59 P.3d 463,470-71

(Nev. 2002), cert. denied, 540 U.S. 981 (2003); State ex rel. Taylor v. Whitley, 606 So.2d 3

1292, 1296-97 (La. 1992), cert. denied 508 U.S. 962 (1993); Daniels v. State, 561 N.E.2d

487, 489 (Ind. 1990); Cowell v. Leapley, 458 N.W.2d 514, 517-18 (S.D. 1990); see also

State v. Forbes, 119 P.3d 144, 148-49 (N.M. 2005) (holding that Crawford did not

a announce a new rule but only as applied to defendant at issue, who had argued for

Crawford's definition of “testimonial” on direct appeal); Hon. Laura Denvir Stith, A

38 Val. U. L. Rev.

: 421, 438-49 (2004) (arguing that states are free to use retroactivity standards other than

| Teague to afford retroactive application of United States Supreme Court decisions to

boarder class of defendants). As authority for their holdings, many of those courts relied

upon this Court’s pre-7eague statement that states are “entirely free to effectuate under

their own law stricter standards than those we have laid down and to apply those

standards in a broader range of cases than is required by” the Supreme Court’s

interpretation of the federal constitution.* Johnson v. New Jersey, 384 U.S. 719, 733

(1966).

In addition, these courts rely upon the longstanding rule that state courts are

permitted to interpret their state constitutions to provide greater freedoms to their citizens

than those provided by the federal constitutions. See Michigan v. Long, 463 U.S. 1032,

1040 (1983); see also Brigham City, Utah v. Stewart,547U.S. _, _, 126 S.Ct. 1943,

7 Pees ee ee ee eS eee!

See, e.g., Colwell, 59 P.3d at 470-72: State v. Fair, 502 P.2d 1150, 1151 (Or. 1972),

overruled by Page v. Palmateer, 84 P.3d 133, 138 (Or. 2002).

ee eS ee Oe ee ee ee ee ee a eT wh he, | ee ee

1950-51 (2006) (Stevens, J., concurring) (discussing state supreme court's authority to .

provide greater protections under state constitution than those afforded by federal

constitution). Part of that freedom, the courts cited above have concluded, is the freedom

to provide relief to a larger class of criminal defendants than that required by Teague.

See, e.g. Colwell, S9 P.3d at 470 (rejecting Teague standard because “Teague is not

controlling on this court, other than in the minimum constitutional protections established

by its two exceptions.”); State v. Fair, 502 P.2d 1150, 1152 (Or. 1972) (holding that state

courts “are free to choose the degree of retroactivity or prospectivity which we believe

appropriate to the particular rule under consideration, so long as we give federal

constitutional rights at least as broad a scope as the United States Supreme Court

requires”), overruled by Page v. Palmateer, 84 P.3d 133, 138 (Or. 2004), cert. denied,

543 U.S. 866 (2004).

Other state courts, now including the Minnesota Supreme Court, have concluded

that they do not have the authority to use a broader test for retroactive application of this

court’s decisions. (App. A-5-7); Page v. Palmateer, 84 P.3d 133, 137-38 (Or. 2004);

State v. Egelhoff, 900 P.2d 260, 267 (Mont. 1995). Those courts have relied upon this

Court’s decisions in American Trucking Associations, Inc. v. Smith, 496 U.S. 167 (1990),

Oregon v. Hass, 420 U.S. 714, 719 (1975), and Michigan v. Payne, 412 U.S. 47 (1973),

for the proposition that they “cannot apply state retroactivity principles when determining

the retroactivity of a new rule of federal constitutional criminal procedure if the Supreme

Court has already provided relevant federal principles.” (App A-5-6); see also Page, 84

P.3d at 137-38 (distinguishing between rules of state and federal constitutional law and

Pe eee Pee ee EEN ee Ye PO ee Oe Pe ee en ee, ee en eee HF on rete ae be

:

:

holding that it was not “free to determine the degree to which a new rule of federal

constitutional law should be applied retroactively”). These courts did not simply decide

to apply the Teague standard as a matter of comity or policy.° Instead, they held that

they were forced by this court’s decisions to apply Teague. (App. AS-7); Page, 84 P.3d

at 138.

The split of authority on this issue is large and intractable. The issue of whether a

state court must use the Teague standard has been decided different ways by courts in no

fewer than twelve states. Only the United States Supreme Court can resolve this issue.

The question of whether state-courts are required to use the Teague standard to determine

the retroactive effect of Supreme Court decisions in state courts is a question of federal

law. See American Trucking, 496 U.S. at 177-78. But the lower federal courts are

unlikely to be in a position to resolve this question, thanks to the numerous procedural

and substantive barriers surrounding federal habeas corpus petitions. The most daunting

such barrier is the requirement that any state-court decision must be “contrary to, or

involved an unreasonable application of, clearly established federal law, as determined by

the Supreme Court of the United States,” before habeas relief can be granted. 28 U.S.C.

§ 2254(d)(1) (2005). This Court has never decided the question of whether state courts

are bound to apply Teague and state courts can find support in this Court’s caselaw for

the proposition that they are and are not so bound. It is highly unlikely, therefore, that a

federal court sitting in judgment of a habeas petition can resolve this issue.

° Indeed, the Minnesota court recognized that the Teague standard was based upon

“different policy concerns” than those facing state-court judges reviewing state-court

decisions, but nonetheless held that it was compelled to follow Teague. (App. A-6-7).

10

yh okie Sp 4 aE 2

At least one state supreme court has already used its perceived power to amend the

standard of retroactive application to afford greater protections to one of its citizens on

this very issue — the retroactivity of Crawford. The New Mexico Supreme Court held

that Crawford applied retroactively to a case that became final in 1987. Forbes, 119 P.3d

at 147-49.” In the mid-1980s, the New Mexico court had agreed with the defendant,

Ralph Earnest, that testimonial hearsay was inadmissible in criminal trials, only to be

reversed by this Court. Forbes, 119 P.3d at 146. In Forbes, the New Mexico court held

that Crawford did not announce a “new rule” when applied to the case before it. The

court so held for equitable reasons:

Our decision is limited to the very special facts of this case, highlighted by

the fact that the very law this Court applied to Earnest’s case twenty years

ago has now been vindicated, which entitles him to the same new trial he

should have received back then.

Id. at 148-49; see also Id. at 146 (“It is beyond dispute that since Crawford, the rest of the

nation knows now what the New Mexico Supreme Court announced in 1985”).

The decision in Forbes, in which a state supreme court awarded retroactive

application to a criminal defendant of a United States Supreme Court decision as a matter

of equity, cannot be squared with the Minnesota Supreme Court’s holding in this case:

that state courts are not free to apply any retroactivity standard other than Teague to

United States Supreme Court decisions. If the supreme courts of Minnesota, Oregon, and

Montana are correct, and a state court has no authority to apply state retroactivity

principles to Supreme Court decisions on federal constitutional rights, then the New

” A petition for writ of certiorari in Forbes is pending before this Court. See New Mexico

v. Forbes, U.S. Sup. Ct. File No. 05-644.

ll

Mexico court’s decision in Forbes is wrong. But if, on the other hand, state courts are

“free to effectuate under their own law [broader retroactivity standards and to] apply

those standards in a broader range of cases than is required by” Teague, Johnson 384

U.S. at 733, then the New Mexico court’s decision in Forbes is justifiable, and the

Minnesota Supreme Court’s decision in this case is not. Either the New Mexico Supreme

Court overstepped its bounds or the Minnesota Supreme Court unnecessarily constrained

itself. This Court should accept certiorari over this case to determine which is correct.

The only way for the split of authority on this important issue to be resolved is for

this Court to resolve it. This Court should accept certiorari over this case to resolve the

split of lower-court authority on this important issue.

C. The question of whether state courts are bound to apply Teague is

vitally important to every state court in the country.

The question of whether a state supreme court is bound to apply the Teague test is

a vitally important question of federal law, the answer to which will affect every state

court in the country. Each term, this Court issues numerous criminal-law decisions, each

one potentially affecting innumerable criminal prosecutions in this country. State courts,

in which the vast majority of such prosecutions are based, need to know by which

decisions they are bound and, alternatively, how much power they have to provide

greater protections to their citizens than the protections afforded by the federal

constitution. This Court has always shown “[rJespect for the independence of state

courts,” and has recognized that “[i]t is fundamental that state courts be left free and

unfettered by [this Court] in interpreting their state constitutions.” Long, 463 U.S. at

1040-41. The Court should accept certiorari over this case to ensure that state courts are,

12

indeed, “free and unfettered” to apply this Court’s decisions “in a broader range of cases

than is required by” Teague. Id.; Johnson, 384 U.S. at 733. Right now, at least two

states do not feel so free or so unfettered.

In addition, this Court should accept certiorari over this case to resolve any

inconsistencies in its own caselaw. The state courts that have concluded that they are free

to fashion their own retroactivity standards have relied on one line of cases from this

Court; a line that includes Johnson and Long and stands for the proposition that state

supreme courts are free to interpret their own constitutions in ways that give greater

protections to their citizens than those afforded by the federal constitution. Other state

supreme courts, including the Minnesota Supreme Court in this case, have relied upon a

line of cases that include American Trucking, Payne, and Hass; cases that stand for the

proposition that the retroactive effect of this Court’s decisions involve only questions of

federal law, not state law, and that state law does not apply.

If the latter were true, however, one would think that claim that an issue was

Teague-barred would be nonwaivable. But this Court has repeatedly held that the Teague

rule simply created a procedural defense that state governments might raise in a habeas

proceeding that this defense was forfeited if the state did not raise it in a timely manner.

See Schiro v. Farley, 510 U.S. 222, 228-29 (1994) (noting that state did not assert Teague

as a defense in a timely manner); Godinez v. Moran, 509 U.S. 389, 397 n. 8 (1993)

(same); see also Collins v. Youngblood, 497 U.S. 37, 41 (1990) (holding that Teague rule

is not “jurisdictional” and accepting state’s waiver of any Teague issue). Only this Court

13

pa Ae

iz

»

can resolve any inconsistencies between these two lines of cases, and it should do so by

accepting certiorari over this case.

The Minnesota Supreme Court, and the other state supreme courts in the minority,

have held that this Court’s decisions have bound them to use the Teague standard when

deciding whether to apply federal constitutional rules retroactively. But what happens if

this Court holds that Congress can, or has, abrogated Teague altogether? In at least two

cases this term, this Court is considering whether amendments to the federal habeas

stature, 28 U.S.C. § 2254(d)(1) and (2), effectively abrogated the Teague standards. See

Wharton v. Bockting, Sup. Ct. File No. 05-595; Burton v. Stewart, Sup. Ct. File No. 05-

9222. If Teague is binding upon the states, and Congress can abrogate Teague, then can

Congress prohibit state courts from applying United States Supreme Court decisions

retroactively? Or, if Congress has abrogated Teague, has it already done so? The Court

should grant certiorari over this case to answer these important questions.

Finally, this Court should grant certiorari in the interests of justice. This Court has

granted certiorari in a number of cases to, in Justice Stevens’ words, “Make sure that

a State’s highest court has not granted its citizens any greater

protection than the bare minimum required by the Federal

Constitution.” Washington v. Recuenco, 126 S.Ct. 2546, 2554 (2006)

(Stevens, J., dissenting) (citing Brigham City, 547 U.S. __, 126 S.Ct.

1943 (2006); Kansas v. Marsh, 548 U.S. , 126 S.Ct. 2516 (2006)).

The issue presented here dovetails with Justice Stevens’ concerns. In

this case the Minnesota Supreme Court held that it could not “grant[]

14

its citizens any greater protection than the bare minimum required by”

Teague. Recuenco, 126 S.Ct. at 2554 (Stevens, J., dissenting); (App.

A-6-7). This Court should make sure that state supreme courts know

to what extent they are free to interpret their own constitutions to

provide greater protections to their citizens.

The primary purpose behind Teague was “to limit the scope of

federal habeas corpus review of state criminal convictions.” Id. at

*13. It was not “to achieve uniformity of results among the fifty

states.” Id.; see also Mary C. Hutton, Retroactivity in the States: The

Impact of Teague v. Lane on State Postconviction Remedies, 44 Ala. L.

Rev. 421, 449-58 (1993) (arguing that states should follow broader

retroactively principles than those announced in Teague; describing

notion that states are bound to follow Teague as “mistaken”). The

Teague standard was not designed for state courts, and it was

certainly not designed to bind state courts. The Court should grant the

petition for writ of certiorari on this issue.

15

Il.

THIS COURT SHOULD GRANT THE WRIT TO DETERMINE IF

CRAWFGRD’S HOLDING APPLIES TO PETITIONER’S CASE,

THE IDENTICAL ISSUE PRESENTED IN THE PENDING CASE

OF WHORTON v. BOCKTING.

The Minnesota Supreme Court affirmed petitioner’s conviction because it held

that Crawford, which was decided in 2004, did not apply to petitioner’s case, which

became final in September 1999. The Minnesota court considered the issue of

Crawford's retroactive application under the Teague standard and held that 1) Crawford

had announced a new rule of constitutional criminal procedure; and 2) the rule was not a

watershed rule. (App. A-7-14).

In 2004, a split panel of the United States Circuit Court of Appeals for the Ninth

Circuit reached the opposite conclusion. Bockting v. Bayer, 399 F.3d 1010 (9th Cir.

2004), op. amended, re'hrg en banc denied 408 F.3d 1127 (9th Cir. 2005). Considering

the same issue, a majority of the panel held that, even if Crawford had announced a new

rule, it was a watershed rule of criminal procedure and was fully retroactive. Bockting,

399 F.3d at 1018. One of the panelists would have concluded that Crawford did not

announce a new rule and therefore applied to all past cases. Bockting, 399 F.3d at 1 022-

24 (Noonan, J., concurring). Another panelist dissented and would have held that

Crawford announced a new rule but not a watershed rule of procedure. /d. at 1024-41

(Wallace, J., dissenting).

This Court has issued a writ of certiorari in Bockting, presumably to determine

(possibly among other things) Crawford’s retroactive effect under the Teague standard.

Whorton v. Bockting, __ U.S. __, 126 S.Ct. 2017 (2006) (mem) (U.S. Supreme Court

16

-

q

“

os

: -

a, — al

File No. 05-595). Because Minnesota feels compelled to use the Teague standard to

determine the retroactive effect of Crawford and this Court’s other decisions, the decision

in Bockting could control the outcome of petitioner's case. Only by granting this petition

can the Court assure that petitioner will benefit from its ruling. As an sleernative to

granting the petition on the merits of the first issue presented, this Court should grant the

petition and consider staying any further proceedings until it renders a decision in

Bockting.

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Benjamin J. Butler

Office of the Minnesota State Public Defender

2221 University Avenue SE

Suite 425

Minneapolis, Minnesota 5541 »

(612) 627-6980

Counsel of Record

Attorney for Petitioner