Amicus Curiae Brief — Maryland v. Grandison

No. 92-1207

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

STATE OF MARYLAND,

Petitioner,

VS.

ANTHONY GRANDISON, SR..,

Respondent.

On Petition for Writ of Certiorari to the

Circuit Court for Somerset County, Maryland

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

KENT S. SCHEIDEGGER

CHARLES L. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, CA 95812

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

TABLE OF CONTENTS

poo SRS oS Ee ee ee Pee ee ee ee ii

SOE EEE SS EES Me Oe ree

Summary of argument ............. 0. eee e eee eee

| Serr eer rer re rere ee eee eee ee eee -

The second Teague exception is the subject of

great confusion in the lower courts .............--

A. The Teague decision ...........22seeeee-

B. Exceptions and innocence ..............+--

II

Only rules essential to the prevention of miscarriages

of justice qualify for the second exception .........

The Mills rule is not essential to prevent miscarriages

9 SPP Peer errr Tere Ter ee Tee eee eee

ey Pe se SO a a ela i ca

TABLE OF AUTHORITIES

Cases

Beam v. Paskett, 966 F. 2d 1563 (CA9 1992) ......... 4

Betts v. Brady, 316 U. S. 455, 86 L. Ed. 1595,

Fe Pe Terror Te CTE EE EEE 9

Bouie v. City of Columbia, 378 U. S. 347,

12 L. Ed. 2d 894, 84 S. Ct. 1697 (1964) ............ 3

Brown v. Mississippi, 297 U. S. 278, 80 L. Ed. 682,

TO BRR: SERGIO hes kone actcpeasatencesauaes 9

Caldwell v. Mississippi, 472 U. S. 320,

86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985) ......... 5. >

Coker v. Georgia, 433 U. S. 584, 53 L. Ed. 2d 982,

Fi F.C Be eee 0 ceetgenvagseauacawan ers 8

Desist v. United States, 394 U. S. 244, 22 L. Ed. 2d 248,

SDS. CR BEPC 4 6 one bese rkcadheeeeenkses 6

Engle v. Isaac, 456 U. S. 107, 71 L. Ed. 2d 783,

POE We GA, BPO COUMEE V6 6c cc cccresenseves tests. 3

Enmund v. Florida, 458 U. S. 782, 73 L. Ed. 2d 1140,

PES. Gh FeO Siw dcecanveactuceneweass 8

Ford v. Wainwright, 477 U. S. 399, 91 L. Ed. 2d 335,

oe at ee fe | PCE eee re Teer er Peres 8

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

FE SG ROP EROED Shh wsc eens eee dy iuceseewsns )

Gideon v. Wainwright, 372 U. S. 335,

9 L. Ed. 24 799, G3 S. Ce. 792 (1963) ........25.: 7,9

Graham v. Collins, 64 U. S. L. W. 4127

(Jam. Z5, 1995S) GO. FR- TSR) ccc cscccccencs 10, 11

Graham v. Hoke, 946 F. 2d 982 (CA2 1991) ......... 3

Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,

DO SD. CR, SRO POE hb oe hibas ds cag tenadwaces wars 8

Hopkinson v. Shillinger, 888 F. 2d 1286

IEEE Sched escccccesceieisasdescrcvesss 5

Jackson v. Virginia, 443 U. S. 307, 61 L. Ed. 2d 560,

ee ED a 5 so 0.95 CHAU tie bead eld d es’ 8

Kuhlmann v. Wilson, 477 U. S. 436, 91 L. Ed. 2d 364,

ta SG (:. ree reer rere rere 4

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

ee A Prrrrrr TTT Tre Terrie 8, 10

Mackey v. United States, 401 U. S. 667,

28 L. Ed. 2d 404, 91S. Ct. 1160 (1971) ......... 7, 10

McCleskey v. Kemp, 481 U. S. 279, 95 L. Ed. 2d 262,

fe ee | ES Tyee eee 10

McCleskey v. Zant, 113 L. Ed. 2d 517,

Re ED 3 8 ob kd vcc dae cctencc cece 3

Mills v. Maryland, 486 U. S. 367 , 100 L. Ed. 2d 384,

eer ee 1]

Mooney v. Holohan, 294 U. S. 103, 79 L. Ed. 791,

oR rrr err eee eee )

Moore v. Dempsey, 261 U. S. 86, 67 L. Ed. 543,

EEE: 9600s cd cacrerovescncsees 9, 10

Murray v. Carrier, 477 U. S. 478, 91 L. Ed. 2d 397,

EE ee ee ee 4

Palko v. Connecticut, 302 U. S. 319, 82 L. Ed. 288,

eee rere 10

Penry v. Lynaugh, 492 VU. S. 302, 106 L. Ed. 2d 256,

IE, A ee Vas ese n esr ceeenss 4,8

Rose v. Lundy, 455 U. S. 509, 71 L. Ed. 2d 379,

ee ee ee 9

Saffle v. Parks, 494 U. S. 484, 108 L. Ed. 2d 415,

110 S. Ct. 1257 (1990) .......... 0.00. 3, 5, 6,7, 11

iv

Sawyer v. Smith, 497 U. S. 227, 111 L. Ed. 2d 193,

ff es tp) | PPerreeerereriT 4,6, 9, 11

Sawyer v. Whitley, 120 L. Ed. 2d 269,

BESS. CA, CORO EROOED os cee sscddvsendess Ke ah oe

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

7 oe of) | rr rer rrr rer ererer er 3

Sunal v. Large, 332 U. S. 174, 91 L. Ed. 1982,

ye fo Rf) lj Peer er roee Pere TVET eeee 3

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

DGe B. CR, FOP ROPOOD ssc bvckccecweasen 2, 4-7, 9-11

Thompson v. Oklahoma, 487 UV. S. 815,

101 L. Ed. 2d 702, 108 S. Ct. 2687 (1988) .......... 8

United States v. Eichman, 496 U. S. 310,

110 L. Ed. 2d 287, 110 S. Ct. 2404 (1990) .......... 4

Wainwright v. Sykes, 433 U. S. 72, 53 L. Ed. 2d 594,

ie Gee fs. fs Pere’ Teer er ey eee ee ree 4

Walton v. Arizona, 111 L. Ed. 2d 511,

ff eee of). | errr Serer rrr errr ee 10

Williams v. Dixon, 961 F. 2d 448 (CA4 1992) ...... 5, 6

Woodson v. North Carolina, 428 U. S. 280,

49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) ............ 9

Yates v. Aiken, 484 U. S. 211, 98 L. Ed. 2d 546,

BGS &. CR Ree Ge en vb cc acaeeeebessetedeeess 5

United States Constitution

SS, S Coe, es we a ok oo oR re > a oe 3

ieee t . kg Y £ Beer eer eee 3

United States Statutes

BER ere A GR oy rt ter A eee i ay 4

pai e Ree feo. | Peer err Te Teer oT eee 3

State Statutes

Md. Code Ann. art 27, § 414(e)(3)

to | EP rere ee reeEeeEeereeee 12

Miscellaneous

A. Lewis, Gideon’s Trumpet 237 (1964) ............. 7

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

STATE OF MARYLAND,

Petitioner,

VS.

ANTHONY GRANDISON, SR.,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION

FOR WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a

nonprofit California corporation organized to participate

in litigation relating to the criminal justice system as it

affects the public interest. CJLF seeks to bring the due

process protection of the accused into balance with the

rights of the victim and of society to rapid, efficient and

reliable determination of guilt and swift execution of

punishment.

Collateral attacks on final judgments based on subse-

quent changes in the law are fundamentally unfair to the

people for the same reason that ex post facto laws are

unfair to individuals. Allowing such attacks in the

absence of a substantial risk of an actual miscarriage of

1. CJLF has received written consent from both parties to file this brief.

sn lh

justice is contrary to the interests CJLF was formed to

advance.

SUMMARY OF ARGUMENT

Teague v. Lane was a major reform in the law of

habeas corpus. It protected the people against unfair ex

post facto abrogation of judgments which were legal when

entered, subject to two narrow exceptions. To preserve

the vitality of this reform, the exceptions must be kept

narrow.

The second exception has caused confusion in the

lower courts, and better guidance is needed. That

guidance can be found in the strong connection between

this exception and the “actual innocence” exception of

Murray v. Carrier. Just as Sawyer v. Whitley eliminated

from the Murray exception all cases where the defendant

is guilty and eligible for the death penalty, so should all

rules dealing only with the sentencing of death-eligible

defendants be excluded from the second Teague exception.

ARGUMENT

I. The second Teague exception is the subject of great

confusion in the lower courts.

A. The Teague Decision.

Teague v. Lane, 489 U. S. 288 (1989) was a landmark

decision, taking a giant step toward restoring balance and

fairness to the criminal law. The effectiveness of that

reform, however, depends on its proper implementation.

Decisions such as the one in the present case threaten to

nullify Teague.

The American legal tradition has long recognized that

it is fundamentally unfair to declare an act illegal when it

was understood to be legal at the time it was done.

Criminal statutes having such an effect are expressly

prohibited by the Constitution, on both the feaeral and

state levels. U.S. Const. art. I, § 9, cl. 3; id., § 10, cl. 1.

Retroactive expansion of criminal statutory prohibitions by

judicial interpretation has long been recognized as so

fundamentally unfair as to violate due process of law. See

Bouie v. City of Columbia, 378 U. S. 347, 353-354 (1964).

Teague extends this basic principle of fairness to the

people. The question on habeas corpus is not whether

the trial court erred but whether the state is violating the

Constitution by keeping the prisoner in prison. 28

U. S. C. § 2254(a). If the state obeyed the law in effect

when it entered the judgment, it is fundamentally unfair

to the people to declare their judgment illegal merely

because the rules have since changed. See Engle v. Isaac,

456 U. S. 107, 128-129, n. 33 (1982).

Teague recognizes, however, that there may be circum-

stances where a judgment legal when entered must be

declared illegal because of an overriding imperative on

the other side. Thus, there are two narrow exceptions to

the rule. See Saffle v. Parks, 494 U.S. 484, 487-488

(1990). The question in this case is whether the second

exception will continue to be narrow, or whether it will

swallow the rule.

B. Exceptions and Innocence.

Throughout the recent development of habeas corpus

law, this Court has sounded two themes. First, the Court

has placed limits on the writ in order to partially return

to the old rule that habeas will not be used as a substitute

for or repetition of the appeal. See Sunal v. Large, 332

U. S. 174, 178 (1947). To this end, limits have been

placed on consideration of constitutional claims irrelevant

to the accuracy of the result, Stone v. Powell, 428 U. S.

465 (1976); claims not timely raised in state court, Engle

v. Isaac, supra, 456 U. S., at 481-482; claims not raised in

the first federal petition, McCleskey v. Zant, 113 L. Ed. 2d

517, 111 S. Ct. 1454 (1991); and attempts to relitigate

claims in a successive petition, Kuhlmann v. Wilson, 477

U. S. 436 (1986) (plurality). At the same time, the Court

has increasingly recognized the overriding imperative to

correct actual miscarriages of justice, i.e., the convictions

of people who are actually innocent. Murray v. Carrier,

477 U. S. 478, 495-496 (1986).

Teague itself explicitly recognizes these common

threads. In defining the problem as one of the scope of

the writ, Teague relies on Engle, Murray, Kuhlmann, and

Wainwright v. Sykes, 433 U.S. 72 (1977). Teague, 489

U. S., at 308. Similarly, in setting out the exceptions,

Teague noted that “our cases have moved in the direction

of reaffirming the relevance of the likely accuracy of

convictions in determining the available scope of habeas

review,” citing Auhlmann and Murray. Id., at 313 (empha-

sis added). Sawyer v. Smith, 497 U. S. 227, 245 (1990)

(“Sawyer I”) similarly relied on procedural de-

fault/miscarriage of justice cases in its discussion of the

second Teague exception.

From the very beginning, then, there has been a

powerful connection between the Teague exceptions and

the “actual innocence” exception of Murray and Kuhl-

mann. For the first Teague exception, the connection is

simple and obvious. A person in jail for flag burning, 18

U. S. C. § 700, would be actually innocent. See United

States v. Eichman, 496 U.S. 310 (1990). A person

sentenced to death for rape would be “innocent of” (i.e.,

ineligible for) the death penalty. Penry v. Lynaugh, 492

U. S. 302, 330 (1989). This straightforward rule has

caused little difficulty in the lower courts, with one

appalling exception. See Beam v. Paskett, 966 F. 2d 1563

(CA9 1992), cert. pending, (No. 92-464) (finding exception

applicable to sane adult convicted of rape and murder of

a 13-year-old girl).

The second exception, however, has created more

problems. Like the first exception, it is rooted in the

need to prevent an actual miscarriage of justice, defined

as the conviction of an innocent person. Teague, 489

U. S., at 313. Unlike the first exception, however, “the

precise contours of this exception” have proven “difficult

to discern.” Saffle v. Parks, 494 U. S. 484, 495 (1990).

Misunderstanding of the second Teague exception is

rampant in the courts of appeals. Graham v. Hoke, 946

F. 2d 982 (CA2 1991), cert. denied, 116 L. Ed. 2d 793,

112 S. Ct. 890 (1992) is a prime example. Graham held,

in effect, that any rule which supplanted a prior rule

“altered our understanding of a ‘bedrock procedural

element.’ ” /d., at 994. As long as it has some accuracy-

enhancing effect, it would qualify for the second excep-

tion. The “narrow” exception would therefore encompass

virtually all new rules thought to enhance accuracy, and

Teague would be a dead letter.

Graham was nonetheless decided in the state’s favor

under harmless error analysis. 946 F. 2d, at 997. How a

violation of a rule which is an “absolute prerequisite to

fundamental fairness,” Teague, 489 U. S., at 314, can ever

be harmless error is not explained.

Hopkinson v. Shillinger, 888 F. 2d 1286 (CA10 1988) is

similar. The Court of Appeals in that case held that the

rule of Caldwell v. Mississippi, 472 U.S. 320 (1985)

qualified for the second exception and then proceeded to

find the error did not affect the jury in that case. 888

F. 2d, at 1292, 1295. The former holding was abrogated

by Sawyer v. Smith, supra.

The present case is both an example of the confusion

and an opportunity to correct it. The court below’ relied

primarily upon Williams v. Dixon, 961 F. 2d 448 (CA4

2. The fact that this is a state habeas corpus case does not prevent

application of Teague. Where a state makes collateral relief available for

a federal claim, retroactivity is a federal question. See Yates v. Aiken,

484 U.S. 211, 217, 218 (1988).

1992), cert. denied, 121 L. Ed. 2d 445 (1992).’ See Pet.

App., 17-18. Williams quoted Sawyer v. Smith out of

context and announced a rule that all of this Court’s

Eighth Amendment capital sentencing rules meet the

accuracy-enhancing requirement for the second Teague

exception. 961 F 2d, at 454. Williams then launched into

a “death is different” dissertation which, if accepted,

would effectively abrogate Penry v. Lynaugh, supra, and

apply the second Teague exception to all penalty phase

rules, something this Court explicitly refused to do in

Sawyer I, 497 U.S., at 227. The court below in the

present case simply accepted this misinterpretation of

Teague.

To clear up this confusion, amicus submits, the

contours of the exception need to be more precisely

defined. A statement that a rule “has none of the

primacy and centrality of the rule adopted in Gideon,”

Saffle, supra, 494 U.S., at 495, provides insufficient

guidance for lower courts. The proper guidance, amicus

submits, can be found in recognition of the link between

the Teague exceptions and the “actual innocence” rule of

Murray v. Carrier.

II. Only rules essential to the prevention of

miscarriages of justice qualify for the second exception.

Teague v. Lane, 489 U. S. 288 (1989) did not accept at

face value Justice Harlan’s assertion in Desist v. United

States, 394 U. S. 244, 262 (1969) (dissent) that “all ‘new’

constitutional rules which significantly improve the pre-

existing fact-finding procedures are to be retroactively

applied on habeas.” Instead, Teague raised the threshold,

“limiting the scope of the second exception to those new

3. The present case is a better case for addressing Teague than Williams

because, unlike Williams, in the present case there is no argument that

the state waived Teague. Cf. Williams, supra, 961 F. 2d, at 456-459.

procedures without which the likelihood of an accurate

conviction is seriously diminished.” Jd., at 313 (emphasis

added). This limitation is fully consistent with Teague’s

concern for preventing miscarriages of justice. If it is

unlikely that trials conducted before the rule resulted in

the conviction of innocent people, then the state’s interest

in finality outweighs the benefits, if any, of applying the

rule to overturn final judgments.

The conclusion which immediately follows is inevitable.

In the last decade of the twentieth century, there are few,

if any, such rules remaining to be made. “Because we

operate from the premise that such procedures would be

so central to an accurate determination of innocence or

guilt, we believe it unlikely that many such components of

basic due process have yet to emerge.” Jbid. (emphasis

added). This is a very cautious understatement. The

firestorm that swept through criminal procedure in the

1960’s and 1970’s left behind very little combustible

material. We now have a system so heavily weighted in

defendants’ favor that there are no rules of such magni-

tude remaining to be made.

Gideon v. Wainwright, 372 U. S. 335 (1963) has been

cited repeatedly as an example of the kind of rule which

qualifies for the exception. Teague, supra, 489 U. S., at

311-312 (quoting Mackey v. United States, 401 U. S. 667,

693-694 (1971) (Harlan, J., concurring in the judgment));

Saffle, supra, 494 U.S., at 495. The reason is simple.

Denial of counsel in the pre-Gideon era resulted in the

conviction of many innocent people, including Gideon

himself, who was acquitted on retrial. See A. Lewis,

Gideon's Trumpet 237 (1964). Extension of the right to

counsel to all felony defendants sharply reduced the

number of fundamental miscarriages of justice. The

procedural requirements promulgated under the Eighth

Amendment are entirely different.

In Sawyer v. Whitley, 120 L. Ed. 2d 269, 112 S. Ct

2514 (1992) (“Sawyer IT”), this Court was confronted with

the question of when a death sentence is a “miscarriage

of justice” despite the facts that the defendant is actually

guilty of murder, is actually eligible under state law, and

is not within any of the categorical constitutional exclu-

sions. The majority said never; the concurrence said

almost never. The majority held that “the ‘actual inno-

cence’ requirement must focus on those elements which

render a defendant eligible for the death penalty... .”

120 L. Ed. 2d, at 585, 112 S. Ct, at 2523. The concur-

rence would also include those cases where no reasonable

sentencer would have imposed the death penalty. /d., at

120 L. Ed. 2d, at 301, 112 S. Ct. at 2536 (citing Jackson

v. Virginia, 443 U. S. 307, 316-318 (1979)).

Of all the procedural rules promulgated under the

Eighth Amendment after Gregg v. Georgia, 428 U. S. 153

(1976) and its companion cases,’ which ones constitute

rules the nonobservance of which is highly likely to result

in a miscarriage of justice? The answer, amicus submits,

is none. The categorical exclusion rules, which qualify for

the first exception under Penry v. Lynaugh, 492 U. S. 302

(1989) take care of all of the ineligibility cases which the

Sawyer IT majority considered to be miscarriages of justice.

Even if one accepts the view of the Sawyer IT concurrence,

that a miscarriage of justice would be possible despite

eligibility, such a case must be extremely rare. Thus,

Sandra Lockett would now be excluded by the rule of

Enmund, supra. See Lockett v. Ohio, 438 U. S. 586, 589-

591 (1978). None of this Court’s other Eighth Amend-

ment procedure cases presents facts on which no reason-

4. See Enmund v. Florida, 458 U. S. 782 (1982) (felony murder accomplice

with no intent to kill); Coker v. Georgia, 433 U. S. 584 (1977) (rape, not

murder); Ford v. Wainwright, 477 U. S. 399 (1986) (insane at time of

execution); Thompson v. Oklahoma, 487 U. S. 815 (1988) (under sixteen

years old, no statutory minimum age).

5. We need not consider here categorical exclusions, which qualify under

Penry, or the retroactivity of Gregg and its companion cases, which is a

moot question.

able sentencer could find death to be the appropriate

penalty, and indeed it is highly questionable whether

Lockett is that clear.

At best, all of the post-Gregg procedural cases fit

Sawyer I’s description of Caldwell v. Mississippi, 472 U. S.

320 (1985). They are protections of some value and are

thought to enhance accuracy of capital proceedings.

Sawyer I, supra, 497 U.S., at 244. However, they are

layered on top of a foundation of due process protections

which apply to capital and noncapital cases alike. They

are also layered on top of the basic structure of Gregg,

Furman v. Georgia, 408 U. S. 238 (1972), and Woodson v.

North Carolina, 428 U. S. 280 (1976), which established

the basic system of guided discretion we have today.

Enhancing the accuracy of a trial is not enough to

qualify a rule for the second exception. A rule must also

be a “watershed rule[{ ] of criminal procedure, ... .”

Teague, supra, 489 U. S., at 311. In addition to Gideon,

Teague alluded to three other cases that would have

satisfied the second exception: Brown v. Mississippi, 297

U. S. 278 (1936) (beating a confession out of the defen-

dant); Moore v. Dempsey, 261 U.S. 86 (1923) (mob

dominated trial); and Mooney v. Holohan, 294 U. S. 103

(1935) (knowing use of perjured testimony by the prosecu-

tion). See Teague, supra, 489 U. S., at 313; Rose v. Lundy,

455 U. S. 509, 544 (1982) (Stevens, J., dissenting). In

each of the cases mentioned by Teague, this Court unani-

mously supported the announced right. Brown and

Mooney were unanimous decisions, while in Gideon the

three concurrences accepted its extension of the right to

appointed counsel. See 372 U. S., at 345 (Douglas, J.,

concurring); 372 U. S., at 349 (Clark, J., concurring); 372

U. S., at 352 (Harlan, J., concurring). Although two

6. Although Gideon overruled Betts v. Brady, 316 U.S. 455 (1942), the

Gideon Court did not see itself as making a new path in the law when it

disregarded Betts, but instead was “returning to . . . old precedents.” 372

U. S., at 344.

10

justices dissented in Moore, they did not dissent on the

unconstitutionality of mob dominated trials, see 261 U. S.,

at 96 (McReynolds, J., dissenting), but instead dissented

on the scope of habeas corpus, see id., at 93.

This stands in sharp contrast to this Court’s death

penalty jurisprudence. Its entry into Eighth Amendment

death penalty law sparked deep divisions within the Court.

Furman was a 5-4 decision that mustered a majority only

for the barest per curiam opinion. The bulk of the

opinion was the many separate concurrences and dissents.

The divisiveness over capital punishment continues.

There has been substantial disagreement within this Court

in most of these decisions. There is even tension between

the two main lines of death penalty jurisprudence.

Several justices have noted the tension between the

guided discretion requirement derived from Furman and

the mitigating evidence line derived from Lockett v. Ohio,

438 U.S. 586 (1978). See Graham v. Collins, 64

U. S. L. W. 4127, 4135 (Jan. 25, 1993) (No. 91-7580)

(Thomas J., concurring); Walton v. Arizona, 111 L. Ed. 2d

511, 535, 110 S. Ct. 3047, 3062-3063 (1990) (Scalia, J.,

concurring); McCleskey v. Kemp, 481 U. S. 279, 363 (1987)

(Blackmun, J., dissenting); Lockett, supra, 438 U. S., at

622, 623 (White, J., concurring and dissenting). A branch

of law born in such controversy cannot be part of the

“small core of rules... ‘ “implicit in the concept of

ordered liberty.”’ ” Graham, supra, 64 U.S. L. W, at

4132 (quoting Teague, supra, 489 U.S., at 311 (in turn

quoting Mackey, supra, 401 U.S., at 693 (Harlan, J.,

concurring in part and dissenting in part) (in turn quoting

Palko v. Connecticut, 302 U. S. 319, 325 (1937)))).

None of the post-Gregg procedural rules are “water-

shed rules of criminal procedure.” See Teague, 489 U. S.,

at 311. None are “central to an accurate determination

of innocence or guilt.” See id., at 313. None are essen-

tial to “the fundamental fairness that must underlie a

11

conviction or seriously diminish the likelihood of obtain-

ing an accurate conviction... .” /d., at 315.

This Court has examined three capital procedure

claims under the second exception. Each time it has

found that the claim did not come within the second

exception. See Graham, supra, 61 U. S. L. W, at 4132:

Saffle, supra, 494 U. S., at 495; Sawyer I, supra, 497 VU. S.,

at 244-245. Given the confusion in the federal courts

over the second exception, it is time to recognize that

none of these cases will satisfy this test.

III. The Mills rule is not essential to prevent

miscarriages of justice.

The critical question is whether the rule of Mills v.

Maryland, 486 U. S. 367 (1988) is an “absolute prerequi-

site to fundamental fairness.” Teague v. Lane, 489 U. S.

288, 314 (1989). Is the Mills rule “so central to an

accurate determination of innocence or guilt” that under

the earlier Maryland practice “the likelihood of an

accurate conviction [was] seriously diminished”? J/d., at

313.

Translating “actual innocence” into the penalty phase

as the Sawyer I] majority did, the answer is simply and

clearly no. Once a defendant has been found guilty of

murder and eligible for a death sentence, the propriety of

that sentence is a matter of opinion, and its imposition is

never a miscarriage of justice.

Using the Sawyer II concurrence’s approach requires

a bit more analysis, but it yields the same result. The

Mills majority was concerned that the unanimity require-

ment would allow one holdout juror to prevent the others

from giving effect to mitigating evidence and thus improp-

erly impose the death penalty. 486 U. S., at 384. How

likely is this scenario in a case where “in view of all of the

evidence, mitigating circumstances so far outweighed

aggravating circumstances that no reasonable sentencer

12

would have imposed the death penalty”? See Sawyer v.

Whitley, 120 L. Ed. 2d 269, 301, 112 S. Ct. 2514, 2536

(1992) (Stevens, J., concurring in the judgment) (emphasis

added). How likely is such a verdict, so clearly contrary

to the evidence, to survive review in the normal course of

state procedure, including a review of whether the

evidence supports the death sentence by the state high

court? See Md. Code Ann. art. 27, § 414(e)(3) (Michie

Supp. 1992). That possibility, amicus submits, is far too

tenuous to justify the fundamental unfairness to the

people of an ex post facto application of Mills to judg-

ments already final.

A writ of certiorari is needed in this case to establish

a categorical rule that none of the post-Gregg fine tuning

of capital sentencing procedure qualifies for the second

Teague exception. This bright line rule would make

explicit what is already implicit in the Teague cases. All

that remains is for this Court to draw the line.

CONCLUSION

A writ of certiorari should be granted.

February, 1993

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation