# Amicus Curiae Brief — Maryland v. Grandison

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 985

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1978%3A3. Public record. Not legal advice.