Standards For Retroactive Application Based Upon Groundbreaking Supreme Court Decisions in Criminal Law

Congressional research reportSep 28, 2004

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Standards For Retroactive

Application Based Upon Groundbreaking

Supreme Court Decisions in Criminal Law

September 28, 2004

Paul Starett Wallace, Jr.

Specialist in American Public Law

American Law Division

Congressional Research Service ˜ The Library of Congress

Standards For Retroactive Application Based Upon

Groundbreaking Supreme Court Decisions in Criminal

Law

Summary

The Supreme Court is said to have announced a “new rule” when it hands down

a decision that addresses an issue of law in a new way or for the first time. In

criminal law new rules apply prospectively, but they also apply retroactively

sometimes. Whether a new rule provides the basis for overturning a past case

depends on the nature of the new rule and where in the review process a past case is

located when the new rule is announced.

If the new rule is a substantive one, that is, if it declares that conduct previously

outlawed may not be criminalized, it applies retroactively. If the new is procedural,

the issue is more complicated. The new rule will not apply to any case in which the

defendant has waived the right to the benefits of the new rule. The new rule will not

apply where the failure to apply it in a past case was harmless (procedural defects that

undermine the very structure of the trial process - secret trial, denial of the right to

a lawyer, biased judges, and the like - are never harmless). A new rule will apply to

a past case if the case is still on direct appeal and if the defendant raised the issue in

a timely manner before the new rule was announced. If a case is still on direct appeal

but the defendant failed to raise the issue in a timely manner, the new rule will only

apply retroactively if the defendant can claim the benefits of the plain error doctrine.

Those defendants who have reached the state of finality with their sentence

which is an indication that they have exhausted their criminal appeal procedures, are

not in as favorable position as those defendants who are on direct appeal. Errors

raised on collateral review (essentially means that the defendant is attacking the

sentence or conviction in a manner other than through direct appeal) are reviewed

under the more difficult harmless error standard for habeas corpus cases. As a

general framework for analyzing the applicability of new rules to convictions that

have already become final: New substantive rules apply retroactively, but new

procedure rules do not. A procedural rule applies retroactively only if it is a

“watershed rule of criminal procedure” that implicates the fundamental fairness and

accuracy of the criminal proceeding. In Teague v. Lane, the Supreme Court

answered questions of retroactivity for cases on collateral review. In Teague, the

Court held that as a general rule, new constitutional rules of criminal procedure will

not be applicable to those cases which have become final before the new rules are

announced. There are two exceptions: (1) Teague held that the new rule should apply

retroactively if it places a class of conduct beyond the power of the State to proscribe;

and (2) Teague held that a new rule should apply retroactively if the new

constitutional rule is a “watershed rule” of criminal procedure “implicating the

fundamental fairness of the criminal proceeding.” Thus, if a court determines that

the constitutional rule at issue is a new procedural rule, it must determine when the

defendant’s conviction became final. Even if a habeas petition survives Teague

analysis its claim to a new rule may be impaired by restrictions on stale or repetitious

petitions, failure to exhaust state remedies, or procedural default.

Contents

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Harmless Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Structural Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Plain Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Application on Collateral Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Other Bars to Collateral Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Standards For Retroactive Application

Based Upon Groundbreaking Supreme

Court Decisions in Criminal Law

Background

One of the hallmarks of new Supreme Court decisions is that until their

announcement many of the lower courts are likely to have ruled erroneously on the

issue. The question becomes when may defendants convicted or sentenced on the

basis of these errors claim the benefit of the new decision and have their convictions

or sentences overturned. Generally new decisions of the Supreme Court will apply

“retroactively”1 to defendants currently on trial or on direct appeal.2 Also, a

defendant may take advantage, retroactively, of a new Court rule in a few other

limited situations, for example, decisions which construe a criminal statute to

exclude certain acts or conduct.3 New decisions of the Court sometimes apply

“retroactively” to those on collateral review, and rarely apply “retroactively” to those

petitioners on second or successive collateral reviews.4

Waiver

There are a number of significant restrictions on the ability to raise error after

the fact. The most common problem appears to be waiver. Waiver may be

accomplished either affirmatively or by inaction. By pleading guilty for example, a

defendant waives jury trial, confrontation, and self-incrimination rights, and thereby

Retroactivity deals with new decisions, or changes in the law. Occasionally, a court will

issue a decision which overrules a number of other decisions. Sometimes, these decisions

may provide relief for a defendant who has already been convicted. Generally, the courts

have held that new rules of procedure will not be applied retroactively. Hence, unless the

case is on direct appeal at the time the decision is rendered, the defendant cannot take

advantage of it.

In a direct appeal, the court is limited to reviewing the record from the trial court. It will

not consider evidence which was not submitted. In habeas corpus the same limitations are

not present, and the court may consider additional evidence. In a direct appeal, almost any

violation of law may be addressed. This can include violations of statutes and rules. In

contrast, habeas corpus is generally limited to constitutional claims. As a result, the

violation of statutes or rules cannot generally be a basis for relief in a habeas proceeding.

Bousley v. United States, 523 U.S. 614, 620-21 (1998).

Schriro v. Summerlin, 124 S.Ct. 2519, 2522 (2004).

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the ability to claim the benefits of any new decisions in those areas.5 Waiver by

inaction may be no less debilitating. Here the doctrine of waiver recognizes that a

court should have an opportunity to rule on a claim at a time when it can be

remedied. The effect of this means that issues must be raised at the first opportunity

to do so.6 Depending upon the circumstances of the case and the nature of the error,

failure to interpose a timely and consistent objection may limit a defendant’s ability

to benefit when the Supreme Court later confirms the validity of the objection.

Harmless Error

Prior to Chapman v. California7 most courts understood that constitutional error

in a criminal case could never be “harmless” and always warranted relief, either on

direct review or in federal habeas corpus. That understanding changed after

Chapman, when the Court held that some constitutional errors at trial could be

ignored if it could be said with relative assurance that they had no effect on the

ultimate verdict.8

In justifying this change in constitutional law, Chapman weighed the cost of

automatic reversal against the risks of erroneous conviction and concluded that the

system could tolerate some additional risk.9 To ensure that the idea of harmless error

remained within close bounds, however, the Court held that no error could be

considered harmless unless the prosecution demonstrated, beyond a reasonable doubt,

that the error had not influenced the verdict.10

The rule pronounced in Chapman remains the governing rule with two

exceptions. First, its reach is limited to direct appeals. Thereafter upon collateral

review, a different standard applies:

When the Government has the burden of addressing prejudice, as in excusing

preserved error as harmless on direct review of the criminal conviction, it is not

enough to negate an effect on the outcome of the case. See Chapman v.

California, 386 U.S. 24 (1967) (“[T]he court must be able to declare a belief that

[constitutional error] was harmless beyond a reasonable doubt”). When the

Government has the burden of showing that constitutional trial error is harmless

because it comes up on collateral review, the heightened interest in finality

generally calls for the Government to meet the more lenient Kotteakos

standard.11

Cf., Parke v. Raley, 506 U.S. 20, 29 (1992)

Wainwright v. Sykes, 433 U.S. 72, 88-89 (1977).

386 U.S. 18 (1967).

Id. at 23-24. Rule 52(a) of the Federal Rules of Criminal Procedure reflects this view

(“Harmless error. Any error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded”).

Id. at 22.

Id. at 24.

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), United States v. Dominquez Benitez,

(continued...)

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Under Brecht, constitutional trial error when raised on collateral review can be held

harmless if it had no “substantial” effect on the verdict within the meaning of the

principal harmless error case, Kotteakos v. United States.12 Second, it does not apply

to “structural errors.”

Structural Error

In Arizona v. Fulminante13 the Supreme Court distinguished “trial errors” from

“structural errors” in the context of constitutional rights violations stating that the

former are subject to harmless error analysis but the latter requires automatic

reversal. A “trial error” occurs during a case’s presentation to the trier of fact and

“...may therefore be quantitatively assessed in the context of other evidence presented

in order to determine whether its admission is harmless beyond a reasonable doubt.”14

A structural defect, on the other hand, “...affect[s] the framework within which the

trial proceeds,” and therefore defies harmless error analysis.15

The Court in Fulminante noted that most constitutional errors are subject to

harmless error analysis and supplied a list of past examples, 499 U.S. at 306-307

(characterizations of the Court):

unconstitutionally overbroad jury instructions at the sentencing stage

of a capital case, Clemons v. Mississippi, 494 U.S. 738, 752-754

(1990);

admission of evidence at the sentencing stage of a capital case in

violation of the Sixth Amendment Counsel Clause, Statterwhite v.

Texas, 486 U.S. 249 (1988);

jury instruction containing an erroneous conclusive presumption,

Carella v. California, 491 U.S. 263, 266 (1989);

(...continued)

124 S.Ct. 2333, 2339 n.7 (2004).

328 U.S. 750 (1946). The test under Kotteakos is whether the error “had substantial and

injurious effect or influence in determining the jury’s verdict.” Under this standard, habeas

petitioners may obtain plenary review of their constitutional claims, but they are not entitled

to habeas relief based on trial error unless they can establish that it resulted in “actual

prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In O’Neal v. McAninch, 513

U.S. 432 (1995), the Court further refined the Brecht harmless error standard holding that

this standard does not place the burden of proof upon the petitioner to show that a trial error

substantially affected the verdict. Rather, where the issue is evenly balanced and the judge

has doubts about whether the error had “substantial and injurious effect” on the jury’s

verdict, then the judge must treat the error as if it were not harmless and must rule for the

petitioner. See also, California v. Roy, 519 U.S. 2, 4-5 (1997).

499 U.S. 279, 306-312 (1991).

Id. at 307-308.

Id. at 310.

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jury instruction misstating an element of the offense, Pope v.

Illinois, 481 U.S. 497, 501-504 (1987);

jury instruction containing an erroneous rebuttable presumption,

Rose v. Clark, 478 U.S. 570 (1986);

erroneous exclusion of defendant’s testimony regarding the

circumstances of his confession, Crane v. Kentucky, 476 U.S. 683,

691 (1986);

restriction on a defendant’s right to cross-examine a witness for bias

in violation of the Sixth Amendment Confrontation Clause,

Delaware v. Van Arsdall, 475 U.S. 673 (1986);

denial of a defendant’s right to be present at trial, Rushen v. Spain,

464 U.S. 114, 117-118 and n.2 (1983);

improper comment on defendant’s silence at trial, in violation of the

Fifth Amendment Self-Incrimination Clause, United States v.

Hasting, 461 U.S. 499 (1983);

statute improperly forbidding trial courts giving a jury instruction on

a lesser included offense in a capital case in violation of the Due

Process Clause, Hooper v. Evans, 456 U.S. 605 (1982);

failure to instruct the jury on the presumption of innocence,

Kentucky v. Whorton, 441 U.S. 786 (1979);

admission of identification evidence in violation of the Sixth

Amendment Counsel Clause, Moore v. Illinois, 434 U.S. 220, 232

(1977);

admission of the out-of-court statement of a nontestifying

codefendant in violation of the Sixth Amendment Counsel Clause,

Brown v. United States, 411 U.S. 223, 231-232 (1973);

confession obtained in violation of Massiah v. United States, 377

U.S. 201 (1964), Milton v. Wainwright, 407 U.S. 371 (1972);

admission of evidence obtained in violation of the Fourth

Amendment, Chambers v. Maroney, 399 U.S. 42, 52-53 (1970);

denial of counsel at a preliminary hearing in violation of the Sixth

Amendment Confrontation Clause, Coleman v. Alabama, 399 U.S.

1, 10-11 (1970);

The Court’s list of cases exemplifying structural error was far shorter, 499 U.S. at

309-10 (characterizations of the Court):

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total deprivation of the right to counsel at trial, Gideon v.

Wainwright, 372 U.S. 335 (1963);

a [trial] judge who was not impartial, Tumey v. Ohio, 273 U.S. 510

(1927);

unlawful exclusion of members of the defendant’s race from a grand

jury, Vasquez v. Hillery, 474 U.S. 254 (1986);

[denial of] the right to self-representation at trial, McKaskle v.

Wiggins, 465 U.S. 168, 177-78, n.8 (1984);

[denial of] the right to [a] public trial, Waller v. Georgia, 467 U.S.

39, 49, n.9 (1984).

In the years that followed, the Court added defective reasonable-doubt jury

instructions to the list of structural errors requiring reversal,16 but enlarged the list of

constitutional errors subject to harmless error analysis to encompass jury instructions

that omitted an element of the offense.17

Plain Error

A defendant, who lacked the foresight to raise a timely objection to an error

subsequently confirmed in a new rule of the Supreme Court, must overcome the plain

error rule. “[B]efore an appellate court can correct an error not raised at a trial, there

must be (1) error, (2) that is plain, and (3) that affects substantial rights....If all three

conditions are met, an appellate court may then exercise its discretion to notice a

forfeited error, but only if (4) the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.”18

Sullivan v. Louisiana, 508 U.S. 275, 278-282 (1993).

Neder v. United States, 527 U.S. 1, 10-12 (1999) (noncapital case); Mitchell v. Esparza,

540 U.S. 7, 10-11 (2003) (capital case).

Johnson v. United States, 520 U.S. 461, 466-467 (1997); United States v. Olano, 507 U.S.

725, 733-34 (1993); Jones v. United States, 527 U.S. 373, 389 (1999) (If an error meets the

first three requirements the appellate court engages in a fourth consideration: whether or not

to exercise its discretion to correct the error – “An appellate court should exercise its

discretion to correct plain error only if it ‘seriously affects the fairness, integrity, or public

reputation of judicial proceedings.’”). The plain error standard is reflected in Federal Rule

of Criminal Procedure 52(b), “A plain error that affects substantial rights may be considered

even though it was not brought to the court’s attention.” Under the standard, courts have

“a limited power to correct errors that were forfeited because [they were] not timely raised”

below, United States v. Olano, 507 U.S. at 731. Even when an error has occurred that is

plain and affects substantial rights, “an appellate court may . . . exercise its discretion to

notice a forfeited error . . . only if . . . the error seriously affects[s] the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. at 631-632

(quoting Johnson v. United States, 520 U.S. at 467).

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This last hurdle may be the most difficult to overcome. The defendants in

Olano failed to convince the Court that the unlawful presence of alternate jurors

during the jury deliberations that led to their convictions seriously affected “the

fairness, integrity, or public reputation of judicial proceedings.”19 The defendant in

Johnson had no more success with the contention that the failure to present the issue

of materiality of a false statement to the jury satisfied the standard – not because such

an error might never satisfy the “substantial affect” standard, but because in Johnson

the evidence of materiality was “overwhelming” and “uncontested.”20 The Cotton

defendants met the same fate. The erroneous failure to include within the drug

trafficking indictment allegations of the sentencing-determining quantity of the drugs

involved did not satisfy the “substantial affect” standard because the jury had been

presented with “overwhelming” and “essentially uncontroverted” evidence of the

quantity of drugs involved.21

Application on Collateral Review

In Schriro v. Summerlin,22 the Court held that Ring v. Arizona23 did not apply

retroactively to cases already final on direct review. In Ring, the Court concluded

that in the capital sentencing context, the existence of an aggravating factor must be

proved to a jury rather than a judge. Summerlin was tried and convicted before Ring,

however, and thus under Arizona’s sentencing scheme, a judge found the aggravating

factors that made him eligible for the death penalty. In his federal habeas petition,

Summerlin argued that he was entitled to the benefit of the Ring rule, but the Court

did not concur. The Court, in an opinion written by Justice Scalia, outlined the

general framework under Teague v. Lane24 for analyzing the applicability of new

rules to convictions that have already become final: New substantive rules generally

apply retroactively, but new procedural rules generally do not. A procedural rule

applies retroactively only if it is a “watershed rule of criminal procedure” that

implicates the fundamental fairness and accuracy of the criminal proceedings.25 With

this overview, the Court disregarded any suggestion that the Ring rule applied to

Summerlin’s case because it was a substantive rule. The Ring rule does not “alter the

range of conduct or the class of persons that the law punishes.”26 It merely assigns

decision making authority for essential facts bearing on punishment, it regulates only

the manner of determining culpability, id., and thus is primarily a procedure rule

United States v. Olano, 507 U.S. at 739-41.

United States v. Johnson, 520 U.S. at 469-70.

United States v. Cotton, 535 U.S. at 632-33.

124 S.Ct. 2519 (2004).

536 U.S. 584 (2002) (The Supreme Court in Ring announced a new procedural rule that

does not apply retroactively to cases which are final on direct review. This rule held that

death penalty defendants had a constitutional right to have a jury decide their sentence).

489 U.S. 288 (1989).

124 S.Ct. at 2524.

124 S.Ct. at 2523.

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rather than a substantive rule. The rule was also not characterized as a “watershed

rule” of criminal procedure.

The Court has announced a rule of federal procedure that applies to federal

habeas corpus claims which makes it clear that the finality of convictions cannot be

brought into question by every change in the law. For example, under Teague v.

Lane, a new rule in general cannot be applied retroactively to cases on collateral

review unless the rule “...falls within one of two narrow exceptions to the general

rule of nonretroactivity.”27 The first exception permits retroactive application to new

rules that place “...certain kinds of primary, private individual conduct beyond the

power of the criminal law-making authority to proscribe.”28 The second exception

allows retroactive application of new rules that involve procedures that are “implicit

in the concept of ordered liberty,”29 the so-called “watershed” exception.30

A Teague analysis asks whether a particular Supreme Court decision announced

a “new rule” and if so whether either of the two Teague exceptions apply so as to

allow a habeas petitioner to claim the benefit of the new rule. The Supreme Court

addressed the new rule issue of retroactivity in a capital sentencing context in Beard

v. Banks.31 In Mills v. Maryland32 the Court held invalid a capital sentencing scheme

that required juries to disregard mitigating factors that they had not found

unanimously. In Beard, the Court held that the Mills rule does not apply

retroactively. In its analysis, the Court considered whether the rule was dictated by

existing precedent relative to whether the unlawfulness of Mills’ sentence would be

apparent to “all reasonable jurist.” After tracing the jurisprudential roots of the Mills

decision, the Court concluded that reasonable jurists could have differed as to

whether the prior cases compelled the results in Mills. As confirmation, the Court

noted that the Mills case (and a late released case) had dissents.

The Beard Court also provided guidance on the two Teague exceptions. The

first exception is reserved for “primary, private individual conduct beyond the power

of the criminal law-making authority to proscribe.”33 This, Beard observes as would

Schriro thereafter, is matter appropriately considered retroactive by its substantive

nature rather than an exception to the procedural Teague rule.34 Elsewhere, the Court

has suggested that this exception covers things like “the execution of mentally

Tyler v. Cain, 533 U.S. 656, 665 (2001) (discussing Teague v. Lane, 489 U.S. at 311-313

(1989).

Teague v. Lane, 489 U.S. at 307 (1989).

Id.

“The second exception is for watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding.” Beard v. Banks, 124 S.Ct.

2504, 2513 (2004), quoting O’Dell v. Netherland, 521 U.S. 151, 157 (1997) and Graham

v. Collins, 506 U.S. 461, 478 (1993).

124 S.Ct. 2504 (2004).

486 U.S. 367 (1988).

Teague v. Lane, 488 U.S. at 307.

Beard v. Banks, 124 S.Ct. at 2513 n.7; Schriro v. Summerlin, 124 S.Ct. at 2522 n.4.

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retarded persons . . . regardless of the procedure followed.”35 “In providing guidance

as to what might fall within [the watershed] exception,” the Court has repeatedly

referred to the rule of Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel),

and only to this rule.36 In contrast to Gideon’s solitary standing, the Court has

identified more than a few decisions concerning procedural rights that may not claim

“watershed” status for Teague purposes.37

Other Bars to Collateral Relief

Even if a petitioner’s claim survives Teague analysis, in his efforts to claim the

benefits of a new rule he may face other impediments.38 Defendants being held under

a state criminal conviction may file a federal petition for writ of habeas corpus under

28 U.S.C. § 2254 to challenge the validity of their conviction or sentence. Collateral

review (habeas corpus) for federal prisoners is objecting to the sentence or

conviction in a manner other than through a direct appeal. The object of the habeas

corpus petition is to obtain release from custody. As a consequence, collateral

review is only available while the petitioner is in custody or subject to some other

form of collateral consequence as parole, supervised release, or registration

requirement. Thus, the benefits of a new Supreme Court rule cannot ordinarily be

claimed through collateral review unless collateral consequences of the conviction

remain in effect.39 When the Anti-Terrorism and Effective Death Penalty Act

(AEDPA)40 became effective on April 24, 1996, many changes occurred to the

habeas corpus process, such as the addition of a statute of limitations and a strict

standard for relief. Under the AEDPA, a one-year period of limitations applies to a

Penry v. Lynaugh, 492 U.S. 302, 330 (1989).

Beard v. Banks, 124 S.Ct. at 2514, citing, Saffle v. Parks, 494 U.S. 484, 495 (1990). See

also, Gray v. Netherland, 518 U.S. 152, 171 (1996).

Beard v. Banks, 124 S.Ct. at 2515 (“However laudable the Mills rule [relating to capital

punishment schemes precluding jury consideration of mitigating factors not found

unanimously] might be, it has none of the primacy and centrality of the rule adopted in

Gideon. The Mills rule applies fairly narrowly and works no fundamental shift in our

understanding of the bedrock procedural elements essential to fundamental fairness”);

Schriro v. Summerlin, 124 S.Ct. at 2524 (the Ring rule relating to the right to jury

determination of facts required for the imposing of capital punishment is not a watershed

rule); O’Dell v. Netherland, 521 U.S. at 167 (decision recognizing capital defendant’s right

to inform the jury of a life without parole sentencing alternative is not a watershed decision);

Lambrix v. Singletary, 520 U.S. 518, 539-540 (1997) (decision precluding either capital

judge or jury from considering invalid aggravating factors is not a watershed decision);

Saffle v. Parks, 494 U.S. at 495 (proposed rule that would invalid any anti-sympathy jury

instruction would not be a watershed rule).

In some instances, the courts may prefer to deal with these impediment first. For instance,

in Lambrix v. Singletary, 520 U.S. 518, 522-525 (1997), the Court indicated that before

conducting Teague analysis the federal courts should determine whether a claim is

procedurally barred for failure to present to state courts in a timely manner.

Spencer v. Kemna, 523 U.S. 1, 7-18 (1998); cf., Justices of Boston Municipal Court v.

Lydon, 466 U.S. 294, 300-301 (1984).

28 U.S.C. § 2243.

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petition for a writ of habeas corpus filed by a person in custody, and the limitations

period begins to run from “the date on which the judgement [of conviction] became

final by the conclusion of direct review or the expiration of the time for seeking

such.”41 In the case of new rule announced by the Supreme Court, however, the

period begins to run when the decision is handed down, if the Court has made it

retroactively applicable for purposes of collateral review.42

Generally, the federal court cannot grant relief on habeas corpus claims unless

the state supreme court has first had an opportunity to rule on the same federal

claims. This is called exhaustion of state court remedies.43 The Supreme Court

explained the exhaustion requirement in O’Sullivan v. Boercke:44

Because the exhaustion doctrine is designed to give the state courts a full and fair

opportunity to resolve federal constitutional claims before those claims are

presented to the federal courts, we conclude that state prisoners must give the

state courts one full opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process.

In the same vein, the Court entertains a procedural default doctrine under which it is

reluctant to pass upon a constitutional claim pressed by a state prisoner who by his

own default is barred from presenting the claim to state courts. It will do so,

however, when the prisoner can satisfy the Court’s “cause and prejudice”

requirements.45 If the petitioner does not bring all of his/her federal claims which are

related to a particular judgment in a single federal habeas corpus action, he/she will

not be able to bring a second action without first obtaining permission to do so from

the federal circuit court of appeals.46 There is one relevant exception to the general

maxim that a prisoner may not raise new issues in a second or successive habeas

petition. A prisoner may do so if the Supreme Court has expressly made a new rule

of constitutional interpretation retroactively applicable upon collateral review.47

28 U.S.C. § 2244(d)(1)(A); see also, 28 U.S.C. § 2255.

28 U.S.C. § 2244(d)(1)(C).

28 U.S.C. § 2254(b)(1)(A).

526 U.S. 838, 845 (1999).

Dretke v. Haley, 124 S.Ct. 1847, 1851-1852 (2004). “Cause” ordinarily requires a

showing “that some objective factor external to the defense impeded counsel’s efforts to

comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).

The requirements can also be satisfied by showing of “actual innocence,” id. at 496. The

Court has recently stated that federal courts should address a petitioner’s alternative claims

before passing on a claim of actual innocence. Dretke v. Haley, 124 S.Ct. at 1852.

28 U.S.C. § 2244(b).

28 U.S.C.§ 2244(b)(2)(A); 28 U.S.C. § 2255. See also Atkins v. Virginia, 536 U.S. 304

(2002) (Rule announced by the Court that execution of mentally retarded person was “cruel

and unusual punishment” in violation of the Eighth Amendment, was a new rule of

constitutional law made retroactive to cases on collateral review by the Court that was

previously unavailable, as would support petitioner’s application for leave to file a second

successive federal habeas corpus petition).

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Conclusion

New decisions of the Supreme Court always apply “retroactively” to defendants

on trial or direct appeal, sometimes apply “retroactively” to those on collateral

review, and rarely apply “retroactively” to those petitioners on second and successive

collateral reviews.

There were two Supreme Court decisions during the 2003-2004 Term which

dealt with the retroactive application of previous Court rulings on the death penalty,

and the ability of death row petitioners to have a court review their claims.

In Schriro v. Summerlin, the Court ruled that death row inmates cannot benefit

from a 2002 Supreme Court ruling that crucial findings of fact should be made by a

jury, not a judge, in capital cases. The Court held that the earlier decision in Ring v.

Arizona was not retroactive and therefore could not be applied to Summerlin and the

death row inmates in five other states affected by the Ring ruling.

Justice Scalia, writing for the majority, held that the Ring decision represented

a new procedural rule for the manner of determining the defendant’s

culpability–whether a defendant is worthy of being sentenced to death–and these new

procedural rules are generally not applicable retroactively unless they meet a very

narrow “watershed” exception. Justice Scalia concluded that the evidence that juries

were more accurate fact-finders than judges was too unconfirmable to support the

conclusion that the Ring decision was a watershed rule.

The dissent argued that Ring did announce a watershed rule and focused on the

jury’s role in serving as the community standard for determining whether the conduct

of the defendant merits a death sentence.

In Beard v. Banks, another case involving retroactivity, the Court held that a

1988 opinion that invalidated death-sentencing schemes in which jurors were

required to be unanimous in finding the existence of mitigating factors was not

retroactive. Justice Thomas, writing for the majority, concluded that although the

Court’s decision in Maryland v. Mills announced a new rule, that rule did not fall

within the “watershed” exception for new rules that are retroactively applicable.

The Court emphasized in both Summerlin and Beard that these new procedural

rules will only be retroactive under extremely limited circumstances.

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