NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.18 Retroactivity Of New Law
                1.18.1  Retroactivity Of New Constitutional Rules Of Criminal Procedure
                            1.18.1.1  Application To Federal Cases
                              1.18.1.2  AEDPA’s § 2254(e)’s Restriction on Teague Analysis
                1.18.2  Retroactivity Of New Statutes

Addressing perceived inconsistencies in its prior rulings, the Supreme Court ruled, in Teague v. Lane, 489 U.S. 288 (1989), that “new” constitutional rules of criminal procedure will not be applied retroactively to cases on collateral review unless they fall within two narrow exceptions. Cases pending on direct review, or otherwise not yet final, however, are not so restricted. A “new rule” is one that “breaks new ground or imposes a new obligation on the States or the Federal Government” or one whose “result was not dictated by precedent existing at the time the defendant’s conviction became final.” Although Teague itself was not a capital case, the Court has held that its holding applies to capital as well as noncapital cases.

In Butler v. McKellar, 494 U.S. 407 (1990), the Court explained that “the ‘new rule’ principle validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” To facilitate this purpose, the Court, expanded the new rule definition to include any rule whose result state courts would not have felt “compelled” by existing precedent to reach. Saffle v. Parks, 494 U. S. 484 (1990). However, the Court has noted that even where precedent “informs,” “controls,” “governs,” or is “within the logical compass” of precedent, the result is not necessarily “compelled” by precedent and is therefore a new rule. Id. In Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990), the Ninth Circuit explained that Teague’s limitation applies only to new rules imposing an obligation on the state. Thus, a threshold issue such as the court’s ability to consider an unexhausted claim is not subject to analysis under Teague.

The two exceptions to the Teague rule are: (1) rules placing certain kinds of primary, private individual conduct beyond the power of the criminal law to proscribe, and (2) procedures implicit in the concept of ordered liberty without which the likelihood of an accurate conviction is seriously diminished. Such rules would apply retroactively. Although no Supreme Court case to date has satisfied either criteria, the Court has had occasion to comment on the nature of the exceptions. In Penry v. Lynaugh, 492 U.S. 302 (1989), the Court noted that the first exception should also apply to rules “prohibiting a certain category of punishment for a class of defendants because of their status or offense.” In that case, the Court indicated that if it had announced a new rule that mentally retarded defendants could not be sentenced to death (whereas it found in fact to the contrary), then such a rule would satisfy the first exception. Subsequently, the Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that executions of mentally retarded individuals convicted of capital crimes are cruel and unusual punishment prohibited by the Eighth Amendment. See § 1.6. In Sawyer v. Smith, 497 U.S. 227 (1990), the Court explained that in order for a new rule to satisfy the second exception it not only must improve the accuracy of a trial but also “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”

In Collins v. Youngblood, 497 U.S. 37 (1990), the Court held that the Teague rule is not jurisdictional. Therefore, the Court need not raise the retroactivity issue sua sponte. In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme Court held that while the state may use Teague to deny a habeas petitioner the benefit of retroactive application of new rules, a habeas petitioner on the other hand may not invoke Teague to challenge the state’s retroactive application of new rules. The habeas petitioner is barred from such use of Teague, the Court reasoned, because Teague’s purpose is to protect the state’s interest in the finality of criminal convictions and its reliance on the constitutional standards prevailing at the time of the original proceedings. These are interests which the habeas petitioner does not have. Thus, only the state may object to the retroactive application of a new constitutional rule of criminal procedure to an old case.

The Supreme Court held in, Horn v. Banks, 536 U.S. 266 (2002) (per curiam), that, in addition to performing any analysis required by the AEDPA, a threshold Teague analysis is required in federal habeas corpus proceedings whenever the state advances a Teague argument, even if the state supreme court did not consider the issue of retroactivity of the rule.

Horn v. Banks, 536 U.S. 266 (2002) (per curiam) (holding that federal court considering habeas petition, in addition to performing any analysis required by AEDPA, must conduct threshold Teague analysis whenever state advances Teague argument, even though here state supreme court had evaluated claim that penalty phase jury instructions and verdict forms were improper under Mills v. Maryland, 486 U.S. 367 (1988), without considering retroactivity of Mills).

Tyler v. Cain, 533 U.S. 656, 666-67, reh’g denied, 533 U.S. 970 (2001) (noting that standard for determining whether error is structural is not coextensive with second Teague exception and that a holding that error is structural does not logically dictate conclusion that second Teague exception has been met).

Stewart v. LaGrand (Walter), 526 U.S. 115 (1999) (indicating that proposed rule prohibiting capital defendant from waiving Eighth Amendment protections would violate Teague).

O’Dell v. Netherland, 521 U.S. 151 (1997) (holding Simmons v. South Carolina rule that capital defendant must be permitted to inform sentencing jury of parole ineligibility if prosecution argues defendant presents future danger is “new rule” under Teague).

Lambrix v. Singletary, 520 U.S. 518 (1997) (holding rule in Espinosa v. Florida, 505 U.S. 1079 (1992)–if a weighing state requires the sentencing trial judge to give deference to a jury’s advisory recommendation, neither the judge nor the jury is constitutionally permitted to weigh invalid aggravating circumstances–is Teaguebarred; also holding that federal habeas court should ordinarily rule on procedural bar before undertaking Teague inquiry).

Graham v. Collins, 506 U.S. 461 (1993) (applying Teague in light of Butler, Saffle, and Penry to bar claim that Texas sentencing scheme unconstitutionally prevented consideration of mitigation, because reasonable jurists at time would not have felt compelled to find scheme unconstitutional, and thus claim sought is new rule, not within exceptions, and thus not retroactive).

Lockhart v. Fretwell, 506 U.S. 364 (1993) (holding habeas petitioner may not invoke Teague to challenge state’s retroactive application of new rule because petitioner challenging decision on collateral review has no interest in finality of state court convictions).

Stringer v. Black, 503 U.S. 222 (1992) (holding petitioner may rely on cases announced after death sentence became final since they did not announce new rules under Teague). 

Sawyer v. Smith, 497 U.S. 227 (1990) (holding Caldwell announced new rule under Teague and was therefore unavailable to petitioner, reasoning even if precedent informed, controlled, or governed result in Caldwell, the result was not necessarily compelled; second Teague exception inapplicable because to qualify for exception, new rule must not only improve accuracy of trial but also “alter our understanding of the bedrock procedural elements” essential to the fairness of a proceeding).

Collins v. Youngblood, 497 U.S. 37 (1990) (holding, although grounded in federalism considerations, Teague rule is not jurisdictional, and thus court need not raise it sua sponte).

Saffle v. Parks, 494 U.S. 484 (1990) (interpreting Teague to mean rule is new if state court hearing petitioner’s claim at time conviction became final would not have felt “compelled” by existing precedent to adopt it).

Butler v. McKellar, 494 U.S. 407 (1990) (holding Arizona v. Roberson (regarding police-initiated interrogation) announced a new rule under Teague and was therefore unavailable to petitioner; that Roberson was controlled by or within logical compass of precedent is not conclusive for purpose of new rule determination–if reasonable disagreement exists between courts, then result not dictated by precedent).

Penry v. Lynaugh, 492 U.S. 302 (1989) (applying Teague principles in capital sentencing context and holding that first Teague exception also applies to rules “prohibiting a certain category of punishment for a class of defendants because of their status or offense”).

Teague v. Lane, 489 U.S. 288 (1989) (holding a new constitutional rule of criminal procedure may not be retroactively applied to cases on collateral review, including case announcing new rule, unless it concerns procedures implicit in the concept of ordered liberty or places certain kinds of private individual conduct beyond the power of the criminal law to proscribe; new rule is one whose result “was not dictated by precedent existing when defendant’s conviction became final”).

Gretzler v. Stewart, 112 F.3d 992 (9th Cir.1997) (holding rule in Ake v. Oklahoma, 470 U.S. 68 (1985)– that state must provide competent psychiatrist to assist in trial defense when a defendant demonstrates that sanity at time of offense will be significant factor at trial–new rule not falling within Teague exceptions; holding rule announced in Edwards v. Arizona, 451 U.S. 477 (1981), did not apply to petitioner’s collateral constitutional claim because Gretzler’s conviction was final prior to the Edwards decision, notwithstanding that state supreme court remanded Gretzler for resentencing and the Supreme Court denied certiorari after it decided Edwards), cert. denied, 522 U.S. 1081 (1998).

Snook v. Wood, 89 F.3d 605 (9th Cir. 1996) (holding rule that court must conduct in court colloquy with defendant regarding dangers of self-representation is not “new rule” under Teague).

Beam v. Paskett, 966 F.2d 1563 (9th Cir. 1992) (holding rule that Eighth Amendment bars consideration of nonviolent sexual history as aggravating factor may be retroactively applied under Teague because it prohibits a certain kind of punishment for a class of defendants based on their status or offense and therefore falls under the second exception), cert. denied, 511 U.S. 1060 (1994).

Harris v. Vasquez, 949 F.2d 1497 (9th Cir. 1990) (holding petitioner’s proposed rule, entitling petitioner to collateral review on defense selected trial psychiatrist’s competence, not dictated by precedent existing when his conviction became final and does not fall within Teague exceptions), cert. denied, 503 U.S. 910 (1992). 

Greenawalt v. Ricketts, 943 F.2d 1020 (9th Cir. 1991) (holding petitioner seeking benefit of rule, whose result was not dictated by precedent but rather was extension of precedent about which reasonable courts might differ, was new rule under Teague), cert. denied, 506 U.S. 888 (1992).

Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990) (holding rule allowing petitioner to seek federal habeas relief, based on state’s untimely hearing of appeal, during pendency of state court appeal is not “new rule” under Teague because rule imposes no obligation on the state).

Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990) (holding precedent does not dictate right to appointment of expert on eyewitness identification and to substitution of counsel and it therefore is a new rule under Teague).

Odle v. Vasquez, 754 F. Supp. 749 (N.D. Cal. 1990) (holding where state does not challenge petitioner’s claims as new rules, court will not consider question sua sponte, citing Collins).

Humphrey v. Cain, 138 F.3d 552 (5th Cir.) (en banc) (holding that Cage rule–a constitutionally deficient reasonable doubt instruction violates the Due Process Clause–fits into the second Teague exception and therefore can be applied retroactively to cases on collateral review), cert. denied, 525 U.S. 935, and cert. denied, 525 U.S. 943 (1998).

Adams v. Aiken, 41 F.3d 175 (4th Cir. 1994) (holding rule that constitutionally deficient reasonable doubt instruction violates due process should apply retroactively under Teague second exception), cert. denied, 515 U.S. 1124 (1995).

Nutter v. White, 39 F.3d 1154 (11th Cir. 1994) (holding Cage rule–a constitutionally deficient reasonable doubt instruction violates the Due Process Clause–announces a new rule of law falling within Teague’s second exception).

Smith v. Black, 904 F.2d 950, 981–87 (5th Cir. 1990) (interpreting Supreme Court’s holdings to mean, where Teague issue and a procedural default issue are presented, better practice is to review Teague issue first), vacated on other grounds, 503 U.S. 930 (1992).

Hall v. Kelso, 892 F.2d 1541, 1543 n.1 (11th Cir. 1990) (noting cases governing claims of improper burden-shifting not barred by Teague because burden-shifting error is “bedrock” constitutional principle that diminishes the likelihood of accurate conviction and therefore falls under second Teague exception).

Collins v. Zant, 892 F.2d 1502, 1510-12 (11th Cir.) (deciding abuse of writ issues before addressing retroactivity of case regarding police interrogation under Teague), cert. denied, 498 U.S. 881 (1990).

Marc M. Arkin, The Prisoner’s Dilemma: Life in the Lower Federal Courts after Teague v. Lane, 69 N.C. L. Rev. 371 (1991) (analyzing impact of Teague and its progeny on lower court decisions and observing developing complications for prisoners seeking habeas review).

Susan Bandes, Taking Justice To Its Logical Extreme: A Comment On Teague v. Lane, 66 S. Cal. L. Rev. 2453 (1993) (critiquing Teague and examining how Teague and its progeny have changed nature of federal habeas jurisdiction).

Lori Bienstock, Note, Federal Habeas Corpus: The New Standard of Retroactivity, 57 Brooklyn L. Rev 865 (1991) (analyzing impact of Teague on availability of habeas relief for capital offenders and urging legislative action to aid capital prisoners seeking relief when new constitutional rule renders their convictions or sentences illegal).

John Blume & William Pratt, The Changing Face of Retroactivity, 58 UMKC L. Rev. 581 (1990) (addressing several retroactivity questions left unanswered by Teague). 

Ellen E. Boshkoff, Resolving Retroactivity after Teague v. Lane, 65 Ind. L.J. 651 (1990) (arguing against Teague’s use of categorical approach to resolve retroactivity question in habeas cases because it fails to accommodate concerns of inaccuracy in individual cases).

Alan W. Clarke, Procedural Labyrinths and the Injustice of Death: A Critique of Death Penalty Habeas Corpus (Part Two), 30 U. Rich. L. Rev. 303 (1996) (discussing issues related to pre-Anti-Terrorism and Effective Death Penalty Act of 1996 retroactivity in habeas corpus proceedings and procedural default).

Patrick E. Higginbotham, Notes On Teague, 66 S. Cal. L. Rev. 2433 (1993) (analyzing Teague’s impact on availability of habeas relief).

David F. Latherow, Graham v. Collins: A Return to Arbitrary Sentencing, 20 Ohio N.U. L. Rev. 1075 (1994) (critiquing Graham v. Collins).

Gilbert S. Merritt, Access to the Federal Courts in Habeas Corpus Cases, 58 Tenn. L. Rev. 145 (1990) (criticizing Teague decision to treat new rule analysis as threshold question).

Linda Meyer, “Nothing We Say Matters”: Teague and New Rules, 61 U. Chi. L. Rev. 423 (1994) (critiquing Teague, arguing “new rule” doctrine poses dangers to legitimacy of traditional adjudicative process).

Several circuits have held that the finality concerns behind the Teague retroactivity doctrine apply equally strongly in federal prisoners’ collateral challenges as it does in state collateral challenges. Thus, these circuits have concluded that Teague applies to federal prisoners.

The Ninth Circuit is unsettled on the issue. In Walter v. United States, 969 F.2d 814 (9th Cir. 1992), it reiterated that there has been no specific ruling on the applicability of Teague to federal prisoners, although in United States v. Judge, 944 F.2d 523, 525 (9th Cir. 1991), it applied Teague to one such case with no comment. One district court in the Ninth Circuit, however, in Ferguson v. United States, 911 F. Supp. 424 (C.D. Cal. 1995), has specifically held that Teague applies to federal prisoners “because of the opposite side of comity.”

Bousley v. United States, 523 U.S. 614 (1998) (holding Teague’s limitation on collateral review applies only to procedural rules and is inapplicable to Court’s decision as to meaning of a federal criminal statute).

United States v. Kinslow, 5 F.3d 542 (9th Cir. 1993) (unpublished) (stating “we have not yet determined whether the holding in Teague v. Lane applies in § 2255 cases” and declining to make determination), cert. denied, 510 U.S. 1205 (1994).

Walter v. United States, 969 F.2d 814, 817 (9th Cir. 1992) (declining to decide whether Teague is applicable to § 2255 cases).

United States v. Judge, 944 F.2d 523, 525 (9th Cir. 1991) (applying Teague with no comment), cert. denied, 504 U.S. 927 (1992).

Ferguson v. United States, 911 F. Supp. 424 (C.D. Cal. 1995) (holding Teague nonretroactive rule applies to federal prisoners as well as state).

United States v. Rich, 141 F.3d 550 (5th Cir. 1998) (concluding, in the course of denying petitioner leave to file a second § 2255 motion for failure to satisfy the AEDPA’s successor requirements, that Kyle v. Whitley, 514 U.S. 419 (1995), did not announce a new rule of constitutional law), cert. denied, 526 U.S. 1011 (1999).

United States v. Martinez, 139 F.3d 412 (4th Cir. 1998) (holding that Teague applies to federal prisoners’ actions for collateral relief under 28 USC 2255), cert. denied, 525 U.S. 1073 (1999).

United States v. McLamb, 77 F.3d 472 (4th Cir. 1996) (unpublished) (stating that Teague does not apply to retroactive application on collateral review of decision regarding reach of federal statute or sentencing guidelines).

United States v. McKie, 73 F.3d 1149 (D.C. Cir. 1996) (applying Teague threshold analysis in federal drug case).

United States v. Dashney, 52 F.3d 298 (10th Cir. 1995) (assuming Teague applies to federal prisoners, but declining to apply it in instant case because statutory construction involved).

Van Daalwyk v. United States, 21 F.3d 179, 180 (7th Cir. 1994) (concluding Teague applies to federal prisoners).

Gilberti v. United States, 917 F.2d 92, 94 (2d Cir. 1990) (holding Teague principle of retroactivity applies to collateral review of federal as well as state convictions).

NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

1.18.1.2 AEDPA’s § 2254(e)’s Restriction on Teague Analysis

When a federal habeas petitioner has failed to develop the factual basis of a claim in state court, 28 USC 2254(e)(2) allows a federal court to hold an evidentiary hearing to develop factual findings in two limited circumstances. The first is essentially newly discovered evidence and the second is a Teague-type analysis: Petitioner must establish that the claim relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court. Contrary to § 2254(e), Teague did not limit application of the retroactivity test to the Supreme Court.

Horn v. Banks, 536 U.S. 266 (2002) (per curiam) (holding that federal court considering habeas petition, in addition to performing any analysis required by AEDPA, must conduct threshold Teague analysis whenever state advances Teague argument).

In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court set forth a standard for determining the retroactivity of a new statute where there is an absence of clear congressional intent. In such a circumstance, the court determines whether application of the particular statutory provision would have a “retroactive effect.” If so, the statute should not be applied retrospectively to a case pending at the time of enactment.

The Ninth Circuit has used the term “retrospective” to describe the application of a statute to events preceding its enactment. “Retroactive,” as in the phrase “retroactive effect,” is used to describe the prohibited effect described in Landgraf, preventing application of the statute. Thus, “a retrospective statute is retroactive– i.e. has retroactive effect–if it attaches new legal consequences to prior acts so as to justify the presumption against retrospective application.” United States v. $814,254.76 in United States Currency, 51 F.3d 207, 210 n.3 (9th Cir. 1995). Court opinions, however, are not consistent in their usage of these terms. 

A statute has “retroactive effect” when its application would attach “new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at 270. If a new statute “impair[s] the rights a party possessed when he acted, increases a party’s liability for past conduct, or imposes new duties with respect to transactions already completed,” it will not be applied retroactively. Id. at 280. Provisions that are substantive in nature generally have prohibited retroactive effect; however, procedural provisions, as a general rule, are applied retroactively, unless their application would result in manifest injustice.

Application of Landgraf has been especially important in implementing the habeas corpus changes in the AEDPA; however, it is not clear whether Landgraf’s retroactivity analysis should be applied to cases filed after the effective date of the AEDPA.

Chapter 154 of Title 28 of the United States Code (28 USC 2261-2266) specifically provides that its provisions apply to cases pending on or after the date of enactment of the AEDPA , but Chapter 153 (28 USC 2241–2255) is silent as to its effective date. In Lindh v. Murphy, 521 U.S. 320 (1997), the Supreme Court held that the negative implication of Chapter 154 retrospective application provision means that new provisions of Chapter 153 apply only to cases filed after the AEDPA became effective.

Lindh v. Murphy, 521 U.S. 320 (1997) (holding negative implication of Chapter 154 retrospective application provisions means that new provisions of Chapter 153 apply only to cases filed after the AEDPA became effective).

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994) (setting forth standard for retroactivity of new statutes; companion case to Landgraf).

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (setting forth standard for retroactivity of new statutes).