September 20, 2007
A vehicle for addressing Booker retroactivity (and Teague)
I received today a copy of a cert petition flagging another set of interesting sentencing-related issues for the Supreme Court. The petition (which can be downloaded below) was filed in Soto v. US, and raises questions about the applicability to Teague and the retroactivity of Booker. Here are the questions presented from the petition:
1. Does the retroactivity test applied in habeas corpus challenges to state judgments of conviction, as set forth in Teague v. Lane, 489 U.S. 288 (1989), limit the availability of relief on a motion under 28 U.S.C. § 2255 asserting that a federal sentence must be corrected due to error under United States v. Booker, 543 U.S. 220 (2005)?
2. If Teague is applicable, did Booker announce a "watershed rule" of criminal procedure in holding that sentences imposed under the mandatory United States Sentencing Guidelines are constitutionally infirm unless every fact essential to sentence was proved beyond a reasonable doubt?
Some related SCOTUS posts:
- Amazingly interesting case for Fed Courts law geeks (like me)
- When will SCOTUS address the constitutionality of the death penalty for child rape?
- Serious SCOTUS sentencing fun soon to begin
- Apprendi / Blakely Retroactivity index
September 20, 2007 at 03:27 PM | Permalink
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There's no reason that Teague should govern 2255 motions. Teague is a decision about comity and protecting state court judgments. Nothing of the kind is at issue in a 2255 motion. If Congress was so concerned about finality, it could have amended 2255 in AEDPA. Anyway, maybe Danforth will tell us more about what Teague really all about.
Posted by: DP | Sep 20, 2007 6:50:04 PM
Teague was the second step in the Supreme Court's acceptance of Justice Harlan's view of retroactivity. Griffith v. Kentucky was the first step. Justice Harlan set out that view in a pair of federal cases. It was not based on federalism.
Posted by: Kent Scheidegger | Sep 20, 2007 8:12:20 PM
Not based on federalism? I must have just imagined all that discussion about comity toward state courts, then, in O'C's Teague opinion. And all that stuff about how Teague protects the reasonable decisions of state courts in the post-Teague opinions.
Posted by: DP | Sep 21, 2007 10:31:52 AM
Apparently one cannot use pronouns here without being misunderstood. Justice Harlan set out his view of retroactivity in a pair of federal cases. Justice Harlan's view of retroactivity was not based on federalism.
Posted by: Kent Scheidegger | Sep 21, 2007 12:01:23 PM
One can use all the pronouns that one wishes, as long as one is clear as to which past proper noun the pronoun refers. If you meant the "it" in your last post to refer to "Justice Harlan's view of retroactivity," then your pronoun use was unclear.
Anyway. I take it, then, that you agree that whatever Harlan's views might have been, the Teague rule IS based on federalism and therefore wouldn't apply to 2255 motions, or to state courts for that matter?
Posted by: DP | Sep 21, 2007 12:21:33 PM
The antecedent of "it" was clear enough to anyone who cared to give my comment a fair reading.
Federalism is a factor in the Supreme Court's Teague jurisprudence, but it is not the sole basis, as its grounding in Justice Harlan's earlier opinions illustrates. The interest in finality common to both state and federal cases is also a major factor. The application to 2255 is implicit in Bousley, but it would be better for the Court to decide the issue explicitly. I expect that the Court will end up applying the same rule to both 2254 and 2255 cases, as it did with the procedural default rule, which also involves both federalism and finality concerns.
Posted by: Kent Scheidegger | Sep 21, 2007 1:18:19 PM
The Bousley Court did not reach the Teague issue. “In Bousley v. United States, 523 U.S. 614 (1998), a section 2255 proceeding, the Court had an opportunity to reach this issue because amicus curiae had “urge[d] [the Court] to apply the rule of Teague v. Lane” (id. at 619), but the Court found the Teague doctrine to be inapplicable to the case for other reasons (see id. at 620; * * *)” Liebman and Hertz, Federal Habeas Corpus Practice and Procedure, 4th Ed., §25.6, Finality, pp. 1112-1113 n. 19 (Lexis Law Publishing 2001).
Also, the procedural default doctrine was set forth by the Court in a federal case. Finality concerns and the idea that a collateral attack is not a substitute for an appeal is sufficient to justify the doctrine in federal cases. The doctrine was later extended to habeas review of state convictions. See United States v. Frady, 456 U.S. 152, 166-167 (1982)citing Davis v. United States, 411 U.S. 233 (1973, Francis v. Henderson, 425 U.S. 536 (1976), and Wainwright v. Sykes, 433 U.S. 72 (1977). The Court in Frady specifically noted that finality alone was enough to justify the procedural default rules. Frady, 456 U.S. at 166.
Although Harlan did express his views regarding retroactivity in cases involving 2255 petitions, this was only one Justice's opinion that was expressed at a time when opinions regarding retroactivity were scattered and undeveloped. The Court has never held that Teague applies to 2255 petitions. At least one Justice indicated that it was an open question as to whether Teague applies in the context of 2255 petitions. Teague v. Lane, 489 U.S. 288, 327 n.1 (1989) (Brennan, J., dissenting).
Also, consider the fact that the government's interest in finality is vindicated, to a large extent, by the 1-year statute of limitation for bringing a 2255 motion. No longer may the typical federal prisoner bring a 2255 motion years, or even decades, after direct review has ended. This function in vindicating the finality interest may have some weight with regard to whether Teague should be applied in the context of a federal prisoner's 2255 motion. The following quotes indicate that any judge made rules that limit the writ should balance the individual interests in having a claim heard with the government's interest (which, in the context of Teague, is limited to finality with a 2255 petition). [T]he history of the Great Writ of Habeas Corpus reveals . . . the gradual evolution of more formal judicial, statutory, or rules-based doctrines of law.” Lonchar v. Thomas, 517 U.S. 314, 322 (1996). The rules that have evolved to limit and expand the writ seek to balance the individual’s interest in this “highest safeguard of liberty” with the government’s interest in “serious, improper delay, expense, complexity, interference with a State’s interest in the ‘finality’ of it own legal processes.” Lonchar, 517 U.S. at 322-323 quoting Smith v. Bennett, 365 U.S. 708, 712 (1961) and citing Withrow v. Williams, 507 U.S. 680, 698 (1993) (O’Connor, J., concurring in part and dissenting in part); McCleskey v. Zant , 499 U.S. 467, 490-492 (1991) and Reed v. Ross, 468 U.S. 1, 10, (1984). Over the years, the Court has developed “‘a complex and evolving body of equitable principles informed by historical usage, statutory developments, and judicial decisions.” Lonchar, 517 U.S. at 1298 (emphasis added) quoting McCleskey, 499 U.S. at 489.
Given that finality is the only government interest related to 2255 petitions and that the 1-year statute of limitations vindicates, to a large extent, that finality interest, perhaps some doctrine, other than a strict application of Teague should apply to 2255 petitions?
Also, as specifically applied with Booker, isn't there some idea that part of the rationale for Teague and its progeny was based on the fact that the government may have a difficult time putting its case together for trial if a conviction is vacated years or decades after the first trial? This is not true in the context of sentencing under Booker. It is not likely that the government would have to gather witness and/or any evidence, other than what had already been presented at the trial level, when the district conducts resentencing.
Posted by: Tim Holloway | Sep 22, 2007 10:55:58 AM