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December 19, 2008

A must-read for those doing habeas work or just deep fed courts thinking

A new forthcoming article now appearing here via SSRN is a must-read for any and everyone working on, even even thinking about, habeas proceedings. This new piece is titled "The Future of Teague Retroactivity, or “Redressability,” after Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings," and here is the abstract:

Although the Supreme Court's 1989 decision in Teague v. Lane generally prohibits the application of new constitutional rules of criminal procedure in federal habeas review of state-court judgments, the Court's 2008 decision in Danforth v. Minnesota frees state courts from Teague's strictures.  Danforth explicitly permits state courts to fashion their own rules governing the retroactive application of new federal constitutional rules in postconviction proceedings, and leaves open the question whether lower federal courts are bound by Teague in postconviction review of federal criminal convictions.

In this Article, I examine the doctrinal underpinnings of the Court's retroactivity jurisprudence, and propose that state courts and the lower federal courts abandon the Supreme Court's experiment with nonretroactivity.  Affording retroactive application to new constitutional rules in state and federal postconviction proceedings promotes fairness to litigants and uniformity in the development of federal constitutional criminal doctrine. Perhaps most importantly, a rule of retroactivity permits the lower state and federal courts to regain a role in the development of constitutional doctrine that had previously been constricted, first by Teague and then by the Antiterrorism and Effective Death Penalty Act.

My examination of the Danforth opinion leads me to believe that the foundations upon which Teague was built are now crumbling.  Danforth marks a shift in the Court's conception of the function of habeas corpus which portends well for the reinvigoration of a constitutional dialogue among the lower courts and an increased role in constitutional development for the lower federal courts.

December 19, 2008 at 12:30 PM | Permalink


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