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December 12, 2014

Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively

The Supreme Court, as revealed by this order list, finally appears set to resolve an issue that it has been avoiding for a few years as lower courts have split over implementing its Eighth Amendment work in Miller v. Alabama.  Here is the basic news as set out in the order list:


The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following questions: 1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case? 2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

December 12, 2014 at 03:07 PM | Permalink


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That looks like one sympathetic defendant -- "question presented" has the victim's family supporting release; happened back in the 1980s, question of guilt etc.

Posted by: Joe | Dec 12, 2014 3:42:33 PM

I figured the Court would ignore it forever. Good to hear it being heard even if I'm not optimistic about the results.

Posted by: Erik M | Dec 12, 2014 3:52:58 PM

Can someone explain why there is any controversy about retro-activity. A law is changed. Doesn't it now apply to everyone? Witch craft used to be a crime, no longer is. Shouldn't everyone convicted of it be released? Or is the dumb ass lawyer so taken with his power that people may be punished just for breaking a law, even one that is now considered not constitutional?

Posted by: Supremacy Claus | Dec 13, 2014 1:26:56 AM

I find the second question significant. The Supreme Court has already said that a state can adopt a less-restrictive rule than Teague for its collateral review procedures.

While most state courts do not use a more restrictive rule than Teague (due to a preference of not letting federal courts do de novo review on federal habeas), my hunch will be that the Supreme Court will say that state courts do not have to provide for post-direct appeal, collateral review, and thus do not have to adopt the federal retroactivity standard for such collateral reviews.

Posted by: tmm | Dec 13, 2014 3:52:41 PM

If you are among the cohort interested in getting an answer to the first question, the presence of the second is an annoyance.

I'd like to see the justices focused on semi-novel question of how the Miller rule fits into the substantive/procedural framework of Teague. It doesn't fit the historically defined framework very well, but at the same time there is a strong argument that it is "substantive" in effect, as it requires most states to broaden the range of possible punishments, makes new facts relevant in a similar way that adding an element to a crime does, and is likely outcome determinative in most cases (i.e., if Miller is correct that LWOP sentences should be "uncommon" once sentencers have discretion and are required to consider mitigation, then at least 51% of juveniles serving LWOP will probably receive a more favorable sentence if Miller is applied to them).

That is quite enough to focus on in one case, without throwing in some sort of soul-searching discourse on the jurisprudential foundations of Teague.

Posted by: anon | Dec 13, 2014 6:22:14 PM

Tmm, even if states do not *have* to adopt the federal retroactivity standard, what if they do so voluntarily? Louisiana has adopted the Teague standard, and it is not just that they are using the framework -- they cite USSC cases interpreting Teague as if they are authoritative and binding. Indeed, the La. S. Ct.'s order in Toca relies on an earlier decision called Tate, which held Miller not retroactive, and every single case cited in Tate is federal.

To me, it seems that if a state voluntarily intertwines its own rule of decision with a federal standard, that should be enough to raise a federal question. Isn't this the case with, say, the Fourth Amendment vis a vis state constitutional search & seizure protections? My memory is that if a State suppresses something under the Fourth Amendment as well as the state constitutional bill of rights, it is possible that the USSC can still review, even though you could argue that there is no federal jurisdiction
where the state bill of rights provides an independent and adequate state ground. My memory is that they require a plain statement that the state court is relying on the state constitution and applying a different standard. If the state court doesn't say so, and if they have traditionally cited federal case law in applying their state constitutional search/seizure provision, then the court will treat it as a situation of intertwined state and federal law and decide the case. Of course, I believe that even if the USSC then reverses on the Fourth Amendment, the state court can choose on remand to reaffirm its original judgment by making a plain statement that it is doing so independently under the state constitutional amendment.

Maybe that is what could happen here. USSC says: State court does not have to follow Teague/the federal standard for retroactivity. But Louisiana seems to do so voluntarily. So we have jurisdiction. Under Teague/the federal standard, we find Miller retroactive. But, on remand, the Louisiana Supreme Court remains free to reach its own conclusion -- i.e., it can reject the federal retroactivity rule of Teague and reach a different conclusion of non-retroactivity under the Louisiana version of Teague.

In practice, I don't think Louisiana would actually take the Court up on that, because it would mean losing control over hundreds of cases that would go straight to federal habeas corpus where the petitioners would have a slam-dunk case. But the LSC would have the option, and the Court would get to make its doctrinal point about Teague vis a vis state postconviction review.

Posted by: anon | Dec 13, 2014 6:34:59 PM

Anon, if Teague was a constitutional standard, then you might have an intermingling effect. But Teague is merely an equitable rule for 2254 and 2255 actions.

A state using Teague as authoritative is similar to a state that relies on the Supreme Court's interpretation of federal drug law because the state's drug law is based on the federal drug law. The fact that the Supreme Court would interpret the federal drug law differently does not make the state's interpretation of its drug law (based on its misreading the federal drug law) into a federal question.

Posted by: tmm | Dec 15, 2014 10:02:42 AM

Perhaps you are right, tmm. The key question may be whether or not Teague creates a constitutionally required floor for retroactive application. If it doesn't, but is merely an equitable rule for defining the scope of the federal habeas corpus power as you suggest, I see the point that the state court opining about what it thinks are the requirements of federal law might not actually create a federal question for jurisdiction purposes.

It will be interesting to see how this issue is briefed. It still seems intuitively to me that the state decision is intertwined with federal law. At some level, the basic question is "how fundamental is the harm from an Eighth Amendment violation of this nature." So this is not like procedural default or exhaustion or timeliness where the question of how/whether/when you raised a federal claim is more or less entirely independent of the character of that federal claim. In this case, the entire analysis is about the character of the federal claim. Maybe that's not enough to confer jurisdiction for the reasons you explain, but I do think it is a fairly novel situation that may leave room for some novel arguments.

Posted by: anon | Dec 15, 2014 11:12:38 AM

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