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March 23, 2015

The extra state habeas question (and its answer?) in Montgomery, the new SCOTUS Miller retroactivity case

Notably, the Supreme Court's cert grant in in another Miller retroactivity case from Louisiana (basics here) included some extra homework for the parties:


The petition for a writ of certiorari is granted.  In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. __ (2012)?"

This added question in Montgomery echoes an issue that the Justices had sought to consider in the prior Toca case, and I think it reflects the thought of some Justices that state courts on state habeas review may not be constitutionally required to apply the modern Teague jurisprudence that federal courts now use in federal habeas review of final state convictions.  If state courts are not required to follow at least the Teague standard, arguably there is not a federal question presented by whether and how a state court applies Teague in a state habeas case.

Notably, in a case from 2008, Danforth v. Minnesota, 552 U.S. 264, 266 (2008), the Supreme Court held that states were permitted to give greater retroactive effect to new federal constitutional procedural rules that did not satisfy a Teague exception.  Thus is it already clear that state courts can give state prisoners in state habeas cases more retroactive benefits than Teague requires.  The added Montgomery question essentially asks whether a federal issue is presented if state courts decide to give state prisoners in state habeas cases less retroactive benefits than Teague requires.  

In some sense from the prisoner's perspective, this second question is kind of an academic exercise: even if the Supreme Court were to decide that it lacks jurisdiction to review whether and how a state court applies Teague in a state habeas case, it is clear that lower federal courts (and the US Supreme Court) have jurisdiction and will apply Teague if and when the state prisoner brings a federal habeas case.  But, then again, this is not an entirely academic exercise because there could be cases in which the state prisoner is not able to bring a federal habeas case (perhaps because of statutory or other problems with bringing such a case).

If this discussion already makes your head hurt and leads you to think you need to take a law school Federal Courts class again, join the club.  Fortunately for all of us, a very insightful Assistant U.S. Attorney, Steven G. Sanders, published last month a great New Jersey Law Journal article about all this titled "Can US Supreme Court Require States to Apply New Fed Rules Retroactively on State Collateral Attack?".  Thanks to Steven and the NJLJ, I can provide this article in full linked below with this disclaimer: “Reprinted with permission from the February 9, 2015 issue of the New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.”

Download NJLJ State retroactivity article

March 23, 2015 at 06:03 PM | Permalink


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The problem with the retroactivity analysis is that misleading term "collateral review." There are a lot of different forms of collateral review. Some -- as recognized in Martinez v. Ryan -- are merely a form of direct appeal for issues like Brady and ineffective assistance of counsel on which states have decided that it is unreasonable to expect an adequate record to be developed without a special post-trial hearing; so they put it off to a special-type of proceedings. If a state does not allow an inmate to raise a claim on direct appeal and makes him raise that claim in a "collateral review" proceeding, then any relevant decision of the US Supreme Court before that direct appeal-like proceeding would be binding under 2254(d).

The real question is whether -- for claims that could have been raised on direct appeal or in a timely initial collateral review proceeding -- a state has to allow some form of collateral review for raising untimely claims and, if the State does allow such late collateral review proceedings, does it have to allow an inmate to raise claims based on new Supreme Court decisions. Since the answer to the first part of the question should be no under the Tenth Amendment, the answer to the second should also be no.

Of course, the best solution would be to decide that 2254(d) replaces Teague for claims presented in state court, and that Teague only applies when the issue was not presented in state court.

Posted by: tmm | Mar 24, 2015 10:08:15 AM

It is interesting that they changed the question. In Toca, it was focused on whether they could review a state-court application of Teague. In Montgomery, it is broader, asking only whether they have jurisdiction to review the retroactivity determination itself.

As that law journal article points out, even if the answer to the Teague question is "no" (because Teague is a judicial gloss on the exercise of federal statutory habeas jurisdiction and is not binding on the states, at least where the state court adopted the Teague standard voluntarily and not because it considered itself bound to do so by federal law), the answer to the broader jurisdictional question could still be "yes" (because it is possible that the Constitution itself -- through the Due Process Clause or the 8th Amendment or the "basic norms of constitutional adjudication" referred to in Griffith v. Kentucky -- requires the state court to grant relief under the circumstances in these cases).

Tmm, I agree that a state does not have to provide a forum for collateral review and also that, if it does provide such a forum, it does not have to allow for "new law" claims within that forum. BUT it does not follow that if a state DOES provide that forum, and DOES allow for new law claims, it is free to do whatever it wants. If you are going to provide a forum for federal constitutional claims, then you have to decide them under the federal constitution. So, if SCOTUS decides that the constitution itself compels retroactive application in a situation like this, the state courts that allow a forum for these kinds of claims would be bound by that. Of course, they could take their ball and go home (i.e., change the rules so prisoners can no longer raise "new law" claims), but otherwise they are bound. If they do change the rules, then prisoners can go to federal habeas court for a de novo hearing.

Posted by: anon | Mar 24, 2015 12:09:27 PM

Anon, I don't think that the US Supreme Court has ever held that any form of retroactivity is constitutionally compelled, but rather has in Teague, Griffin, and other cases expressed the federal rules for retroactivity analysis in federal court.

As I noted, the problem is figuring out what type of creature the different state court causes of action are. There is a very fine line between saying we will allow an inmate to raise new claim based on changes in the law at any time in a state collateral review action (by whatever name) and we will allow an inmate to raise new claims based on changes in the law only if such claims are permitted under our state version of retroactivity analysis. I think that if you are allowed to raise a claim in state court, 2254(d) (requiring application of current law) trumps any Teague analysis (with Teague analysis only covering if an inmate can file a successive petition or otherwise late petition in federal court under 2244), but neither Teague nor 2254 require a state to permit a claim that is only valid under Teague retroactivity.

Posted by: tmm | Mar 24, 2015 2:32:49 PM

I think the ship has sailed as to whether AEDPA incorporated the Teague standard. In the very first paragraph of his opinion in Danforth, Justice Stevens said the following: “New constitutional rules announced by this Court that place certain kinds of primary individual conduct beyond the power of the States to proscribe, as well as ‘watershed’ rules of criminal procedure, must be applied in . . . all federal habeas corpus proceedings.” Danforth v. Minnesota, 552 U.S. 264, 266 (2008). He also dropped a footnote reserving the question whether Congres could alter Teague by statute.

This seems to suggest that the SCOTUS has already concluded that AEDPA's statutory language did no modify (much less aborgate) Teague for first-filed petitions. And it would be odd to conclude that Congress did so for first filed petitions, but made relief for second or successive petitions easier by tying them to new rules satisfying a Teague exception.

Posted by: Da Man | Mar 24, 2015 3:47:35 PM

Further to the previous comment, I think everyone would have been much more concerned had the Supreme Court asked the parties to address the question whether Teague's exceptions survived AEDPA.

Posted by: Da Man | Mar 24, 2015 3:52:50 PM

Tmm, I'm not suggesting SCOTUS has ever held any form of retroactivity to be compelled by the Constitution, but I am suggesting that that is one of the questions they may potentially address in this new case.

If they *do* hold that some forms of retroactivity are compelled by the constitution, then it changes the analysis of what state courts can and cannot do when they adjudicate those claims. I see your point that the state might still be able to navigate this space by defining eligibility for raising a claim based on a state version of retroactivity, but that is starting to get pretty entwined with the merits of the constitutional claim (assuming, again, that the retroactivity issue is found to have a federal constitutional basis), and it's not clear to me that they would be allowed to split that particular hair and avoid federal jurisdiction to review those determinations.

Posted by: anon | Mar 25, 2015 2:16:23 PM

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