« Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers | Main | Could brain implants "make the death penalty obsolete"? »

July 25, 2015

"Federalism and Retroactivity in State Post-Conviction Proceedings"

The title of this post is the title of this notable article authored by Stephen R. McAllister appearing in the latest issue of The Green Bag. Here are excerpts from the introduction:

This article builds on an amicus brief I drafted for Kansas in Danforth v. Minnesota several years ago, and considers whether the federal retroactivity doctrines are binding on the states when it comes to the states’ own post-conviction proceedings.  The article does not take issue with the well-settled propositions that Supreme Court decisions issued before state criminal cases become “final” are binding on the states and their courts, and that the federal courts will apply Teague retroactivity principles in federal habeas proceedings.

My conclusion is that there is no federal constitutional bar to the states developing their own retroactivity doctrines for state postconviction proceedings, whether those doctrines are broader or stricter than a federal habeas counterpart such as Teague.  So long as state legislatures and state courts make that decision as a matter of state law, there is no federal constitutional principle at stake, and no federal interests are harmed.  That said, Montgomery v. Louisiana does not seem a proper case in which to decide the issue.

July 25, 2015 at 04:51 PM | Permalink


I have to take issue with something Professor McAllister writes in his piece: he notes that since 1992, the Louisiana Supreme Court has used Teague as Louisiana's retroacivity standard. As he sees it, the Louisiana court's choice to borrow Teague means that every application of Teague in a Louisiana postconviction proceeding necessarily raises a federal question. I'm not sure that is correct: in the 1992 case he refers to, the Louisiana Supreme Court explicitly recognized that it was not required to use Teague; it voluntarily adopted the federal standard as the state standard. Michigan v. Long says no federal question arises where a state court makes "clear by a plain statement … that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached." If a state court borrows a federal test, but makes clear that it isn't compelled by federal law to do that (i.e., recognizes that retroactivity is ultimately a state-law question), does the application (or misapplication) of the borrowed federal standard really raise a federal question?

Posted by: Da Man | Jul 27, 2015 5:07:14 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB