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Retroactivity, Remedies, and AEDPA


Nineteen years ago this Friday, the U.S. Supreme Court virtually eliminated the retroactive application of newly created rules of criminal procedure on federal habeas corpus in its landmark decision in Teague v. Lane, 489 U.S. 288 (1989). Today, in Danforth v. Minnesota, No. 06-8273, the Court confirmed that Teague is a limitation on the remedy of federal habeas corpus, not a definition of the substantive scope of federal constitutional rights. Defendant Danforth has won a round in this case; he can now go back and argue to the Supreme Court of Minnesota that they should adopt a broader retroactivity rule. On the much larger battle, though, this is a win for the prosecution nationwide. The rationale of the decision pounds several more nails into the coffin of the argument that the "deference" standard of the Antiterrorism and Effective Death Penalty Act of 1996 is unconstitutional.

Nonretroactivity in constitutional criminal procedure was invented in the Warren Court era to mitigate the damage, and thereby lessen the backlash, resulting from the Court's runaway creation of new rules by "interpreting" the Bill of Rights to mean things it obviously did not mean and had never meant, such as excluding evidence based on the search by which it was obtained and mandating advisements before interrogation by police. Justice John Harlan initially went along with this to soften the impact of cases he thought were wrongly decided, but by 1969 he had had enough. "'Retroactivity' must be rethought." Desist v. United States, 394 U.S. 244, 258 (dissent).

On direct appeal, there was no justifiable basis for reversing Ernesto Miranda's conviction while other rapists similarly situated had their convictions affirmed. Habeas was different. As Justice Harlan explained two years later in another separate opinion, "The relevant frame of reference ... is not the purpose of the new rule whose benefit the petitioner seeks, but instead the purposes for which the writ of habeas corpus is made available." Mackey v. United States, 401 U.S. 667, 682 (1971). From its conception almost four decades ago, the rule we now call Teague was about the scope of the habeas corpus remedy, not the scope of federal constitutional rights.

As today's decision recognizes (slip op., at 7), the historical writ of habeas corpus (the one guaranteed in the Suspension Clause) was not available to collaterally attack the judgment of a court of competent jurisdiction, notwithstanding Justice Brennan's Orwellian rewrite of history in Fay v. Noia, 372 U.S. 391 (1963), discussed here. Congress can authorize the use of the writ for that purpose to the extent it deems appropriate, but it is not constitutionally required, and it is not an inherent power of the federal judiciary. The statute does not specify the extent to which judgments may be collaterally attacked based on changes in the law, so the Court fills in the gaps (slip op., at 13-15).

In its creation of the Teague rule, today's decision recognizes, the Court merely did what Congress could have done. Congress can specify the circumstances in which the federal writ of habeas corpus will be used to overturn otherwise final state judgments and in the circumstances in which it will not. Seven years after Teague, Congress did enact a different but related limitation on that use of the writ in 28 U.S.C. § 2254(d):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....

This statute was immediately attacked as a violation of Article III of the Constitution. Congress was purportedly telling courts how to decide issues of constitutional law. For the long version of this argument, see the Liebman and Ryan article at 98 Colum. L. Rev. 696 and my response in the same issue at 888. Liebman and Ryan made many of the same points as today's dissent. They characterized Teague as a "choice of law" rule rather than a limit on the habeas remedy, and they relied on Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995). My response took the approach of today's opinion of the Court. Teague is a limit on the habeas remedy. As today's opinion says,

It is important to keep in mind that our jurisprudence concerning the “retroactivity” of “new rules” of constitutional law is primarily concerned, not with the question whether a constitutional violation occurred, but with the availability or nonavailability of remedies.

The Court can decide on the limits when Congress is silent, but once Congress speaks its word controls. This is true not only for retroactivity, but also whether a federal court can overturn the judgment of a state court merely because it disagrees with the state court on a question not yet resolved by the Supreme Court. In 1996, Congress changed the answer to that question from yes to no, and today's decision reinforces the conclusion that Congress was well within its power to do so.


Scalia's view of the world certainly got a lot of ink in Stevens' opinion.

The argument that Danforth strengthens the constitutionality of 28 U.S.C. 2254(d)(1) is based on a skewed reading of the opinion which does not account for the fact that it was written by Justice Stevens -- who, in Williams v. Taylor, wanted to construe section 2254(d)(1) in a manner so as to avoid constitutional problems. I, instead, believe that Danforth undermines the section 2254(d)(1)'s constitutionality.

Danforth's holding is very simple: The Teague doctrine does not constrain the authority of a state court to give retroactive effect to a new rule of federal constitutional law on state collateral attacks even when the U.S. Supreme Court has held that such a new rule will not be given retroactive effect on federal habeas review.

Who does Danforth help: It helps the criminal defense bar and those who seek expansion of rights under state constitutions and state law. If the Supreme Court is going to give retroactive effect to a new rule under Teague, that retroactive effect must automatically be applied on state and federal habeas review. If, however, the Supreme Court is not going to provide retroactive effect on federal habeas review, the state court is allowed to provide retroactive effect to the U.S. Supreme Court decision under Danforth.

Danforth undermines 2254's constitutionality because it is yet another opinion by Justice Stevens which makes it more plausible to hold that a state prisoner's "right" to seek federal habeas review is not merely a statutory one -- it is a constitutional one, or in the alternative, the statutory right is constitutionally compelled by the Suspension Clause. Section II of Justice Stevens's opinion notes that although it was the 1867 statute which gave federal courts jurisdiction over habeas petitions from state prisoners, jurisdiction over these petitions was unnecessary prior to the ratification of the Fourteenth Amendment. Federal review of state convictions prior to the Fourteenth Amendment was unnecessary as persons convicted in state court did not enjoy the protections of the Bill of Rights. Since the writ of habeas corpus had existed as a common law right for about 400 years prior to 1867, its potential for the review of state convictions in federal court was only realized when state prisoners can were given an opportunity -- vis-a-vis the Fourteenth Amendment -- to claim violations of such rights in state courts by filing habeas petitions in federal courts. I would argue that Congress understood in 1867 that it must, under the Suspension Clause, provide state prisoners a right to petition the federal court for a writ of habeas corpus.

The argument for for section 2254's unconstitutionality is obviously stronger if the right of a state prisoner to seek federal habeas review is constitutional rather than statutory. Although Justice Stevens has never held such, by reading his opinion in Rasul v. Bush (section 2241 petitions) and Williams v. Taylor (in which he interpreted section 2254 in a manner so as to avoid constitutional problems -- whereas Justice O'Connor did otherwise) in conjunction with section II of Danforth, it appears that he believes that a state prisoner has a constitutional right to seek habeas relief from a federal court.

A reading of Marbury v. Madison which would only extend the court's judicial review power to say what the law is and not deny force and effect to unconstitutional state court decisions undermines both judicial review and the Supremacy clause of the Constitution. As Professor Monaghan has summarized it: "There is no half-way position in constitutional cases; so long as it is directed to decide the case, an article III court cannot be 'jurisdictionally' shut off from full consideration of the substantive constitutional issues, at least absent adequate opportunity for consideration of those claims in another article III tribunal."

As then-Judge and now Justice Kennedy explained: "If the essential, constitutional role of the judiciary is to be maintained, there must be both the appearance and the reality of control by Article III judges over the interpretation, declaration, and application of federal law." Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir. 1984) (en banc).

Although it is not relevant to the point being made here, Danforth's holding raises two more problems which the Danforth majority did not anticipate: (1) What happens if the state court gives retroactive effect to a new rule on state habeas reveiw (to which the U.S. Supreme Court has not given retroactive effect on federal habeas review) and misapplies the rule. Can the petitioner seek federal habeas review and argue that the state court decision was contrary to or an unreasonable application of federal law as determined by the Supreme Court when the Supreme Court had earlier decided to not give retroactive effect to the rule? (2) What happens if the Minnesota Supreme Court, when giving retroactive effect to Crawford v. Washington, 541 U.S. 36 (2004) pursuant to the holding in Danforth, narrows the application of Crawford on state collateral review? Can the petitioner go to a federal district court and argue that the Minnesota state court narrowly applied Crawford on state habeas review when the U.S. Supreme Court had refused to give Crawford retroactive effect on federal habeas review.

muhammad farid says: "I would argue that Congress understood in 1867 that it must, under the Suspension Clause, provide state prisoners a right to petition the federal court for a writ of habeas corpus."

I'm not persuaded. The Suspension Clause did nothing to protect state prisoners before the 14th Am was enacted, and the 14th Am says nothing about habeas corpus. Zero plus zero equals zero. Application of the Bill of Rights to the states, or so-called incorporation, doesn't get rolling until about fifty years after the Civil War.

In fact, while I have no doubts about the power of Congress to craft a habeas remedy for state prisoners, I think the states, through their executive officers, have a 10th Am right to ignore a writ issued by a federal court.

The argument would go like this: States have a police power, but Congress does not. Since the 10th Am reserves the power of local police to the states, neither Congress nor an Article III court can interfere with a state's exercise of police power without a state's consent.

So if a state prison's warden refuses to make an appearance in a federal habeas matter, I would argue the state can legitimately refuse to accept or enforce a habeas writ granted by a federal court. The 10th Am should also work as a valid defense to any contempt order issued by the federal court.

Now, I'll be quick to add that federal habeas generally strikes me as a useful check on the states, so I'm not keen to see how quickly the federal courts will shoot down this theory. Still, I think the federal courts have forgotten the bit about how power derives from the consent of the governed.

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