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Heller Retroactivity

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Way back in 1969, Justice John Harlan wrote a prescient dissent in Desist v. United States, 394 U.S. 244, urging the Warren Court to desist from its approach to retroactivity of the new rules it was then creating at a brisk pace.  He was a lone voice in the wilderness at the time, but his view is now, largely, the law, having been adopted for direct appeals in Griffith v. Kentucky, 479 U.S. 314, in 1987 and for collateral review in Teague v. Lane, 489 U.S. 288, in 1989.

The basic rule of the Harlan view is that new rules apply retroactively to cases pending on direct appeal when the new case comes down but not to overturn judgments that have become "final" by the completion of the appeal process.  However, he noted two exceptions.  In reverse order, the second exception is for fundamental procedural reforms, and it explained his continued concurrence in granting habeas relief to people convicted of felonies without counsel.  Gideon v. Wainwright, 372 U.S. 355, was then only six years old.  In all the years since Teague, the Supreme Court has never found any new procedural rule "fundamental" enough to qualify, and it has never cited any case newer than Gideon as an example of such a rule.

The first exception is for new rules that render the conduct for which the defendant was convicted not a crime.  First Amendment cases were the big thing back then, with people being convicted on obscenity charges for materials that the Supreme Court would later decide were protected speech.  But the principle is not limited to the First Amendment, and that brings us to Heller.
In 1996, Dave Magnus pleaded guilty to the crime of possessing a handgun and ammunition in his own home.  Now he wants the conviction set aside.  The case was decided by the D.C. Court of Appeals yesterday.  The basic retroactivity question is straightforward.  This claim falls squarely within Justice Harlan's first exception.  (Under current Supreme Court parlance, it is not an exception but rather a refinement of the scope of the rule.  The ban on retroactivity applies only to procedural rules, not substantive ones.  See Schriro v. Summerlin, 542 U.S. 348, 352, n.4 (2004).)  But wait, there's more.

The government says Magnus did not possess the gun for the purpose of self-defense protected by the Second Amendment but rather for the illegitimate purpose of facilitating the drug trafficking of his roomie.  That requires an evidentiary hearing, says DCCA.

Is it too late for collateral review of this conviction?  Several limits on collateral review come into play here.

What about procedural default?  He did not make this objection at the time.  Actual innocence is an exception.

What about the fact he pled guilty?  That waives most errors, but a guilty plea is not considered "voluntary and intelligent" if the defendant is misinformed as to what the government must prove to establish his guilt.

Then there is the "custody" limitation.  Habeas corpus is for people in custody, although that is broadly defined.  It is jurisdictionally unavailable if the petition is filed after custody is terminated.  The same is true for Congress's habeas substitute for federal prisoners, 28 U.S.C. §2255, and the equivalent for the District, D.C. Code §23-110.  Magnus only got one year probation.  He has not been in "custody" by any definition for many years.  To deal with that problem in cases of fundamental error, the Supreme Court resurrected the old writ of coram nobis back in 1954.  See United States v. Morgan, 346 U.S. 502.  What errors are fundamental enough?  The Supreme Court hasn't decided many coram nobis cases since Morgan, but the errors are probably largely the same ones that qualify for retroactivity.  Morgan itself was a denial of counsel case, and the Court has used the same sort of language describing its scope that it used for the Teague exceptions.  See United States v. Denedo, 129 S.Ct. 2213, 2220 (2009).  "A conviction for conduct that is not criminal, but is instead constitutionally-protected, is the ultimate miscarriage of justice," says the DCCA.

All this illustrates why the law of collateral review of criminal judgments is so complicated.  The vast majority of petitions are filed by guilty criminals simply trying to weasel out of well-deserved judgments.  The system cannot afford to decide them all on the merits, so we need limits.  Yet we are haunted by that needle in the haystack of the actually innocent.  That includes not only cases of mistaken identity but also enforcement of laws that criminalize conduct that cannot constitutionally be made criminal.

Thanks to Eugene Volokh for the pointer.

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