Retroactive effect of new Supreme Court decisionsFrom time to time the Supreme Court announces a new constitutional protection. It could be a change in how the Court views search warrant exceptions under the Fourth Amendment, the scope of the Miranda rule, a Court-created new element or element definition, or a Sixth Amendment or Due Process Clause ruling striking down a sentencing enhancement.
The questions that follow explore whether predicate convictions have that effect, identify the statute that defines the predicate, and note any Supreme Court cases bearing on the definition. An overview is provided in the form of an infographic; click on the image on the right to view it full sized.
Determining the retroactive effect of such a rule in federal proceedings requires expert knowledge of 28 U.S.C. § 2254 (state convictions) or § 2255 (federal convictions), and the Teague rule. The Q&A that follows will get you started.
The infographic (click on it for a full size PDF) illustrates the complexity of the issues.
Note that states have their own rules for the review of state convictions that should be pursued first.
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The rule is generally available to the prevailing party in the case, and, for other criminal defendants, at current and future trials.
It may also be applied to criminal cases pending on direct review (not yet final). Griffith v. Kentucky, 479 U.S. 314, 322 (1987). A case is "final" when the availability of an appeal exhausted, certiorari is denied, or the time for a petition for certiorari has elapsed. Id. at 321 n.6.
Begin by indicating whether the convicted criminal defendant:
The defendant, as a prevailing party in an appeal, gets the benefit of the new rule.
Note, however, the potential application of the "good-faith exception" on remand. For example, in Rodriguez v. United States, 135 S.Ct. 1609 (2015), the Supreme Court ruled that the evidence seized from the defendant was the fruit of unlawful detention. However, on remand, the Eighth Circuit observed that the search had been lawful under precedent that was binding at the time of the search, and consequently the exclusionary rule did not apply. United States v. Rodriguez, 799 F.3d 1222 (8th Cir. 2015), cert denied, 136 S. Ct. 1514 (2016).
Although the rule is generally available on direct appeal, courts may view a defendant's failure to raise the issue below as an intentional waiver of the issue, especially where it was part of a plea agreement, or where the matter was one of the matters that must be raised before trial under
In other cases, a failure to raise may not have been an intentional waiver, but a simple failure to object that forfeits the issue. Forfeited issues are reviewed under the "plain error" standard.
Did the defendant:
The rule is available.
Reversal is automatic if the error is "structural." This is a "very limited class of cases"; see the examples listed in Neder v. United States, 527 U.S. 1, 8 (1999).
But even if the error is not structural, the defendant's conviction should be reversed unless the government can establish that the error was harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 23-24 (1967);
The government may argue that the issues listed in
Rule 12 (motions to suppress, speedy trial, joinder, etc.) are waived if there was no pre-trial motion, even if the law changed while the case is on direct appeal. The application of Rule 12 waiver, especially after the Rule was amended in 2014 (deleting the waiver language in
In many cases defendants waive the right to appeal when they receive a sentence pursuant to a plea bargain, but appeal anyway when, for example, the Supreme Court strikes down a sentencing enhancement supporting the sentence during the period before the conviction becomes final.
Courts may decline to enforce appellate waivers where the sentence is "illegal" and/or a "miscarriage of justice," especially where the resulting sentence exceeds the post-decision maximum sentence. The government may decide not to enforce the waiver in such cases, but take a different position in cases where there was a quid pro quo, e.g., dismissal of charges that would support the longer sentence, or where the "concurrent sentence doctrine" applies. See also Garza v. Idaho, 139 S.Ct. 738 (Feb. 27, 2019) (appeal waivers do not foreclose all appellate claims).
Where the defendant fails to make a timely objection below, but the failure to do so does not rise to the level of a waiver, review is for plain error. To preserve the error for appeal, the defense must satisfy all three "Olano prongs"; i.e., the error was:
United States v. Olano, 507 U.S. 725, 732 (1993).
The defendant does not get the benefit of the new rule.
Petitioners must show that they are in custody under a sentence on the date that the petition is filed. 28 U.S.C. § 2254(a) (state conviction); § 2255(a) (federal conviction). "Custody" does not require actual imprisonment; it also includes release that significantly restricts liberty. See Jones v. Cunningham, 371 U.S. 236 (1963) (parole).
The petitioner is:
A rule is new when it breaks new ground or imposes a new obligation on the government. A rule is old if the result was dictated by precedent existing at the time the defendant's conviction became final, i.e., it would have been apparent to all reasonable jurists. A case does not announce a new rule when it is merely an application of the principle that governed a prior decision to a different set of facts. See Chaidez v. United States, 568 U.S. 342, 347 (2013).
Applying that definition, is the rule that is to be applied retroactively:
New rules cannot be attacked on collateral review in a
second or successive petition unless they have been declared retroactive by the Supreme Court.
28 U.S.C. § 2244(b)(2)(A) (state prisoner);
Watershed rules must be necessary to prevent an impermissibly large risk of an inaccurate conviction and alter the Supreme Court's understanding of the bedrock procedural elements essential to the fairness of a proceeding. Bockting, id. at 418. The Court has never recognized a rule as being "watershed" under Teague.
Substantive rules "set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016).
Procedural rules are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining culpability. Id.
The constitutional rule sought to be applied retroactively is:
A petition is timely if filed within one year of one of these dates:
The "date on which the right asserted was initially recognized" runs from the date that the Supreme Court recognized the right, not the date that the Supreme Court (or another court) made the new right retroactive. Dodd v. United States, 545 U.S. 353 (2005).
A clause at the end of § 2255(e) (called the "saving clause" or "savings clause") permits a prisoner to avoid § 2255 bars and proceed under 28 U.S.C. § 2241 habeas corpus where the "remedy" under § 2255 is "inadequate or ineffective to test the legality of his detention." This could come into play where:
Nine circuits permit the use of the saving clause for attacking convictions for crimes that no longer exists (or, in some circuits, where a there is a grave and fundamental defect in the sentence). The Tenth and Eleventh Circuits do not. The Eighth Circuit (and the U.S. Supreme Court) have not ruled on the issue.
Old rules may not be raised on a second or successive petition.
This is a:
Except for claims of ineffective counsel, claims not raised on direct appeal may not be raised on collateral review (procedural default) unless the defendant can show "cause" and "prejudice." See Massaro v. United States, 538 U.S. 500 (2003).