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Retroactive effect of new Supreme Court decisions

From 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.

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.

Click here to start the Q&A

 
 

startcase status

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:

 
 

startcase statusprevailing party

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).

 
 

startcase statusdirect review

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 Federal Criminal Procedure Rule 12(b)(3) (motions to suppress, speedy trial, joinder, etc.) or similar state rule.

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); Fed. R. Crim. P. 52(a).

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startcase statusdirect appealwaiver?

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 paragraph 12(e)), is a matter of some controversy.

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).

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startcase statusdirect reviewplain error?

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:

  1. plain (clear or obvious)
  2. affects substantial rights
  3. seriously affects the fairness, integrity or public reputation of judicial proceedings

United States v. Olano, 507 U.S. 725, 732 (1993). "Seriously affects the fairness, integrity or public reputation of judicial proceedings" means a reasonable probability that the defendant would have been acquitted or would not have pled guilty. Greer v. United States, No. 19-8709 (U.S. June 14, 2021).

The error:

 
 

The defendant does not get the benefit of the new rule.

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startcollateral reviewcustody?

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:

 
 

startcollateral reviewcustodyold or new rule?

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:

 
 

startcollateral reviewcustodynew ruleinitial petition?

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); § 2255(g)(2) (federal prisoner).

This is:

 
 

startcollateral reviewcustodynew rulesubstantive?

The "Teague rule" provided that new rules may be available if they are watershed or substantive. See Whorton v. Bockting, 549 U.S. 406, 416 (2007); Teague v. Lane, 489 U.S. 288 (1989).

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. In the years after Teague, the Court never recognized a rule as being "watershed" under Teague. Finally, in Edwards v. Vannoy (U.S., May 17 2021), the Supreme Court held that the "watershed exception is moribund." Consequently, "watershed" is no longer a pertinent inquiry. The issue is whether the rule is substantive or procedural.

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:

 
 

startcollateral reviewcustody → ... timely?

A petition is timely if filed within one year of one of these dates:

  1. The date on which the judgment of conviction became final
  2. The date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action
  3. The date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review
  4. The date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence

28 U.S.C. § 2254(d) (state prisoners); § 2255(f) (federal prisoners).

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).

 
 

start collateral reviewcustody ... timelycognizable?

  • A claim of lack of jurisdiction is cognizable on collateral review of a federal conviction. 28 U.S.C. § 2255(a).
  • Claims based on a violation of a federal statute or rule must allege a "fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). Practically speaking, this has the effect of excluding non-constitutional violations of federal law.
  • Fourth Amendment claims are not cognizable on collateral review if the defendant had a "full and fair" opportunity to litigate the claim on direct appeal, Stone v. Powell, 428 U.S. 465, 494 (1976), unless accompanied by a Sixth Amendment claim alleging incompetent representation regarding the Fourth Amendment issue. Kimmelman v. Morrison, 477 U.S. 365, 375-83 (1986).

The claim is:

 
 

start collateral reviewcustody ... not cognizablesaving clause?

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:

  1. At the time of sentencing, settled law of the circuit or the Supreme Court established the legality of the sentence.
  2. Subsequent to the prisoner's direct appeal and first § 2255 motion, the law changed and was deemed to apply retroactively on collateral review.
  3. The prisoner is unable to meet the gatekeeping provisions of § 2255.
  4. [Due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.]

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.

The petitioner

 
 

startcollateral reviewcustodyold ruleinitial petition?

Old rules may not be raised on a second or successive petition.

This is a:

 
 

startcollateral reviewcustody ... procedural default?

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).

The issue: