Federal Habeas Corpus: When Does a New Rule Apply Retroactively?
Wouldn`t it be nice if the U.S. Supreme Court actually said when its decision constitutes a new rule and whether it applies retroactively on collateral review (i.e., habeas corpus review)? If only things could be so easy.
The truth is that the Supreme Court rarely states when its decision constitutes a new rule and whether it applies retroactively on collateral review. Instead, this task is left up to the lower courts, which often disagree on the retroactivity of new Supreme Court decisions. The first step is to determine whether the decision is, in fact, a “new” rule.
What Makes a Decision a New Rule?
Figuring out when a Supreme Court decision is a new rule is not a simple task. There`s no “if it`s this, then it`s that” formula. But the Supreme Court itself has provided some guidance on when its decisions are new rules. In Saffle v. Parks, 494 U.S. 484 (1990), the court said that if one of its decisions breaks new ground, imposes a new obligation on the government, or overturns precedent, then it would be a new rule.
The criterion that seems to be the most confusing is when the Court`s decision imposes a new obligation on the government. A good example was when the Court held Florida`s hard cut-off IQ of 70, in determining if someone was intellectually disabled and unable to be executed, was unconstitutional. Hall v. Florida, 572 U.S. 701 (2014). This was then held by the lower courts to be a new obligation on the government (the state) because it now required it to do more than just assign an IQ number to someone to declare them eligible for the death penalty. Hall has been deemed a retroactive new rule for this reason.
Whether or not a decision is a new rule is important, because a new Supreme Court decision that`s an extension of an “old” rule already applies retroactively on collateral review. This kind of decision applies retroactively on collateral review because it`s really just a new decision in the same vein as as the old rule. This doesn`t mean the decision would qualify as a retroactive decision to open the door for a later habeas petition, only that it would apply if you can get back in the door somehow.
New Rules Generally Don`t Apply Retroactively
But new rules have a big obstacle to get over in order to apply retroactively to habeas cases. In Teague v. Lane, 489 U.S. 288 (1989), the Supreme Court announced its “nonretroactivity doctrine,” barring the retroactive application of new rules on collateral review, except in a few limited circumstances. The Court created this doctrine to protect the “strong interest in the finality of criminal convictions,” it says. And it only applies to prisoners filing habeas petitions, the government is free to use new rules in arguing for the denial of your habeas petition. Flamer v. Delaware, 68 F.3d 710 (3d Cir. 1995).
New statutes, however, are treated differently. These are not “rules” under Teague and they apply retroactively only if lawmakers say they do. Landgraf v. USI Film Prods., 511 U.S. 244 (1994). We saw this recently with the First Step Act of 2018, where Congress lessened some of the harsh drug and gun laws but some of them did not apply retroactively. While courts were not barred from applying them retroactively, they were not required to do so.
Exceptions to the Nonretroactivity Doctrine
A new rule is either substantive or procedural. While substantive rules always apply retroactively, procedural rules hardly ever do. In fact, the Supreme Court recently held in Edwards v. Vannoy, 141 S. Ct. 1547 (2021), that “new procedural rules do not apply retroactively on federal collateral review.” The Court said the idea that a new procedural rule could ever apply retroactively “offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts.” [By the way, Gideon v. Wainwright, 372 U.S. 335 (1963), has been deemed a retroactive procedural rule, but that`s about the only Supreme Court case that has met the criteria. In that case, the Supreme Court held that a person accused of a crime is to be provided a lawyer, even if he can`t afford one.]
The quintessential example of a nonretroactive procedural rule announced by the Supreme Court was its decision in United States v. Booker, 543 U.S. 220 (2005), where the Court held that the mandatory sentencing guidelines were unconstitutional. This decision merely altered the way a judge imposes a sentence, and not whether a person was in fact guilty or innocent. This was the prototypical procedural rules, courts have said.
In contrast, substantive rules reach the issue of guilt or innocence. These rules “place particular conduct or persons covered by the [criminal] statute beyond the [government`s] power to punish” them. Schriro v. Summerlin, 542 U.S. 348 (2004). Think about it: When the Supreme Court narrows the meaning of a criminal statute, there`s a risk that someone was convicted under the erroneous interpretation of the statute in the past. Finality must yield to allow the person to obtain habeas relief, the Court has said. Bousley v. United States, 523 U.S. 614 (1998).
Teague`s nonretroactivity doctrine also doesn`t apply to cases on direct appeal. This is because a case on direct appeal is not yet “final,” and all new rules still apply to it. Griffith v. Kentucky, 479 U.S. 314 (1987).
The Nonretroactivity Doctrine is an Affirmative Defense
The nonretroactivity doctrine is an affirmative defense that the government must invoke. This means the government can forfeit (ignore) retroactivity or even expressly waive it. Why would the government do such a thing? Just because the government concedes retroactivity in one case doesn`t mean it applies to all cases, only that single case. Losing one case, the government figures, is better than losing a whole bunch. To see this tactic in action, see Witherspoon v. United States, 2015 U.S. Dist. LEXIS 192123 (S.D. Fla. 2015).
While you don`t have to argue up front that a new rule applies retroactively to your case, you should be ready to do so. Not only is it an easy defense for the government to raise, it`s likely to be raised by the court. The court is permitted to raise an affirmative defense the government has ignored, but it may not raise one that the government has expressly waived.