Standards For Retroactive Application Based Upon Groundbreaking Supreme Court Decisions in Criminal Law

Standards For Retroactive Application Based Upon Groundbreaking Supreme Court Decisions in Criminal Law

Order Code RL32613
CRS Report for Congress
Received through the CRS Web
Standards For Retroactive
Application Based Upon Groundbreaking
Supreme Court Decisions in Criminal Law
September 28, 2004
Paul Starett Wallace, Jr.
Specialist in American Public Law
American Law Division
Congressional Research Service ˜ The Library of Congress

Standards For Retroactive Application Based Upon
Groundbreaking Supreme Court Decisions in Criminal
Law
Summary
The Supreme Court is said to have announced a “new rule” when it hands down
a decision that addresses an issue of law in a new way or for the first time. In
criminal law new rules apply prospectively, but they also apply retroactively
sometimes. Whether a new rule provides the basis for overturning a past case
depends on the nature of the new rule and where in the review process a past case is
located when the new rule is announced.
If the new rule is a substantive one, that is, if it declares that conduct previously
outlawed may not be criminalized, it applies retroactively. If the new is procedural,
the issue is more complicated. The new rule will not apply to any case in which the
defendant has waived the right to the benefits of the new rule. The new rule will not
apply where the failure to apply it in a past case was harmless (procedural defects that
undermine the very structure of the trial process - secret trial, denial of the right to
a lawyer, biased judges, and the like - are never harmless). A new rule will apply to
a past case if the case is still on direct appeal and if the defendant raised the issue in
a timely manner before the new rule was announced. If a case is still on direct appeal
but the defendant failed to raise the issue in a timely manner, the new rule will only
apply retroactively if the defendant can claim the benefits of the plain error doctrine.
Those defendants who have reached the state of finality with their sentence
which is an indication that they have exhausted their criminal appeal procedures, are
not in as favorable position as those defendants who are on direct appeal. Errors
raised on collateral review (essentially means that the defendant is attacking the
sentence or conviction in a manner other than through direct appeal) are reviewed
under the more difficult harmless error standard for habeas corpus cases. As a
general framework for analyzing the applicability of new rules to convictions that
have already become final: New substantive rules apply retroactively, but new
procedure rules do not. A procedural rule applies retroactively only if it is a
“watershed rule of criminal procedure” that implicates the fundamental fairness and
accuracy of the criminal proceeding. In Teague v. Lane, the Supreme Court
answered questions of retroactivity for cases on collateral review. In Teague, the
Court held that as a general rule, new constitutional rules of criminal procedure will
not be applicable to those cases which have become final before the new rules are
announced. There are two exceptions: (1) Teague held that the new rule should apply
retroactively if it places a class of conduct beyond the power of the State to proscribe;
and (2) Teague held that a new rule should apply retroactively if the new
constitutional rule is a “watershed rule” of criminal procedure “implicating the
fundamental fairness of the criminal proceeding.” Thus, if a court determines that
the constitutional rule at issue is a new procedural rule, it must determine when the
defendant’s conviction became final. Even if a habeas petition survives Teague
analysis its claim to a new rule may be impaired by restrictions on stale or repetitious
petitions, failure to exhaust state remedies, or procedural default.

Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Harmless Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Structural Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Plain Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Application on Collateral Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Other Bars to Collateral Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Standards For Retroactive Application
Based Upon Groundbreaking Supreme
Court Decisions in Criminal Law
Background
One of the hallmarks of new Supreme Court decisions is that until their
announcement many of the lower courts are likely to have ruled erroneously on the
issue. The question becomes when may defendants convicted or sentenced on the
basis of these errors claim the benefit of the new decision and have their convictions
or sentences overturned. Generally new decisions of the Supreme Court will apply
“retroactively”1 to defendants currently on trial or on direct appeal.2 Also, a
defendant may take advantage, retroactively, of a new Court rule in a few other
limited situations, for example, decisions which construe a criminal statute to
exclude certain acts or conduct.3 New decisions of the Court sometimes apply
“retroactively” to those on collateral review, and rarely apply “retroactively” to those
petitioners on second or successive collateral reviews.4
Waiver
There are a number of significant restrictions on the ability to raise error after
the fact. The most common problem appears to be waiver. Waiver may be
accomplished either affirmatively or by inaction. By pleading guilty for example, a
defendant waives jury trial, confrontation, and self-incrimination rights, and thereby
1 Retroactivity deals with new decisions, or changes in the law. Occasionally, a court will
issue a decision which overrules a number of other decisions. Sometimes, these decisions
may provide relief for a defendant who has already been convicted. Generally, the courts
have held that new rules of procedure will not be applied retroactively. Hence, unless the
case is on direct appeal at the time the decision is rendered, the defendant cannot take
advantage of it.
2 In a direct appeal, the court is limited to reviewing the record from the trial court. It will
not consider evidence which was not submitted. In habeas corpus the same limitations are
not present, and the court may consider additional evidence. In a direct appeal, almost any
violation of law may be addressed. This can include violations of statutes and rules. In
contrast, habeas corpus is generally limited to constitutional claims. As a result, the
violation of statutes or rules cannot generally be a basis for relief in a habeas proceeding.
3 Bousley v. United States, 523 U.S. 614, 620-21 (1998).
4 Schriro v. Summerlin, 124 S.Ct. 2519, 2522 (2004).

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the ability to claim the benefits of any new decisions in those areas.5 Waiver by
inaction may be no less debilitating. Here the doctrine of waiver recognizes that a
court should have an opportunity to rule on a claim at a time when it can be
remedied. The effect of this means that issues must be raised at the first opportunity
to do so.6 Depending upon the circumstances of the case and the nature of the error,
failure to interpose a timely and consistent objection may limit a defendant’s ability
to benefit when the Supreme Court later confirms the validity of the objection.
Harmless Error
Prior to Chapman v. California7 most courts understood that constitutional error
in a criminal case could never be “harmless” and always warranted relief, either on
direct review or in federal habeas corpus. That understanding changed after
Chapman, when the Court held that some constitutional errors at trial could be
ignored if it could be said with relative assurance that they had no effect on the
ultimate verdict.8
In justifying this change in constitutional law, Chapman weighed the cost of
automatic reversal against the risks of erroneous conviction and concluded that the
system could tolerate some additional risk.9 To ensure that the idea of harmless error
remained within close bounds, however, the Court held that no error could be
considered harmless unless the prosecution demonstrated, beyond a reasonable doubt,
that the error had not influenced the verdict.10
The rule pronounced in Chapman remains the governing rule with two
exceptions. First, its reach is limited to direct appeals. Thereafter upon collateral
review, a different standard applies:
When the Government has the burden of addressing prejudice, as in excusing
preserved error as harmless on direct review of the criminal conviction, it is not
enough to negate an effect on the outcome of the case. See Chapman v.
California, 386 U.S. 24 (1967) (“[T]he court must be able to declare a belief that
[constitutional error] was harmless beyond a reasonable doubt”). When the
Government has the burden of showing that constitutional trial error is harmless
because it comes up on collateral review, the heightened interest in finality
generally calls for the Government to meet the more lenient Kotteakos
standard.11
5 Cf., Parke v. Raley, 506 U.S. 20, 29 (1992)
6 Wainwright v. Sykes, 433 U.S. 72, 88-89 (1977).
7 386 U.S. 18 (1967).
8 Id. at 23-24. Rule 52(a) of the Federal Rules of Criminal Procedure reflects this view
(“Harmless error. Any error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded”).
9 Id. at 22.
10 Id. at 24.
11 Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), United States v. Dominquez Benitez,
(continued...)

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Under Brecht, constitutional trial error when raised on collateral review can be held
harmless if it had no “substantial” effect on the verdict within the meaning of the
principal harmless error case, Kotteakos v. United States.12 Second, it does not apply
to “structural errors.”
Structural Error
In Arizona v. Fulminante13 the Supreme Court distinguished “trial errors” from
“structural errors” in the context of constitutional rights violations stating that the
former are subject to harmless error analysis but the latter requires automatic
reversal. A “trial error” occurs during a case’s presentation to the trier of fact and
“...may therefore be quantitatively assessed in the context of other evidence presented
in order to determine whether its admission is harmless beyond a reasonable doubt.”14
A structural defect, on the other hand, “...affect[s] the framework within which the
trial proceeds,” and therefore defies harmless error analysis.15
The Court in Fulminante noted that most constitutional errors are subject to
harmless error analysis and supplied a list of past examples, 499 U.S. at 306-307
(characterizations of the Court):
! unconstitutionally overbroad jury instructions at the sentencing stage
of a capital case, Clemons v. Mississippi, 494 U.S. 738, 752-754
(1990);
! admission of evidence at the sentencing stage of a capital case in
violation of the Sixth Amendment Counsel Clause, Statterwhite v.
Texas, 486 U.S. 249 (1988);
! jury instruction containing an erroneous conclusive presumption,
Carella v. California, 491 U.S. 263, 266 (1989);
11 (...continued)
124 S.Ct. 2333, 2339 n.7 (2004).
12 328 U.S. 750 (1946). The test under Kotteakos is whether the error “had substantial and
injurious effect or influence in determining the jury’s verdict.” Under this standard, habeas
petitioners may obtain plenary review of their constitutional claims, but they are not entitled
to habeas relief based on trial error unless they can establish that it resulted in “actual
prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In O’Neal v. McAninch, 513
U.S. 432 (1995), the Court further refined the Brecht harmless error standard holding that
this standard does not place the burden of proof upon the petitioner to show that a trial error
substantially affected the verdict. Rather, where the issue is evenly balanced and the judge
has doubts about whether the error had “substantial and injurious effect” on the jury’s
verdict, then the judge must treat the error as if it were not harmless and must rule for the
petitioner. See also, California v. Roy, 519 U.S. 2, 4-5 (1997).
13 499 U.S. 279, 306-312 (1991).
14 Id. at 307-308.
15 Id. at 310.

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! jury instruction misstating an element of the offense, Pope v.
Illinois, 481 U.S. 497, 501-504 (1987);
! jury instruction containing an erroneous rebuttable presumption,
Rose v. Clark, 478 U.S. 570 (1986);
! erroneous exclusion of defendant’s testimony regarding the
circumstances of his confession, Crane v. Kentucky, 476 U.S. 683,
691 (1986);
! restriction on a defendant’s right to cross-examine a witness for bias
in violation of the Sixth Amendment Confrontation Clause,
Delaware v. Van Arsdall, 475 U.S. 673 (1986);
! denial of a defendant’s right to be present at trial, Rushen v. Spain,
464 U.S. 114, 117-118 and n.2 (1983);
! improper comment on defendant’s silence at trial, in violation of the
Fifth Amendment Self-Incrimination Clause, United States v.
Hasting, 461 U.S. 499 (1983);
! statute improperly forbidding trial courts giving a jury instruction on
a lesser included offense in a capital case in violation of the Due
Process Clause, Hooper v. Evans, 456 U.S. 605 (1982);
! failure to instruct the jury on the presumption of innocence,
Kentucky v. Whorton, 441 U.S. 786 (1979);
! admission of identification evidence in violation of the Sixth
Amendment Counsel Clause, Moore v. Illinois, 434 U.S. 220, 232
(1977);
! admission of the out-of-court statement of a nontestifying
codefendant in violation of the Sixth Amendment Counsel Clause,
Brown v. United States, 411 U.S. 223, 231-232 (1973);
! confession obtained in violation of Massiah v. United States, 377
U.S. 201 (1964), Milton v. Wainwright, 407 U.S. 371 (1972);
! admission of evidence obtained in violation of the Fourth
Amendment, Chambers v. Maroney, 399 U.S. 42, 52-53 (1970);
! denial of counsel at a preliminary hearing in violation of the Sixth
Amendment Confrontation Clause, Coleman v. Alabama, 399 U.S.
1, 10-11 (1970);
The Court’s list of cases exemplifying structural error was far shorter, 499 U.S. at
309-10 (characterizations of the Court):

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! total deprivation of the right to counsel at trial, Gideon v.
Wainwright, 372 U.S. 335 (1963);
! a [trial] judge who was not impartial, Tumey v. Ohio, 273 U.S. 510
(1927);
! unlawful exclusion of members of the defendant’s race from a grand
jury, Vasquez v. Hillery, 474 U.S. 254 (1986);
! [denial of] the right to self-representation at trial, McKaskle v.
Wiggins, 465 U.S. 168, 177-78, n.8 (1984);
! [denial of] the right to [a] public trial, Waller v. Georgia, 467 U.S.
39, 49, n.9 (1984).
In the years that followed, the Court added defective reasonable-doubt jury
instructions to the list of structural errors requiring reversal,16 but enlarged the list of
constitutional errors subject to harmless error analysis to encompass jury instructions
that omitted an element of the offense.17
Plain Error
A defendant, who lacked the foresight to raise a timely objection to an error
subsequently confirmed in a new rule of the Supreme Court, must overcome the plain
error rule. “[B]efore an appellate court can correct an error not raised at a trial, there
must be (1) error, (2) that is plain, and (3) that affects substantial rights....If all three
conditions are met, an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.”18
16 Sullivan v. Louisiana, 508 U.S. 275, 278-282 (1993).
17 Neder v. United States, 527 U.S. 1, 10-12 (1999) (noncapital case); Mitchell v. Esparza,
540 U.S. 7, 10-11 (2003) (capital case).
18 Johnson v. United States, 520 U.S. 461, 466-467 (1997); United States v. Olano, 507 U.S.
725, 733-34 (1993); Jones v. United States, 527 U.S. 373, 389 (1999) (If an error meets the
first three requirements the appellate court engages in a fourth consideration: whether or not
to exercise its discretion to correct the error – “An appellate court should exercise its
discretion to correct plain error only if it ‘seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’”). The plain error standard is reflected in Federal Rule
of Criminal Procedure 52(b), “A plain error that affects substantial rights may be considered
even though it was not brought to the court’s attention.” Under the standard, courts have
“a limited power to correct errors that were forfeited because [they were] not timely raised”
below, United States v. Olano, 507 U.S. at 731. Even when an error has occurred that is
plain and affects substantial rights, “an appellate court may . . . exercise its discretion to
notice a forfeited error . . . only if . . . the error seriously affects[s] the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. at 631-632
(quoting Johnson v. United States, 520 U.S. at 467).

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This last hurdle may be the most difficult to overcome. The defendants in
Olano failed to convince the Court that the unlawful presence of alternate jurors
during the jury deliberations that led to their convictions seriously affected “the
fairness, integrity, or public reputation of judicial proceedings.”19 The defendant in
Johnson had no more success with the contention that the failure to present the issue
of materiality of a false statement to the jury satisfied the standard – not because such
an error might never satisfy the “substantial affect” standard, but because in Johnson
the evidence of materiality was “overwhelming” and “uncontested.”20 The Cotton
defendants met the same fate. The erroneous failure to include within the drug
trafficking indictment allegations of the sentencing-determining quantity of the drugs
involved did not satisfy the “substantial affect” standard because the jury had been
presented with “overwhelming” and “essentially uncontroverted” evidence of the
quantity of drugs involved.21
Application on Collateral Review
In Schriro v. Summerlin,22 the Court held that Ring v. Arizona23 did not apply
retroactively to cases already final on direct review. In Ring, the Court concluded
that in the capital sentencing context, the existence of an aggravating factor must be
proved to a jury rather than a judge. Summerlin was tried and convicted before Ring,
however, and thus under Arizona’s sentencing scheme, a judge found the aggravating
factors that made him eligible for the death penalty. In his federal habeas petition,
Summerlin argued that he was entitled to the benefit of the Ring rule, but the Court
did not concur. The Court, in an opinion written by Justice Scalia, outlined the
general framework under Teague v. Lane24 for analyzing the applicability of new
rules to convictions that have already become final: New substantive rules generally
apply retroactively, but new procedural rules generally do not. A procedural rule
applies retroactively only if it is a “watershed rule of criminal procedure” that
implicates the fundamental fairness and accuracy of the criminal proceedings.25 With
this overview, the Court disregarded any suggestion that the Ring rule applied to
Summerlin’s case because it was a substantive rule. The Ring rule does not “alter the
range of conduct or the class of persons that the law punishes.”26 It merely assigns
decision making authority for essential facts bearing on punishment, it regulates only
the manner of determining culpability, id., and thus is primarily a procedure rule
19 United States v. Olano, 507 U.S. at 739-41.
20 United States v. Johnson, 520 U.S. at 469-70.
21 United States v. Cotton, 535 U.S. at 632-33.
22 124 S.Ct. 2519 (2004).
23 536 U.S. 584 (2002) (The Supreme Court in Ring announced a new procedural rule that
does not apply retroactively to cases which are final on direct review. This rule held that
death penalty defendants had a constitutional right to have a jury decide their sentence).
24 489 U.S. 288 (1989).
25 124 S.Ct. at 2524.
26 124 S.Ct. at 2523.

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rather than a substantive rule. The rule was also not characterized as a “watershed
rule” of criminal procedure.
The Court has announced a rule of federal procedure that applies to federal
habeas corpus claims which makes it clear that the finality of convictions cannot be
brought into question by every change in the law. For example, under Teague v.
Lane, a new rule in general cannot be applied retroactively to cases on collateral
review unless the rule “...falls within one of two narrow exceptions to the general
rule of nonretroactivity.”27 The first exception permits retroactive application to new
rules that place “...certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe.”28 The second exception
allows retroactive application of new rules that involve procedures that are “implicit
in the concept of ordered liberty,”29 the so-called “watershed” exception.30
A Teague analysis asks whether a particular Supreme Court decision announced
a “new rule” and if so whether either of the two Teague exceptions apply so as to
allow a habeas petitioner to claim the benefit of the new rule. The Supreme Court
addressed the new rule issue of retroactivity in a capital sentencing context in Beard
v. Banks.31 In Mills v. Maryland32 the Court held invalid a capital sentencing scheme
that required juries to disregard mitigating factors that they had not found
unanimously. In Beard, the Court held that the Mills rule does not apply
retroactively. In its analysis, the Court considered whether the rule was dictated by
existing precedent relative to whether the unlawfulness of Mills’ sentence would be
apparent to “all reasonable jurist.” After tracing the jurisprudential roots of the Mills
decision, the Court concluded that reasonable jurists could have differed as to
whether the prior cases compelled the results in Mills. As confirmation, the Court
noted that the Mills case (and a late released case) had dissents.
The Beard Court also provided guidance on the two Teague exceptions. The
first exception is reserved for “primary, private individual conduct beyond the power
of the criminal law-making authority to proscribe.”33 This, Beard observes as would
Schriro thereafter, is matter appropriately considered retroactive by its substantive
nature rather than an exception to the procedural Teague rule.34 Elsewhere, the Court
has suggested that this exception covers things like “the execution of mentally
27 Tyler v. Cain, 533 U.S. 656, 665 (2001) (discussing Teague v. Lane, 489 U.S. at 311-313
(1989).
28 Teague v. Lane, 489 U.S. at 307 (1989).
29 Id.
30 “The second exception is for watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.” Beard v. Banks, 124 S.Ct.
2504, 2513 (2004), quoting O’Dell v. Netherland, 521 U.S. 151, 157 (1997) and Graham
v. Collins, 506 U.S. 461, 478 (1993).
31 124 S.Ct. 2504 (2004).
32 486 U.S. 367 (1988).
33 Teague v. Lane, 488 U.S. at 307.
34 Beard v. Banks, 124 S.Ct. at 2513 n.7; Schriro v. Summerlin, 124 S.Ct. at 2522 n.4.

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retarded persons . . . regardless of the procedure followed.”35 “In providing guidance
as to what might fall within [the watershed] exception,” the Court has repeatedly
referred to the rule of Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel),
and only to this rule.36 In contrast to Gideon’s solitary standing, the Court has
identified more than a few decisions concerning procedural rights that may not claim
“watershed” status for Teague purposes.37
Other Bars to Collateral Relief
Even if a petitioner’s claim survives Teague analysis, in his efforts to claim the
benefits of a new rule he may face other impediments.38 Defendants being held under
a state criminal conviction may file a federal petition for writ of habeas corpus under
28 U.S.C. § 2254 to challenge the validity of their conviction or sentence. Collateral
review (habeas corpus) for federal prisoners is objecting to the sentence or
conviction in a manner other than through a direct appeal. The object of the habeas
corpus petition is to obtain release from custody. As a consequence, collateral
review is only available while the petitioner is in custody or subject to some other
form of collateral consequence as parole, supervised release, or registration
requirement. Thus, the benefits of a new Supreme Court rule cannot ordinarily be
claimed through collateral review unless collateral consequences of the conviction
remain in effect.39 When the Anti-Terrorism and Effective Death Penalty Act
(AEDPA)40 became effective on April 24, 1996, many changes occurred to the
habeas corpus process, such as the addition of a statute of limitations and a strict
standard for relief. Under the AEDPA, a one-year period of limitations applies to a
35 Penry v. Lynaugh, 492 U.S. 302, 330 (1989).
36 Beard v. Banks, 124 S.Ct. at 2514, citing, Saffle v. Parks, 494 U.S. 484, 495 (1990). See
also, Gray v. Netherland, 518 U.S. 152, 171 (1996).
37 Beard v. Banks, 124 S.Ct. at 2515 (“However laudable the Mills rule [relating to capital
punishment schemes precluding jury consideration of mitigating factors not found
unanimously] might be, it has none of the primacy and centrality of the rule adopted in
Gideon. The Mills rule applies fairly narrowly and works no fundamental shift in our
understanding of the bedrock procedural elements essential to fundamental fairness”);
Schriro v. Summerlin, 124 S.Ct. at 2524 (the Ring rule relating to the right to jury
determination of facts required for the imposing of capital punishment is not a watershed
rule); O’Dell v. Netherland, 521 U.S. at 167 (decision recognizing capital defendant’s right
to inform the jury of a life without parole sentencing alternative is not a watershed decision);
Lambrix v. Singletary, 520 U.S. 518, 539-540 (1997) (decision precluding either capital
judge or jury from considering invalid aggravating factors is not a watershed decision);
Saffle v. Parks, 494 U.S. at 495 (proposed rule that would invalid any anti-sympathy jury
instruction would not be a watershed rule).
38 In some instances, the courts may prefer to deal with these impediment first. For instance,
in Lambrix v. Singletary, 520 U.S. 518, 522-525 (1997), the Court indicated that before
conducting Teague analysis the federal courts should determine whether a claim is
procedurally barred for failure to present to state courts in a timely manner.
39 Spencer v. Kemna, 523 U.S. 1, 7-18 (1998); cf., Justices of Boston Municipal Court v.
Lydon, 466 U.S. 294, 300-301 (1984).
40 28 U.S.C. § 2243.

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petition for a writ of habeas corpus filed by a person in custody, and the limitations
period begins to run from “the date on which the judgement [of conviction] became
final by the conclusion of direct review or the expiration of the time for seeking
such.”41 In the case of new rule announced by the Supreme Court, however, the
period begins to run when the decision is handed down, if the Court has made it
retroactively applicable for purposes of collateral review.42
Generally, the federal court cannot grant relief on habeas corpus claims unless
the state supreme court has first had an opportunity to rule on the same federal
claims. This is called exhaustion of state court remedies.43 The Supreme Court
explained the exhaustion requirement in O’Sullivan v. Boercke:44
Because the exhaustion doctrine is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts, we conclude that state prisoners must give the
state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate review process.
In the same vein, the Court entertains a procedural default doctrine under which it is
reluctant to pass upon a constitutional claim pressed by a state prisoner who by his
own default is barred from presenting the claim to state courts. It will do so,
however, when the prisoner can satisfy the Court’s “cause and prejudice”
requirements.45 If the petitioner does not bring all of his/her federal claims which are
related to a particular judgment in a single federal habeas corpus action, he/she will
not be able to bring a second action without first obtaining permission to do so from
the federal circuit court of appeals.46 There is one relevant exception to the general
maxim that a prisoner may not raise new issues in a second or successive habeas
petition. A prisoner may do so if the Supreme Court has expressly made a new rule
of constitutional interpretation retroactively applicable upon collateral review.47
41 28 U.S.C. § 2244(d)(1)(A); see also, 28 U.S.C. § 2255.
42 28 U.S.C. § 2244(d)(1)(C).
43 28 U.S.C. § 2254(b)(1)(A).
44 526 U.S. 838, 845 (1999).
45 Dretke v. Haley, 124 S.Ct. 1847, 1851-1852 (2004). “Cause” ordinarily requires a
showing “that some objective factor external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
The requirements can also be satisfied by showing of “actual innocence,” id. at 496. The
Court has recently stated that federal courts should address a petitioner’s alternative claims
before passing on a claim of actual innocence. Dretke v. Haley, 124 S.Ct. at 1852.
46 28 U.S.C. § 2244(b).
47 28 U.S.C.§ 2244(b)(2)(A); 28 U.S.C. § 2255. See also Atkins v. Virginia, 536 U.S. 304
(2002) (Rule announced by the Court that execution of mentally retarded person was “cruel
and unusual punishment” in violation of the Eighth Amendment, was a new rule of
constitutional law made retroactive to cases on collateral review by the Court that was
previously unavailable, as would support petitioner’s application for leave to file a second
successive federal habeas corpus petition).

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Conclusion
New decisions of the Supreme Court always apply “retroactively” to defendants
on trial or direct appeal, sometimes apply “retroactively” to those on collateral
review, and rarely apply “retroactively” to those petitioners on second and successive
collateral reviews.
There were two Supreme Court decisions during the 2003-2004 Term which
dealt with the retroactive application of previous Court rulings on the death penalty,
and the ability of death row petitioners to have a court review their claims.
In Schriro v. Summerlin, the Court ruled that death row inmates cannot benefit
from a 2002 Supreme Court ruling that crucial findings of fact should be made by a
jury, not a judge, in capital cases. The Court held that the earlier decision in Ring v.
Arizona was not retroactive and therefore could not be applied to Summerlin and the
death row inmates in five other states affected by the Ring ruling.
Justice Scalia, writing for the majority, held that the Ring decision represented
a new procedural rule for the manner of determining the defendant’s
culpability–whether a defendant is worthy of being sentenced to death–and these new
procedural rules are generally not applicable retroactively unless they meet a very
narrow “watershed” exception. Justice Scalia concluded that the evidence that juries
were more accurate fact-finders than judges was too unconfirmable to support the
conclusion that the Ring decision was a watershed rule.
The dissent argued that Ring did announce a watershed rule and focused on the
jury’s role in serving as the community standard for determining whether the conduct
of the defendant merits a death sentence.
In Beard v. Banks, another case involving retroactivity, the Court held that a
1988 opinion that invalidated death-sentencing schemes in which jurors were
required to be unanimous in finding the existence of mitigating factors was not
retroactive. Justice Thomas, writing for the majority, concluded that although the
Court’s decision in Maryland v. Mills announced a new rule, that rule did not fall
within the “watershed” exception for new rules that are retroactively applicable.
The Court emphasized in both Summerlin and Beard that these new procedural
rules will only be retroactive under extremely limited circumstances.

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