LEE v. MISSOURI, 439 U.S. 461 (1979)

[ Footnote * ] Together with No. 77-6068, Minor v. Missouri, also on certiorari to, and No. 77-6553, Arrington v. Missouri, on appeal from, the same court, and No. 77-6701, Burnfin v. Missouri, and No. 77-7012, Combs v. Missouri, on certiorari to the Court of Appeals of Missouri, Kansas City District.

Judgments of Missouri Supreme Court and Missouri Court of Appeals affirming convictions as against fair-cross-section claims based on exclusion of women from juries are vacated, and the cases are remanded for reconsideration in light of Duren v. Missouri, ante, p. 357. Because Duren does not announce any "new standards" of constitutional law not evident from the decision in Taylor v. Louisiana, 419 U.S. 522 , the considerations calling for departure from full retroactive application of constitutional holdings are inapplicable to juries sworn after the Taylor decision.

Certiorari granted in Nos. 77-6066, 77-6068, 77-6701, and 77-7012. 556 S. W. 2d 11; 556 S. W. 2d 25; 556 S. W. 2d 135; 559 S. W. 2d 749; 560 S. W. 2d 283; and 564 S. W. 2d 328, vacated and remanded.

PER CURIAM.

The motions for leave to proceed in forma pauperis are granted.

In each of these cases, the trial court denied a timely motion to quash the petit jury panel. On appeal, the convictions were affirmed on the basis of State v. Duren, 556 S. W. 2d 11 (Mo. 1977). State v. Lee, 556 S. W. 2d 25 (Mo. 1977); State v. Minor, 556 S. W. 2d 35 (Mo. 1977); State v. Arrington, 559 S. W. 2d 749 (Mo. 1978); State v. Burnfin, 560 S. W. 2d 283 (Mo. App. 1977); State v. Combs, 564 S. W. 2d 328 (Mo. App. 1978).

We reversed the decision below in Duren because of inconsistency with the principles enunciated in Taylor v. [439 U.S. 461, 462]   Louisiana, 419 U.S. 522 (1975). Ante, p. 357. The State of Missouri has urged that our decision in Duren not be applied retroactively to petitioners or appellants other than Duren himself. However, because that decision does not announce any "new standards" of constitutional law not evident from the decision in Taylor v. Louisiana, the considerations that have led us in other cases to depart from full retroactive application of constitutional holdings, see, e. g., Stovall v. Denno, 388 U.S. 293, 297 (1967), are inapplicable to juries sworn after the decision in Taylor v. Louisiana. Compare Daniel v. Louisiana, 420 U.S. 31 (1975), holding Taylor v. Louisiana inapplicable to cases in which the jury was sworn prior to the date of that decision.

We note that in any case in which a jury was sworn subsequent to Taylor v. Louisiana and the fair-cross-section claim based on exclusion of women was rejected on direct review or in state collateral proceedings because of the defendant's failure to assert the claim in timely fashion, relief is unavailable under 28 U.S.C. 2254 unless the petitioner can show cause for having failed to raise his claim properly in the state courts. See Wainwright v. Sykes, 433 U.S. 72 (1977).

The petitions for certiorari in Nos. 77-6066, 77-6068, 77-6701, and 77-7012 are granted. The judgments below in those cases, together with that in No. 77-6553, are vacated, and the cases are remanded for reconsideration in light of Duren v. Missouri, ante, p. 357.

So ordered.

MR. JUSTICE REHNQUIST dissents. [439 U.S. 461, 463]