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TEAGUE v. LANE 489 U.S. 288 (1989)
United States Supreme Court
TEAGUE v. LANE (1989)
No. 87-5259
Argued: October 04, 1988 Decided: February 22, 1989
Petitioner, a black man, was convicted in an Illinois state court of attempted murder and other offenses by an all-white jury. During jury selection, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner twice unsuccessfully moved for a mistrial, arguing that he was "entitled to a jury of his peers." The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury. After an unsuccessful state-court appeal, in which he argued that the prosecutor's use of peremptory challenges denied him the right to be tried by a jury that was representative of the community, petitioner filed a habeas corpus petition in Federal District Court, repeating his fair cross section claim. He further argued that the opinions of several Justices concurring in, or dissenting from, the denial of certiorari in McCray v. New York,
Held:
The judgment is affirmed.
820 F.2d 832, affirmed.
- JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II, and III, concluding that:
- 1. Allen v. Hardy prevented petitioner from benefiting from the rule announced in Batson, since his conviction became final before Batson was decided. The opinions filed in McCray - which involved the question whether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor's assumption that they would be biased in favor of other members of the same group - did not destroy Swain's precedential effect, as petitioner urges they did, since a denial of certiorari imports no expression of opinion on the merits of the case, and, concomitantly, opinions accompanying such denial cannot have the same effect as decisions on the merits. Pp. 294-296.
- 2. Petitioner is procedurally barred from raising the claim that he has established a violation of the Equal Protection Clause under Swain and that Swain did not preclude an examination of the prosecutor's stated reasons for his peremptory challenges to determine the legitimacy of his motive. Since petitioner did not raise the Swain claim at trial or on direct appeal, he forfeited review of the claim in collateral proceedings in the state courts. Under Wainwright v. Sykes,
- JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded in Parts IV and V that a decision extending to the petit jury the Sixth Amendment requirement that the jury venire be drawn from a fair cross section of the community would not be applied retroactively to cases on collateral review, and therefore petitioner's fair cross section claim will not be addressed. Pp. 299-316.
- (a) Retroactivity is properly treated as a threshold question, for, once a new constitutional rule of criminal procedure is applied to the
[489
U.S. 288, 290]
defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. Thus, before deciding whether the fair cross section requirement should be extended to the petit jury, it should be determined whether such a rule would be applied retroactively to the case at issue. Pp. 299-305.
- (b) Justice Harlan's view that new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review is the appropriate approach. Unless they fall within one of Justice Harlan's suggested exceptions to this general rule - that a new rule should be applied retroactively (1) if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey v. United States,
- (c) Since petitioner's conviction became final six years ago, the rule he urges would not be applicable to this case, which is on collateral review, unless it falls within one of the above exceptions. The first exception is not relevant here, since application of the fair cross section requirement to the petit jury would not accord constitutional protection to any primary activity. The second exception should be limited in scope to those new procedures without which the likelihood of an accurate conviction is seriously diminished. An examination of the decision in Taylor v. Louisiana,
- (d) Were the new rule urged by petitioner recognized, petitioner would have to be given the benefit of that rule even though it would not be applied retroactively to others similarly situated. A new rule will not be announced in a given case unless it would be applied retroactively to the defendant in that case and to all others similarly situated. This not only eliminates any problems of rendering advisory opinions, it also avoids the inequity resulting from an uneven application of new rules to similarly situated defendants. Implicit in the above retroactivity approach is the principle that habeas corpus cannot be used as a vehicle to
[489
U.S. 288, 291]
create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two articulated exceptions. Pp. 315-316.
- JUSTICE WHITE concluded that the result as to nonretroactivity of the fair cross section rule urged by petitioner is an acceptable application in collateral proceedings of the theories embraced in United States v. Johnson,
- JUSTICE BLACKMUN concurred in the result insofar as petitioner's claim based on Swain v. Alabama,
- JUSTICE STEVENS, joined by JUSTICE BLACKMUN, concluded in Part I that petitioner had alleged a Sixth Amendment violation and that the Court should decide the question in his favor. Nonetheless, petitioner's conviction should not be set aside for, as a matter of stare decisis, the Court's opinion in Allen v. Hardy,
Patricia Unsinn argued the cause for petitioner. With her on the briefs were Theodore A. Gottfried, Michael J. Pelletier, and Martin S. Carlson. [489 U.S. 288, 292]
David E. Bindi, Assistant Attorney General of Illinois, argued the cause for respondents. With him on the brief were Neil F. Hartigan, Attorney General, Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Marcia L. Friedl, Assistant Attorneys General. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the Lawyers' Committee for Civil Rights Under Law by Barry Sullivan, Barry Levenstam, Conrad K. Harper, Stuart J. Land, Norman Redlich, William L. Robinson, and Judith A. Winston; and for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius LeVonne Chambers, Charles Stephen Ralston, John A. Powell, and Steven R. Shapiro.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, and an opinion with respect to Parts IV and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.
In Taylor v. Louisiana,
I
Petitioner, a black man, was convicted by an all-white Illinois jury of three counts of attempted murder, two counts of [489 U.S. 288, 293] armed robbery, and one count of aggravated battery. During jury selection for petitioner's trial, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner's counsel used one of his 10 peremptory challenges to exclude a black woman who was married to a police officer. After the prosecutor had struck six blacks, petitioner's counsel moved for a mistrial. The trial court denied the motion. App. 2-3. When the prosecutor struck four more blacks, petitioner's counsel again moved for a mistrial, arguing that petitioner was "entitled to a jury of his peers." Id., at 3. The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury. The trial court denied the motion, reasoning that the jury "appear[ed] to be a fair [one]." Id., at 4.
On appeal, petitioner argued that the prosecutor's use of peremptory challenges denied him the right to be tried by a jury that was representative of the community. The Illinois Appellate Court rejected petitioner's fair cross section claim. People v. Teague, 108 Ill. App. 3d 891, 895-897, 439 N. E. 2d 1066, 1069-1071 (1982). The Illinois Supreme Court denied leave to appeal, and we denied certiorari.
Petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. Petitioner repeated his fair cross section claim, and argued that the opinions of several Justices concurring in, or dissenting from, the denial of certiorari in McCray v. New York,
On appeal, petitioner repeated his fair cross section claim and his McCray argument. A panel of the Court of Appeals agreed with petitioner that the Sixth Amendment's fair cross section requirement applied to the petit jury and held that petitioner had made out a prima facie case of discrimination. A majority of the judges on the Court of Appeals voted to rehear the case en banc, and the panel opinion was vacated. United States ex rel. Teague v. Lane, 779 F.2d 1332 (CA7 1985) (en banc) (Cudahy, J., dissenting). Rehearing was postponed until after our decision in Batson v. Kentucky,
II
Petitioner's first contention is that he should receive the benefit of our decision in Batson even though his conviction became final before Batson was decided. Before addressing petitioner's argument, we think it helpful to explain how Batson modified Swain. Swain held that a "State's purposeful or deliberate denial" to blacks of an opportunity to serve as jurors solely on account of race violates the Equal Protection Clause of the Fourteenth Amendment.
In Batson, the Court overruled that portion of Swain setting forth the evidentiary showing necessary to make out a prima facie case of racial discrimination under the Equal Protection Clause. The Court held that a defendant can establish a prima facie case by showing that he is a "member of a cognizable racial group," that the prosecutor exercised "peremptory challenges to remove from the venire members of the defendant's race," and that those "facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race."
In Allen v. Hardy, the Court held that Batson constituted an "explicit and substantial break with prior precedent" because it overruled a portion of Swain.
Petitioner's conviction became final 2 1/2 years prior to Batson, thus depriving petitioner of any benefit from the rule
[489
U.S. 288, 296]
announced in that case. Petitioner argues, however, that Batson should be applied retroactively to all cases pending on direct review at the time certiorari was denied in McCray because the opinions filed in McCray destroyed the precedential effect of Swain. Brief for Petitioner 23. The issue in McCray and its companion cases was whether the Constitution prohibited the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor's assumption that they would be biased in favor of other members of that same group. JUSTICES MARSHALL and BRENNAN dissented from the denial of certiorari, expressing the views that Swain should be reexamined and that the conduct complained of violated a defendant's Sixth Amendment right to be tried by an impartial jury drawn from a fair cross section of the community.
We reject the basic premise of petitioner's argument. As we have often stated, the "denial of a writ of certiorari imports no expression of opinion upon the merits of the case." United States v. Carver,
III
Petitioner's second contention is that he has established a violation of the Equal Protection Clause under Swain. Recognizing that he has not shown any systematic exclusion of blacks from petit juries in case after case, petitioner contends that when the prosecutor volunteers an explanation for the use of his peremptory challenges, Swain does not preclude an examination of the stated reasons to determine the legitimacy of the prosecutor's motive. Brief for Petitioner 35 (citing Batson,
Petitioner candidly admits that he did not raise the Swain claim at trial or on direct appeal. Brief for Petitioner 38-39. Because of this failure, petitioner has forfeited review of the claim in the Illinois courts. "It is well established that `where an appeal was taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those that could have been presented but were not are deemed waived.'" People v. Gaines, 105 Ill. 2d 79, 87-88, 473 N. E. 2d 868, 873 (1984) (citation omitted), cert. denied,
The fundamental fairness exception is a narrow one, and has been applied in limited circumstances. Compare People v. Goerger, 52 Ill. 2d 403, 406, 288 N. E. 2d 416, 418 (1972) (improper instruction on reasonable doubt "does not constitute such fundamental unfairness as to obviate the res judicata and waiver doctrines"), with People v. Ikerd, 47 Ill. 2d 211, 212, 265 N. E. 2d 120, 121 (1970) (fundamental fairness exception applies "where the right relied on has been
[489
U.S. 288, 298]
recognized for the first time after the direct appeal"), and People v. Hamby, 32 Ill. 2d 291, 294-295, 205 N. E. 2d 456, 458 (1965) (fundamental fairness exception applies to claims that defendant asked counsel to raise on direct appeal). It is clear that collateral relief would be unavailable to petitioner. See People v. Beamon, 31 Ill. App. 3d 145, 145-146, 333 N. E. 2d 575, 575-576 (1975) (abstract of decision) (not invoking fundamental fairness exception and holding that Swain claim not raised on direct appeal could not be raised for the first time in collateral proceedings). As a result, petitioner has exhausted his state remedies under 28 U.S.C. 2254(b) with respect to the Swain claim. See Engle v. Isaac,
Under Wainwright v. Sykes,
Our application of the procedural default rule here is consistent with Harris v. Reed, ante, at 263, which holds that a "procedural default does not bar consideration of a federal [489 U.S. 288, 299] claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar" (citations and internal quotations omitted). The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding. It is simply inapplicable in a case such as this one, where the claim was never presented to the state courts. See ante, at 268-270 (O'CONNOR, J., concurring).
IV
Petitioner's third and final contention is that the Sixth Amendment's fair cross section requirement applies to the petit jury. As we noted at the outset, Taylor expressly stated that the fair cross section requirement does not apply to the petit jury. See
A
In the past, the Court has, without discussion, often applied a new constitutional rule of criminal procedure to the defendant in the case announcing the new rule, and has confronted the question of retroactivity later when a different defendant sought the benefit of that rule. See, e. g., Brown v. Louisiana,
The question of retroactivity with regard to petitioner's fair cross section claim has been raised only in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim. See Brief for Petitioner 21-32; Brief for Respondent 31-38. Moreover, our sua sponte consideration of retroactivity is far from novel. In Allen v. Hardy, we addressed the retroactivity of Batson even though that question had not been presented by the petition for certiorari or addressed by the lower courts. See
In our view, the question "whether a decision [announcing a new rule should] be given prospective or retroactive effect should be faced at the time of [that] decision." Mishkin, Foreword: the High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 64 (1965). Cf. Bowen v. United States,
It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. See, e. g., Rock v. Arkansas,
Not all new rules have been uniformly treated for retroactivity purposes. Nearly a quarter of a century ago, in Linkletter, the Court attempted to set some standards by which to determine the retroactivity of new rules. The question in Linkletter was whether Mapp v. Ohio, which made the exclusionary rule applicable to the States, should be applied retroactively to cases on collateral review. The Court determined that the retroactivity of Mapp should be determined by examining the purpose of the exclusionary rule, the reliance of the States on prior law, and the effect on the administration of justice of a retroactive application of the exclusionary rule. Using that standard, the Court held that Mapp would only apply to trials commencing after that case was decided.
The Linkletter retroactivity standard has not led to consistent results. Instead, it has been used to limit application of certain new rules to cases on direct review, other new rules only to the defendants in the cases announcing such rules, and still other new rules to cases in which trials have not yet commenced. See Desist v. United States,
Application of the Linkletter standard led to the disparate treatment of similarly situated defendants on direct review. For example, in Miranda v. Arizona,
Dissatisfied with the Linkletter standard, Justice Harlan advocated a different approach to retroactivity. He argued that new rules should always be applied retroactively to cases on direct review, but that generally they should not be applied retroactively to criminal cases on collateral review. See Mackey v. United States,
In Griffith v. Kentucky,
- "`If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. . . . In truth, the Court's assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.'"
The Linkletter standard also led to unfortunate disparity in the treatment of similarly situated defendants on collateral review. An example will best illustrate the point. In Edwards v. Arizona,
B
Justice Harlan believed that new rules generally should not be applied retroactively to cases on collateral review. He argued that retroactivity for cases on collateral review could "be responsibly [determined] only by focusing, in the first instance,
[489
U.S. 288, 306]
on the nature, function, and scope of the adjudicatory process in which such cases arise. The relevant frame of reference, in other words, is not the purpose of the new rule whose benefit the [defendant] seeks, but instead the purposes for which the writ of habeas corpus is made available." Mackey,
- "Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed." Id. at 682-683.
Justice Harlan identified only two exceptions to his general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Mackey,
Last Term, in Yates v. Aiken,
We agree with Justice Harlan's description of the function of habeas corpus. "[T]he Court never has defined the scope of the writ simply by reference to a perceived need to assure that an individual accused of crime is afforded a trial free of constitutional error." Kuhlmann v. Wilson,
This Court has not "always followed an unwavering line in its conclusions as to the availability of the Great Writ. Our development of the law of federal habeas corpus has been attended, seemingly, with some backing and filling." Fay v. Noia,
These underlying considerations of finality find significant and compelling parallels in the criminal context. Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect. The fact that life and liberty are at stake in criminal prosecutions "shows only that `conventional notions of finality' should not have as much place in criminal as in civil litigation, not that they should have none." Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U. Chi. L. Rev. 142, 150 (1970). "[I]f a criminal judgment is ever to be final, the notion of legality must at some point include the assignment of final competence to determine legality." Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 450-451 (1963) (emphasis omitted). See also Mackey,
As explained by Professor Mishkin:
- "From this aspect, the Linkletter problem becomes not so much one of prospectivity or retroactivity of the rule but rather of the availability of collateral attack - in
[489
U.S. 288, 310]
[that] case federal habeas corpus - to go behind the otherwise final judgment of conviction. . . . For the potential availability of collateral attack is what created the `retroactivity' problem of Linkletter in the first place; there seems little doubt that without that possibility the Court would have given short shrift to any arguments for `prospective limitation' of the Mapp rule." Foreword, 79 Harv. L. Rev., at 77-78 (footnote omitted).
The "costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus . . . generally far outweigh the benefits of this application." Stumes,
We find these criticisms to be persuasive, and we now adopt Justice Harlan's view of retroactivity for cases on collateral review. Unless they fall within an exception to the 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. [489 U.S. 288, 311]
V
Petitioner's conviction became final in 1983. As a result, the rule petitioner urges would not be applicable to this case, which is on collateral review, unless it would fall within an exception.
The first exception suggested by Justice Harlan - that a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey,
The second exception suggested by Justice Harlan - that a new rule should be applied retroactively if it requires the observance of "those procedures that . . . are `implicit in the concept of ordered liberty,'" id., at 693 (quoting Palko,
- "Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction. For example, such, in my view, is the case with the right to counsel at trial now held a necessary condition precedent to any conviction
[489
U.S. 288, 312]
for a serious crime."
We believe it desirable to combine the accuracy element of the Desist version of the second exception with the Mackey requirement that the procedure at issue must implicate the fundamental fairness of the trial. Were we to employ the Palko test without more, we would be doing little more than importing into a very different context the terms of the debate over incorporation. Compare Duncan v. Louisiana,
Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge. We are also of the view that such rules are "best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus - that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods." Rose v.
[489
U.S. 288, 314]
Lundy,
An examination of our decision in Taylor applying the fair cross section requirement to the jury venire leads inexorably to the conclusion that adoption of the rule petitioner urges would be a far cry from the kind of absolute prerequisite to fundamental fairness that is "implicit in the concept of ordered liberty." The requirement that the jury venire be composed of a fair cross section of the community is based on the role of the jury in our system. Because the purpose of the jury is to guard against arbitrary abuses of power by interposing the commonsense judgment of the community between the State and the defendant, the jury venire cannot be composed only of special segments of the population. "Community participation in the administration of the criminal law . . . is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system." Taylor,
Were we to recognize the new rule urged by petitioner in this case, we would have to give petitioner the benefit of that new rule even though it would not be applied retroactively to others similarly situated. In the words of JUSTICE BRENNAN, such an inequitable result would be "an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum." Stovall v. Denno,
If there were no other way to avoid rendering advisory opinions, we might well agree that the inequitable treatment described above is "an insignificant cost for adherence to sound principles of decision-making." Stovall v. Denno,
For the reasons set forth above, the judgment of the Court of Appeals is affirmed.
- It is so ordered.
Footnotes
[ Footnote 1 ] The dissent asserts that petitioner's fair cross section claim does not embrace the concept of proportional representation on the petit jury. Post, at 340-342. Although petitioner disavows such representation at the beginning of his brief, he later advocates adoption of the standard set forth in Duren v. Missouri,
[
Footnote 2
] Because petitioner is not under sentence of death, we need not, and do not, express any views as to how the retroactivity approach we adopt today is to be applied in the capital sentencing context. We do, however, disagree with JUSTICE STEVENS' suggestion that the finality concerns underlying Justice Harlan's approach to retroactivity are limited to "making convictions final," and are therefore "wholly inapplicable to the capital sentencing context." Post, at 321, n. 3. As we have often stated, a criminal judgment necessarily includes the sentence imposed upon the defendant. See generally Flynt v. Ohio,
JUSTICE WHITE, concurring in part and concurring in the judgment.
I join Parts I, II, and III of JUSTICE O'CONNOR'S opinion. Otherwise, I concur only in the judgment. [489 U.S. 288, 317]
Our opinion in Stovall v. Denno,
I regret the course the Court has taken to this point, but cases like Johnson, Shea, and Griffith have been decided, and I have insufficient reason to continue to object to them. In light of those decisions, the result reached in Parts IV and V of JUSTICE O'CONNOR'S opinion is an acceptable application in collateral proceedings of the theories embraced by the Court in cases dealing with direct review, and I concur in that result. If we are wrong in construing the reach of the habeas corpus statutes, Congress can of course correct us; but because the Court's recent decisions dealing with direct review appear to have constitutional underpinnings, see e. g., Griffith v. Kentucky, supra, at 322-323, correction of our error, if error there is, perhaps lies with us, not Congress. [489 U.S. 288, 318]
JUSTICE BLACKMUN, concurring in part and concurring in the judgment.
I join Part I of JUSTICE STEVENS' opinion, post this page and 319-323, concurring in part and concurring in the judgment. So far as the petitioner's claim based upon Swain v. Alabama,
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins as to Part I, concurring in part and concurring in the judgment.
I
For the reasons stated in Part III of JUSTICE BRENNAN'S dissent, post, at 342, I am persuaded this petitioner has alleged a violation of the Sixth Amendment. 1 I also believe the Court should decide that question in his favor. I do not agree with JUSTICE O'CONNOR'S assumption that a ruling in petitioner's favor on the merits of the Sixth Amendment issue would require that his conviction be set aside. See ante, at 300, 315.
When a criminal defendant claims that a procedural error tainted his conviction, an appellate court often decides whether error occurred before deciding whether that error requires reversal or should be classified as harmless. I would follow a parallel approach in cases raising novel questions of constitutional law on collateral review, first determining [489 U.S. 288, 319] whether the trial process violated any of the petitioner's constitutional rights and then deciding whether the petitioner is entitled to relief. If error occurred, factors relating to retroactivity - most importantly, the magnitude of unfairness - should be examined before granting the petitioner relief. Proceeding in reverse, a plurality of the Court today declares that a new rule should not apply retroactively without ever deciding whether there is such a rule. 2
In general, I share Justice Harlan's views about retroactivity. See Mackey v. United States,
I do not agree, however, with the plurality's dicta proposing a "modification" of Justice Harlan's fundamental fairness exception. See ante, at 311-316. "[I]t has been the law, presumably for at least as long as anyone currently in jail has been incarcerated," Justice Harlan wrote, "that procedures utilized to convict them must have been fundamentally fair, that is, in accordance with the command of the Fourteenth Amendment that `[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.'" Mackey,
- "[T]he writ ought always to lie for claims of nonobservance of those procedures that, as so aptly described by Mr. Justice Cardozo in Palko v. Connecticut,
The plurality wrongly resuscitates Justice Harlan's early view, indicating that the only procedural errors deserving correction on collateral review are those that undermine "an accurate determination of innocence or guilt . . . ." See ante, at 313. I cannot agree that it is "unnecessarily anachronistic," ante, at 312, to issue a writ of habeas corpus to a petitioner convicted in a manner that violates fundamental principles of liberty. Furthermore, a touchstone of factual innocence would provide little guidance in certain important types of cases, such as those challenging the constitutionality of capital sentencing hearings.
3
Even when assessing errors
[489
U.S. 288, 322]
at the guilt phase of a trial, factual innocence is too capricious a factor by which to determine if a procedural change is sufficiently "bedrock" or "watershed" to justify application of the fundamental fairness exception. See ante, at 311. In contrast, given our century-old proclamation that the Constitution does not allow exclusion of jurors because of race, Strauder v. West Virginia,
As a matter of first impression, therefore, I would conclude that a guilty verdict delivered by a jury whose impartiality might have been eroded by racial prejudice is fundamentally unfair. Constraining that conclusion is the Court's holding in Allen v. Hardy,
II
I do not, however, agree with the Court's disposition of the contention that the prosecutor violated the Equal Protection Clause by using peremptory challenges to exclude black persons from petitioner's jury. Ante, at 297-299. The basis for this claim is Swain v. Alabama,
- "In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed
[489
U.S. 288, 324]
from the jury or that they were removed because they were Negroes."
Petitioner's trial counsel twice moved for a mistrial on the ground that the prosecutor impermissibly had exercised peremptory challenges to effect an all-white jury. The prosecutor responded that "numerous individuals that were excused were of very young years. There was an attempt, your Honor, to have a balance of an equal number of men and women . . . ." App. 3. 6 With little comment the trial court [489 U.S. 288, 325] denied the mistrial motions. There is substantial force to petitioner's argument that the volunteered explanations made this more than the "ordinary exercise of challenges" to which Swain's systematic proof requirement applies, Swain, supra, at 227, and that the trial court erred by failing to scrutinize the prosecutor's excuses. 7
I note, however, that petitioner never presented his Swain claim to the state courts before including it in the instant federal habeas petition. In Rose v. Lundy,
Because "the exhaustion rule requiring dismissal of mixed petitions . . . is not jurisdictional," Strickland v. Washington,
[ Footnote 1 ] Of course the Constitution does not require that every 12-person jury proportionally represent a "fair cross section" of the community. See ante, at 299. But as JUSTICE BRENNAN points out, post, at 341, and n. 8, petitioner does not claim such an entitlement. Petitioner does possess a right to have his petit jury selected by procedures that are "impartial." See U.S. Const., Amdt. 6 ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ."). It is clear to me that a procedure that allows a prosecutor to exclude all black venirepersons, without any reason for the exclusions other than their race appearing in the record, does not comport with the Sixth Amendment's impartiality requirement.
[
Footnote 2
] The plurality states that retroactivity questions ought to be decided at the same time a new rule of criminal procedure is announced. See ante, at 300. I agree that this should be the approach in most instances. By declaring retroactivity to be the "threshold question," ibid., however, the plurality inverts the proper order of adjudication. Among other things, until a rule is set forth, it would be extremely difficult to evaluate whether the rule is "new" at all. If it is not, of course, no retroactivity question arises. See, e. g., Yates v. Aiken,
[ Footnote 3 ] A major reason that Justice Harlan espoused limited retroactivity in collateral proceedings was the interest in making convictions final, an interest that is wholly inapplicable to the capital sentencing context. As he explained:
- "It is, I believe, a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view. See, e. g., Fay v. Noia, 372 U.S. [391,] 445 [(1963)] (Clark, J., dissenting); Spencer v. Texas,
[
Footnote 4
] Cf. Rose v. Lundy,
[
Footnote 5
] In addition, because I agree that the opinions in McCray v. New York,
[ Footnote 6 ] The colloquy surrounding the second motion for mistrial, made after the jury had been selected, was as follows:
- "MR. MOTTA [defense counsel]: As the Court is aware State exercised 10 peremptory challenges and each challenge excused a black person. I feel that my client is entitled to a jury of his peers, your Honor. I feel that he is being denied this. I would ask the Court for a mistrial.
- "MR. ANGAROLA [prosecutor]: We exercised more than 10 challenges. In fact we exercised 11 challenges and didn't just excuse black individuals. Counsel is incorrect when he stat[e]s that.
- "In fact, your Honor, one of the challenges, peremptory challenges exercised was against a white woman. In addition, your Honor, numerous individuals that were excused were of very young years. There was an attempt, your Honor, to have a balance of an equal number of men and women as the jury is now comprised there are seven men and five women sitting on the jury.
- "We feel that counsel's motion is totally improper.
- "MR. MOTTA: If I may respond to that briefly, your Honor, State exercised 10 peremptory challenges, all of 10 black people were excused; that
[489
U.S. 288, 325]
their one peremptory challenge for an alternate juror excused, I believe, a white woman. I think the record will reflect that ages and background of the individuals that were excused. They were all to sit on the regular jury. I am not talking about the alternate, the one white alternate that was excused by the State.
- "MR. ANGAROLA: As your Honor previously pointed out, counsel himself excluded a black, Mrs. McCleary, your Honor, who was a black individual who was accepted by the People, and he excused her.
- "THE COURT: Counsel, I feel that it would appear that the jury appears to be a fair jury. I will deny your motion." App. 3-4.
[
Footnote 7
] Recently the Court of Appeals for the Eighth Circuit employed this theory to hold that a prosecutor's volunteering of explanations for his use of peremptory challenges overcame the Swain presumption. Garrett v. Morris, 815 F.2d 509, cert. denied sub nom. Jones v. Garrett,
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Today a plurality of this Court, without benefit of briefing and oral argument, adopts a novel threshold test for federal review of state criminal convictions on habeas corpus. It does so without regard for - indeed, without even mentioning - our contrary decisions over the past 35 years delineating the broad scope of habeas relief. The plurality further appears oblivious to the importance we have consistently accorded the principle of stare decisis in nonconstitutional cases. Out of an exaggerated concern for treating similarly situated habeas petitioners the same, the plurality would for the first time preclude the federal courts from considering on collateral review a vast range of important constitutional
[489
U.S. 288, 327]
challenges; where those challenges have merit, it would bar the vindication of personal constitutional rights and deny society a check against further violations until the same claim is presented on direct review. In my view, the plurality's "blind adherence to the principle of treating like cases alike" amounts to "letting the tail wag the dog" when it stymies the resolution of substantial and unheralded constitutional questions. Griffith v. Kentucky,
I
The federal habeas corpus statute provides that a federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. 2254.
1
For well over a century, we have read this statute and its forbears to authorize federal courts to grant writs of habeas corpus whenever a person's liberty is unconstitutionally restrained. Shortly after the Habeas Corpus Act of 1867, ch. 27, 14 Stat. 385, empowered federal courts to issue writs of habeas corpus to state authorities, we noted: "This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties,
[489
U.S. 288, 328]
or laws. It is impossible to widen this jurisdiction." Ex parte McCardle, 6 Wall. 318, 325-326 (1868). See also Fay v. Noia,
In particular, our decisions have made plain that the federal courts may collaterally review claims such as Teague's once state remedies have been exhausted. In Brown v. Allen,
Our precedents thus supply no support for the plurality's curtailment of habeas relief.
2
Just as it was "a fortuity that we overruled Swain v. Alabama,
II
Unfortunately, the plurality turns its back on established case law and would erect a formidable new barrier to relief. Any time a federal habeas petitioner's claim, if successful, would result in the announcement of a new rule of law, the plurality says, it may only be adjudicated if that rule would "plac[e] `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,'" ante, at 307, quoting Mackey v. United States,
A
Astonishingly, the plurality adopts this novel precondition to habeas review without benefit of oral argument on the question and with no more guidance from the litigants than a three-page discussion in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24.
3
[489
U.S. 288, 331]
Although the plurality's approach builds upon two opinions written by Justice Harlan some years ago, see Mackey v. United States, supra, at 675 (opinion concurring in judgments in part and dissenting in part); Desist v. United States,
B
Equally disturbing, in my view, is the plurality's infidelity to the doctrine of stare decisis. That doctrine "demands respect in a society governed by the rule of law," Akron v.
[489
U.S. 288, 332]
Akron Center for Reproductive Health, Inc.,
In this case, as when we considered the reviewability of grand jury discrimination on habeas corpus, "we have been offered no reason to believe that any such metamorphosis has rendered the Court's long commitment to a rule of reversal outdated, ill-founded, unworkable, or otherwise legitimately vulnerable to serious reconsideration." Vasquez v. Hillery, supra, at 266. None of the reasons we have hitherto deemed necessary for departing from the doctrine of stare decisis are present. Our interpretations of the reach of federal habeas corpus have not proceeded from inadequate briefing or argumentation, nor have they taken the form of assertion unaccompanied by detailed justification. See, e. g., Copperweld Corp. v. Independence Tube Corp.,
C
The plurality does not so much as mention stare decisis. Indeed, from the plurality's exposition of its new rule, one might infer that its novel fabrication will work no great change in the availability of federal collateral review of state convictions. Nothing could be further from the truth. Although the plurality declines to "define the spectrum of what may or may not constitute a new rule for retroactivity purposes," it does say that generally "a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." Ante, at 301. Otherwise phrased, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Ibid. This account is extremely broad.
4
Few decisions on appeal or collateral review are "dictated" by what came before. Most such cases involve a question of law that is at least debatable, permitting a rational judge to resolve the case in more than one way. Virtually no case that prompts a dissent on the relevant legal point, for example, could be said to be "dictated" by prior decisions. By the plurality's test, therefore,
[489
U.S. 288, 334]
a great many cases could only be heard on habeas if the rule urged by the petitioner fell within one of the two exceptions the plurality has sketched. Those exceptions, however, are narrow. Rules that place "`certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,'" ante, at 307, quoting Mackey v. United States,
Its impact is perhaps best illustrated by noting the abundance and variety of habeas cases we have decided in recent years that could never have been adjudicated had the plurality's new rule been in effect. Although "history reveals no exact tie of the writ of habeas corpus to a constitutional claim relating to innocence or guilt," Schneckloth v. Bustamonte,
For example, in Nix v. Whiteside,
Likewise, because "the Fifth Amendment's privilege against self-incrimination is not an adjunct to the ascertainment of truth," Tehan v. Shott,
Habeas claims under the Double Jeopardy Clause will also be barred under the plurality's approach if the rules they seek to establish would "brea[k] new ground or impos[e] a new obligation on the States or the Federal Government," ante, at 301, because they bear no relation to the petitioner's
[489
U.S. 288, 337]
guilt or innocence. See, e. g., Crist v. Bretz,
D
These are massive changes, unsupported by precedent.
6
They also lack a reasonable foundation. By exaggerating the importance of treating like cases alike and granting relief to all identically positioned habeas petitioners or none, "the Court acts as if it has no choice but to follow a mechanical notion of fairness without pausing to consider `sound principles
[489
U.S. 288, 338]
of decisionmaking.'" Griffith v. Kentucky,
Other things are not always equal, however. Sometimes a claim which, if successful, would create a new rule not appropriate for retroactive application on collateral review is better presented by a habeas case than by one on direct review. In fact, sometimes the claim is only presented on collateral review. In that case, while we could forgo deciding the issue in the hope that it would eventually be presented squarely on direct review, that hope might be misplaced, and even if it were in time fulfilled, the opportunity to check constitutional violations and to further the evolution of our thinking in some area of the law would in the meanwhile have been lost. In addition, by preserving our right and that of the lower federal courts to hear such claims on collateral review, we would not discourage their litigation on federal habeas corpus and [489 U.S. 288, 339] thus not deprive ourselves and society of the benefit of decisions by the lower federal courts when we must resolve these issues ourselves.
The plurality appears oblivious to these advantages of our settled approach to collateral review. Instead, it would deny itself these benefits because adherence to precedent would occasionally result in one habeas petitioner's obtaining redress while another petitioner with an identical claim could not qualify for relief.
7
In my view, the uniform treatment of habeas petitioners is not worth the price the plurality is willing to pay. Permitting the federal courts to decide novel habeas claims not substantially related to guilt or innocence has profited our society immensely. Congress has not seen fit to withdraw those benefits by amending the statute that provides for them. And although a favorable decision for a petitioner might not extend to another prisoner whose identical claim has become final, it is at least arguably better that the wrong done to one person be righted than that none of the injuries inflicted on those whose convictions have become final be redressed, despite the resulting inequality in treatment. I therefore adhere to what we said in Stovall v. Denno, supra, where we held that the rules we laid down in United States v. Wade,
- "We recognize that Wade and Gilbert are, therefore, the only victims of pretrial confrontations in the absence of their counsel to have the benefit of the rules established in their cases. That they must be given that benefit is, however, an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum. Sound policies of decision-making, rooted in the command of Article III of the Constitution that we resolve issues solely in concrete cases or controversies, and in the possible effect upon the incentive of counsel to advance contentions requiring a change in the law, militate against denying Wade and Gilbert the benefit of today's decisions. Inequity arguably results from according the benefit of a new rule to the parties in the case in which it is announced but not to other litigants similarly situated in the trial or appellate process who have raised the same issue. But we regard the fact that the parties involved are chance beneficiaries as an insignificant cost for adherence to sound principles of decision-making." Id., at 301 (footnotes omitted).
III
Even if one accepts the plurality's account of the appropriate limits to habeas relief, its conclusion that Teague's claim may not be heard is dubious. The plurality seeks to give its decision a less startling aspect than it wears by repeatedly mischaracterizing Teague's Sixth Amendment claim. As the plurality would have it, Teague contends "`that petit juries actually chosen must mirror the community and reflect the
[489
U.S. 288, 341]
various distinctive groups in the population,'" ante, at 292, quoting Taylor v. Louisiana,
Once Teague's claim is characterized correctly, the plurality's assertions that on its new standard his claim is too novel to be recognized on habeas corpus, ante, at 301, and that the right he invokes is "a far cry from the kind of absolute pre-requisite to fundamental fairness that is `implicit in the concept of ordered liberty,'" ante, at 314, are dubious. The requirement Teague asks us to impose does not go far beyond our mandates in Taylor, Duren, and Batson; indeed, it flows quite naturally from those decisions. The fact that the Sixth Amendment would permit a challenge by a defendant who did not belong to a cognizable group whose members were discriminatorily excluded from the jury does not alter that conclusion. As we said in Rose v. Mitchell,
- "Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice. Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process. The exclusion from grand jury service of Negroes, or any group otherwise qualified to serve, impairs the confidence of the public in the administration of justice. As this Court repeatedly has
[489
U.S. 288, 343]
emphasized, such discrimination `not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.' Smith v. Texas,
- "It is obvious that discriminatory exclusion of Negroes from a trial jury does, or at least may, prejudice a Negro's right to a fair trial, and that a conviction so obtained should not stand. The trial jury hears the evidence of both sides and chooses what it will believe. In so deciding, it is influenced by imponderables - unconscious and conscious prejudices and preferences - and a thousand things we cannot detect or isolate in its verdict and whose influence we cannot weigh. A single juror's dissent is generally enough to prevent conviction. A trial jury on which one of the defendant's race has no chance to sit may not have the substance, and cannot
[489
U.S. 288, 344]
have the appearance, of impartiality, especially when the accused is a Negro and the alleged victim is not." Cassell v. Texas,
IV
A majority of this Court's Members now share the view that cases on direct and collateral review should be handled differently for retroactivity purposes. See Griffith v. Kentucky,
In my view, that is not a question we should decide here. The better course would have been to grant certiorari in another case on collateral review raising the same issue and to resolve the question after full briefing and oral argument. JUSTICES BLACKMUN and STEVENS, ante, pp. 319-320, disagree. They concur in the Court's judgment on this point because they find further discussion unnecessary and because they believe that, although Teague's Sixth Amendment claim is meritorious, neither he nor other habeas petitioners may benefit from a favorable ruling. As I said in Stovall v. Denno, supra, at 301, according a petitioner relief when his claim prevails seems to me "an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum." But I share the view of JUSTICES BLACKMUN and STEVENS that the retroactivity question is one we need not address until Teague's claim has been found meritorious. Certainly it is not one the Court need decide before it considers the merits of Teague's claim because, as the plurality mistakenly contends, its resolution properly determines whether the merits should be reached. By repudiating our familiar approach without regard for the doctrine of stare decisis, the plurality would deprive us of the manifold advantages of deciding important constitutional questions when they come to us first or most cleanly on collateral review. I dissent.
[ Footnote 1 ] Prisoners sentenced by a federal court may seek to have their sentences vacated, corrected, or set aside "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. 2255. The plurality does not address the question whether the rule it announces today extends to claims brought by federal, as well as state, prisoners.
[
Footnote 2
] Until today, this Court has imposed but one substantive limitation on the cognizability of habeas claims. In Stone v. Powell,
Our ruling in Rose v. Mitchell, supra, confirms this conclusion. We there rejected the argument that our holding in Stone v. Powell should be extended to preclude federal habeas review of claims of racial discrimination in the selection of members of a state grand jury, notwithstanding the fact that the selection of petit jurors was free from constitutional infirmity and that guilt was established beyond a reasonable doubt at a trial devoid of constitutional error. Teague's challenge to the composition of the petit jury is perforce on even firmer ground. See also Kimmelman v. Morrison,
[
Footnote 3
] As the plurality points out, ante, at 300, our decision in Allen v. Hardy,
[
Footnote 4
] Compare Justice Stewart's much more restrained approach in Milton v. Wainwright,
[
Footnote 5
] In "limiting the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished," ante, at 313, the plurality presumably intends the exception to cover claims that involve the accuracy of the defendant's sentence as well as the accuracy of a court's determination of his guilt. See Smith v. Murray,
[
Footnote 6
] The plurality's claim that "our cases have moved in the direction of reaffirming the relevance of the likely accuracy of convictions in determining the available scope of habeas review," ante, at 313, has little force. Two of the cases it cites - Kuhlmann v. Wilson,
[
Footnote 7
] The plurality's complaint that prior retroactivity decisions have sometimes led to more than one habeas petitioner's reaping the benefit of a new rule while most habeas petitioners obtained no relief because of "our failure to treat retroactivity as a threshold question," ante, at 305, is misguided. The disparity resulting from our deciding three years later, in Solem v. Stumes,
[
Footnote 8
] The plurality's persistent misreading of Teague's claim, ante, at 301-302, n. 1, is puzzling. To be sure, Teague does argue that the principles informing our decision in Duren v. Missouri,
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TEAGUE v. LANE, 489 U.S. 288(1989)
Citation: 489 U.S. 288
No. 87-5259
Argued: October 04, 1988
Decided: February 22, 1989
Court: United States Supreme Court
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