States allowed to expand criminal rights
Dividing 7-2, the Supreme Court ruled Wednesday that states, under their own laws or constitutions, may give state prisoners the retroactive benefit of Supreme Court criminal law decisions, even if the Court itself has ruled they are not retroactive under federal law. Justice John Paul Stevens wrote for the majority in Danforth v. Minnesota (06-8273). Chief Justice John G. Roberts, Jr., dissented, joined by Justice Anthony M. Kennedy.
The issue in the case is whether the so-called “Teague” formula (Teague v. Lane) for deciding when a Supreme Court ruling on criminal procedure is to apply to earlier cases was binding on the states. Justice Stevens wrote: “The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. We have never suggested that it does, and now hold that it does not.”
The case involved the Supreme Court’s 2004 decision in Crawford v. Washington, barring the admission at trial of out-of-court or pre-trial testimony, if that testimony had not been subjected to cross-examination and the witness could not be called at the trial. The Court, in Whorton v. Bockting in 2007, ruled that the Crawford rule does not apply retroactively; that decision was based on Teague v. Lane.
A Minnesota prison inmate, Stephen Danforth, serving a 316-month prison sentence for a conviction of sexual abuse of a six-year-old boy, claimed that the admission in evidence of a videotape interview with the boy, who did not appear at trial, violated Danforth’s rights under Crawford. The Minnesota Supreme Court, however, ruled that federal law governed the retroactivity issue, and that Crawford was not retroactive under the Teague formula. It was while Danforth’s case was pending in the Supreme Court that the Justices decided in Whorton not to apply Crawford to earlier cases. The Court then agreed to hear Danforth’s appeal.
“A decision by this Court that a new rule does not apply retroactively under Teague,” Justice Stevens wrote, “does not imply that there was no right and thus no violation of that right at the time of trial — only that no remedy will be provided in federal habeas courts. It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process.”
Stevens added: “The states that give broader retroactive effect to this Court’s new rules of criminal procedure do not do so by misconstruing the federal Teague standard. Rather, they have developed state law to govern retroactivity in state post-conviction proceedings.” Federal law does not prohibit them from doing so, the Court said.
The case was returned to the Minnesota Supreme Court for a further ruling on whether Danforth is entitled to any legal relief. That will depend upon whether the state’s constitution or laws give defendants in Minnesota the right to retroactive benefit of new criminal procedure decisions.
Chief Justice Roberts, in dissent, said the decision was “contrary to the Supreme Clause and the Framers’ decision to vest in ‘one supreme Court’ the responsibility and authority to ensure the uniformity of federal law.” Citing Marbury v. Madison (1803), the Chief Justice noted that “this Court has held that the question whether a particular ruling is retroactive is itself a question of federal law. It is basic tghat when it cmes to any such question of federal law, it is ‘the province and duty’ of this Court ‘to say what the law is.’….State courts are the final arbiters of their own state law; this Court is the final arbiter of federal law. State courts are therefore bound by our rulings on whether our cases construing federal law are retroactive.”
This is a Pyrrhic victory for the defense. The Court today accepted my view of Teague as a limitation on the habeas remedy, see 98 Colum. L. Rev. 888, rejected Prof. Liebman’s view that it is a choice-of-law rule, see 98 Colum. L. Rev. 695, and driven multiple nails into the Reynoldsville Casket attack on 28 U.S.C. § 2254(d).
More on this at Crime and Consequences, here
Comment by Kent Scheidegger — February 20, 2008 @ 12:36 pm
Editing glitch — should be “drove.”
Comment by Kent Scheidegger — February 20, 2008 @ 12:37 pm
Kent, do you think that the fact that Stevens wrote this opinion so forcefully and with so much citation to Scalia, means that he thinks that the prudential fight in Kansas v. Marsh over whether to take the case at all has not been settled.
Comment by Sean O'Brien — February 20, 2008 @ 2:08 pm
Kent, I think you misrepresent this opinion. Stevens consistently speaks of “post-conviction relief”. He is saying that the action available under 28 USC 2241 is not the same as the action available under Minn. Stat. 590.01 therefore limitations on the first apply to the second only to the extent Minnesota adopts them. The substantive standards of the federal constitution are definitively interpreted by the US Supreme Court, of course, and if a 2241 action will lie pursuant to Teague (and AEDPA), it is futile (and actionable under 1983) for the state to say that its form of post-conviction review does not grant relief based on that constitutional violation (assuming compliance with procedural requirements). (It is this one-way ratchet that Roberts objects to.) Take something like the case we had here in Georgia, where an 18-year-old boy was sentenced to 20 years for having sex with a 15-year-old girl, and afterward a Romeo-and-Juliet law was passed that made sex between a minor and an adult less than 4 years apart a misdemeanor. The sentence was valid when pronounced and could have been sustained on both state and federal post-conviction relief. But under today’s decision, the Georgia Supreme Court was also free to say that, for purposes of post-conviction relief, a sentence would be considered excessive under the 8th Amendment if it could not be assessed at the time post-conviction relief was sought. Today’s case does not deal at all with constitutional (what you call suspension-clause) habeas. Suppose the French ambassador is caught soliciting sex in the Minneapolis airport restroom, and, hoping to avoid scandal, he pleads guilty and lets all appellate and post-conviction deadlines pass. The state does not have to provide him a forum, not being bound by Article I, but federal courts must still hear his constitutional habeas claim on the basis that the Minnesota court had no jurisdiction over him.
Comment by Roger Friedman — February 20, 2008 @ 3:05 pm
The tone and demeanor of the dissent in this case suggests to me that Chief Justice Roberts and Kennedy have voted not to exclude the evidence in Virginia v. Moore. While of course the cases are distinguishable, Roberts and Kennedy seem to be prsctically horrified by a prospect of allowing the practical effect of federal law to differ from state to state: in this case concerning the remedy, and in Moore concerning the exclusion of evidence from an arrest permitted by federal law.
Comment by Jacob Berlove — February 20, 2008 @ 3:36 pm
When you unpack everything Teague and the AEDPA standard are simply res judicata/full faith and credit issues, i.e., how much res judicata effect will the prior state judgment be given. That stuff is wholly inapplicable to what res judicata effect a state court gives a state court judgment.
Did I miss something?
Comment by Sean O'Brien — February 20, 2008 @ 3:48 pm
Roger, first you state that I misrepresent the opinion but then you go off on a tangent that has nothing to do with my comment. Neither your Georgia example nor your jurisdictional challenge example are inconsistent with my view that Congress can constitutionally require federal courts to let judgments of state courts of competent jurisdiction stand when they are collaterally attacked over disagreements on close questions. Today’s opinion reinforces an important pillar of that argument. Teague’s status as limit on the habeas remedy confirms that the remedy can be selectively limited to those cases where Congress (or the Court in the absence of direction from Congress) thinks the benefit is worth the cost.
For what it’s worth, Congress could deny federal habeas jurisdiction to a state prisoner claiming diplomatic immunity, and the First Congress did. See Ex parte Cabrera, 4 F. Cas. 964 (1805).
Sean, it could be that Scalia needed some persuading. At oral argument he seemed to be going over to the view of retroactivity as a substantive rule rather than a limit on a remedy. I’m glad to see that he didn’t go that way in the end.
Comment by Kent Scheidegger — February 20, 2008 @ 3:50 pm
“Sean, it could be that Scalia needed some persuading. At oral argument he seemed to be going over to the view of retroactivity as a substantive rule rather than a limit on a remedy. I’m glad to see that he didn’t go that way in the end”
Kent, I think you’re spot on. From the oral argument, i didn’t think the court would agree with Justice Stevens. ( At least not Justice Scalia,Thomas,or Alito) While most of the opinion quoted quite a bit Scalia, it was indicative from the oral argument how Stevens would write this case whether he was in the majority or the dissent.
In fact, this opinions for this case, sounded pretty much what was covered in the oral argument. Stevens adamant about the difference between right & remedy. Kennedy and Roberts both fiercely believing that SCOTUS gets the last say on retroactivity.
The real suspense for me is how did Stevens get Scalia, Thomas and Alito to sign his rather than Roberts’ opinion given what happened in the oral argument!
Comment by Chee Foong Chew — February 20, 2008 @ 4:22 pm
Stevens’ positions in Kansas v. Marsh and this case have some parallels, although the two cases are obviously distinguishable.
I still fail to see how Roberts dissent can overcome the fact that the res judicata effect of a prior state court decision on subsequent state court proceeding is a state law issue.
It was great to see how the Teague rule was explicitly tied to statutory language “as law and justice require”. This, as Kent points out, strengthens the view that AEDPA is a valid exercise of Congressional power.
Comment by Sean O'Brien — February 20, 2008 @ 5:05 pm
Kent:
In the early days, state courts issued habeas writs on behalf of persons in federal custody. Stevens’ history of federal habeas starts with an 1830 decision and picks up during the Civil War, when of course federal supremacy was the issue.
Here you claim victory on the basis that Teague is described as a limitation on the “habeas remedy” rather than “choice of law”, while on your website you claim this is relevant to constitutional habeas. Stevens’ discussion at 13 and n.15 makes it clear that he is talking about the statutory action. “Since Teague is based on statutory authority that extends only to federal courts applying a federal statute, it cannot be read as imposing a binding obligation on state courts.” Nor, equally, on constitutional habeas. The writ of habeas corpus emitting from the statutory action is no more like that emitting from the constitutional action or like that emitting from a state action than it is like habeas corpus ad testificandum.
My two examples showed that state and federal courts can apply the same constitutional law with different results due to different conceptions of how post-conviction relief works (Georgia) and that constitutional habeas and 2241 are not necessarily coextensive (immunity). I’m sorry if their relevance or obviousness didn’t seem as clear to you as to me.
Comment by Roger Friedman — February 20, 2008 @ 6:21 pm
“…while on your website you claim this is relevant to constitutional habeas.”
If by “constitutional habeas” you mean habeas as required by the Suspension Clause, the only point in today’s decision relevant to that question is the Court’s acknowledgment that common law habeas (and therefore the Suspension Clause) was limited to jurisdictional questions. That was once a furious historical debate, but it’s largely over, and the Fay v. Noia revisionism lies in ruins.
The primary debate over § 2254(d)– the one in the two law review articles I cited in the beginning and the one before the Ninth Circuit in Irons v. Carey — is all about the statutory writ and whether Congress can, consistently with Article III, require “deference” (actually a limited form of res judicata) to state court judgments in a class of cases where Congress could repeal the jurisdiction entirely if it chose. Today’s holding on the nature of the Teague rule is highly relevant to that debate, as I explained in comment 7, above.
Comment by Kent Scheidegger — February 20, 2008 @ 7:21 pm
I am not an attorney and thus obviously do not understand the merits of this case, however I am the very proud Father in Law of Ben Butler, the young lawyer who argued this case for the Defense.
Winning 7 - 2 seems very impressive to me for sure. Way to go Ben! I didn’t get to see Ben in action as I had the best job of babysitting Caroline, Ben & Katherines 3 1/2 year old while they were in Washington. So in effect, we both won. Love you all! Dad, Denny, Grandpa Ohio
Comment by Dennis D Stafford — February 21, 2008 @ 6:44 am
The argument that Danforth strengthens the constitutionality of 28 U.S.C. 2254(d)(1) is based on a skewed reading of the opinion which does not account for the fact that it was written by Justice Stevens — who, in Williams v. Taylor, wanted to construe section 2254(d)(1) in a manner so as to avoid constitutional problems. I, instead, believe that Danforth undermines the section 2254(d)(1)’s constitutionality.
Danforth’s holding is very simple: The Teague doctrine does not constrain the authority of a state court to give retroactive effect to a new rule of federal constitutional law on state collateral attacks even when the U.S. Supreme Court has held that such a new rule will not be given retroactive effect on federal habeas review.
Who does Danforth help: It helps the criminal defense bar and those who seek expansion of rights under state constitutions and state law. If the Supreme Court is going to give retroactive effect to a new rule under Teague, that retroactive effect must automatically be applied on state and federal habeas review. If, however, the Supreme Court is not going to provide retroactive effect on federal habeas review, the state court is allowed to provide retroactive effect to the U.S. Supreme Court decision under Danforth.
Danforth undermines 2254’s constitutionality because it is yet another opinion by Justice Stevens which makes it more plausible to hold that a state prisoner’s “right” to seek federal habeas review is not merely a statutory one — it is a constitutional one, or in the alternative, the statutory right is constitutionally compelled by the Suspension Clause. Section II of Justice Stevens’s opinion notes that although it was the 1867 statute which gave federal courts jurisdiction over habeas petitions from state prisoners, jurisdiction over these petitions was unnecessary prior to the ratification of the Fourteenth Amendment. Federal review of state convictions prior to the Fourteenth Amendment was unnecessary as persons convicted in state court did not enjoy the protections of the Bill of Rights. Since the writ of habeas corpus had existed as a common law right for about 400 years prior to 1867, its potential for the review of state convictions in federal court was only realized when state prisoners can were given an opportunity — vis-a-vis the Fourteenth Amendment — to claim violations of such rights in state courts by filing habeas petitions in federal courts. I would argue that Congress understood in 1867 that it must, under the Suspension Clause, provide state prisoners a right to petition the federal court for a writ of habeas corpus.
The argument for for section 2254’s unconstitutionality is obviously stronger if the right of a state prisoner to seek federal habeas review is constitutional rather than statutory. Although Justice Stevens has never held such, by reading his opinion in Rasul v. Bush (section 2241 petitions) and Williams v. Taylor (in which he interpreted section 2254 in a manner so as to avoid constitutional problems — whereas Justice O’Connor did otherwise) in conjunction with section II of Danforth, it appears that he believes that a state prisoner has a constitutional right to seek habeas relief from a federal court.
A reading of Marbury v. Madison which would only extend the court’s judicial review power to say what the law is and not deny force and effect to unconstitutional state court decisions undermines both judicial review and the Supremacy clause of the Constitution. As Professor Monaghan has summarized it: “There is no half-way position in constitutional cases; so long as it is directed to decide the case, an article III court cannot be ‘jurisdictionally’ shut off from full consideration of the substantive constitutional issues, at least absent adequate opportunity for consideration of those claims in another article III tribunal.”
As then-Judge and now Justice Kennedy explained: “If the essential, constitutional role of the judiciary is to be maintained, there must be both the appearance and the reality of control by Article III judges over the interpretation, declaration, and application of federal law.” Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir. 1984) (en banc).
Although it is not relevant to the point being made here, Danforth’s holding raises two more problems which the Danforth majority did not anticipate: (1) What happens if the state court gives retroactive effect to a new rule on state habeas reveiw (to which the U.S. Supreme Court has not given retroactive effect on federal habeas review) and misapplies the rule. Can the petitioner seek federal habeas review and argue that the state court decision was contrary to or an unreasonable application of federal law as determined by the Supreme Court when the Supreme Court had earlier decided to not give retroactive effect to the rule? (2) What happens if the Minnesota Supreme Court, when giving retroactive effect to Crawford v. Washington, 541 U.S. 36 (2004) pursuant to the holding in Danforth, narrows the application of Crawford on state collateral review? Can the petitioner go to a federal district court and argue that the Minnesota state court narrowly applied Crawford on state habeas review when the U.S. Supreme Court had refused to give Crawford retroactive effect on federal habeas review.
Comment by Muhammad Faridi — February 24, 2008 @ 10:05 pm