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Binding Authority — Retroactivity Analysis

State v. Anou Lo, 2003 WI 107, affirming unpublished opinion of court of appeals
For Lo: Robert R. Henak
Amicus Briefs: Joseph N. Ehmann, Wm. J. Tyroler, SPD; Meredith J. Ross, Walter J. Dickey, UW Law School

Issue/Holding: Retroactivity on collateral attack of a  “new” rule– one imposing a new obligation on the state and not dictated by prior precedent – must satisfy the test of Teague v. Lane, 489 U.S. 288 (1989), ¶62: ¶63. As we noted in State v. Howard, 211 Wis. 2d 269, 282, 564 N.W.2d 753 (1997), overruled on other grounds by State v. Gordon, 2003 WI 69, ___ Wis. 2d ___, ___ N.W.2d ___, the United States Supreme Court set the parameters for the federal doctrine of non-retroactivity in collateral proceedings in its Teague decision. New rules merit retroactive application on collateral review only in two instances. “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.'” Teague, 489 U.S. at 307 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in part and dissenting in part)). “Second, 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.(citing Mackey, 401 U.S. at 693) (Harlan, J., concurring in part and dissenting in part) (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937))). In Graham, the Court defined the second element of retroactivity on collateral review as one involving a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. Graham, 506 U.S. at 478. The Court explained that this retroactivity exception is meant to apply to only a small core of rules that are implicit in the concept of ordered liberty.Id.(\

In this particular instance, the holding of State v. Head2002 WI 99 [first-degree intentional homicide mitigated to 2nd-degree if defendant had actual but unreasonable belief in necessity of deadly force] deemed a new rule not requiring retroactive application to collateral attacks under this test. ¶¶70-71. The court also recognizes, though in passing, that “a change in substantive law” isn’t governed by Teague, ¶72. And, the court seems to acknowledge that a change in proof of the elements would be a substantive change, but the court scants the change it actually worked in Head, which it characterizes as a mere change as to how the state disproves mitigators while the elements remain the same. ¶73.


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