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SCOTUS eliminates “watershed rule” exception to retroactivity doctrine

Edwards v. Vannoy, USSC No. 19-5807, 141 S.Ct. 1547 (May 17, 2021), affirming 2019 WL 8643258 (5th Cir. May 20, 2019) (denying certificate of appealability); Scotusblog page (including links to briefs and commentary)

This decision alters the long-standing doctrine for deciding whether new rules of criminal procedure established by a decision of the Supreme Court apply retroactively to cases that are final and, therefore, require the defendant to seek collateral review of his or her conviction. The result is that new rules of criminal procedure will no more forever apply retroactively to cases on collateral review.

The new rule that serves as the occasion for this upending of the retroactivity doctrine is the one announced last Term in Ramos v. Louisiana, which held that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts. At the time Ramos was decided, only two states—Louisiana and Oregon—still allowed non-unanimous jury verdicts in criminal cases, so the number of cases to which the  substantive rule adopted in Ramos would apply is limited. Ramos indisputably applies to cases from those two states still on direct review. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). The question in this case is whether Ramos applies retroactively to cases in which the defendant has exhausted direct review and, because the conviction is final, is now seeking relief via collateral review.

Under the Court’s long-standing retroactivity doctrine, a new rule of criminal procedure ordinarily does not apply retroactively to overturn final convictions on federal collateral review. Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion); Penry v. Lynaugh, 492 U.S. 302, 313-14 (1989). (New substantive rules, which, involve the range of conduct that can be criminalized, ordinarily do apply retroactively. Welch v. United States, 578 U.S. 120, 128-29 (2016).) There’s an exception to this ordinary bar on retroactivity for rules so significant they constitute a “watershed” rule of criminal procedure. Teague, 489 U.S. at 311.

So the first question in retroactivity cases is whether the rule the defendant is seeking to apply to his case on collateral review is a “new” one, that is, one not dictated by existing precedent. The Court has no problem concluding Ramos established a new rule, for it overruled past precedent allowing non-unanimous juries in state criminal cases, Apodaca v. Oregon, 406 U.S. 404 (1972). (Slip op. 8-10).

Having established that Edwards seeks to apply Ramos‘s new rule to his final conviction, the next question is whether it is a “watershed” rule. The majority (O’Kavanaugh, joined by Roberts, Alito, Gorsuch, Barrett) holds it isn’t, but does so by declaring there is no such thing as a watershed rule.

The Court, the majority says, has identified a watershed rule only once, involving the right to counsel identified in Gideon v. Wainwright, 372 U.S. 335 (1963), but not in other landmark cases involving, e.g., the exclusionary rule, see Mapp v. Ohio, 367  U.S. 643 (1961), and Linkletter v. Walker, 381 U.S. 618 (1965); interrogation rights,  see Miranda v. Arizona, 384 U.S. 436 (1966), and Johnson v. New Jersey, 384 U.S. 719 (1966); nondiscrimination in jury selection, see Batson v. Kentucky, 476 U.S. 79 (1986), and Allen v. Hardy, 478 U.S. 255 (1986); and the right to confrontation, see Crawford v. Washington, 541 U.S. 36 (2004), and Whorton v. Bockting, 549 U.S. 406 (2007). (Slip op. 10-14). If it hasn’t done so in those cases, the majority asks, will the Court ever will find one?  The answer:

At this point, some 32 years after Teague, we think the only candid answer is that none can—that is, no new rules of criminal procedure can satisfy the watershed exception. We cannot responsibly continue to suggest otherwise to litigants and courts. In Teague itself, the Court recognized that the purported exception was unlikely to apply in practice, because it was “unlikely” that such watershed “components of basic due process have yet to emerge.” 489 U.S. at 313….  And for decades, the Court has rejected watershed status for new procedural rule after new procedural rule, amply demonstrating that the purported exception has become an empty promise.

Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts. Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. It is time—probably long past time—to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund. It must “be regarded as retaining no vitality.” Herrera v. Wyoming, 587 U. S. __, ___, 139 S.Ct. 1686, 1697 (2019)…. (Slip op. at 15).

Thomas concurs (joined by Gorsuch, who also writes his own concurrence), saying the Court should have simply denied relief based on AEDPA, which bars federal habeas relief unless the state court unreasonably applied clearly established federal law. At the time of Edwards’s direct appeal, Apodaca was established federal law, and the state court’s correctly applied it, so that’s the end of the story.

A withering—indeed, biting—dissent by Justice Kagan (joined by Breyer and Sotomayor) argues that the jury-unanimity requirement is so clearly a watershed rule that to avoid reaching that holding the majority had no choice but to scrap the watershed exception altogether. The opening paragraphs of the dissent (at 1-3) are worth quoting at length for their incisive arraignment of the bankruptcy of the majority decision:

“A verdict, taken from eleven, [i]s no verdict at all,” this Court proclaimed just last Term. Ramos v. Louisiana, 590 U. S. __, __ (2020) (slip op. at 4-5) (internal quotation marks omitted). Citing centuries of history, the Court in Ramos termed the Sixth Amendment right to a unanimous jury “vital,” “essential,” “indispensable,” and “fundamental” to the American legal system. Id., at __, __, __ (slip op., at 4, 6, 7). The Court therefore saw fit to disregard stare decisis and overturn a 50-year-old precedent enabling States to convict criminal defendants based on non-unanimous verdicts. And in taking that weighty step, the Court also vindicated core principles of racial justice. For in the Court’s view, the state laws countenancing non-unanimous verdicts originated in white supremacism and continued in our own time to have racially discriminatory effects. See id., at __-__(slip op., at 2–3); id., at __ (Sotomayor, J., concurring in part) (slip op., at 4); id., at __-__ (Kavanaugh, J., concurring in part) (slip op., at 12–15). Put all that together, and it is easy to see why the opinions in Ramos read as historic. Rarely does this Court make such a fundamental change in the rules thought necessary to ensure fair criminal process. If you were scanning a thesaurus for a single word to describe the decision, you would stop when you came to “watershed.”

Yet the Court insists that Ramos’s holding does not count as a “watershed” procedural rule under Teague v. Lane, 489 U.S. 288, 311 (1989) (plurality opinion). The result of today’s ruling is easily stated. Ramos will not apply retroactively, meaning that a prisoner whose appeals ran out before the decision can receive no aid from the change in law it made. So Thedrick Edwards, unlike Evangelisto Ramos, will serve the rest of his life in prison based on a 10-to-2 jury verdict. Only the reasoning of today’s holding resists explanation. The majority cannot (and indeed does not) deny, given all Ramos said, that the jury unanimity requirement fits to a tee Teague’s description of a watershed procedural rule. Nor can the majority explain its result by relying on precedent. Although flaunting decisions since Teague that held rules non-retroactive, the majority comes up with none comparable to this case. Search high and low the settled law of retroactivity, and the majority still has no reason to deny Ramos watershed status.

So everything rests on the majority’s last move—the overturning of Teague’s watershed exception. If there can never be any watershed rules—as the majority here asserts out of the blue—then, yes, jury unanimity cannot be one. The result follows trippingly from the premise. But adopting the premise requires departing from judicial practice and principle. In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis. It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the “special justification” our law demands. Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014). The majority in that way compounds its initial error: Not content to misapply Teague’s watershed provision here, see ante, at 10-14, the majority forecloses any future application, see ante, at 14-15. It prevents any procedural rule ever—no matter how integral to adjudicative fairness—from benefiting a defendant on habeas review. Thus does a settled principle of retroactivity law die, in an effort to support an insupportable ruling.

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