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ARGUMENT
I. The retroactivity of federal constitutional rules of criminal procedure on
state postconviction review is governed by the
standard of Teague v. Lane.

"A threshold question in every habeas case" is whether the defendant's claim is defeated by the nonretroactivity of the rule he seeks to create or apply. SeeCaspari v. Bohlen, 510 U.S. 383, 389 (1994). For federal courts, this question is governed by the rule of Teague v. Lane, 489 U.S. 288 (1989), and "a thresholdTeague analysis" is mandatory. Horn v. Banks, 536 U.S. 266, 272 (2002) (per curiam). For the reasons stated below, amicus submits that the same analysis should be the first step in a Maryland postconviction proceeding, ⁽¹⁾ at least when the rule asserted is based on federal constitutional law.

A. The Retroactivity Revolution.

In a prescient dissent penned a third of a century ago, Justice John Harlan examined the then-existing state of retroactivity law and found it to be arbitrary. " 'Retroactivity' must be rethought." Desist v. United States, 394 U.S. 244, 258 (1969) (dissenting opinion). Justice Harlan thought it was indefensible to create a new rule in the process of granting one defendant relief but then declare the rule nonretroactive so as to deny relief to other defendants whose appeals were in the same stage, and thus were similarly situated. See id. at 258-259. Habeas corpus proceedings are different from appeals, however, and habeas cases should be determined according to the standards prevailing "at the time the original proceedings took place," id. at 263, i.e., without applying new rules created since that time. See also Mackey v. United States, 401 U.S. 667, 682 (1971) (Harlan, J., concurring and dissenting). In Mackey, Justice Harlan further refined his proposal, noting two exceptions to the general rule of nonretroactivity on habeas: rules that placed the conduct in question outside of the government's power to punish and certain fundamental, essential protections. See id. at 692-694. The latter exception explained his continuing concurrence in granting relief to habeas petitioners with claims under Gideon v. Wainwright, 372 U.S. 335 (1963), then only eight years old. See 401 U.S. at 694.

After Justice Harlan's death, Justice Powell picked up the banner of retroactivity reform. See Hankerson v. North Carolina, 432 U.S. 233, 246-248 (1977) (concurring opinion). In 1987, 18 years after the initial proposal, the Supreme Court adopted the first half of Justice Harlan's thesis and made all new rules of criminal procedure fully retroactive to all cases not yet final on direct review. See Griffith v. Kentucky, 479 U.S. 314, 322-323 (1987).

Two years later, the second shoe dropped. In Teague, 489 U.S. at 310, a plurality abandoned the fuzzy three-factor test of Linkletter v. Walker, 381 U.S. 618, 636 (1965) and Stovall v. Denno, 388 U.S. 293, 297 (1967) and "adopt[ed] Justice Harlan's view of retroactivity for cases on collateral review." The final curtain came down on Linkletter-Stovall in Penry v. Lynaugh, 492 U.S. 302, 314 (1989), overruled on other grounds, Atkins v. Virginia, 536 U.S. 304, 321 (2002), when a majority accepted Teague.

In place of the vague and arbitrary regime that prevailed before 1987, we now have a straightforward set of rules that are relatively simple to apply when they are applied properly. Substantive rules that prevent the state from punishing certain conduct at all are fully retroactive in all proceedings. See Teague, 489 U.S. at 307. For example, if the defendants prevail in Lawrence v. Texas, U.S. Supreme Court No. 02-102, and "sodomy" laws are struck down, that decision would be fully retroactive on habeas corpus. Similarly, a new rule that a given defendant cannot be given a particular punishment at all, regardless of procedure, qualifies for the same exception. See Penry, 492 U.S. at 330. Thus, Atkins is fully retroactive.

For rules of procedure, on the other hand, while Griffith makes them all retroactive on direct review, Teague makes them all, at this point in time, nonretroactive on collateral review. For reasons we will explain infra, at 19, the much-litigated second exception is history. The only difficulty lies in determining when a rule is "new." See Teague, 489 U.S. at 301. That question must be resolved, however, under either the old Linkletter-Stovall approach or the modernGriffith-Teague approach. Once a rule is determined to be new, the modern approach yields straightforward answers on which cases it will apply to, in contrast to the nebulous questions of the old standard.

B. Retroactivity of Federal Rules in Maryland Courts.

Maryland Code, Criminal Procedure § 7-106(c)(2) addresses the effect that judicial decisions creating new constitutional standards have on postconviction proceedings in the context of successive and defaulted claims. That statute states,

"(2) Notwithstanding any other provision of this title, an allegation of error may not be considered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower courts of the State holds that: (i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and (ii) the standard isintended to be applied retrospectively and would thereby affect the validity of the petitioner's conviction or sentence." (Emphasis added).

This statute is similar to 28 U.S.C. § 2244(b)(2)(A), the statute at issue in Tyler v. Cain, 533 U.S. 656 (2001). The federal statute makes an exception to the successive petition rule in federal habeas cases for petitioners relying on a "new rule of constitutional law, made retroactive to cases on collateral review . . . ." Seeid. at 662. The Maryland statute makes an exception to the "finally litigated or waived" rule of Maryland Code, Criminal Procedure § 7-102(b)(2). Neither the federal statute nor the Maryland statute prescribes a standard of retroactivity, but instead both contemplate that the standard will be formed by case law. See Tyler, 533 U.S. at 665-666 (discussing Teague standard in applying § 2244(b)(2)(A)). Both enactments also limit their exception to rules held retroactive by a limited number of courts: the Supreme Court itself in the federal statute, see id. at 662, and a "court whose decisions are binding on the lower courts of the State" in the Maryland statute.

Prior to Teague, this Court, on several occasions, addressed the standards courts must use to determine whether a new constitutional rule is "intended to be applied retrospectively" within the meaning of the predecessor of § 7-106(c)(2), Maryland Code Art. 27 § 645A(d). In Wiggins v. State, 275 Md. 689, 701, 344 A.2d 80, 87 (1975), this Court held, "We glean from the Supreme Court cases that there are three circumstances in which a retrospective application is mandated, (1) where the old rule affected the integrity of the fact-finding process, (2) where no trial was constitutionally permissible, and (3) where the punishment is not constitutionally permissible. In the absence of one of those three circumstances, then the three-pronged Linkletter test is applicable." (Emphasis added). A few years later, in State v. Hicks, 285 Md. 334, 403 A.2d 356 (1979), this Court applied the Wiggins criteria and again relied on federal retroactivity case law in making its decision. See id., at 337, 403 A.2d at 370 (citing Linkletter and Stovall v. Denno, 388 U.S. 293 (1967)).

In State v. Colvin, 314 Md. 1, 548 A.2d 506 (1988), this Court had before it the issue of whether the Supreme Court opinion in Mills v. Maryland, 486 U.S. 367 (1988), applied retroactively on state collateral review proceedings. This Court applied § 645A(d), and, applying the Linkletter test, found Mills applied retrospectively. Colvin, 314 Md. at 25, 548 A.2d at 518.

Wiggins, Hicks, and Colvin have both an explicit holding and an implicit holding regarding Maryland retroactivity law. The explicit holding of all three cases is that Maryland courts applying the predecessor of § 7-106(c)(2) at that time were using the standard from the Linkletter line of cases. However, this standard was not derived from an independent mandate of Maryland law, but rather "glean[ed] from the [United States] Supreme Court cases." The implicit holding, then, is that Maryland courts apply federal retroactivity principles, at least as to new federal rules. The viability of Linkletter in Maryland must therefore be reexamined in light of its abandonment by the Supreme Court and its replacement by Griffith and Teague.

Although state courts are free to determine the standards governing the retroactivity of new rules of criminal procedure based on state law, whether a new federal constitutional pronouncement is intended to be applied retrospectively on collateral review is best analyzed under Teague's principles. Griffith and Teagueprovide a coherent, uniform analysis for analyzing this issue and ensure consistency among the different jurisdictions.

Furthermore, in many circumstances the Supreme Court requires states to follow federal retroactivity principles when it comes to the pronouncement of new federal rules.

"The determination whether a constitutional decision of the [Supreme] Court is retroactive--that is, whether the decision applies to conduct or events that occurred before the date of the decision--is a matter of federal law. When questions of state law are at issue, state courts generally have the authority to determine the retroactivity of their own decisions. The retroactive applicability of a constitutional decision of [the Supreme] Court, however, is every bit as much a federal question as what particular federal constitutional provisions themselves mean, what they guarantee, and whether they have been denied. In order to ensure the uniform application of decisions construing constitutional requirements and to prevent States from denying or curtailing federally protected rights, [the Supreme Court has] consistently required that state courts adhere to [its] retroactivity decisions." American Trucking Ass'n v. Smith, 496 U.S. 167, 177-178 (1990) (citations and internal quotation marks omitted); see also Yates v. Aiken, 484 U.S. 211, 217-218 (1988) (a holding that a rule is not "new" is binding on state courts in habeas proceedings).

Arguably, it might be permissible for state courts to give defendants the benefit of federal retroactivity law whenever it works in their favor, as in Yates, supra, but apply their own state rule whenever it is more favorable. Such an approach would be awkward, to put it mildly, and would require every retroactivity question to be analyzed twice. Not surprisingly, few states have taken this path.

A great number of states have either expressly adopted or have implicitly applied the Teague analysis for determining the retroactivity of new federal rules of criminal procedure in state collateral review proceedings. See Sanders v. State, 815 So. 2d 590, 591-592 (Ala. Crim. App. 2001) (applying Teague analysis); State v. Towery, 2003 Ariz. LEXIS 16, *8 (Ariz. Feb. 26, 2003) (expressly adoptingTeague framework); People v. Bradbury, 2002 Colo. App. LEXIS 1626, *12 (Colo. Ct. App. 2002) (same); Larkin v. Commissioner of Correction, 45 Conn. App. 809, 814-815, 699 A.2d 207, 210 (1997) (applying Teague analysis); Flamer v. State, 585 A.2d 736, 749 (Del. 1990) (same); Luke v. Battle, 275 Ga. 370, 374 & n. 25, 565 S.E.2d 816, 819 & n. 25 (2002) (same); Gafford v. State, 127 Idaho 472, 476, 903 P.2d 61, 65 (1995) (same); People v. Flowers, 138 Ill. 2d 218, 237-238, 561 N.E.2d 674, 682 (1990) (expressly adopting Teagueframework); Daniels v. State, 561 N.E.2d 487, 489 (Ind. 1990) (same); Brewer v. State, 444 N.W.2d 77, 81-82 (Iowa 1989) (applying Teague analysis); Whisler v. State, 272 Kan. 864, 878, 36 P.3d 290, 299-300 (2001) (expressly adoptingTeague framework); State ex rel. Taylor v. Whitley, 606 So. 2d 1292, 1296 (La. 1992) (same); Commonwealth v. Bray, 407 Mass. 296, 299-303, 553 N.E.2d 538, 540-542 (1990) (applying Teague analysis); Commonwealth v. Sullivan, 425 Mass. 449, 454, 681 N.E.2d 1184, 1188 (1997) (same); State v. Egelhoff, 272 Mont. 114, 126, 900 P.2d 260, 267 (1995) (expressly adopting Teagueframework); State v. Reeves, 234 Neb. 711, 747-751, 453 N.W.2d 359, 382-84 (1990), vacated and remanded on other grounds, 498 U.S. 964 (1990) (applyingTeague analysis); State v. Tallard, 816 A.2d 977, 2003 N.H. LEXIS 23, *7 (N.H. Feb. 28, 2003) (same); State v. Lark, 117 N.J. 331, 335, 567 A.2d 197, 203 (1989) (expressly following Teague in cases involving new federal constitutional rules only); State v. Mascarenas, 129 N.M. 230, 238, 4 P.3d 1221, 1229 (2000) (following Teague analysis); People v. Eastman, 85 N.Y.2d 265, 275-276, 648 N.E.2d 459, 464-465 (1995) (same); State v. Zuniga, 336 N.C. 508, 513, 444 S.E.2d 443, 446 (1994) (expressly adopting Teague framework); Thomas v. State, 888 P.2d 522, 527 (Okla. Crim. App. 1994) (following Teague analysis); Teague v. Palmateer, 184 Or. App. 577, 581, 57 P.3d 176, 180 (2002) (expressly adoptingTeague framework); Commonwealth v. Blystone, 555 Pa. 565, 576, 725 A.2d 1197, 1202-1203 (1999) (following Teague analysis); Pailin v. Vose, 603 A.2d 738, 742 (R.I. 1992) (expressly adopting Teague framework); State v. Denton, 938 S.W.2d 373, 377 (Tenn. 1996) (applying Teague framework); Mueller v. Murray, 252 Va. 356, 361, 478 S.E.2d 542, 546 (1996) (same); In re Pierre, 118 Wash.2d 321, 324-327, 823 P.2d 492, 494-495 (1992) (same); State v. Guthrie, 194 W. Va. 657, 677, 461 S.E.2d 163, 183 (1995) (same); State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 257, 548 N.W.2d 45, 49 (Wis. 1996) (expressly adopting Teagueframework). Some of these states have gone a step further and follow Teagueeven on issues of state constitutional law. See, e.g., Colwell v. State, 59 P.3d 463, 470-71 (Nev. 2002); Teague v. Palmateer, 184 Or. App. 577, 581, 57 P.3d 176, 180 (2002). ⁽²⁾

Because § 7-106(c)(2) implicitly incorporates federal retroactivity principles for federal questions, amicus respectfully submits that this Court should update its case law on that issue to make it consistent with the current retroactivity jurisprudence established in Teague. Doing so would be consistent with the approach Maryland has taken in the past, and would be consistent with the approach of the great majority of states that have adopted the Teague framework for determining the retroactivity of new federal rules of constitutional procedure on state postconviction review.

C. The Cost of Retroactivity.

Consistency and simplicity are important reasons to follow Teague on federal questions, but they are by no means the only reasons. The wisdom of Teagueitself lies in the recognition of the enormous cost to society of open-ended relitigation based on ever-changing rules of procedure.

     "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, 401 U.S., at 691 (Harlan, J., concurring in judgments in part and dissenting in part) ('no one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation')." Teague, 489 U.S. at 309.

Finality, of course, is not absolute. In a related context, the Supreme Court has recognized that finality must yield to the imperative of correcting a fundamentally unjust incarceration. Murray v. Carrier, 477 U.S. 478, 496 (1986). By no stretch of the imagination could the sentence imposed on triple murderer-rapist Steven Oken be thought to fit that description. The people of Maryland have decided that the state will have capital punishment, and that decision is theirs to make. Given that decision, this case is beyond question the kind of case that warrants the highest punishment the law allows. From among the capital cases decided by this Court to date, it is difficult to see any where the penalty is more clearly warranted, yet the case drags on over a full decade and numerous proceedings after it became "final."

Teague noted the loss of deterrent effect from lack of finality. Nowhere is that loss more apparent or more costly than in capital punishment. Although the question is still controversial, recent scholarship provides strong support for the belief that a death penalty which is actually enforced saves innocent lives. A study at the University of Houston found that a one-year de facto moratorium in Texas killed over 200 people through loss of deterrence. Cloninger & Marchesini,Execution and Deterrence: A Quasi-Controlled Group Experiment, 33 Applied Econ. 569, 575 (2001). A study at Emory University estimated that each execution saves 18 innocent people. Dezhbakhsh, Rubin, & Shepherd, Does Capital Punishment Have a Deterrent Effect? New Evidence from Post-moratorium Panel Data, Emory University Dept. of Economics Working Paper No. 01-01 (Feb. 2001), http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 259538. Another at the University of Colorado found a smaller but still powerful effect of 5 lives saved by each execution. Mocan & Gittings, Pardons, Executions and Homicide, Working Paper 2001-18 (Oct. 2001), http://econ.cudenver.edu/home/workingpapers/2001_18.pdf. If these studies are anywhere close to correct, ⁽³⁾ the continued obstruction of capital punishment in Maryland is taking a horrific toll in innocent lives.

The "annually improvised" jurisprudence of capital punishment, see Morgan v. Illinois, 504 U.S. 719, 751 (1992) (Scalia, J., dissenting), has mercilessly whipsawed trial judges throughout the nation. Trying a capital case "correctly" is virtually impossible when the definition of "correct" is constantly changing, and trials are reviewed for 15 years after they are tried.

Maryland has been particularly hard hit. The state's courageous, pioneering law on victim impact evidence was declared unconstitutional in Booth v. Maryland, 482 U.S. 496, 509 (1987), a decision we now know was wrong. SeePayne v. Tennessee, 501 U.S. 808, 830 (1991) (overruling Booth). The state's standard jury instruction form, prepared in full accordance with all Supreme Court precedents until 1988, see Mills v. State, 310 Md. 33, 49-63, 527 A.2d 3, 10-17 (1987), was thrown out that year in the dubious 5-4 decision of Mills v. Maryland, 486 U.S. 367, 384 (1988). ⁽⁴⁾

Professor Liebman's notorious study ⁽⁵⁾ claims that Maryland has a rate of "serious error" of 77%, the second worst in the nation. See J. Liebman, et al., A Broken System: Error Rates in Capital Cases 1973-1995, Table 6 (2000), http://www.law.columbia.edu/instructionalservices/liebman/. Is Maryland reallyfull of bumbling judges, unethical prosecutors, and "egregiously incompetent" ⁽⁶⁾defense lawyers, worse than 36 of the other 37 death-penalty states? Of course not. The problem is the retroactive application of rules that are doubtful on their face, not essential to a fair proceeding, or, in the case of Booth, just plain wrong.

For direct appeal, the reversal of cases correctly tried under the law at the time of trial is the price Griffith holds we must pay to observe "basic norms of constitutional adjudication." 479 U.S. at 322. The numerous reversals on direct appeal for "Booth error," see, e.g., Hunt v. State, 312 Md. 494, 497, 540 A.2d 1125, 1126 (1988), which is not error at all, make up a portion of Maryland's "error rate" which was beyond the control of both the State and this Court. However, the numerous reversals on state postconviction due to post-appeal changes in the rules are another matter. It was a travesty of justice that the infamous Anthony Grandison got a new sentencing hearing for his contracted-out double murder due to a change in the law after his direct appeal was final. SeeGrandison v. State, 341 Md. 175, 194, 670 A.2d 398, 407 (1995). His first sentence was determined correctly under the law in effect at the time, and it should have been carried out long ago. The Liebman study claims that Maryland has the highest rate of reversals in the country on state postconviction, at 52%. SeeLiebman, supra, Table 5. From the study's description of the cases, though, it appears that 8 of the 14 reversals were retroactive applications of Mills on collateral review, see id. App. C-28-C-29, and hence unnecessary reversals.

In earlier proceedings in the present case, Judge Cathell noted "that because of the way the death penalty system works, it simply is not worth the aggravation it costs throughout the body politic." Oken v. State, 367 Md. 618, 619, 790 A.2d 612, 613 (2002) (Cathell, J., dissenting). That is true the way system has worked, or actually not worked, in Maryland to this point. But it does not need to be that way. While the greatest care is in order to prevent execution of the innocent, it is obvious to everyone who works in this field that the bulk of litigation concerns issues having absolutely nothing to do with the defendant's guilt of the murder, including the issue in the present case. There are many changes that could be made toward the goal of an effective death penalty that carries out most sentences within a reasonable time and saves innocent lives by providing a credible deterrent. Two, however, are most critical. The first is for courts to stop fabricating new rules for the penalty phase, leaving any further refinements to prospective legislation. The second is to stop applying retroactively to final judgments the new rules that have already been made.

Excessive retroactivity has imposed a terrible cost on the people of Maryland, not merely in dollars but in innocent lives. Adopting Teague for state postconviction proceedings in Maryland would be a large step in the right direction.

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1. In this brief we use the term "postconviction" generically to include any collateral attack on a criminal judgment that a state may allow after the judgment has been affirmed on direct appeal. See Duncan v. Walker, 533 U.S. 167, 177 (2001) (discussing "diverse terminology" in State collateral proceedings). The retroactivity rules should not vary with the form of the proceeding.

2. A few states continue to adhere to the Linkletter-Stovall test. See, e.g., Witt v. State, 387 So. 2d 922, 929 (Fla. 1980); Thompson v. State, 625 A.2d 299, 300-301 (Me. 1993); People v. Carrera, 49 Cal.3d 291, 327, 261 Cal.Rptr. 348, 777 P.2d 121 (1989); Cowell v. Leapley, 458 N.W.2d 514, 520 (S.D. 1990).

3. In search of scholarly criticism or other reason to doubt them, we visited the Web site of the Death Penalty Information Center, a strongly anti-death-penalty group and the primary source of "talking points" for opponents. Their page on deterrence, http://www.deathpenaltyinfo.org/article.php?scid= 128&did=167, listed no criticisms of these studies, and no scholarly work at all since 1999. The only more recent support for their no-deterrence claim was a newspaper article and an incomplete reference to a Web site.

4. For the reasons we call Mills v. Maryland "dubious," see this Court's decision in the same case, supra, Chief Justice Rehnquist's dissent, 486 U.S. at 390-398, and Boyde v. California, 494 U.S. 370, 379 (1990), in which the Court noted Mills' internal inconsistency and confusion.

5. For criticism of this study, see Hoffmann, Violence and the Truth, 76 Ind. L. J. 939 (2001); Latzer & Cauthen, Capital Appeals Revisited, 84 Judicature 64 (2000); Latzer & Cauthen, The Meaning of Capital Appeals: A Rejoinder to Liebman, Fagan, and West, 84 Judicature 142 (2000); California District Attorneys Association, Prosecutors' Perspective on California's Death Penalty 40-44 (March 2003), http://cdaa.org/WhitePapers/DPPaper.pdf.

6. This is the term Liebman uses to describe every attorney whose client subsequently succeeds on an ineffective assistance claim. See id., text accompanying note 42.