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Under Teague, newly announced federal rules of criminal procedure apply retroactively on collateral review only in two very narrow circumstances. SeeTyler v. Cain, 533 U.S. 656, 665 (2001). Only the second exception is at issue in this case, thereby limiting the question to whether Apprendi v. New Jersey, 530 U.S. 466 (2000) or Ring v. Arizona, 536 U.S. 584, 153 L.Ed.2d 556, 122 S.Ct. 2428 (2002) announced "watershed rules of criminal procedure that are necessary to the fundamental fairness of the criminal proceeding." Sawyer v. Smith, 497 U.S. 227, 241-242 (1990) (internal quotation marks omitted). Two components make up this standard. Not only must the new rule be "aimed at improving the accuracy of the trial," but it must also "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Id. at 242 (emphasis in original; internal quotation marks omitted.)
There is no question that Apprendi and Ring announced a new rule of criminal procedure. See Brief for Appellant 22. Apprendi, a noncapital case, requires a jury, rather than a judge, to determine beyond a reasonable doubt, facts that increase the penalty for a crime beyond the statutory maximum. Apprendi, 530 U.S. at 490. Ring applied Apprendi to the death penalty context and concluded that a jury, not a judge, must find the existence of an aggravating factor that is required to make a defendant eligible for the death penalty. Ring, 153 L.Ed.2d at 577, 122 S.Ct. at 2443.
Throughout the United States, every appellate court but one to consider the retroactivity of Apprendi or Ring has resolved that question in the negative. See,e.g., Curtis v. United States, 294 F.3d 841, 844 (7th Cir. 2002); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002) (Apprendi not retroactive); Cannon v. Mullin, 297 F.3d 989, 994 (10th Cir. 2002) (Ring not retroactive); United States v. Sanchez-Cervantes, 282 F.3d 664, 665 (9th Cir. 2002); United States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001); United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001); McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); State v. Tallard, 2003 N.H. LEXIS 23, *12 (N.H. 2003); Teague v.Palmateer, 184 Or. App. 577, 581, 57 P.3d 176, 180 (2002); Colwell v. State, 59 P.3d 463, 473 (Nev. 2002); Sanders v. State, 815 So. 2d 590, 592 (Ala. Crim. App. 2001); Whisler v. State, 36 P.3d 290, 300 (2001). These courts have all concluded that Apprendi did not establish a "watershed rule of criminal procedure." One appellate court addressing the retroactivity of Ring concluded it was simply an extension of Apprendi and that the Supreme Court's holdings have not indicated any intent to make Ring retroactive. See Cannon, 297 F.3d at 993-994. The single court that did find that Apprendi met the "watershed" standard is an intermediate appellate court in Illinois. See People v. Beachem, 784 N.E.2d 285, 2002 Ill. App. LEXIS 1256, *24 (Ill. App. 2002). However, there is a split of authority among the intermediate appellate courts in Illinois on this issue, and the Illinois Supreme Court has yet to resolve that conflict. See People v. Payne, 783 N.E.2d 130, 142-143 (Ill. App. 2002) (holding Apprendi does not apply retroactively on collateral review under the Teague standard and noting the split of authority).
The Supreme Court was well aware in Teague that it was setting the bar very high for the second exception. Consequently, the Court said at the time "we believe it unlikely that many such components of basic due process have yet to emerge." 489 U.S. at 313. The examples given by the Teague Court, see ibid., are all rules established decades earlier. See id. at 313-314 (quoting Rose v. Lundy, 455 U.S. 509, 544 (1982) (Stevens, J., dissenting) (citing Moore v. Dempsey, 261 U.S. 86 (1923) (mob violence); Mooney v. Holohan, 294 U.S. 103 (1935) (knowing use of perjured testimony); Brown v. Mississippi, 297 U.S. 278 (1936) (brutally extracted confession))). In the 14 years since Teague, the high court has rejected every claim that a rule created or proposed since Teague qualifies for the second exception. See United States v. Mandancini, 205 F.3d 519, 529 (2nd Cir. 2000). It has often quoted the above language, see, e.g., Sawyer, 497 U.S. at 243, and often noted that the new or proposed rule in question lacks the "primacy and centrality of Gideon" v. Wainwright, 372 U.S. 335 (1963). See Saffle v. Parks, 494 U.S. 484, 495 (1990).
Two years ago, in Tyler v. Cain, 533 U.S. 656 (2001), the Court said explicitly what its pattern of decisions had been saying implicitly. Altering the language ofTeague and Sawyer, Tyler said "it is unlikely that any of these watershed rules 'ha[s] yet to emerge.' " Id. at 667, n.7 (emphasis added).
The second exception is history. Justice Harlan proposed it to explain his concurrence in granting relief for the remaining Gideon claimants. After four decades of churning out new rules more and more favorable to the defense, there are simply no changes to be made that come close to "the primacy and centrality of Gideon."
Despite the overwhelming majority of both state and federal case law being against Oken's position, he argues that Apprendi and Ring announced a new rule that falls within the "watershed" exception. Specifically, Oken argues that when a jury is charged with selecting an appropriate sentence from a range of penalties, which already includes death, it is a due process violation under Apprendi andRing if the jury weighs aggravating and mitigating factors by anything less than a reasonable doubt standard. This Court rejected that argument in Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001) and in Oken v. State, 367 Md. 191, 786 A.2d 691 (2001), and it should reject that argument again in this case.
Teague's "watershed" exception applies only to "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 313. As many of the courts finding against retroactivity have concluded, "Apprendi's holding does not protect the innocent from erroneous conviction but, rather, protects the guilty from sentences beyond the statutory maximum." Teague v. Palmateer, 184 Or. App. 577, 589, 57 P.3d 176, 185 (2002). Further, Apprendi "merely clarified and extended the scope of a preexisting right--the right to have all convictions supported by proof beyond a reasonable doubt." United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002).
If any further confirmation were needed, we find it in the Ring opinion itself, where the Court expressly holds that its disapproval of the Arizona system "doesnot turn on the relative rationality, fairness, or efficiency" of that system versus the others the court has approved. 153 L.Ed.2d at 576, 122 S. Ct. at 2442 (emphasis added). In O'Dell v. Netherland, 521 U.S. 151 (1997), the Supreme Court rejected a claim for the second exception with these words: "It is by no means inevitable that, absent application of the rule in Simmons, 'miscarriage[s] of justice' will occur." Id. at 167, n.4. Comparing this stringent criterion withRing's disclaimer that its rule is based on improving the fairness of the proceeding, it is virtually conclusive that Ring does not qualify for the second exception.
Oken admits that the great majority of the case law on this issue is against him, but he claims those cases are not persuasive authority because they "do not deal with the standard of proof issue[.]" Brief for Appellant 24. On the contrary, many of the cases coming from the federal courts of appeals dealt directly with the standard of proof issue. For example, in United States v. Moss, 252 F.3d 993 (8th Cir. 2001), the defendant was convicted of conspiracy to possess with intent to distribute crack cocaine and possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841 and § 846. Id. at 995. Drug quantity under § 841 was considered a sentencing factor to be determined by a judge by a preponderance of the evidence. See id. at 996. The defendant claimed that the District Court judge's finding was a violation of Apprendi because the judge, rather than a jury, made that finding by a preponderance of the evidence, rather than beyond a reasonable doubt. Ibid. Refusing to hold that Apprendi amounted to a "watershed" rule of criminal procedure, the court stated, it is "arguable whether the integrity of pre-Apprendi criminal convictions were 'seriously' compromised by permitting sentences to be set based upon factors found by a judge under the preponderance standard rather than by a jury under the reasonable doubt standard." Id. at 999.
Similarly, in United States v. Sanders, 247 F.3d 139 (4th Cir. 2001), the defendant raised the same argument as in Moss. The court also refused to applyApprendi retroactively. "The new rule announced in Apprendi is dual-faceted. The Supreme Court held both that a jury, rather than a judge, must determine the facts supporting a statutory sentencing enhancement, and that this finding must be made beyond a reasonable doubt, rather than by a preponderance of the evidence. These rules, however, are not the type of watershed rules implicating fundamental fairness that require retroactive application on collateral attack." Id. at 148 (emphasis added). Thus, several courts have addressed the precise standard of review question and still concluded that the "watershed" exception was not satisfied.
As noted earlier, the type of rule contemplated by Teague as coming within the "watershed" exception is that of Gideon v. Wainwright, 372 U.S. 335 (1963). Apprendi and Ring are far from being on par with Gideon. Gideon applies to every felony prosecution and ensures every criminal defendant the fundamental right to be represented by counsel so as to "achieve a fair system of justice." Id. at 344. Without such representation, the risk of an erroneous conviction is much higher than it would be if the defendant were represented. See id. at 345. Apprendi and Ring, on the other hand, involve sentencing. The defendant has already been convicted, and there is no risk of erroneous conviction after the fact. That is a far cry from the type of rule announced in Gideon.
The second Teague exception is clearly related to the "actual innocence" exception for the procedural default rule. See Teague, 489 U.S. at 313 (quotingMurray v. Carrier, 477 U.S. 478, 496 (1986)). The distinctions between guilt, death-eligibility, and selection that the Court has drawn in the Murray line of cases is instructive here. In Schlup v. Delo, 513 U.S. 298, 325-326 (1995), the Court held that, because conviction of an innocent person was a "greater injustice" than any error in sentencing of a guilty murderer, even to death, a lesser showing of actual innocence would be required, distinguishing Sawyer v. Whitley, 505 U.S. 333 (1992). In Sawyer itself, the Court limited the "actual innocence" exception to persons who could show that the eligibility decision was erroneous, id. at 347, thus completely excluding the selection decision from the Murray miscarriage of justice exception. The execution of a person who did, in fact, commit capital murder is not a fundamental miscarriage of justice, and hence the rules that regulate that final sentence choice are never of the same magnitude as the essential requirements which safeguard the innocent from wrongful conviction, such asGideon.
Neither Apprendi nor Ring is a rule of "Gideon magnitude." Neither is "essential to the fairness of a proceeding." Sawyer v. Smith, 497 U.S. 227, 242 (1990). Neither qualifies for the second Teague exception. Defendant's proposed extension of Ring beyond the death-eligibility into the final selection step does not come even remotely close.
Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny draw a sharp, clear distinction between "those facts setting the outer limits of a sentence, and of the judicial power to impose it" and those used to set the sentence "[w]ithin the range authorized by the jury's verdict . . . ." Harris v. United States, 536 U.S. 545, 153 L.Ed.2d 524, 544, 122 S.Ct. 2406, 2419 (2002) (plurality opinion). The latter type "need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt." Id., 153 L.Ed.2d at 545, 122 S.Ct. at 2420 (opinion of the Court). This remains true even when a statute " 'dictate[s] the precise weight to be given that factor.' " Ibid. (quoting McMillan v. Pennsylvania, 477 U.S. 79, 89-90 (1986)). Counsel for defendant Oken struggles mightily to pound the square peg of Maryland's final "weighing" decision into the round hole of the ceiling-raising factors of Apprendi and Ring v. Arizona, 536 U.S. 584, 153 L.Ed.2d 556, 122 S.Ct. 2428 (2002), see Brief of Appellant 16 (claiming "unique characteristics of the Maryland statute"), but the effort fails. Maryland's system fully complies with Apprendi and Ring because those decisions apply only to the finding of at least one aggravating circumstance and not to the final, discretionary weighing decision. This was the second of the two rationales of Borchardt v. State, 367 Md. 91, 126-127, 786 A.2d 631, 652 (2001). This rationale was correct when Borchardt was decided, and nothing in Ring contradicts it.
In their broad outlines, all of the states' post-1976 capital sentencing statutes work in the same general way, because the Supreme Court has required that they must and struck down those that do not. See, e.g., Sumner v. Shuman, 483 U.S. 66, 84-85 (1987) (forbidding mandatory sentence, even for repeat murderer); Penry v. Lynaugh, 492 U.S. 302, 328 (1989), overruled on other grounds, Atkins v. Virginia, 536 U.S. 304, 321 (2002) (forbidding sentence based solely on answer to "special issues," when those issues as applied did not provide for mitigating effect of alleged retardation).
Shaped by this jurisprudence, all capital punishment systems in the United States today have "two different aspects [in their] capital decisionmaking process: the eligibility decision and the selection decision." Tuilaepa v. California, 512 U.S. 967, 971 (1994). "To render a defendant eligible for the death penalty in a homicide case, [the Supreme Court has] indicated that the trier of fact must convict the defendant of murder and find one 'aggravating circumstance' (or its equivalent) at either the guilt or penalty phase." Id. at 971-972 (emphasis added). The eligibility factors must genuinely narrow the class and are scrutinized for vagueness. See id. at 972.
The selection decision is quite different. In contrast to the objective fact-finding of the eligibility decision, the selection decision necessarily involves broad discretion. It "must be expansive enough to accommodate relevant mitigating evidence so as to assure an assessment of the defendant's relative culpability." Id. at 973. Tuilaepa, like Oken, attacked the state's criteria for the selection decision using the requirements applicable to the eligibility decision. See id. at 977-978. The high court rebuffed the attempt, holding that the conflation of the two decisions "contravenes our precedents." Id. at 978. A similar attack on the federal death penalty statute failed in Jones v. United States, 527 U.S. 373, 401-402 (1999) (plurality opinion), where the Court upheld factors used "only for selection purposes" which would surely have been struck down if they had been used for eligibility.
Far from being unique, as defendant claims, Maryland's system fits snugly into the national pattern. The factual finding that makes the defendant eligible for the death penalty is the finding of at least one aggravating circumstance. The jury must make this finding, make it first, and make it beyond a reasonable doubt. SeeMd. Code, Crim. Law § 2-303(c) (jury, unless waived); id., subd. (g)(1) (first, beyond a reasonable doubt). Absent this finding, the defendant cannot be sentenced to death regardless of how strongly the judge or jury believes he deserves it. Id., subd. (g)(2)(ii). The "weighing" step, on the other hand, is inevitably an exercise of sentencing judgment. See infra, at 27.
The line of demarcation between the eligibility decision and the selection decision is not limited to the Supreme Court's Eighth Amendment jurisprudence. We see it also in the Sixth Amendment as applied in Ring, supra, and in the Double Jeopardy Clause as applied in Sattazahn v. Pennsylvania, 537 U.S. __, 154 L.Ed.2d 588, 123 S.Ct. 732 (2003).
In Ring, the jury convicted the defendant of first-degree murder on a felony-murder theory but deadlocked on premeditated murder. 153 L. Ed. 2d at 565, 122 S.Ct. at 2433. The trial judge found true the aggravating factors of pecuniary gain and depravity. Id. at 567, 122 S.Ct. at 2435. In the final selection decision, he found that the sole mitigating factor of minimal criminal record was insufficient to call for leniency. Id. at 568, 122 S.Ct. at 2435-2436. On appeal, the Arizona Supreme Court struck the depravity factor, "reweighed" the pecuniary gain factor against the mitigating factor, and affirmed. Id. at 568-569, 122 S.Ct. at 2436.
The United States Supreme Court's decision in Ring's favor was based solely on the eligibility portion of the sentencing process, i.e., the finding that at least one aggravating factor was true. Ring did not argue and the Court did not hold that the Sixth Amendment applied to the final "weighing" decision, either by the trial judge or the "reweighing" by the appellate court. See id. at 569, n.4, 122 S.Ct. at 2437, n.4. The Court noted both Proffitt v. Florida, 428 U.S. 242, 252 (1976) (plurality opinion) and Clemons v. Mississippi, 494 U.S. 738, 745 (1990) as contrary to such a claim. In both of those cases, the final sentencing decision was based on a weighing of aggravating against mitigating circumstances. SeeProffitt, 428 U.S. at 248; Clemons, 494 U.S. at 745, n.2. In Clemons the law was so clearly contrary to the argument that the weighing could not be done by a court, rather than a jury, that the Supreme Court only devoted a single paragraph to emphatically rejecting it. See 494 U.S. at 745-746.
To the extent this passage of Clemons refers to eligibility factors, it is overruled by Ring. However, footnote 4 of Ring makes crystal clear that it does not overrule the Sixth Amendment holdings of Proffitt and Clemons as they relate to the selection decision. Those holdings therefore remain binding precedent on all the courts of the Nation, including this Court, unless and until the Supreme Court itself overrules them. See Agostini v. Felton, 521 U.S. 203, 237-238 (1997).
Sattazahn reinforces this conclusion. The Pennsylvania statute at issue in that case operates in substantially the same way as the Maryland statute. The jury must find at least one aggravating circumstance, and it must further find that the aggravating circumstance(s) outweigh any mitigating circumstances. See 154 L.Ed.2d at 594, 123 S.Ct. at 736. With the new light shed on capital sentencing by Ring, the plurality reaffirmed the holding of Arizona v. Rumsey, 467 U.S. 203 (1984) that a verdict of no aggravating circumstances would constitute an "acquittal," for double jeopardy purposes, of the "offense of 'murder plus aggravating circumstance[s].' " 154 L.Ed.2d at 599, 123 S.Ct. at 739. Defendant claims that in Maryland this would translate to "murder plus an aggravating circumstance, plus principalship, plus a finding that aggravation outweighs mitigation." Brief for Appellant 13, n.9 (emphasis added). He may be right about principalship, (7) but his error on "outweighs" is evident from the fact that Sattazahndoes not say that, even though the Pennsylvania law contains substantially the same outweighing requirement as Maryland's. Amicus agrees with defendant thatSattazahn is "instructive," but its instruction points the other direction.
As noted supra at 24, Maryland's statute is not at all unusual. The fact that the final, discretionary sentence selection step is framed as a finding on which set of circumstances outweighs the other does not covert this step into an objective "element" subject to Apprendi and Ring. If the final step really were mechanical and precluded the exercise of discretion regarding mitigating circumstances, it would be unconstitutional. See Lowenfield v. Phelps, 484 U.S. 231, 246 (1988). The Supreme Court has allowed a state to preclude a discretionary sentencing decision only in the limited circumstance that the jury unanimously finds nomitigating circumstances. See Blystone v. Pennsylvania, 494 U.S. 299, 302-303 (1990). Given the mandatory, wide-open definition of mitigating circumstances under Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion), the latter holding is itself discretionary.
This brings us full circle back to Borchardt, where this Court characterized the "weighing" decision under Maryland law. "The weighing process is purely a judgmental one, of balancing the mitigator(s) against the aggravator(s) to determine whether death is the appropriate punishment in the particular case." 367 Md. at 126, 786 A.2d at 652. This is guided discretion, as this Court has understood from the very beginning. See Tichnell v. State, 287 Md. 695, 728-729, 415 A.2d 830, 848 (1980). It is not an element of an offense in form or in effect, and hence it is not subject to Apprendi and Ring.
Maryland's death penalty statute meets the requirements of Apprendi and Ringand always has. The eligibility determination, that at least one aggravating circumstance exists, is made by the jury beyond a reasonable doubt. The weighing decision is the selection decision, to which the Sixth Amendment jury trial right does not apply. Borchardt was correctly decided, and nothing in Ring is contrary.
The decision of the Circuit Court for Baltimore County should be affirmed.
April 8, 2003
Respectfully submitted,
Kent S. Scheidegger*
Kymberlee C. Stapleton
*Attorney of Record
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7. Maryland's standard sentence verdict form complies with Ring by requiring principalship to be found by the jury beyond a reasonable doubt. See Md. Rules 4-343(h).