Go to:	Argument - Part I	Case Menu	Briefs Menu

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

This case involves the proper interpretation of Congress's landmark reform of habeas corpus law in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This law, if properly implemented, will greatly reduce unnecessary delay in the enforcement of the criminal law. These changes would advance the rights of victims and society which CJLF was formed to protect.

This case focuses on two particular aspects of habeas law of particular interest to CJLF: retroactivity and successive petitions. The statutory reforms at issue build on two landmark cases in which CJLF's participation was significant. See Teague v. Lane, 489 U. S. 288, 300 (1989); McCleskey v. Zant, 499 U. S. 467, 523, n. 10 (1991) (Marshall, J., dissenting). This case therefore has special interest to us.

SUMMARY OF FACTS AND CASE

On March 20, 1975, Melvin Tyler intentionally fired a gun through the window of an occupied dwelling, i.e., his girlfriend's home, killing his own infant daughter. Brief for Petitioner 2-3. At his trial, the jury was given an instruction on reasonable doubt. To highlight the similarities and differences between this instruction and the one in Cage v. Louisiana, 498 U. S. 39 (1990), we print it here in legislative amendment style. Words in the present case but not in Cage are in italics, and words in Cage but not in the present case are in strikeout type. The sources are State v. Cage, 554 So. 2d 39, 41 (La. 1989) and Brief for Petitioner 3-4:

"If you entertain a any reasonable doubt as to any fact or element necessary to constitute the defendant's guilt, it is your sworn duty to give him the benefit of that doubt and return a verdict of not guilty acquittal. Even where the evidence demonstrates a probability of guilt, yet if it does not establish such guilt it beyond a reasonable doubt, you must acquit the accused. This doubt , however, must be a reasonable one; that is, one that is founded upon a real, tangible, substantial basis, and not upon mere caprice, fancy or and conjecture. It must be such a doubt as would give rise to a grave uncertainty, raised in your minds by reasons of the unsatisfactory character of the evidence or lack thereof.; one that would make you feel that you had not an abiding conviction to a moral certainty of the defendant's guilt. If, after giving a fair and impartial consideration of to all the facts in the case, you find the evidence unsatisfactory or lacking of one upon any single point indispensably necessary to constitute the defendant's guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty. The prosecution must establish guilt by legal and sufficient evidence beyond a reasonable doubt, but the rule does not go further and require a preponderance of testimony. It is incumbent upon the state to prove the offense charged, or legally included in the indictment, to your satisfaction and beyond a reasonable doubt. A reasonable doubt is not a mere possible doubt. It is should be an actual or substantial doubt. It is such a doubt that as a reasonable man can would seriously entertain. It is a serious doubt for which you could give good reason. What is required is not an absolute or mathematical certainty, but a moral certainty."

Tyler filed five state post-conviction petitions. Brief for Petitioner 4. He filed a federal habeas corpus petition on November 8, 1988, which was denied. Cage was decided November 13, 1990. The Court of Appeals affirmed the denial of habeas relief in Tyler's case on November 21, 1990, Tyler v. Whitley, 920 F. 2d 929 (CA5 1990) (Table), and issued its mandate on January 2, 1991.

Five years after Cage, Tyler filed another state post-conviction petition, raising the instruction issue for the first time. It was denied in December 1996. Brief for Petitioner 4-5. He then sought and obtained leave to file a successive federal petition. J. A. 3. The district court found that the state court's decision on the merits was not contrary to clearly established federal law under 28 U. S. C. §2254(d)(1). J. A. 12. The Fifth Circuit affirmed on the ground that Cage had not been made retroactive on collateral review by this Court. J. A. 15. This Court granted Tyler's petition for writ of certiorari on December 11, 2000.

SUMMARY OF ARGUMENT

Under the AEDPA, a new claim in a successive petition is generally barred, but there is an exception for claims based on: (1) a new rule; (2) made retroactive by this Court; (3) which was previously unavailable. Cage v. Louisiana meets the first element, fails the second, and, in this case, fails the third. Applying the test of Engle v. Isaac and its progeny, the Cage claim was available when petitioner filed his first federal petition.

The statutory requirement that the particular rule has been made retroactive by this Court means what it says. Congress intentionally removed that authority from the lower federal courts. Sullivan v. Louisiana addressed a different issue and did not make Cage retroactive. A "grant, vacate, and remand" order does not set a precedent and does not make a rule retroactive. Rules which actually do apply retroactively on collateral review are extremely rare, and a requirement that this Court make the declaration is entirely practical and not a significant burden.

Retroactivity and harmless error are different doctrines with different, albeit related, purposes. Retroactivity focuses on how the law changes over time, so the magnitude of the change made by a new rule, relative to prior law, is important in determining whether it qualifies for the second Teague exception. Cage made only an incremental change to protections already in effect, and hence it is not a "watershed" rule. Cage is not retroactive under the second Teague exception.

	Beginning of this file	Argument - Part I	Case Menu

1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.