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Criminal Justice Magazine
Fall 2002
Volume 17 Issue 3

Cert Alert

Paul M. Rashkind

Term Ends with New Limits on Death Penalty

The U.S. Supreme Court closed out its current Term with a flurry of decisions covering a broad spectrum of criminal law. But it will be remembered most as the Term in which the landscape of death penalty litigation was changed, in ways that will impact nearly every jurisdiction imposing the death penalty. No other single theme developed, with the Court scattering its decisions in each of the major areas of criminal law.

The much-anticipated Apprendi trilogy provided little relief for those who hoped the landmark decision applied retroactively or to minimum mandatory sentences ( Harris and Cotton), but it was applied to death penalty prosecutions, giving new hope to many on death row ( Ring). Another death penalty case struck down the execution of mentally retarded persons as an Eighth Amendment violation ( Atkins), while a per curiam decision applied traditional selective prosecution rules to court orders for discovery of selective prosecution data made in death penalty cases ( Bass).

Three decisions addressed search and seizure questions. One reinforced the bright line prohibiting warrantless arrests and searches inside a home ( Kirk). The rights of bus passengers were minimized ( Drayton) and expanded student drug testing was approved for the public schools ( Earls).

The right to counsel for those receiving suspended sentences was the subject of one case ( Shelton). Effective assistance of counsel was central to another ( Bell). Two cases involve the routine practice of plea negotiations and conspiracy trials. In one, the Court limited a defendant’s right to the disclosure of impeachment evidence prior to entry of a guilty plea ( Ruiz). In the other, certiorari was granted to decide if a conspiracy should be deemed ended once it is discovered by the government ( Jiminez-Recio).

The rights and disabilities of convicted persons were highlighted in four cases. In two of the cases, the Court addressed prisoners’ Fifth Amendment right to remain silent during treatment programs ( McKune) and the right to be treated humanely by prison guards ( Hope). In the third case, the Court granted certiorari to determine the constitutionality of mandatory INS detention of permanent residents convicted of aggravated felonies ( Denmore). The Court also agreed to hear a constitutional challenge to Connecticut’s Megan’s Law requirement that sex offenders be named in a public register ( Doe).

As in most Terms, the Court refined habeas corpus law. It decided when AEDPA’s statute of limitations is tolled by state proceedings ( Carey) and it granted review to decide when the limitations period commences ( Clay). The Court also decided that AEDPA does not displace the need for Teague v. Lane’s retroactivity analysis ( Horn).

In addition to its four new certiorari grants, the Court’s 2002–2003 Term will decide a number of cases outlined in the spring issue of Criminal Justice: the constitutionality of California’s "Three Strikes Law" ( Lockyer and Ewing) and Alaska’s Sex Offender Registration Act ( Otte); the applicability of the Double Jeopardy Clause in a death penalty retrial ( Sattazahn) and of the Hobbs Act to political protest ( Scheidler and Operation Rescue); using habeas corpus for Batson challenges ( Miller-El) and the requirements for habeas exhaustion ( Abdur’Rahman); and whether a federal judge has authority to reinstate a convicted felon’s right to bear arms ( Bean).

The Apprendi Trilogy

Mandatory minimum sentences. Harris v. United States, 122 S. Ct. 2406 (2002). Title 18 U.S.C. § 924(c)(1)(A) provides a seven-year minimum sentence for a person convicted of "brandishing" a firearm in relation to a drug trafficking crime. The Supreme Court held that this provision establishes a sentencing factor that may be found by a judge, consistent with McMillan v. Pennsylvania, 477 U.S. 79 (1986), and does not violate the rule of Apprendi v. New Jersey, 530 U.S. 486 (2000). The Court concluded that the statute’s structure, which separates a lengthy paragraph describing the offense from several separate subsections indicating how a defendant "shall . . . be sentenced," indicates that the brandishing of the firearm is a sentencing factor. The Court found that "brandishing" had previously been identified as a paradigmatic sentencing factor, and was connected with an incremental change in the minimum penalty. In a fragmented decision, the Court declined to overrule McMillan and to strike down the statute in light of Apprendi. In an analysis in which three other Justices joined, Justice Kennedy explained that McMillan and Apprendi could be reconciled. Apprendi held that any fact extending the defendant’s sentence beyond the statutory maximum would have to be considered an element of the offense. The case here involved a fact extending the statutory minimum. This sort of fact is more like the facts judges have traditionally considered when exercising their discretion to choose a sentence authorized by the jury’s verdict. Within the range authorized by the jury’s verdict, the political system may rely upon judges to require defendants to serve minimum terms after judges have made findings.

Appellate review. United States v. Cotton, 122 S. Ct. 1781 (2002). In another development of Apprendi, the Court considered how it applies to cases not properly preserved for appellate review. The question presented was "Whether the omission from a federal indictment of a fact that enhances the statutory maximum sentence requires a court of appeals automatically to vacate the enhanced sentence, notwithstanding that the defendant did not object to the sentence in the district court, the government introduced overwhelming proof of the fact that supports the enhanced sentence, and the defendant had notice that the fact could be used to seek an enhanced sentence." Overruling Ex parte Bain, 121 U.S. 1 (1887), the Supreme Court held that "defects in an indictment do not deprive a court of its power to adjudicate a case," but are subject to plain error test. Even assuming substantial rights are affected, the error here did not affect the fairness of judicial proceedings. Indeed, "[t]he real threat . . . to the ‘fairness, integrity, and public reputation of judicial proceedings’ would be if respondents, despite overwhelming and uncontroverted evidence that they were involved in vast drug conspiracy, were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial."

Capital sentencing. Ring v. Arizona, 122 S. Ct. 2428 (2002). Ring was found guilty of felony murder, not of premeditated murder. Under Arizona law, Ring could not be sentenced to death, the statutory maximum penalty for first-degree murder, unless further findings were made by a judge conducting a separate sentencing hearing. The death sentence may be imposed only if the judge finds at least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. Following such a hearing, the judge sentenced Ring to death. The U.S. Supreme Court struck down the statutory procedure as violative of the principle enunciated in Apprendi, since it authorized a judge to determine the existence or nonexistence of enumerated "aggravating circumstances" and to impose the death penalty based on the findings. The Supreme Court found that Arizona’s enumerated aggravating factors operate as the equivalent of an element of a greater offense. Hence, under Apprendi, the Sixth Amendment requires that these facts be found by a jury. In so ruling, the Court overruled Walton v. Arizona, 497 U.S. 639 (1990), which had previously upheld Arizona’s death sentence scheme.

Cruel and Unusual Punishment

Execution of mentally retarded persons. Atkins v. Virginia, 122 S. Ct. 2242 (2002). Execution of mentally retarded criminals is cruel and unusual punishment prohibited by the Eighth Amendment. The Court noted that the clearest and most reliable indicator of evolving standards of proportionality is the legislation enacted by the country’s legislatures. The Court pointed out that since its decision in Penry v. Lynaugh, 492 U.S. 302 (1989) (upholding the execution of retarded persons), a significant number of states have concluded—in a consistent trend—that death is not a suitable punishment for the mentally retarded. Given that anticrime legislation is far more popular than legislation protecting violent criminals, the Court viewed this trend as "powerful" evidence that today’s society views mentally retarded offenders as categorically less culpable than the average individual. The Court found the legislative trend supported its own analysis, which noted that mentally retarded persons, while competent to stand trial, have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others’ reaction. It was therefore questionable whether the twin goals of retribution and deterrence of the criminal law were served when mentally retarded persons are executed. The Court further noted that the mentally retarded face a special risk of execution, because they will unwittingly confess to crimes they did not commit, be unable to assist counsel, make poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse.

Selective prosecution. United States v. Bass, 122 S. Ct. 2389 (2002) (per curiam). A federal district court ordered the government to supply information relating to the government’s capital charging practices. The order was based upon national statistics demonstrating significant disparities in the application of the death penalty. When the government refused to comply with the order, the prosecution was dismissed. The Sixth Circuit affirmed, but the Supreme Court reversed. The Court noted that under United States v. Armstrong, 517 U.S. 456 (1996), a defendant who seeks discovery on a claim of selective prosecution must show some evidence of "both discriminatory effect and discriminatory intent." Armstrong required the defendant to make a "credible showing" that "similarly situated individuals of a different race were not prosecuted." The Court held that national statistics demonstrating disparities do not make the required showing.

Search & Seizure

Warrantless search of home. Kirk v. Louisiana, 122 S. Ct. 2458 (2002) (per curiam). After observing what they thought were drug sales inside a person’s home, the police entered the home, arrested the defendant, searched him, and found a drug vial on his person and contraband in plain view. The Louisiana courts refused to suppress the evidence, reasoning that, without regard to whether "exigent circumstances" existed, there was probable cause to arrest the suspect. The U.S. Supreme Court reversed the decision, holding that "the Fourth Amendment has drawn a firm line at the entrance to the house" and "[a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant." The Court observed that the searching police officers had claimed exigent circumstances existed because the evidence would be destroyed, but that Louisiana courts had not assessed this evidence, and suggested that the state court might now consider the exigent circumstances on remand.

Bus passenger searches. United States v. Drayton, 122 S. Ct. 2105 (2002). Three police officers boarded a bus at a regular terminal stop as part of a drug and weapons interdiction effort. One officer knelt on the driver’s seat, facing the rear of the bus, another stayed in the rear facing forward, and a third made his way from back to front, speaking with individual passengers. He did not block the aisle. He approached the defendants, held up his badge, and, after doing a consensual search of their bags, asked one, "Do you mind if I check your person?" The defendant consented and a pat-down detected hard objects along his upper thighs, which turned out to be plastic bundles of cocaine. A similar process led to the discovery of cocaine on the other defendant. The Supreme Court held that the Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate and to refuse consent to searches. Applying the framework of Florida v. Bostick, 501 U.S. 429 (1991), the Court noted that police may pose questions and request consent to search, even of persons they do not suspect, so long as they do not induce cooperation by coercive means. "The fact that an encounter takes place on a bus does not on its own transform standard police questioning of citizens into an illegal seizure." The Court found no significance in the officer’s display of his badge, or in the fact that an officer was positioned at the front of the bus.

School drug testing programs for chess masters and debaters. Board of Education v. Earls, 122 S. Ct. 2559 (2002). Oklahoma school district has a student activities drug policy, which requires all middle and high school students to submit to urinalysis testing for drugs to participate in any extracurricular activity. Students and parents filed a section 1983 action, challenging the suspicionless testing as a violation of the Fourth Amendment. The Court held that the policy is a reasonable means of furthering the school district’s interest in preventing drug abuse. Since this context is civil, the school district can defend against the Fourth Amendment claim by demonstrating "reasonableness," not the stricter "probable cause," which is necessary in a criminal setting. Considering the character of the intrusion and the nature of the concern being addressed, the Court concluded, the policy is reasonable.

Right to Effective Counsel

Right to counsel for misdemeanor with suspended sentence. Alabama v. Shelton, 122 S. Ct. 1764 (2002). A suspended sentence that may "end up in the actual deprivation of a person’s liberty" may not be imposed unless the defendant was accorded the right to counsel. The Sixth Amendment does not permit activation of a suspended sentence upon indigent defendants’ violation of the terms of probation where the state did not provide counsel during the prosecution of the offense for which they are imprisoned. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point "result[s] in imprisonment," Nichols v. United States, and it "end[s] up in the actual deprivation of a person’s liberty." Argersinger v. Hamlin. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott v. Illinois, does not allow.

Ineffective death penalty phase defense. Bell v. Cone, 122 S. Ct. 1853 (2002). Cone was convicted in state court of first-degree murder, murder in the perpetration of a burglary, assault with intent to commit murder, and robbery by use of deadly force, then sentenced to death. During the sentencing phase, his lawyer failed to present evidence and closing argument. The lawyer later explained that this was done out of fear that the prosecutor might make a devastating closing argument. Cone’s convictions and death sentence were affirmed by the Tennessee state courts, which concluded that his counsel’s omissions did not fall below the standard for determining ineffective counsel under Strickland v. Washington, 466 U.S. 668 (1984). Cone then petitioned for federal habeas corpus relief, which was denied. He appealed and the Sixth Circuit affirmed most issues, but reversed as to the death sentence, holding that trial counsel’s failure to present mitigating evidence and closing argument during the penalty phase of trial amounted to ineffective assistance of counsel. The court of appeals presumed prejudice in reliance on United States v. Cronic, 466 U.S. 648 (1984), and found that the state court erred in failing to apply Cronic. It maneuvered around the state court’s findings, by holding that they constitute a "decision that is contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (28 U.S.C. § 2254(d)(1).) The court of appeals concluded that Cone’s counsel’s refusal to offer any evidence in mitigation and refusal even to address the jurors to ask them to spare Cone’s life because counsel feared the prosecutor might make a devastating argument denied Cone his Sixth Amendment right to counsel at sentencing and that the Tennessee court’s conclusion to the contrary is an unreasonable application of the clearly established law announced by the Supreme Court in Strickland. The U.S. Supreme Court reversed, holding that the state court did not apply clearly established law unreasonably in denying habeas relief. The Supreme Court found that counsel’s performance did not fall within Cronic’s exception to the usual Strickland test for incompetence, because he did not fail entirely to subject the prosecution’s case to meaningful adversarial testing. The Court found that failing to adduce mitigating evidence and waiving closing argument were like other specific attorney errors subject to Strickland’s performance and prejudice components. The Court noted that the AEDPA requires a habeas petitioner not only to show that counsel’s performance satisfies Strickland, but that the state court applied Strickland in an objectively unreasonable manner. The petitioner could not meet this standard. Defense counsel could have reasonably concluded that the medical experts’ testimony during the guilt phase was sufficiently fresh to the jury during the sentencing phase to support a defense based on insanity and post-traumatic stress disorder related to service in the Vietnam War. Further, counsel could have feared that the prosecution might elicit information about the defendant’s criminal history from other witnesses that he could have called. Finally, counsel’s decision to waive closing argument prevented the persuasive lead prosecutor from an opportunity to portray his client as a heartless killer just before the jurors began deliberations.

Pleas and Trials

Waiving right to Giglio disclosures . United States v. Ruiz, 122 S. Ct. 2450 (2002). The Fifth and Sixth Amendments do not require prosecutors, before entering into a plea agreement with a criminal defendant, to disclose impeachment information relating to informants or other witnesses. Ruiz was negotiating a fast-track plea agreement with the government, but balked when the government required that she waive the right to receive impeachment information relating to its witnesses. Ruiz ultimately pleaded guilty, without a plea agreement, and asked the judge to grant the same two-level downward departure that the government had offered in the earlier plea negotiations. The court refused to grant the departure, and Ruiz appealed her sentence, contending that it was unlawful due to the government’s insistence on an unlawful waiver. The Supreme Court first noted that appellate jurisdiction existed to consider Ruiz’s claim, because she was in effect challenging the lawfulness of her sentence. The Court held that a federal court "always has jurisdiction to determine its own jurisdiction." The Court proceeded to find no merit in Ruiz’s argument that she was entitled to the impeachment materials in order to enter a "voluntary" plea. The Court pointed out that impeachment materials were disclosed in order to ensure the fairness of a trial, not to ensure the voluntariness of a plea. The Court added that waivers are generally sufficient if the defendant understands the circumstances "in general," and need not know specific detailed consequences. The Court also noted that the degree of help to the defendant of impeachment material depended on the nature of the government’s case—"a matter that the Constitution does not require prosecutors to disclose." The Court further noted that a valid waiver can occur "despite various forms of misapprehension" on the part of the defendant, and that ignorance of impeachment material is akin to other acceptable misapprehensions (unanticipated change in the law; unknown infirmity in grand jury proceedings). The Court noted the other safeguards of the Federal Rule of Criminal Procedure 11, and the government’s promise here to turn over any information establishing the factual innocence of the defendant. Moreover, the premature disclosure of government witnesses could disrupt ongoing investigations and expose prospective witnesses to serious harm. Further, requiring the government to disclose information in plea bargaining could require the government to devote substantially more resources to trial preparation prior to plea bargaining, thereby depriving the plea-bargaining process of its main resource-saving advantages. The Court concluded that its reasoning also applied, for the most part, to defeat Ruiz’s separate claim that she was entitled to information relating to her defenses prior to agreeing to plead guilty.

Conspiracy trials. United States v. Jiminez-Recio, 122 S. Ct. 2586 ( cert. granted May 28, 2002); decision below at 258 F.3d 1069 (9th Cir. 2002). Certiorari was granted to review the Ninth Circuit’s holding that once a conspiracy has terminated (been frustrated) due to government action, acts by unarrested persons in furtherance of the frustrated conspiratorial object do not qualify as conspiratorial acts or evidence of membership in a conspiracy. The Ninth Circuit found that the conspiracy ended when the drugs were found.

Rights, Disabilities of Convicted Persons

Inmates’ Fifth Amendment privilege against self-incrimination. McKune v. Lile, 122 S. Ct. 2017 (2002). State prison officials offered a prison inmate the opportunity to participate in a sex abuse treatment program (SATP) following his conviction of a sex offense. The program requires participants to disclose past misconduct, including conduct for which there has been no prosecution, or suffer reduced personal privileges. There is no confidentiality for disclosures. The defendant rejected participation, asserting his Fifth Amendment privilege against confessing his sex crimes. The question presented: Does revocation of correctional privileges violate Fifth Amendment privilege against self-incrimination when the inmate has no liberty interest in lost privileges and revocation is based on the refusal to accept responsibility for a crime as part of a rehabilitation program? The Supreme Court held that the adverse consequences of his assertion of the privilege—transfer to a maximum security facility, reduced visitation, reduced commissary privileges, reduced earnings, etc.—were not so significant as to constitute compulsion under the Fifth Amendment; hence there was no violation of the Fifth Amendment. The Court did not agree on a rationale for this decision. The plurality of Chief Justice Rehnquist, and Justices Kennedy, Scalia, and Thomas treated the program, in the prison context, more as an incentive offered to the inmate, rather than viewing nonprogram consequences as mere punishment for the assertion of a Fifth Amendment right. The plurality suggested that the test for compulsion in the prison context should examine whether the treatment to which the privilege invoker is subjected violates due process by imposing conditions that are "atypical and significant hardships . . . in relation to the ordinary incidents of prison life." Justice O’Connor—the deciding vote—joined no part of the plurality opinion and disputed its overall benefit/penalty analysis. She concluded that the adverse SATP consequences constituted a penalty rather than an incentive, but she found that the penalty was not severe enough to constitute compulsion. Both the plurality and Justice O’Connor made reference to U.S.S.G. § 3E1.1 (acceptance of responsibility) as raising related (and arguably more troubling) Fifth Amendment concerns.

Civil rights; state prison guard’s defense of qualified immunity. Hope v. Pelzer, 122 S. Ct. 933 (2002). In 1995, Alabama was the only state that permitted inmates to be handcuffed to a hitching post for disruptive behavior. After an altercation, inmate Hope was so punished. He was first ordered to remove his shirt, then he was hitched, and exposed to the sun for seven hours. He was given one or two water breaks, but no bathroom breaks and he was taunted by a guard about his thirst. In response to his eventual (and inevitable) section 1983 suit, the district court entered summary judgment based on qualified immunity. The Eleventh Circuit affirmed, holding that although the punishment was cruel and unusual under the Eighth Amendment, the guards had qualified immunity since Hope could not show that the Eighth Amendment issue had been established by "materially similar" cases in 1995. The Supreme Court reversed, holding that the defense of qualified immunity was precluded at the summary judgment phase. The Court rejected the Eleventh Circuit’s notion that the officers have qualified immunity unless the principle of law is established by "materially similar" cases, since that approach conflicts with prior Supreme Court precedent relating to criminal prosecutions under 18 U.S.C. § 242 (deprivation of civil rights). In the section 242 context, United States v. Lanier, 520 U.S. 259 (1997), holds that officials can be on notice that their conduct violates established law even in novel factual situations. Here, the risk of harm from the conduct was obvious and any reasonable officer should have known that using a hitching post in this manner was unlawful. The obvious cruelty inherent in the practice provided the officers with some notice that their conduct was unconstitutional. In addition, the U.S. Justice Department had previously notified the Alabama Department of Corrections of the constitutional infirmity of its practices.

Postconviction detention. Denmore v. Kim, 122 S. Ct. 2696 ( cert. granted June 28, 2002); reported below at 276 F.3d 523 (9th Cir. 2002). 8 U.S.C. § 1226(c)(2) prohibits release of those aliens who are inadmissible to or deportable from the United States because they have committed a specified offense, including an aggravated felony. Does this provision violate the Fifth Amendment Due Process Clause as it applied to a lawful permanent resident who was convicted of an aggravated felony after his admission into the United States?

Megan’s Law notices. Connecticut Department of Public Safety v. John Doe, 122 S. Ct. 1959 ( cert. granted May 20, 2002); reported below at 271 F.3d 38 (2d Cir. 2001). Connecticut’s version of Megan’s Law requires community notification based on the offender’s record rather than an individual evaluation of his or her current likelihood to repeat the crime. The district court struck down the state’s sex offender registry, finding that the law violated the constitutional rights of past offenders because their names were placed on the list without a chance to prove they are no longer dangerous to society. The Second Circuit affirmed as to due process, but held that the statute was not punitive, so was not violative of the Ex Post Facto Clause. The Supreme Court granted certiorari to consider the issue, which may affect similar laws in 20 other states.

Habeas Corpus and AEDPA

Tolling time when it’s not clear the state claim was timely filed; mailbox rule. Carey v. Saffold, 122 S. Ct. 2134 (2002). A defendant filed state habeas claims with his warden with only six days remaining on AEDPA’s one-year statute of limitations. These claims were denied on the merits by the trial court. Five days later, he filed with his warden an appeal to the state appellate court, which the appeals court denied 12 days later. Saffold then waited four-and-a-half months before filing an original habeas corpus proceeding in the state supreme court, which was denied "on the merits and for lack of diligence." Upon federal habeas review, the district court dismissed, holding that the AEDPA time limit was tolled only while each state court had the petition under consideration, so the state supreme court petition did not toll the one-year limitation period. The Ninth Circuit reversed, holding that the tolling occurred from the first habeas filing through the final determination by the last state court to hear the claim. The Ninth Circuit also applied the mailbox rule to habeas petitions under AEDPA. The U.S. Supreme Court affirmed. For purposes of tolling AEDPA’s one-year statute of limitations for habeas petitions, a state proceeding is deemed to be "pending" until the completion of the state collateral review process. Thus, the statute of limitations remains tolled during the interval between an adverse decision in a lower court, and an appeal to a higher court. The state’s proposed reading of the statute that would exclude interval periods during which a petition is not being "considered" would put federal courts in the anomalous situation of confronting petitions that had not been exhausted in the state courts but that had to be filed to avoid the federal statute of limitations.

Commencing one-year limitations period. Clay v. United States, 122 S. Ct. 2658 ( cert. granted June 28, 2002); unpublished below. "Whether petitioner’s judgment of conviction became ‘final’ within the meaning of 28 U.S.C. § 2255(6)(1) one year after the court of appeals issued its mandate on direct appeal or one year after his time for filing a petition for a writ of certiorari expired."

Retroactivity: Teague v. Lane. Horn v. Banks, 122 S. Ct. 2354 (2002). AEDPA does not displace the requirement set forth in Caspari v. Bohlen, 510 U.S. 383 (1994), that a federal habeas court conduct a retraoctivity analysis under Teague v. Lane, 489 U.S. 288 (1989)—where the issue is properly raised by the state—before reaching the merits of a federal habeas claim based on authority postdating the finality of the conviction. In this case, after Banks was sentenced to death and lost his direct appeal, the Supreme Court decided Mills v. Maryland, 486 U.S. 367 (1988) (prohibiting a state from requiring jurors to unanimously agree that a particular mitigating circumstance exists in order to consider such circumstance in the penalty phase), a decision that called into question the constitutionality of the jury’s verdict of death in his case. Banks raised Mills, unsuccessfully, in subsequent state postconviction proceedings. Banks then sought federal habeas relief, which was granted by the Third Circuit, reasoning that its task was to review, under the AEDPA, whether the state post-conviction courts applied Mills reasonably, and that, because the state had not ruled on nonretroactivity, it was unnecessary to conduct a preliminary Teague analysis to determine whether Mills applied retroactively to the habeas petition. Reversing, the Supreme Court held that a Teague analysis is required by Caspari as a "threshold" matter, and that this requirement is not displaced by AEDPA. "Thus, in addition to performing any analysis required by AEDPA, a federal court considering a habeas petition must conduct a threshold Teague analysis when the issue is properly raised by the state."

Paul M. Rashkind is a supervisory assistant federal public defender and chief of appeals for the Office of the Federal Public Defender, Southern District of Florida, in Miami. He also serves on the adjunct faculty of the University of Miami School of Law. He is current Section vice chair for publications, chair of the Book Publishing Committee, a member of the magazine editorial board, and a contributing editor to Criminal Justice magazine.



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