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U.S. Supreme Court Tackles Retroactivity Issue

By Thomas R. Newman and Steven J. Ahmuty Jr.
July 6, 2021
New York Law Journal

U.S. Supreme Court Tackles Retroactivity Issue

By Thomas R. Newman and Steven J. Ahmuty Jr.
July 6, 2021
New York Law Journal

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Last term, in Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390 (2020), the U.S. Supreme Court held by a 6-3 vote that the Sixth Amendment right to trial by jury, as incorporated against the states by way of the 14th Amendment, requires a unanimous verdict to convict a defendant of a serious offense in a state criminal trial. Ramos overruled Apodaca v. Oregon, 406 U.S. 404 (1972), in which a plurality of the court held that the Sixth Amendment required unanimous jury verdicts in federal trials but not state trials.

The ruling in Ramos was significant not only for defendants who had been convicted by nonunanimous juries in Louisiana and Oregon—which were the only two states that still allowed nonunanimous verdicts—but also for its valuable insights into the individual Justices’ views on the doctrine of stare decisis, by which courts normally adhere to precedent. The Justices in Ramos were deeply divided as to what constitutes "precedent" and when it is appropriate to overrule it. See Newman and Ahmuty, "U.S. Supreme Court Debates Stare Decisis Principles," NYLJ (May 5, 2020).

For Louisiana and Oregon, the decision in Ramos raised the question of whether the jury-unanimity rule would apply retroactively in those states. On May 17, 2021, in Edwards v. Vannoy, 593 U.S. ___, 141 S. Ct. 1547, the Supreme Court held by a 6-3 vote that (1) the Ramos jury-unanimity rule did not apply retroactively to overturn final state-court convictions on federal collateral review, and (2) there is no exception, for so-called "watershed" rules, to the principle that new constitutional rules of criminal procedure ordinarily do not apply retroactively on federal collateral review. Once again, the Justices in Edwards were sharply divided over the application of stare decisis.

In 2007, Thedrick Edwards was tried in Louisiana state court on charges of armed robbery, rape and kidnapping. At the time, Louisiana law permitted nonunanimous verdicts by at least 10 of the 12 jurors. (Louisiana subsequently enacted a law requiring unanimous verdicts in felony trials, but this new law only applied prospectively.) Edwards was found guilty by a nonunanimous verdict and sentenced to life imprisonment. The Louisiana First Circuit Court of Appeals affirmed the conviction and sentence. In 2011, Edwards’ conviction became final on direct review. After his conviction became final, Edwards applied for and was denied post-conviction relief in the Louisiana courts.

In 2015, Edwards filed a petition for a writ of habeas corpus in federal court, arguing that the nonunanimous jury verdict violated his constitutional right to a unanimous jury. The district court rejected that claim as foreclosed by Apodaca’s plurality holding that a unanimous verdict was not constitutionally required in state criminal trials. After the U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability, Edwards petitioned for a writ of certiorari in the Supreme Court, again arguing that a unanimous verdict was constitutionally required. While Edwards’s petition for certiorari was pending, the Supreme Court decided Ramos, overturning Apodaca and holding that unanimous verdicts are required in state trials as well as federal trials. After granting certiorari in Edwards’ case, the court held that the Ramos jury-unanimity rule did not apply retroactively on federal collateral review.

Retroactivity Analysis

Writing for the majority in Edwards, Justice Brett Kavanaugh observed that new substantive rules of criminal law, which alter "the range of conduct or the class of persons that the law punishes," not only apply to cases pending in trial courts and on direct appellate review, but they also apply retroactively on federal collateral review. 141 S. Ct. at 1562 (citation omitted).

By contrast, new procedural rules of criminal law, which alter "only the manner of determining the defendant’s culpability," apply "to cases on direct review, even if the defendant’s trial has already concluded," but "ordinarily [do] not apply retroactively to overturn final convictions on federal collateral review" under the habeas corpus statute. 141 S. Ct. at 1562. Although the court in Teague v. Lane, 489 U.S. 288, 310 (1989), recognized a possible exception to this principle for a "watershed" rule of criminal procedure—one that alters "our understanding of the bedrock procedural elements essential to the fairness of a proceeding" (see 141 S. Ct. at 1557 [citation omitted])—Justice Kavanaugh observed that in the 32 years since Teague, the court had never found that any new procedural rule actually satisfied this purported exception, which rendered it more theoretical than real.

Starting with the retroactivity issue, the court in Edwards first considered whether Ramos announced a new rule of criminal procedure, as opposed to applying a settled rule. The Ramos jury-unanimity rule was "new" for purposes of the retroactivity doctrine, the court concluded, because it was not "dictated by existing precedent at the time the defendant’s conviction became final" and "was not apparent to all reasonable jurists" at that time. 141 S. Ct. at 1555 (citations omitted). On the contrary, before Ramos, many courts allowed for nonunanimous jury verdicts in state criminal trials based upon Apodaca. And, Ramos expressly overruled Apodaca.

The court next considered whether the new Ramos jury-unanimity rule fell within the purported exception in Teague for "watershed" rules that apply retroactively on federal collateral review. This exception is "extremely narrow" and, indeed, the court has identified only one pre-Teague procedural rule as "watershed"—the right to counsel recognized in Gideon v. Wainwright, 372 U.S. 335 (1963). Moreover, it emphatically stated in Teague and subsequent cases that the watershed exception is unlikely to cover any more new procedural rules. 141 S. Ct. at 1557 (citations omitted). Having rejected every post-Teague claim that a new procedural rule qualified as a watershed rule, the court declined to apply this exception in Edwards.

Declaring the watershed exception "moribund," the court explicitly repudiated it: "Continuing to articulate a theoretical exception that never actually applies in practice," Justice Kavanaugh wrote, "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." 141 S. Ct. at 1560 (citation omitted). Therefore, Justice Kavanaugh concluded that "[i]t 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." Id.

Stare Decisis Principles

As previously noted, the Justices in Ramos were deeply divided as to what constitutes "precedent" and when it is appropriate to overrule it. Observing that stare decisis has never been treated as an "inexorable command," particularly on constitutional issues, a plurality in Ramos concluded that Apodaca had no precedential value on the basis of stare decisis or otherwise since it was "an admittedly mistaken decision, on a constitutional issue, an outlier on the day it was decided, and one that’s become lonelier with time." 590 U.S. at ___, 140 S. Ct. at 1408.

Justice Samuel Alito filed a dissenting opinion in Ramos, joined in part by Chief Justice John Roberts and Justice Elena Kagan. "The doctrine of stare decisis gets rough treatment in today’s [Ramos] decision," Justice Alito wrote. 140 S. Ct. at 1425. "Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn." Id.

Justice Kagan filed a sharp dissent in Edwards, joined by Justices Stephen Breyer and Sonia Sotomayor. Justice Kagan suggested that the Ramos jury-unanimity rule was so self-evidently a watershed rule that the majority had no choice but to eliminate Teague’s watershed exception, thereby "discard[ing] precedent without a party requesting that action." 141 S. Ct. at 1574. In the dissenters’ view, the majority broke "a core judicial rule: respect for precedent." Ramos shows "how high stare decisis sets the bar for overruling a prior decision," but the majority in Edwards "crawls under, rather than leaps over, the stare decisis bar." 141 S. Ct. at 1580.

In response, Justice Kavanaugh stated that "no stare decisis values would be served by continuing to indulge the fiction that Teague’s purported watershed exception endures. No one can reasonably rely on a supposed exception that has never operated in practice. And perpetuating what has become an illusory exception misleads litigants and judges, and needlessly expends the scarce resources of defense counsel, prosecutors, and courts." 141 S. Ct. at 1561.

Edwards further illuminates the Justices’ deeply divergent views regarding stare decisis—an issue that looms large as prior abortion-rights and other constitutional precedents face new challenges in federal and state courts. On the same day Edwards was decided, the Supreme Court granted review in Dobbs v. Jackson Women’s Health Organization (Docket No. 19-1392) to determine the constitutionality of a Mississippi statute that (with limited exceptions) bans abortions after the 15th week of pregnancy. Joining Dobbs on the court’s docket for the next term is New York State Rifle & Pistol Association v. Corlett (Docket No. 20-843), a major gun-rights case that raises the issue of whether New York’s denial of the petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.

Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.

Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.