Teague v. Lane
489 U.S. 288 (1989)

Annotate this Case

U.S. Supreme Court

Teague v. Lane, 489 U.S. 288 (1989)

Teague v. Lane

No. 87-5259

Argued October 4, 1988

Decided February 22, 1989

489 U.S. 288

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Syllabus

Petitioner, a black man, was convicted in an Illinois state court of attempted murder and other offenses by an all-white jury. During jury selection, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner twice unsuccessfully moved for a mistrial, arguing that he was "entitled to a jury of his peers." The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury. After an unsuccessful state court appeal, in which he argued that the prosecutor's use of peremptory challenges denied him the right to be tried by a jury that was representative of the community, petitioner filed a habeas corpus petition in Federal District Court, repeating his fair cross-section claim. He further argued that the opinions of several Justices concurring in and dissenting from the denial of certiorari in McCray v. New York, 461 U.S. 961, had invited a reexamination of Swain v. Alabama,380 U. S. 202, as to what a defendant must show to establish a prima facie case of discrimination with respect to a peremptory challenge system. He also argued, for the first time, that, under Swain, a prosecutor could be questioned about his use of peremptory challenges once he volunteered an explanation. The District Court held that it was bound by Swain and Circuit precedent, and denied relief. A panel of the Court of Appeals agreed with petitioner that the Sixth Amendment's fair cross-section requirement that applied to a jury venire also applied to a petit jury, and held that he had made out a prima facie case of discrimination. But the Court of Appeals voted to rehear the case en banc, and postponed rehearing until after this Court's decision in Batson v. Kentucky,476 U. S. 79. Ultimately, Batson was decided, and overruled that portion of Swain setting forth the evidentiary showing necessary to make out a prima facie case of racial discrimination under the Equal Protection Clause of the Fourteenth Amendment with respect to a peremptory challenge system. Batson held that a defendant can establish such a case by showing that he is a "member of a cognizable racial group," that the prosecutor exercised "peremptory challenges to remove from the venire members of the defendant's race," and that these

"facts and any other relevant circumstances raise an inference that the prosecutor used that practice to

Page 489 U. S. 289

exclude the veniremen from the petit jury on account of their race."

476 U.S. at 476 U. S. 96. The Court of Appeals then held that petitioner could not benefit from the Batson rule because, in the meantime, Allen v. Hardy,478 U. S. 255, had held that Batson could not be applied retroactively to cases on collateral review. The Court of Appeals also held that petitioner's Swain claim was procedurally barred and, in any event, meritless, and that the fair cross-section requirement was limited to the jury venire.

Held: The judgment is affirmed.

820 F.2d 832, affirmed.

JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II, and III, concluding that:

1. Allen v. Hardy prevented petitioner from benefiting from the rule announced in Batson, since his conviction became final before Batson was decided. The opinions filed in McCray -- which involved the question whether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor's assumption that they would be biased in favor of other members of the same group -- did not destroy Swain's precedential effect, as petitioner urges they did, since a denial of certiorari imports no expression of opinion on the merits of the case, and, concomitantly, opinions accompanying such denial cannot have the same effect as decisions on the merits. Pp. 489 U. S. 294-296.

2. Petitioner is procedurally barred from raising the claim that he has established a violation of the Equal Protection Clause under Swain, and that Swain did not preclude an examination of the prosecutor's stated reasons for his peremptory challenges to determine the legitimacy of his motive. Since petitioner did not raise the Swain claim at trial or on direct appeal, he forfeited review of the claim in collateral proceedings in the state courts. Under Wainwright v. Sykes,433 U. S. 72, he is barred from raising the claim in a federal habeas corpus proceeding, since he made no attempt to show cause for his default and the Illinois Appellate Court, contrary to his contention, did not address the Swain claim. Pp. 489 U. S. 297-299.

JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded in Parts IV and V that a decision extending to the petit jury the Sixth Amendment requirement that the jury venire be drawn from a fair cross-section of the community would not be applied retroactively to cases on collateral review, and therefore petitioner's fair cross-section claim will not be addressed. Pp. 489 U. S. 299-316.

(a) Retroactivity is properly treated as a threshold question, for, once a new constitutional rule of criminal procedure is applied to the defendant

Page 489 U. S. 290

in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. Thus, before deciding whether the fair cross-section requirement should be extended to the petit jury, it should be determined whether such a rule would be applied retroactively to the case at issue. Pp. 489 U. S. 299-305.

(b) Justice Harlan's view that new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review is the appropriate approach. Unless they fall within one of Justice Harlan's suggested exceptions to this general rule -- that a new rule should be applied retroactively (1) if it places "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe," Mackey v. United States,401 U. S. 667, 401 U. S. 692, or (2) if it requires the observance of "those procedures that . . . are implicit in the concept of ordered liberty,'" id. at 401 U. S. 693 -- such new rules will not be applicable to those cases that have become final before the new rules were announced. Pp. 489 U. S. 305-310.

(c) Since petitioner's conviction became final six years ago, the rule he urges would not be applicable to this case, which is on collateral review, unless it falls within one of the above exceptions. The first exception is not relevant here, since application of the fair cross-section requirement to the petit jury would not accord constitutional protection to any primary activity. The second exception should be limited in scope to those new procedures without which the likelihood of an accurate conviction is seriously diminished. An examination of the decision in Taylor v. Louisiana,419 U. S. 522, applying the fair cross-section requirement to the jury venire, leads inexorably to the conclusion that adoption of the rule petitioner urges would be a far cry from the kind of absolute prerequisite to fundamental fairness that is "implicit in the concept of ordered liberty." Because the absence of a fair cross-section on the jury venire does not undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction, a rule requiring that petit juries be composed of a fair cross-section of the community would not be a "bedrock procedural element" that would be retroactively applied under the second exception. Pp. 489 U. S. 311-315.

(d) Were the new rule urged by petitioner recognized, petitioner would have to be given the benefit of that rule even though it would not be applied retroactively to others similarly situated. A new rule will not be announced in a given case unless it would be applied retroactively to the defendant in that case and to all others similarly situated. This not only eliminates any problems of rendering advisory opinions, it also avoids the inequity resulting from an uneven application of new rules to similarly situated defendants. Implicit in the above retroactivity approach is the principle that habeas corpus cannot be used as a vehicle to

Page 489 U. S. 291

create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two articulated exceptions. Pp. 489 U. S. 315-316.

JUSTICE WHITE concluded that the result as to nonretroactivity of the fair cross-section rule urged by petitioner is an acceptable application in collateral proceedings of the theories embraced in United States v. Johnson,457 U. S. 537, Shea v. Louisiana,470 U. S. 51, and Griffith v. Kentucky,479 U. S. 314, as to retroactivity of new constitutional rules of criminal procedure to all cases pending on direct review. Pp. 489 U. S. 316-317.

JUSTICE BLACKMUN concurred in the result insofar as petitioner's claim based on Swain v. Alabama,380 U. S. 202, was concerned. P. 489 U. S. 318.

JUSTICE STEVENS concluded in Part I, joined by JUSTICE BLACKMUN, that petitioner had alleged a Sixth Amendment violation and that the Court should decide the question in his favor. Nonetheless, petitioner's conviction should not be set aside for, as a matter of stare decisis, the Court's opinion in Allen v. Hardy,478 U. S. 255, controls disposition of this retroactivity question. In general, the Court should adopt Justice Harlan's analysis of retroactivity for habeas corpus cases as well as for cases still on direct review, but without the plurality's "modification" of his fundamental fairness exception. JUSTICE STEVENS concluded in Part II that, since petitioner's claim under Swain v. Alabama,380 U. S. 202, that the prosecutor violated the Equal Protection Clause by using peremptory challenges to exclude black persons from the jury was never presented to the state courts, it should be treated as an unexhausted claim that is not ripe for review on federal habeas corpus until those courts have spoken. Pp. 489 U. S. 318-326.

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and III, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined, the opinion of the Court with respect to Part II, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Parts IV and V, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined. WHITE, J., post, p. 489 U. S. 316, and BLACKMUN, J., post, p. 489 U. S. 318, filed opinions concurring in part and concurring in the judgment. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in Part I of which BLACKMUN, J., joined, post, p. 489 U. S. 318. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 489 U. S. 326.

Page 489 U. S. 292

JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, and an opinion with respect to Parts IV and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.

In Taylor v. Louisiana,419 U. S. 522 (1975), this Court held that the Sixth Amendment required that the jury venire be drawn from a fair cross-section of the community. The Court stated, however, that,

"in holding that petit juries must be drawn from a source fairly representative of the community, we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition."

Id. at 419 U. S. 538. The principal question presented in this case is whether the Sixth Amendment's fair cross-section requirement should now be extended to the petit jury. Because we adopt Justice Harlan's approach to retroactivity for cases on collateral review, we leave the resolution of that question for another day.

I

Petitioner, a black man, was convicted by an all-white Illinois jury of three counts of attempted murder, two counts of

Page 489 U. S. 293

armed robbery, and one count of aggravated battery. During jury selection for petitioner's trial, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner's counsel used one of his 10 peremptory challenges to exclude a black woman who was married to a police officer. After the prosecutor had struck six blacks, petitioner's counsel moved for a mistrial. The trial court denied the motion. App. 2-3. When the prosecutor struck four more blacks, petitioner's counsel again moved for a mistrial, arguing that petitioner was "entitled to a jury of his peers." Id. at 3. The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury. The trial court denied the motion, reasoning that the jury "appear[ed] to be a fair [one]." Id. at 4.

On appeal, petitioner argued that the prosecutor's use of peremptory challenges denied him the right to be tried by a jury that was representative of the community. The Illinois Appellate Court rejected petitioner's fair cross-section claim. People v. Teague, 108 Ill.App.3d 891, 895-897, 439 N.E.2d 1066, 1069-1071 (1982). The Illinois Supreme Court denied leave to appeal, and we denied certiorari. 464 U. S. 867 (1983).

Petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. Petitioner repeated his fair cross-section claim, and argued that the opinions of several Justices concurring in and dissenting from the denial of certiorari in McCray v. New York, 461 U.S. 961 (1983), had invited a reexamination of Swain v. Alabama,380 U. S. 202 (1965), which prohibited States from purposefully and systematically denying blacks the opportunity to serve on juries. He also argued, for the first time, that, under Swain, a prosecutor could be questioned about his use of peremptory challenges once he volunteered an explanation. The District Court, though sympathetic to petitioner's arguments, held that it was bound by Swain and Circuit precedent. App. 5-6.

Page 489 U. S. 294

On appeal, petitioner repeated his fair cross-section claim and his McCray argument. A panel of the Court of Appeals agreed with petitioner that the Sixth Amendment's fair cross-section requirement applied to the petit jury, and held that petitioner had made out a prima facie case of discrimination. A majority of the judges on the Court of Appeals voted to rehear the case en banc, and the panel opinion was vacated. United States ex rel. Teague v. Lane, 779 F.2d 1332 (CA7 1985) (en banc) (Cudahy, J., dissenting). Rehearing was postponed until after our decision in Batson v. Kentucky,476 U. S. 79 (1986), which overruled a portion of Swain. After Batson was decided, the Court of Appeals held that petitioner could not benefit from the rule in that case because Allen v. Hardy,478 U. S. 255 (1986) (per curiam), had held that Batson would not be applied retroactively to cases on collateral review. 820 F.2d 832, 834, n. 4 (CA7 1987) (en banc). The Court of Appeals also held that petitioner's Swain claim was procedurally barred and, in any event, meritless. Id. at 834, n. 6. The Court of Appeals rejected petitioner's fair cross-section claim, holding that the fair cross-section requirement was limited to the jury venire. Id. at 834-843. Judge Cudahy dissented, arguing that the fair cross-section requirement should be extended to the petit jury. Id. at 844.

II

Petitioner's first contention is that he should receive the benefit of our decision in Batson even though his conviction became final before Batson was decided. Before addressing petitioner's argument, we think it helpful to explain how Batson modified Swain.Swain held that a "State's purposeful or deliberate denial" to blacks of an opportunity to serve as jurors solely on account of race violates the Equal Protection Clause of the Fourteenth Amendment. 380 U.S. at 380 U. S. 203-204. In order to establish a prima facie case of discrimination under Swain, a defendant had to demonstrate that the peremptory challenge system had been "perverted."

Page 489 U. S. 295

A defendant could raise an inference of purposeful discrimination if he showed that the prosecutor in the county where the trial was held "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be," has been responsible for the removal of qualified blacks who had survived challenges for cause, with the result that no blacks ever served on petit juries. Id. at 380 U. S. 223.

In Batson, the Court overruled that portion of Swain setting forth the evidentiary showing necessary to make out a prima facie case of racial discrimination under the Equal Protection Clause. The Court held that a defendant can establish a prima facie case by showing that he is a "member of a cognizable racial group," that the prosecutor exercised "peremptory challenges to remove from the venire members of the defendant's race," and that those

"facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race."

476 U.S. at 476 U. S. 96. Once the defendant makes out a prima facie case of discrimination, the burden shifts to the prosecutor "to come forward with a neutral explanation for challenging black jurors." Id. at 476 U. S. 97.

In Allen v. Hardy, the Court held that Batson constituted an "explicit and substantial break with prior precedent" because it overruled a portion of Swain. 478 U.S. at 478 U. S. 258. Employing the retroactivity standard of Linkletter v. Walker,381 U. S. 618, 381 U. S. 636 (1965), the Court concluded that the rule announced in Batson should not be applied retroactively on collateral review of convictions that became final before Batson was announced. The Court defined final to mean a case

"'where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in' Batson. . . ."

478 U.S. at 478 U. S. 258, n. 1 (citation omitted).

Petitioner's conviction became final 2 1/2 years prior to Batson, thus depriving petitioner of any benefit from the rule

Page 489 U. S. 296

announced in that case. Petitioner argues, however, that Batson should be applied retroactively to all cases pending on direct review at the time certiorari was denied in McCray because the opinions filed in McCray destroyed the precedential effect of Swain. Brief for Petitioner 23. The issue in McCray and its companion cases was whether the Constitution prohibited the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor's assumption that they would be biased in favor of other members of that same group. JUSTICES MARSHALL and BRENNAN dissented from the denial of certiorari, expressing the views that Swain should be reexamined, and that the conduct complained of violated a defendant's Sixth Amendment right to be tried by an impartial jury drawn from a fair cross-section of the community. 461 U.S. at 964-970. JUSTICES STEVENS, BLACKMUN, and Powell concurred in the denial of certiorari. They agreed that the issue was an important one, but stated that it was a

"sound exercise of discretion for the Court to allow the various States to serve as laboratories in which the issue receives further study before it is addressed."

Id. at 963.

We reject the basic premise of petitioner's argument. As we have often stated, the "denial of a writ of certiorari imports no expression of opinion upon the merits of the case." United States v. Carver,260 U. S. 482, 260 U. S. 490 (1923) (Holmes, J.). Accord, Hughes Tool Co. v. Trans World Airlines, Inc.,409 U. S. 363, 409 U. S. 366, n. 1 (1973); Brown v. Allen,344 U. S. 443, 344 U. S. 489-497 (1953). The "variety of considerations [that] underlie denials of the writ," Maryland v. Baltimore Radio Show,338 U. S. 912, 917 (1950) (opinion of Frankfurter, J.), counsels against according denials of certiorari any precedential value. Concomitantly, opinions accompanying the denial of certiorari cannot have the same effect as decisions on the merits. We find that Allen v. Hardy is dispositive, and that petitioner cannot benefit from the rule announced in Batson.

Page 489 U. S. 297

III

Petitioner's second contention is that he has established a violation of the Equal Protection Clause under Swain. Recognizing that he has not shown any systematic exclusion of blacks from petit juries in case after case, petitioner contends that, when the prosecutor volunteers an explanation for the use of his peremptory challenges, Swain does not preclude an examination of the stated reasons to determine the legitimacy of the prosecutor's motive. Brief for Petitioner 35 (citing Batson, 476 U.S. at 476 U. S. 101, n. (WHITE, J., concurring)). See Weathersby v. Morris, 708 F.2d 1493, 1495-1496 (CA9 1983) (supporting petitioner's interpretation of Swain), cert. denied, 464 U.S. 1046 (1984).

Petitioner candidly admits that he did not raise the Swain claim at trial or on direct appeal. Brief for Petitioner 38-39. Because of this failure, petitioner has forfeited review of the claim in the Illinois courts.

"It is well established that"

"where an appeal was taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those that could have been presented but were not are deemed waived."

People v. Gaines, 105 Ill.2d 79, 87-88, 473 N.E.2d 868, 873 (1984) (citation omitted), cert. denied, 471 U.S. 1131 (1985). The default prevents petitioner from raising the Swain claim in collateral proceedings under the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat., ch. 38,

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