Once criminal appellate relief is exhausted, new beneficial Supreme Court cases usually are of no help

Aug 14, 2009 Once criminal appellate relief is exhausted, new beneficial Supreme Court cases usually are of no help

Bill of Rights. (From the public domain.)

Appellate courts are ever-wary about opening litigation floodgates. In that context, the United States Supreme Court has — with narrow exceptions — made the benefits of its new rulings unavailable to criminal defendants who have already exhausted appellate relief. This week, the D.C. Court of Appeals commented on this issue as follows:

"The Supreme Court has held that a new constitutional rule of criminal procedure is not applicable on collateral review to cases that became final before the rule was announced unless the new rule (1) ‘places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe’ or (2) is a ‘watershed rule[] of criminal procedure’ that ‘implicate[s] the fundamental fairness of the trial.’ Teague v. Lane, 489 U.S. 288, 311-12 (1989) (citations and internal quotation marks omitted). In Whorton v. Bockting, 549 U.S. 406, 409 (2007), the Supreme Court held that under Teague, Crawford is not retroactive to cases on collateral review. The Court later clarified that while federal law does not require state courts to apply Crawford to cases that were final when it was decided, it does not prohibit them from doing so either. Danforth v. Minnesota, 128 S. Ct. 1029, 1046 (2008). The Teague rule ‘was tailored to the unique context of federal habeas and therefore had no bearing on whether States could provide broader relief in their own postconviction proceedings than required by that opinion.’ Id. at 1039. States may give broader retroactive effect to the Supreme Court’s new rules of criminal procedure where it is appropriate to do so under state law that governs retroactivity in state postconviction proceedings. Id. at 1046."

Gaithers v. U.S., ___ A.2d ___ (D.C., Aug. 13, 2009) (emphasis added).

Gathers concluded as follows:

"Since Fields, we have confirmed that ‘[n]ew legal principles, even when applied retroactively, do not apply to cases already closed.’ Davis v. Moore, 772 A.2d 204, 230 (D.C. 2001) (en banc) (citation omitted). Although Davis implied, id. at 230 n.24, that the two Teague exceptions to this rule quoted above will apply to collateral attacks on criminal convictions in Superior Court, we need not consider that point further because appellant has not argued — and cannot fairly argue — that either exception is met by the rule of Crawford and its progeny, as the court made clear in Whorton. Thus even if, arguendo, federal law does not prohibit the District of Columbia from applying Crawford retroactively on collateral review, District of Columbia law does. Accordingly, we affirm the trial court’s decision that Crawford may not be applied retroactively on collateral review." Gaithers v. U.S..

Consequently, while a criminal case is pending at the trial or appellate court level, it is critical for the criminal defense lawyer to be monitoring the relevant appellate case developments like a hawk, and to be ready to bring such new cases to the appellate courts’ attention post-briefing and pre-disposition. Jon Katz.

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