Using the Supreme Court’s Original Habeas Jurisdiction to “Ma[k]e” New Rules Retroactive

Abstract

Ever since the Supreme Court’s 1989 decision in Teague v. Lane, state and federal prisoners alike have struggled to take advantage of “new rules” of constitutional law that are articulated by the Court after their direct appeals have gone final. Only two kinds of “new rules” are retroactively enforceable under Teague: “watershed” rules of criminal procedure (of which there have been none since Teague), or decisions “that narrow the scope of a criminal statute by interpreting its terms” or involve “constitutional determinations that place particular conduct or persons covered by the statute beyond the State’s power to punish,” which the Court has described as “substantive” rules.And for prisoners who have already filed one claim for federal post-conviction relief, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) adds an additional trio of “gatekeeping” roadblocks: First, under AEDPA, a prisoner seeking to file a second-or-successive claim must obtain the advance permission of the Court of Appeals, and such permission will only be granted for claims based upon new rules when that rule has been “made retroactive to cases on collateral review by the Supreme Court.” In other words, it is not enough that the Supreme Court has, in fact, articulated a retroactively enforceable new rule; the Court must also have separately “made” the rule retroactive.Second, if the Court of Appeals denies permission for any (or even no) reason, that denial cannot be appealed to the Supreme Court through a petition for a writ of certiorari. Finally, petitioners only have one year from the date of the Supreme Court decision articulating the new rule — and not a subsequent decision in which the new rule is “made retroactive” — to file a second-or-successive claim. Taken together, these roadblocks make it exceedingly difficult even for a prisoner with a patently meritorious claim for post-conviction relief based upon a new rule of constitutional law (including a claim that might require his immediate release) to obtain such relief through a second-or-successive petition.This short essay uses the aftermath of the Supreme Court’s June 2015 decision in Johnson v. United States, in which the Court invalidated the so-called “residual clause” of the Armed Career Criminals Act (ACCA), to illuminate three different potential mechanisms for avoiding the trap AEDPA otherwise creates for second-or-successive petitioners seeking to take advantage of Supreme Court decisions articulating new rules of constitutional law — and why the best option is the obscure remedy provided by the Supreme Court's jurisdiction to issue writs of habeas corpus. As the essay explains, original habeas requires neither the creative statutory interpretation nor the fortuitous circumstances necessary to the other two avenues for review. Instead, the real problem with original habeas, as Johnson’s aftermath underscores, is the Justices’ reluctance to utilize it — a reluctance that not only puts that much more pressure on the other two avenues for “ma[king]” new rules retroactive, but that provokes serious constitutional questions about AEDPA, as well. Thus, as this essay concludes, if the Justices take AEDPA’s retroactivity trap seriously, they can (and should) rely upon their original habeas jurisdiction to “ma[k]e retroactive” those new rules of constitutional law that can’t otherwise be enforced by second-or-successive claimants.