Symposium: Chaidez—An opportunity for the Court to continue its path away from “antiretroactivity” and toward “redressability”

By Christopher Lasch

Last week in my preview of the Chaidez argument, I focused on the procedural argument Chaidez makes against application of the Teague v. Lane, 489 U.S. 288 (1989), rule in her case. Chaidez argues the reasons motivating the Court to adopt the Teague rule when federal courts review state criminal judgments in habeas corpus proceedings — comity and finality — do not support application of the rule in the procedural posture her case presents. This was discussed at some length during the argument, and I will focus on it again here, though some background is necessary first.

[Click here to see a list of all the symposium contributions.]

The Teague rule was known for some time as an “antiretroactivity rule.” (The Court, for example, referred to it as such in its 2000 decision in Williams v. Taylor, 529 U.S. 326 (2000).) That is because, quite simply, Teague acts to bar retroactive application of new constitutional rules of criminal procedure. While there are two exceptions to the Teague rule, they apply so rarely the rule has been properly considered one establishing an anti-retroactivity principle.

In its 2008 opinion in Danforth v. Minnesota, 128 S. Ct. 1029 (2008), the Court dramatically reframed Teague, suggesting it was a mistake to think about Teague as an antiretroactivity rule. In Danforth, the Court said it does not create “new” constitutional rules; it discovers them and articulates them in its opinions. The point is that underlying rights come from the Constitution itself, not the Court, which merely announces their discovery.

As I have argued before, this point was critical because it allowed the Court to reframe the Teague rule as one concerning “redressability” rather than retroactivity. As the Court put it, Teague does not determine the “temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.” Retroactivity, in other words, is an attribute of a constitutional right, and would attach to the right itself. Redressability, on the other hand, is a question of whether relief ought to be available given the procedural context in which the right is asserted, and attaches to the procedural context rather than the right.

It made sense for the Court to clarify this point in Danforth, because Danforth corrected the Minnesota courts’ belief they were bound by Teague’s antiretroactivity rule to reject the claims at issue, upon which the courts might have otherwise granted relief. If Teague were indeed a rule for determining the “temporal scope” of a constitutional rule, it would make sense for the Supreme Court’s determinations to be binding on state courts; reframing Teague as a rule governing “redressability” helped the Court explain why Teague did not bind the state courts.

All of this will be useful to remember as the Court considers Chaidez, which offers the Court the opportunity to take another step away from “antiretroactivity.” The Court’s questions (and counsel’s answers) during the oral argument demonstrate why it should seize this opportunity.

Chaidez raised a claim of ineffective assistance of counsel similar to the claim successfully raised in Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Chaidez’s claim was raised in an initial postconviction petition, and the Teague rule is being applied to her claim during its first round of litigation. The first question the Court asked Chaidez’s counsel was whether (as the United States argued) Chaidez had forfeited the argument that Teague did not apply in her case. Chaidez’s counsel answered that the argument had been raised in the petition for rehearing en banc below and asserted it had been fairly included in the question presented in the petition for certiorari.

It would be unfortunate indeed for the Court to hold the issue forfeited. Danforth made clear that Teague was a redressability rule specifically tailored to cases where a federal court reviews a state criminal judgment in habeas corpus proceedings. Among the questions the Court explicitly left open, as noted in footnote 4 of the Danforth opinion, was whether Teague applied to postconviction review of federal criminal judgments. The Court has never said Teague’s redressability rule applies in such cases. Chaidez’s case presents this important question squarely, and to decide Chaidez solely on the basis of whether Padilla is a “new” rule would be particularly inappropriate given the Danforth Court’s insistence that no constitutional rule is really “new,” and that redressability is the real question.

The redressability question ultimately has to be answered in terms of the principles animating the Teague rule — comity and finality. Because comity is not at issue in federal review of a federal criminal judgment, the Justices’ questions during the Chaidez argument focused on finality. The responses of Chaidez’s counsel emphasized not only the weakness of the finality interest in Chaidez (counsel argued that Chaidez timely raised her ineffective assistance of counsel claim at the first opportunity and was therefore, pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012), “on the equivalent of direct review”) but also the availability of other procedural doctrines to serve the finality interest. Counsel also noted that the test for ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984), contains a “baked in” finality component, because it measures trial counsel’s performance against then prevailing professional norms.

The Court should find these arguments persuasive. Other procedural doctrines (such as laches, statutes of limitation, procedural default, exhaustion, res judicata, and collateral estoppel) are tailored to serve finality, and are more than adequate to the task. (And, as counsel observed, the substantive law governing claims of ineffective assistance of counsel is also geared to serve finality interests.) By contrast, finality was secondary to comity in the construction of the Teague rule.

Chaidez itself presents an example of how other procedural doctrines adequately safeguard the finality interest: Chaidez’s claim of ineffective assistance of counsel survived, at the district court level, the assertion of the finality-based defense of laches.

To blindly preserve Teague in contexts other than that for which it was designed, federal habeas review of state criminal judgments, suggests that Teague really is about retroactivity, and undermines the Danforth Court’s reframing of Teague as a rule of redressability. Instead, the Court should take the next logical step from Danforth, and hold that Teague does not apply in federal postconviction proceedings, because the comity concerns behind Teague are not present and other procedural doctrines adequately protect finality. At a minimum, the Court should hold that Teague does not bar relief during the initial postconviction litigation of a claim of ineffective assistance of counsel. To hold Chaidez’s claim to be Teague-barred would be a step back from Danforth.

Christopher N. Lasch is an Assistant Professor at the University of Denver Sturm College of Law, where he co-teaches the Criminal Defense Clinic.