Douglas Williams, Jr. v. Gary T. Dixon, Warden Attorney General of North Carolina

we need present case in the exact contours of WILLIAMS, Jr., into the Douglas not delve further proportionality review Eighth Amendment Petitioner-Appellant, Harmelin, nor need we after as it stands would be enti- Pavlico determine whether DIXON, Warden; Attorney Gary T. newly- of this application tled to retroactive Carolina, of North General proportionality analysis. We formulated Respondents-Appellees. that Pavlico’s sentence would are confident No. 89-4001. any under proper and constitutional judge in this standard. The district such Appeals, States Court of United culpability was that Pavlico’s case found Fourth Circuit. equal to that of Defendant “at a minimum April Argued 1991. Pavlico, F.Supp. Jacoby, if not more.” Decided March 1992. Indeed, in the case the evidence As Amended March 1992. enterprise Jacoby’s fraudulent showed that only potential its full after Pavlico realized soliciting

began aggressively investors Moreover, setting the sentences “took into

of the two defendants court Jacoby that Defendant

consideration age suffered a

sixty-four years of threatening

life heart condition.” Also, reasoned

F.Supp. at 585. the court lighter sen-

that Pavlico had received trial, although it Reporting in the Act

tence equally or more to

had found out he was sum, light high of Pavlico’s

blame. culpability and the district

degree of differ- announced reasons for the

judge’s sentences, find Pavlico’s

ence in the two we challenge to be without

Eighth Amendment that, event, in no do emphasize We

merit. in sentences imply that a difference Eighth Amendment claim

gives rise to an sentencing.7 disproportionate district court judgment

accordingly AFFIRMED. denied, im- relative harshness of sentences sons of the against United posed various defendants." Cir.1989). Foutz, (4th F.2d States v. circuit “that dis- It is well established in this compari- obliged make trict courts are not Olive, Atlanta, Ga.,

Mark argued Evan (William Larimar, University F. of North Law, Hill, N.C., Chapel Carolina School of brief), petitioner-appellant. McNeill, Barry Special Deputy Steven Gen., Atty. Byers, Special Dep- Joan Herre Gen., uty Atty. Raleigh, N.C., argued (Lacy Thornburg, Atty. H. Gen. of North Car- olina, Raleigh, N.C.) respondents-appel- for. lees. Williams, 301 S.E.2d 308 N.C. ERVIN, Judge, Chief Before pled guilty. BUTZNER, 339-341 Judge, and

WIDENER, Circuit guilty of first- jury found Williams Judge. Senior Circuit had that he It concluded degree murder. during perpetration Dawson murdered OPINION as dur- first-degree burglary, as well Judge: ERVIN, Chief offense, a perpetration of sex ing the Williams, appeals district Jr. with malice Douglas was committed the murder federal petition for After his and deliberation. premeditation denial of court’s jury imposed to 28 U.S.C. pursuant sentеncing hearing, relief corpus habeas ordered arguments was penalty The core of Williams’ which § capaci- judge. the mental have he did not trial court is that damage and organic brain ty upheld by —because appeal, the conviction was On the of- the time of intoxication severe April Supreme Court on the North Carolina intent requisite specific fense—to have the Williams, S.E.2d N.C. first-degree murder to convicted (1983). The United States specifically, he More to death. sentenced for Writ of Petition Williams’ Court denied given opportu- that he was argues on October 1983. Williams Certiorari requisite he lacked nity prove Carolina, North ineffec- of either capaсity mental (1983). —because Williams’ Peti- counsel, other or some tive assistance Rehearing denied on Novem- for tion trial, at rights either at his violation of v. North Car- 1983. Williams ber post-convic- appeal, or in the sentencing, on olina, proceedings. tion (1983). argued, United appeal was After filed a Motion May Williams On declared unconstitu- Supreme Court States Relief, post-convic- a Appropriate state for jury Carolina instruction the North tional pursuant to N.C.G.S. procedure, tion among jurors be- unanimity requiring claims for Twenty-one seq. et 15A-1411 § mitigating circum- they could consider fore motion, including in the alleged relief were sentencing deliber- penalty in death stances at trial assistance counsel ineffective Carolina, 494 McKoy v. North ations. proceedings, During these appeal. and on mo- numerous new counsel filed Williams’ given instruction was jury This the state tions, were denied all which the district We affirm trial. that an Williams’ order judge.1 The court did court did not the trial court holding court’s on one claim— evidentiary hearing be held guilt error constitutional at trial— commit of counsel ineffective assistance therefore, trial; do not remaining claims would phase and that Williams’ further conviction. We the court record before disturb Williams’ on the “be heard may the benefit receive arguments.” that Williams hold and oral therefore, we McKoy; set of the rule out on was held evidеntiary hearing to the dis- and remand his sentence vacate 4-5, 1985, the state court after which June court. trict denying Williams’ an order judge entered The North Carolina relief.

post-conviction I petition denied Williams’ discretionary review. for arrest- August Williams was On filed a Williams Adah the murder On October charged with ed and Corpus pursu- of Habeas description Petition for Writ A detailed Herndon Dawson. States United 2254 the leading to U.S.C. investigation ‍​​​‌‌​‌​‌‌​‌​​​​‌​​​​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​​‍ant § of the crime and District of Eastern for the v. District set forth State his arrest Indigency, Motion for Finding for to Provide a Motion Funds 1. These included Assistance, Testing. Psychiatric Independent Investigative Motion Experts Information, Exculpatory a Motion to Produce

45J petition North Carolina. The contained that there is that, a reasonable probability twenty-four judge claims for relief. The but for unprofessional errors, counsel’s petition argument denied the without oral result of the proceeding- would have been September different. A 1988. From this denial reasonable probability is a relief, corpus probability of habeas ap- Williams now sufficient to undermine confi- peals. dence in the outcome.” Id. at

S.Ct. at 2068. II specifically argues Williams three major representation. errors in his First, that his raises arising three issues from attorney sought should have out available First, guilt phase of his trial. he con- witnesses who saw staggering Williams imposition tends that the of pen- the dеath drunk near the time of the offense. Sec- alty upon mildly mentally a retarded defen- ond, that he should have discovered readily Second, dant violates the constitution. he experts available mental health diag- who alleges that he did not receive effective nosed mentally Williams as retarded and Third, of assistance counsel. he asserts damaged brain at the time of the offense that the sup- evidence was insufficient to testify and who would that Williams’ men- port jury’s finding verdict Williams satisfied, tal condition the test for statutory guilty first-degree of murder. We find no and nonstatutory mitigation. Third, the at- any in arguments. merit of these torney unreasonably introduced Williams’ prior nine during convictions his A sentencing аrgument, though even The Court in Penry Ly State could not have introduced the convic- naugh, 492 U.S. 106 tions. (1989), L.Ed.2d 256 held that the execution record, After careful review of the mentally of a retarded defendant convicted agree attorney Williams’ could categorically offense is not perhaps investigated have the facts of the prohibited by Amendment. case thoroughly more and with more dil precedent This forecloses this issue. igence. we cannot conclude that his conduct was unreasonable without en B gaging in excessive second-guessing, which (cid:127) Moreover, we refuse light to do. of the judge The standard which to evidence, government we believe that the alleging claims ineffective assistance of showing beyond has carried its burden of counsel is set forth in Strickland v. Wash reasonable doubt that the verdict would not ington, 466 U.S. have been different if even Williams’ coun (1984). L.Ed.2d 674 The standard in sel diligent had been more or had used First, prongs. consists of two Strickland different trial tactics. See Smith v. Unit inquire competence the court must into the - States, U.S. -, ed legal question. assistance “The (1991) (denial certiorari) L.Ed.2d 758 proper attorney performance measure of (Blackmun, J., Stevens, J., dissenting, and simply pre remains reasonableness under dissenting). vailing professional norms.” regard, 104 S.Ct. at 2065. In this an attor C ney’s great conduct is to be accorded a deal deference, reviewing and a court shоuld We find the evidence to be suffi second-guessing attorney jury’s support avoid cient to verdict. In his with confession, hindsight. prong he benefit second Williams stated that when whether, house, assessing giv looking of the test involves entered Dawson he was place sleep thought en that counsel’s assistance was constitu for a deficient, inside, tionally he this fact had a reasonable house was deserted. Once Dawson, probability affecting surprised by the outcome. threw salt his who words, petitioner drug other “must show face. While a state of alcohol “unani required to sentencing jury was he a stick intoxication, her with he struck mitigating that a circumstance knocking mously her down. find porch, up on the picked house, he considered it through the before rummaging [could] After existed] forced a sentencing.” State v. Kirk kitchen purpose into the back went medical vagina. into her 302 S.E.2d mop N.C. ley, handle had se- Mrs. Dawson found that (1983). examiner ears, face, scalp, neck, on her cuts vere requirement was unanimity struck This had frac- rectum. She also vagina, and United States down bones, bones, skull, hip pubic tures Carolina, 494 North facial bones. and some n confession argues his now Mary- reasoning in Mills v. Following its or any deliberation no evidence contains land, Further- kill Dawson. premeditation (1988), Court held com- “intent to more, had no he claims he “created sub- sentencing scheme ‘a such the house he entered larceny” when mit jurors that reasonable probability stantial felony- be convicted could not and thus they pre- were may thought have ... well being felony underlying with murder mitigating evi- considering any cluded from addition, he contends burglary. jurors agreed on the all 12 dence unless of” a sex perpetration not “in was murder cir- particular [mitigating] existence offense. ” McKoy, 110 S.Ct. cumstance.’ found, argu- these the district court As 384, Mills, 108 486 U.S. at S.Ct. (quoting particu- find little We have merit. ments 1870). established in The law is well murder that this argument the larly weak “ [may] not be ‘the sentencer area that of” perpetration “in committed considering, mitigat- as a precluded from the sex nexus between sex offense. aspect of a defendant’s any ing factor, claims is murder that Williams the act and any of the circum- record and character or re- is too felony-murder much required for the defendant offense stances v. State and burdensome. strictive than for a sentence less as a basis proffers 67, S.E.2d Williams, 301 308 N.C. ” Oklahoma, U.S. Eddings v. 455 death.’ Powell, 348; 299 N.C. v. State 869, 874, 1 110, 71 L.Ed.2d 104, S.Ct. 102 114 S.E.2d Ohio, U.S. v. 438 (1982) (quoting Lockett 2964, 2954, 604, 57 586, S.Ct. 98 Ill unanimity (1978)). McKoy, the Under 973 instructions, the sentencing In his jury at Williams’ given to the requirement as following considerations judge listed indi- did limit the sentencing proceedings age; mitigating factors: Williams' possible mitigating consideration juror’s vidual deficiencies; and problems and his mental therefore, was, unconsti- circumstances (alleg night of the murder his condition tutional. under influence edly intoxicated Supreme States Court’s drugs). the United Since Su Carolina opinion, North jury sentencing proceedings, In the did that decision has held that preme Court unanimously four to answer was asked the North Car completely invalidate any ag- (1) there were whether questions: v. State penalty statute. See olina death State); (2) (proved factors gravating (1990) 426 N.C. 394 S.E.2d McKoy, 327 mitigating factors any there were whether II”). Consequently, Williams (“McKoy ag- Williams); (3) whether (proved his automati to have sentence not entitled outweighed the gravating circumstances aAs life imprisonment. cally reduced circumstances; and whether mitigating whether result, determine were suffi- circumstances aggravating out rules set from the bеnefit can imposition justify substantial ciently its McKoy and by the time of At penalty. Mills. predecessor trial, a North Carolina Williams' A viction” and “without which the likelihood of an accurate seriously conviction is dimin- Williams’ conviction final became 311-313, ished.” U.S. at Williams, 1983,2 State N.C. In Penry v. Lynaugh, at 1075-1077. denied, cert. S.E.2d U.S. 106 L.Ed.2d 256 denied, reh’g 78 L.Ed.2d 177 (1989), the Court held that the “new rule” U.S. 78 L.Ed.2d 704 limitation on the exercise corpus of habeas (1983), decisions in the Mills before jurisdiction applies in both and non- McKoy cases were handed down. There capital cases. fore, Supreme holdings under the Court’s Lane, in Teague v. B (1989), Penry Lynaugh, Court defined a new rule as (1989), if the decisions in Mills follows: rules,” are deemed to be “new general, ... a case announces a new then Williams cannot receive the benefit ground rule when it breaks new or im- though jury those rules even instruc poses obligation a new on the states or tions were identical to those struck down in the Federal put Government. To it dif- McKoy. ferently, a case announces a new rule if result was not dictated by precedent In existing at the time the defendant’s con- adopted general Justice Harlan’s rule on viction became final. nonretroactivity for cases on collateral re Teague, 489 U.S. at 109 S.Ct. at view, Mackey v. United which he set out in Normally, because Williams seeks the ben- States, rules Mills and McKoy, we efit of the in (1971) (separate opinion). L.Ed.2d 404 The would first have to determine whether general rule is that “new rules” should not those rules constitute new rules under applied retroactively to cases on collat Teague. case, in this we find 305, Teague, eral review. 489 U.S. at 109 McKoy even Mills that if are new exceptions S.Ct. at 1072. There are two to rules, exceptions one of the to the nonre- general the rule. The first is that “a new Therefore, troactivity applies. rule we will applied retroactively rule should be if it McKoy address whether Mills not are places primary, private ‘certain kinds of new rules at this time.3 beyond power individual conduct the law-making authority pro criminal to ” C Teague, 307, scribe.’ 489 U.S. at 109 Mackey, (quoting at exception S.Ct. 1073 401 U.S. at The first is that rules will new 692, (separate opinion)). apply retroactively'if place 91 they S.Ct. “certain exception The primary, private second is that a new rule kinds of individual ‍​​​‌‌​‌​‌‌​‌​​​​‌​​​​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​​‍conduct applied retroactively beyond power should be if it would the of the criminal law-mak- proscribe.” Teague, of the bedrock understanding ing authority “alter our to 489 procedural 307, elements that must be found U.S. at pro- 109 S.Ct. at 1073. The particular capital to vitiate the fairness of a con- scribed conduct Williams’ case is Supreme McKoy apply 2. The Court has defined final to mean held did not to the that defendant’s judgment case, 539; however, where the of conviction has been ren- we on to state id. at went dered, availability appeal the of has been ex- following: the hausted, petition and the time for for certiorari Maryland, McKoy is an extension of Mills v. 255, elapsed. Hardy, has Allen v. 478 U.S. 258 McDougall’s eight years after which was decided 1, n. S.Ct. n. 106 2880 92 L.Ed.2d 199 McDougall facts are not the conviction. Walker, (quoting Linkletter v. were, they McKoy, same as' but even if the 622 n. S.Ct. n. 14 1734 represent Mills cases new law and (1965)). applied retroactively on collateral would not be Lane, Teague S.Ct. review. v. previous panel We of this court note that (1989). McDougall 103 L.Ed.2d 334 made a statement on this v. issue Dixon, There, (4th Cir.1990). 921 F.2d 518 fit and did not Teague rule under capital mur- new murder, prosecution the exceptions. Sawyer, of the two either McKoy. or by Mills prohibited der not that the held 2822. Caldwell McKellar, 494 U.S. v. Butler imposition of the the prohibits (1990) Amendment L.Ed.2d S.Ct. has that been penalty a sentencer capital mur- prosecution (noting that responsibility to that led believe new rule prohibited not der was the de- determining appropriateness Roberson, 486 U.S. Arizona else- lies capital punishment fendant’s (1988)). There- S.Ct. 328-29, 105 Caldwell, at where. apply does not fore, exception the first Sawyer argued that at 2639-40. S.Ct. case. this be read exception “should Teague second however, ap- does exception, The second sentencing new to rules include precise “The contours case. ply to this accuracy and fairness ‘preserve that discern, to may be difficult exception this Sawyer, sentencing judgments.”' Parks, ...” Saffle disregarded such a test disagreed because case, fur- aIn recent rule that requirement the additional scope of the second explained ther understanding of the “alter our must also follows: exception as Teague ” elements essential procedural bedrock Justice Harlan’s we modified Sawyer, proceeding. the fairness accuracy element of test to combine then found The Court Mackey limita- test with Desist require- latter failed to meet Caldwell rules exception to watershed tion of ment. It is thus fairness. of fundamental it shows important because Sawyer is say a new enough under easily rules Mills accuracy improving the is aimed rule second requirement meet the first required. ruleA More is of the trial. rule be the new exception that exception under this qualifies accuracy improving the aimed also ‘alter accuracy, but only improve the Court stated: Sawyer, trial. proce- bedrock understanding of the our jurispru- Amendment All of our to the fairness essential elements’ dural sentencing is capital concerning dence proceeding. reli- of enhancement toward the directed Smith, 497 U.S. Sawyer v. accuracy in some sense. ability and (1990)(quoting 2822, 2831, 193 fact, it was In Sawyer, 110 S.Ct. at 1076). at at 109 S.Ct. U.S. Teague, 489 case Amendment every Eighth because an cited as repeatedly is which One rule meet concerning capital punishment does falling within second a rule example of Teague of the second requirement the first 372 Wainwright, v. exception Gideon adopt refused exception that the Court which U.S. exception. interpretation of Sawyer’s right to be has a defendant held that fact Cald- on the that focused The Court trials in all criminal by counsel represented requirement, second not meet the well did at Saffle, 110 S.Ct. offenses. for serious explaining: “primacy lack the rules which 1264. New designed as an rule was Caldwell adopted in Gide- centrality of the rule accuracy of of enhancement Teague second fall within on” do not systemic val- of sentencing, protection id. exception. See charged and federal courts ue for state But proceedings. reviewing capital with lacked rule which example of a An new existing added to an it was given that centrality” of Gideon “primacy and process protection guarantee due v. adopted Caldwell Missis- the rule was unfairness, can- we against fundamental sippi, enhancing reli- rule systemic Smith, say this Sawyer L.Ed.2d 231 prerequisite ability is an “absolute held Caldwell Supreme fairness, U.S., 314, 10, 2726, 2762-63, fundamental 33 L.Ed.2d 346 S.Ct., (1972) (Stewart, J., type may of the concurring). Teague’s exception. come within second The Supreme repeatedly Court has held Sawyer, 110 S.Ct. at 2832. Because the imposition that the requires rule did not meet the Caldwell “bedrock sentencing be individualized. See procedural requirement, elements” Shuman, the rule 66, 75, Sumner v. 483 U.S. not fall did within second ex S.Ct. (1987); L.Ed.2d 56 ception, Sawyer Woodson, could not benefit from 428 U.S. at 96 S.Ct. at 2991. Sawyer Woodson, the new rule. indicates that the the court stated: adopted rules and McKoy Mills meet the While the prevailing practice of individu requirement first of the second ex alized sentencing general determinations ception they in that increasing are aimed at ly simply enlightened reflects policy rath accuracy capital sentencing. er than a imperative, constitutional 2831; Sawyer, 110 S.Ct. at see also Wood believe that in cases the funda Carolina, 280, 305, son v. North respect mental for humanity underlying 2978, 2991, Eighth Amendment, Trop see (noting Dulles, that because of U.S., the difference be S.Ct. at [78 597] tween a sentence of death and a (plurality opinion), sentence requires consideration imprisonment, of life “there is a of the corre character and record of the indi sponding reliability need for in the determi vidual offender and the circumstances of appropriate particular nation that punish déath is the offense as a constitutional case”). ly indispensable part specific process ment in a of the What we must inflicting penalty decide is whether the death. Mills requirement rules meet the second 428 U.S. at 96 S.Ct. at 2991. See also Teague excеption. second ‍​​​‌‌​‌​‌‌​‌​​​​‌​​​​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​​‍Justice Harlan Saffle, supra, (Brennan, 110 S.Ct. at 1270 explained requirement this second in Mack J., (“The dissenting) right to an individual ey v. United States: sentencing ized perhaps determination is might right some it the most recognized situations be that time fundamental

[ I]n growth capital sentencing hearing.”). capacity, social as well as judicial perceptions right-, of what we can Shuman, In Sumner v. ly demand adjudicatory process, (1987), 97 L.Ed.2d 56 the Court properly understanding will alter our history capital punishment traced the ' procedural the bedrock elements that There, explained cases. the Court must be found to vitiate the fairness of a “constitutional mandate of individualized particular conviction. capital-sentencing pro determinations in ceedings” caused the court to invalidate death sentences where the sentencer did L.Ed.2d 404 The rules in Mills mitigating not consider factors. at 75- description. fit the above explained 107 S.Ct. at 2722. The Court “It is well Eighth established that the requires Amendment Amendment draws much meaning of its mitigating presented evidence be to the evolving decency from ‘the standards of requires sentencer and further the sentenc progress maturing that mark the of a socie ” er to listen to that evidence. Id. at Carolina, ty.’ Woodson North 2978, 2989, U.S. 96 S.Ct. (1976)(quoting Dulles, Trop L.Ed.2d 944 The discussions in Woodson Sumner 86, 101, 590, 598, 2 support striking the view that a rule down (1958) (plurality opinion)). unanimity requirement mitigating In cir addition, punish “implicit concept the sentence of death is a cumstances is in the of kind, in rather than at liberty,” Teague, ment different differ ordered degree, (quoting ent in from all other sanctions. at 1075 Palko v. Con 303-04, necticut, 2990- See id. 428 U.S. at S.Ct. at U.S. J.)).

91; (1937)(Cardozo, Georgia, 309- L.Ed. Furman v. striking down fences, rule we believe this enforces further Mills language of requirement the unanimity has arbitrary an view. centrality” of Gideon. “primacy and same possi- Mills, addressed Court the Mills Therefore, hold that we sentencing Maryland’s bility that under second rules within fall prevent juror could scheme, one holdout applied retroac- exception and should considering jurors from eleven the other McKoy to Mills and Applying tively. Mills, evidence. mitigating in- jury case, find that Williams’ rejected The Court constitutionally case were in this structions arbitrary: as this scheme re- sentencing, the court At defective. guid- must be jury discretion Although unanimously jury to find quired standards, by objective appropriately ed mitigating circumstances.4 existence height arbi- certainly be the it would identical requirement was unanimity This imposi- require or to allow trariness down requirement struck unanimity cir- penalty under the of the death tion by the Court as unconstitutional pre- juror one holdout cumstances [where 110 S.Ct. at McKoy, McKoy. mitigating evi- the consideration vents Dixon, 419- 943 F.2d Maynard v. Cf. dence]. Therefore, Cir.1991). (4th under (emphasis Id. at in this case jury instructions McKoy, omitted). added) (citations result, we aAs were unconstitutional. ex- Kеnnedy further McKoy, Justice imposed the sentence of vacate unanimity plored arbitrariness due as unconstitutional upon Williams applica- stated that He requirement. Accordingly, we instructions. the defective on the basis penalty the death tion of this sentence and remand vacate Williams’ single juror’s vote court. to the district case pun- imposition represents ... can be system that through a ishment capricious. arbitrary or as described IV as such a result described in Mills view, rea is, another in our There Given “height of arbitrariness.” vacating sentence which Williams’ son for apparent that the result it is description, forth in reason set independent line of our eases fits within in Mills ques prеsents also This case part III. pun- imposition of forbidding the to raise failure a state’s tion of whether “caprice,” in “an the basis ishment it as a waives below the court fashion,” or unpredictable arbitrary and Court’s reading of the state defense. Our “freakish" “arbitrary” or through our considera on the role ments means. circuits, holdings of sister our tion of the J., (Kennedy,

McKoy, su Maynard, decision in our recent omitted). (citations concurring) re Teague's us to conclude pra, lead set out that the rules findWe jurisdictional troactivity analysis is procedural McKoy are “bedrock Mills defense that and is affirmative an nature lib “implicit ordered and are elements” else be waived. below or asserted must be they struck down procedures erty.” The Pen- State, from seizing language on “arbitrary” and as described have been determine this court ry, that contends did procedures “capricious.” Those 313, matter,” U.S. at a threshold “as respect for the “fundamental provide for claim 2944, whether Williams’ Eighth Amend underlying the humanity Mills/McKoy is barred application of 304, Woodson, ment.” appli- against retroactive prohibition by the history Given Teague In rules.” of “new cation the constitu jurisprudence and Amendment court must that habeas did state sen- requirement of individualized tional mur- time of the at the unanimously existed you circumstances "Do court asked: 4. The find following mitigating der?” or more one that i.e., retrоactivity component, consider the district court’s decision and this court’s invoked?, being Is a “new rule” before hearing first appeal, on this we are con- assessing whether the of a case meet facts question fronted with the of whether the However, subsequent the rule. cases have State’s failure amounts to a waiver of the logic shown that this is a matter of and not issue. jurisprudence. say Which is to that if Greer, Hanrahan v. the Seventh Cir- question properly presented to a cuit held that the go court need not into the court, then a court should consider first analysis “new rule” because the State did applied a rule can retroactively whether preserve objection an to the “retroac- deciding before the case under whether application” tive of the rule at issue. 896 review meets the rule. That this formula- (1990) F.2d Judge 245. Easterbrook jurisprudential consequence tion was not of noted that the Court had raised the retroac- by Rehnquist was made clear Chief Justice tivity question on its own in Teague, but “Although Youngblood: Collins v. observed that practice the Court had the grounded Teague important rule is con- applying a novel constitutional rule to the relations, siderations of federal-state case establishing the powerful- rule. More ‘jurisdictional’ think it is not the sense ly, he concluded that the State “had missed Court, despite grant that this a limited by failing the boаt” to raise the retroactivi- certiorari, must raise and decide the issue ty issue. sponte.” sua U.S. The Seventh swayed by Circuit was not (1990) (emphasis argument State’s Teague had not original). yet parties been decided at the time the case, chronology this of the chain arguing were impact about the of the rule very important. of events is The Mills York, set out in Cruz v. New decision was handed down on June 1988. (1987): 95 L.Ed.2d 162

Mills, preserve objection state did not an [ T]he Thereafter, L.Ed.2d 384. the district court application to the retroactive of Cruz. denying entered its order Williams’ habeas down, judge After came Cruz district (JA September I, relief on 1988.5 Vol called for briefs on its effects. The state E.) Teague, Tab was decided five months tackled the suggesting merits without February later on 1989. applied Cruz should not be to [the U.S. 103 L.Ed.2d 334. Although case. it filed this defendant’s] argument The first oral before this court response before the Teag- Court decided appeal was heard on November 1989. ue, explanation is neither nor ex decision was decided four cuse. Despite months later on March Disputes applica- the fact about retroactive that Williams raised the Mills is- court, per- tion of constitutional decisions ‍​​​‌‌​‌​‌‌​‌​​​​‌​​​​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​​‍have sue before the district the State ad- procedure mittedly retroactivity did not vaded criminal over the last 25 raise the is- years. adopted position sue until after the decision Jus- espоused Mackey rendered.6 At that time and well after the tice Harlan v. Unit- States, 667, 675, argument first oral had held before been ed court, (dis- the State cited this court to 28 L.Ed.2d 404 authority pursuant senting opinion), years additional to Fed. which in recent R.App.P. 28(j) retroactivity gathered support majority and raised the had though issue for the first time. Because of the never before Justices — failure in the same case on a collateral State’s to raise issue until after case, order, admittedly In that the district court addressed the while not made in the District Court, upon merits of the Mills claim raised Dixon and is based and dictated the 'novel jury held that the instructions did not violate test for review of state crimi- threshold federal I, E, 30-36.) (JA at the Mills rule. Vol Tab Teague.” (Sup- nal convictions’ announced in 36.) plemental Appellee Brief for at brief, supplemental explained: its the State In non-retroactivity in this "The State’s assertion of 458 represent not Moreover, Teague does since Kentucky, v. (Griffith attack. Court, it cannot (1987), by the change practice 649 a in the Court’s for that position seriously contended be Harlan’s Justice adopted means Teague had in question Prosecutors appeal.) reaching the on direct cases posi- ques- reach the same Harlan’s must Justice all pumping for that courts

been objec- an the phrasing the role Not denies years. for view tion tion—that tеrms precise retroactivity in the view of And this system. tion to in our plays thing; is one Teague in adopted the analysis confirmed retroactivity the Court is to retroactivi- objection any phrasing Youngblood, not v. holding in Collins Court’s another. rule ty Teague is the that declared in which it ” ‘jurisdictional.’ (emphasis “is not at Hanrahan, F.2d held that Circuit The Seventh original). jurisdiction- is not Teague rule Since the retroactivity raise the to failure the State’s it must a address al, that court in the sense issue. Id. of the waiver a issue constituted Collins, raised, see if not sponte sua way. other gone the circuits have Other ques- 2718, then we confront the at 888 F.2d Shillinger, v. Hopkinson In it to failure raise a state’s tion whether banc), Circuit Cir.1989)(en the Tenth (10th to waiver. amounts below is non-retroactivity defense that “the held Id. considered.” waived, be and should not that general rule begin the with We the reaching this conclusion at 1288. below, partic adjudicated claims non-retroactivity de- “the that noted court in a raised have not been ular defenses to available previously fense ... trial, normally motion, at or pleading, af- decided Teague was state” because the and cannot waived considered will be judgment. entered district court ter the appeal. time on Nation for the first heard saw reason, court because the For that v. Internal Employees Union Treasury al corpus as of habeas scope of thе writ the 1n. Serv., 765 F.2d Revenue must raise held that it court implicated, the context, the habeas (D.C.Cir.1985). sponte. nonretroactivity defense” sua “the review, the on collateral proceed where Black, F.2d v. Similarly, in Smith typically though it applies, notion waiver Cir.1990), panel for the (5th n. 12 procedural default form of takes though the circuits found that Fifth Circuit rule, has “the claim when rule. Under is reach choice to “the better split, have it ... state court to the presented not been by the it is raised whenever issue” Teague can petitioner unless now barred” is State. prej and actual the default show cause re- holding that cases The crux F.2d Thompson, 915 udice. Bassette be waived analysis cannot troactivity Cir.1990). (4th We follow up the to able take must be that courts explained O’Connor vigorously, Justice rule all, because, that is after sponte issue sua to make “have declined Teag- itself did what the dependent on application [rule] at 1288. 888 F.2d id.; Hopkinson, ue, See claim of the constitutional magnitude reasoning. As by this unpersuaded We are en interest issue, State’s or on in Hanra- points out Judge Easterbrook rule.” procedural its forcement of applying practice han, had “there been omitted). (citations case es- rule constitutional a novel adherence for our close The reason asking retroac- rule and tablishing the underlying considerations “the rule is that chаnged that later. tivity question saw O’Connor finality,” which Justice it is understandable [Thus,] practice.... judg- civil finality underpinning applica- to the object did not state compelling ments, significant “find himself, al- rule to tion of Id. at context.” the criminal parallels in retro- objected to though the state had agree. See We Batson Teague of application to active Bassette, F.2d at 935-37. Kentucky, 476 U.S. [106 waiver, companion, its finality, F.2d (1986).” 896 L.Ed.2d 69] along two-way Finality run street. cer- issue at the district court level or at the tainly petitioner that a cannot raise hearing means first before this court. appeal yet claims It new on raised. light holding our McKoy also must mean that the cannot State raise issue, at this time we need not address appeal defenses on new raised below. assignments Williams’ concerning error Dixon, In Maynard v. 943 F.2d 418 post-trial proceedings. (4th Cir.1991),this court reached the merits PART; AFFIRMED IN VACATED petitioner’s Mills/McKoy claim be- AND REMANDED IN PART. deciding it cause assumed without the Teague State had waived defense. We WIDENER, Judge, Circuit concurring: agree Maynard with court and the Seventh Circuit that a state’s failure to I concur in the result and in all of the retroactivity raise the issue of below consti- opinion except Part IV. I would hold that tutes waiver of that defense. the State did not ques- waive the Teague tion as a defense. case,

In this Williams raised the Mills court, issue before district and the rejected

court his claims on their merits. retroactivity

The State did not raise the

question in this case at the district court

level, although retroactivity claims have years.

been made for the last 25 Han

rahan, Teag- 896 F.2d at 245. Even after decided,

ue was the State did not raise the CARROLL, Plaintiff-Appellant, J. Susan retroactivity arguments issue in its first before this court. It was not until the decision was handed down in ABRAMSON, WOLPOFF & retroactivity the State decided to raise the Defendant-Appellee. issue. We believe that was too late. On us, the facts before the State “missed the No. 91-2201. boat,” Hanrahan, 896 F.2d at any Teague applica waived defense to the Appeals, United States Court of tion of in this case. Mills Fourth Circuit. Argued Feb. V Decided March summarize,

To we do not dis trial turb Williams’ conviction as the court concerning

made no constitutional errors guilt phase of the trial.

vacate sentence of death and re Williams’ resentencing

mand the ease for because the

jury instructions were unconstitutional un McKoy.

der the rules set out in Mills may ‍​​​‌‌​‌​‌‌​‌​​​​‌​​​​​​​​​​​‌​​​‌‌​‌​‌​‌​‌​‌​‌​​‍benefit from the Mills and they pro

McKoy rules because are bedrock falling

cedural rules within the second ex

ception indepen rule. As an ground, and alternative we vacate

dent sentence and remand for resen

Williams’

tencing any Teag the State waived because application defenses to the retroactive

ue

of these rules its failure to raise

Case Details

Case Name: Douglas Williams, Jr. v. Gary T. Dixon, Warden Attorney General of North Carolina

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Mar 24, 1992

Citation: 961 F.2d 448

Docket Number: 89-4001

Court Abbreviation: 4th Cir.