Lead Opinion
Opinion by Judge THOMAS; Dissent by Judge KOZINSKI.
This ease requires us to consider the effect of two precepts designed to promote consistency and stability in development of the law: the doctrine of law of the case and the presumption against retroactive application of new statutes.
After carefully examining the application of these tenets to this case, we hold that a three-judge panel improperly applied the law of the case when it reversed its prior decision and reimposed a death sentence. However, we hold that law of the case requires only vacation of the death sentence and the convictions for aggravated first degree murder, not the underlying first degree murder convictions. We also hold that the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, does not have retroactive effect so as to alter the judgment in this case.
I. BACKGROUND
Patrick James Jeffries allegedly murdered and robbed Phillip and Inez Skiff in Port Angeles, Washington in 1983. Jeffries met the Skiffs while Jeffries was serving a twelve-year prison sentence in Canada for robbery. After his release from prison in January 1983, Jeffries went to live with the Skiffs at their home near Port Angeles, in ■violation of his parole terms.
On April 2, 1983, the Skiffs’ bodies were found buried in shallow graves on their property. Each had been shot repeatedly with .22 caliber bullets, Philip seven times and Inez ten times.
Using the Skiffs’ pickup truck, Jeffries left the Skiff property on March 22 or 23, taking with him the Skiffs’ portable television, chain saw, placer gold and coins, and other personal property. Jeffries was arrested in Wenatchee on April 7,1983.
A jury found Jeffries guilty of two counts of aggravated first degree murder under Wash.Rev.Code § 10.95.020 and issued a special verdict finding of two counts of aggravating circumstances permitting imposition of a death penalty, namely: (1) that the murders were committed to conceal the commission of a crime or to protect or conceal the identity
By a 5-4 vote, the Washington Supreme Court affirmed Jeffries’ conviction and sentence on direct appeal. State v. Jeffries,
On July 2,1990, Jeffries filed a petition for writ of habeas corpus with the U.S. District Court alleging, inter alia, that he was denied his right to a fair trial because one juror had informed other jurors that Jeffries was a convicted armed robber. The district court authorized discovery on several of Jeffries’ claims, including his claim of jury misconduct, and held an evidentiary hearing. On September 5,1991, the district court rejected each of Jeffries’ claims and dismissed the habeas petition. Jeffries v. Blodgett,
On appeal, the three-judge panel initially upheld the district court’s findings. Jeffries v. Blodgett,
On remand, the district court found that the jury misconduct had occurred. The district court renewed its opinion that no prejudice resulted from the juror misconduct, but concluded that Jeffries III required a writ of habeas corpus to issue upon a finding of juror misconduct.
Defendant Wood, who replaced Blodgett as Washington’s chief prison official, appealed. Under the death penalty procedures adopted for the Ninth Circuit, the same three-judge panel which decided Jeffries I, II, and III was assigned the appeal. See Rule 22-3(a)(3) of the Local Rules of the United States Court of Appeals for the Ninth Circuit. On appeal, the panel reversed its decision in Jeffries III. Jeffries v. Wood,
II. LAW OF THE CASE
A. General Considerations
Law of the case is a jurisprudential doctrine under which an appellate court does
Law of the ease rules are founded upon “the sound public policy that litigation must come to an end. An appellate court cannot efficiently perform its duty to provide expeditious justice to all if a question once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal.” Kimball,
Certainly, law of the ease is a discretionary doctrine. “The doctrine ‘merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.’ ” Leslie Salt,
The Jeffries TV panel recognized that the law of the case was an important consideration in reexamining Jeffries III. However, Jeffries TV concluded that Jeffries III fit one of the exceptions to law of the ease because the decision was “clearly erroneous and would work a manifest injustice.” Jeffries IV,
B. The “Clearly Erroneous” Test
To establish an exception to law of the case, Wood must show that Jeffries III was “clearly erroneous.” It was not. In fact, we find no error at all in Jeffries III.
On collateral review, trial errors affecting constitutional rights are subject to a harmless error analysis. Brecht v. Abrahamson,
Jeffries III held that the introduction of prejudicial information to a juror violated a defendant’s right to a fair trial regardless of whether the source of that information was internal (e.g., another juror) or external (e.g., a bailiff). Jeffries TV stated that Jeffries III was incorrect in that the source of the prejudicial information did matter: if the source were internal rather than external, no presumption of prejudice existed.
Juror knowledge of a defendant’s past criminal record has long been recognized to be prejudicial. See United States v. Lewis,
Contrary to Wood’s position, we find no defensible distinction to be made based solely on the source of the information. Rather, the appropriate focus should be on the nature of the information itself. The Sixth Amendment guarantee of a trial by jury requires the jury verdict to be based on the evidence produced at trial. Turner v. Louisiana,
Under the Sixth Amendment, a criminal defendant has the right to confront those who testify against him or her and the right to conduct cross-examination. Pennsylvania v. Ritchie,
Jeffries III correctly determined that the extrinsic information alleged to have been imparted here, Jeffries’ prior robbery conviction, was “especially harmful” given the jury’s adoption of two special findings that supported the convictions for aggravated first degree murder and the imposition of the death sentences. Jeffries III, 5 F.3d at
We agree with Jeffries III that the communication by its nature was intrinsically prejudicial and necessarily had a substantial and injurious influence on the verdict. Wood argues to the contrary, contending that the jurors engaged in little discussion about the conviction; that the person who made the comment was promptly told by another juror that consideration of the conviction was not permitted; and that two jurors who heard the improper comment stated in affidavits that they did not consider the prior conviction in reaching the verdict. However, these facts do not overcome the inherent prejudice. Jurors’ testimony that extrinsic evidence is not harmful is not controlling. United States v. Bolinger,
Various factors might nonetheless suggest that the potential prejudice of the extrinsic information was diminished in a particular case and therefore that the extrinsic evidence did not substantially and injuriously affect the verdict. These factors include: whether the prejudicial statement was ambiguously phrased;
Having considered all of this, we conclude that the Jeffries III decision was not “clearly erroneous” — indeed that it was correct — and that the extrinsic material “had a substantial and injurious effect or influence in determining the jiffy’s verdict.” Lee,
C. The “Manifest Injustice” Requirement
Wood also failed to meet the second prong of the “clearly erroneous” exception to law of the case because she did not demonstrate that a manifest injustice would result from the Jeffries III interpretation.
The existence of exceptional circumstances is required before finding a manifest injustice. Laffey v. Northwest Airlines, Inc.,
Wood failed to establish that adherence to law of the case would result in a situation meeting this standard. None of the State of Washington’s rights have been extinguished. Retrial and resentencing are available options on remand. Although in some eases the unavailability of witnesses or evidence might result in manifest injustice, the record is devoid of any such showing here. Neither in its briefing, nor at oral argument, was Wood able to make any factual showing of manifest injustice. Thus, we conclude that the panel erred in determining that Jeffries III was “clearly erroneous and would work a manifest injustice.” Jeffries IV,
D. Impact of Law of the Case on the Jeffries IV Opinion
We are mindful of the danger of reducing law of the case to a set of categorical rules, mechanically applied. Law of the case is not a limitation on judicial power, but rather “a guide to discretion.” United States v. Alexander,
Thus, even aside from the fact that the Jeffries IV panel erred on the merits of the prejudicial information question, it should not have exercised its discretion to depart from its prior decision given the reliance on the Jeffries III opinion by subsequent panels, the further appellate proceedings in Jeffries III, and the guidelines set forth in Leslie Salt Accordingly, we withdraw the Jeffries IV opinion and further hold that the district court was correct in issuing a writ vacating the verdict for aggravated first degree murder and the sentence of death.
E. The Underlying First Degree Murder Conviction
One issue regarding application of law of the case remains: the underlying conviction for first degree murder. Under Washington law, a jury must find the defendant guilty of first degree murder before finding the defendant guilty of aggravated first degree murder. Wash.Rev.Code § 10.95.020 (1983). First degree murder is considered a lesser included offense of aggravated first degree murder. See State v. Pirtle,
Jeffries III addressed only the aggravated first degree murder convictions and death sentences.
Jeffries’ counsel acknowledged in a letter to the three-judge panel that strict application of law of the case under these circumstances might require sustaining the first degree murder conviction. Thus, to be true to our law of the case holding, we must reverse the portion of the district court’s writ that vacates the underlying first degree murder conviction.
III. THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT
A. Introduction
On April 24, 1996, prior to the grant of rehearing in this ease, the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“Act”), became law. Since then, the Second, Third, and Tenth Circuits have held that the Act cannot be applied retroactively to actions filed prior to the enactment date. See Boria v. Keane,
After receiving briefs and hearing oral argument on the Act’s effect on this ease, we announced our decision that the amendments to Chapter 153 of Title 28 of the United States Code contained in Title I of the Act do not apply to cases filed in the federal courts of this Circuit prior to the Act’s effective date. Jeffries v. Wood,
B. General Retroactive Effect of the Act
The presumption against retroactive application of new laws “is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Prods.,
To be sure, Congress has the power to enact legislation with retroactive effect so long as it comports with due process by passing constitutional muster under rational basis scrutiny. Gray v. First Winthrop Corp.,
Landgraf altered the legal landscape so that prospective application has unquestionably become the default rule.
If congressional intent cannot be divined from examination of the statute, the second Landgraf inquiry is whether the new statute would have retroactive effect (i.e., whether it would impair rights a party possessed when he acted, increase a party’s liability for past conduct or impose new duties with respect to transactions already completed). Landgraf,
At issue is Title I of the Act, which reforms federal habeas corpus law in two sig
The first stage of the Landgraf analysis is to determine whether Congress has expressed its intent. In statutory interpretation, the starting point is always the language of the statute itself. United States ex rel. Hyatt v. Northrop Corp.,
The structure of Chapter 154 contains further evidence of congressional purpose. Chapter 154 incorporates by reference several provisions of Chapter 153, incorporation which would be completely superfluous if Congress intended both chapters to apply to pending cases. See, e.g., 28 U.S.C. § 2264(b). The absence of such a statutory interplay was a factor in Landgraf s determination of whether Congress had made a purposeful decision as to an effective date for various provisions of the Civil Rights Act of 1991.
The Act’s direct legislative history also underscores the clarity of congressional design. Title I comprises what originally was separate and independent habeas corpus reform legislation, which passed the U.S. House of Representatives on February 8, 1995, as H.R. 729, 104th Cong. (1995). 141 Cong. Rec. H1434 (daily ed. February 8, 1995). After transmittal to the U.S. Senate, H.R. 729 was referred to the Senate Judiciary Committee where it was inserted in its entirety into S. 735, 104th Cong. (1995), the pending antiterrorism legislation. As passed by the House, H.R. 729 did not provide for an effective date for either the Chapter 153 revisions or the new Chapter 154 procedures. When H.R. 729 was substituted into S. 735, the Senate Judiciary Committee made one substantive change: the addition of section 107(c) containing the effective date for Chapter 154. Compare original S. 735, 141 Cong. Rec. S5803 (daily ed. April 27, 1995), with S. 735 as revised by Amendment 1199, 141 Cong. Rec. S7857-77 (daily ed. June 7,1995). As amended, S. 735 passed the Senate on June 7, 1995. 141 Cong. Rec. S7857 (daily ed. June 7, 1995). The habeas provisions were adopted without alteration by the Conference Committee on April 15, 1996. 142 Cong. Rec. H3305-33 (daily ed. April 15, 1996). Title I was signed into law along with the remainder of the Act on April 24, 1996. These affirmative congressional acts stand in contrast to the legislative history of the Civil Rights Act of 1991 considered in Landgraf which led the Court to conclude “that legislators agreed to disagree about whether and to what extent the Act would apply to preenactment conduct.”
In statutory construction, we presume Congress legislated with awareness of relevant judicial decisions. Cannon v. University of Chicago,
In so concluding, we respectfully differ with our colleagues in the Eleventh Circuit that Congress was silent on the subject of retroactivity, requiring examination under subsequent steps of the Landgraf analysis. Hunter,
We also respectfully disagree with our colleagues on the Seventh Circuit who have rejected the idea that congressional intent as to the Act’s retroactivity can be determined. Lindh,
As we have demonstrated, one need not resort to negative inference to resolve this issue. Not only is the statutory language clear, but we find the direct legislative history persuasive — a factor not discussed in Lindh, Drinkard, or Hunter. However, the principle of expressio unius est exclusio alterius does add additional support to our conclusion.
Wood, following Lindh's lead, argues we should leap over statutory analysis and conduct a judicial examination of retroactive effect any time Congress does not provide an effective date for a section. This troubling interpretation of Landgraf would arrogate to the judiciary the privilege of determining effective dates of statutory sections by fact-intensive speculation as to a statute’s potential impact on past conduct. We do not read Landgraf to command that an act’s retroactive effect should always be decided by the courts unless Congress specifies the effective date in each section of a statute. Indeed, this construction would frustrate Landgraf s philosophy which “allocates to Congress re
Wood correctly points out that there are a number of provisions in other titles of the Act which have differing effective dates.
Accordingly, we find the first stage of the Landgraf analysis conclusive and need not reach the subsequent stages of the examination. However, because Wood and some of our sister circuits have devoted substantial analysis to assessing the Act’s potential retroactive effect, some scrutiny under the second Landgraf inquiry is warranted.
Landgrafs second analytic step is determining whether the statute would have retroactive effect. To answer this, we “must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Landgraf,
Landgraf identified three examples of laws which generally do not have retroactive effect: (1) those which authorize or affect the propriety of prospective relief; (2) those which confer or oust jurisdiction and (3) those which make changes to procedural rules.
Legislation which operates in futuro by definition generally does not have retroactive implications. The classic example' is injunctive relief which proscribes present and fu
Similarly, Title I does not confer or oust federal jurisdiction. Jurisdictional statutes concern the power of the court, not the rights or obligations of the parties.
Finally, the amendments to Chapter 153 are not procedural. Statutes implicating venue are illustrative of procedural changes which do not have retroactive effect. See, e.g., Ex parte Collett,
The amendments to Chapter 153 implicate substantive as well as procedural issues. The Act limits the ability of federal courts to reexamine questions of law and mixed questions of law and fact. Historically, federal habeas courts have reviewed all questions of law and mixed questions of law and fact de novo. Wright v. West,
Thus, the amendments to Chapter 153 cannot be classified under the general Landgraf denomination of statutes which have no retroactive effect.
Wood also contends that the amendments to Chapter 153 cannot create “new legal consequences” because Title I only impacts “secondary” rather than “primary” conduct. Under. Wood’s argument, the criminal act is the “primary” conduct. Wood reasons that a criminal would be unlikely to rely on the availability of federal habeas relief in committing a crime or making tactical litigation decisions. Therefore, Wood argues, prisoners could not have relied upon the availability of federal habeas relief to their detriment, no “settled expectations” have been disturbed and there are no new legal consequences to the underlying conduct.
These are generic considerations which caution against general retroactive application of the amendments to Chapter 153. Landgraf commands that if this analytical stage is reached, courts must “evaluate each provision of the Act in light of ordinary judicial principles concerning the application of new rules to pending cases and preenaetment conduct.”
Given the complexity of the procedural aspects of Title I, requiring universal subsequent stage analysis would have the highly undesirable effect of forcing courts to conduct a separate inquiry in each case as to its particular procedural posture. Besides being an unnecessary and considerable expenditure of judicial resources, such a practice would result in conflicting determinations of whether the Act applies, depending upon the case. This kind of applicability potpourri cannot be what Congress intended. As literally thousands of pending prisoner cases exist, such inquiry can only result in an unwieldy patchwork of decisions devoid of any overall coherence. Our sound judicial instincts and common sense dictate that justice and judicial economy are better served by applying the Act to cases filed after the enactment date. That result would avoid unnecessary judicial chaos, while fully implementing congressional will as to habeas petitions filed after the enactment date.
Because Congress has addressed the effective date of the relevant provisions of Title I, we conclude that the amendments to Chapter 153 of Title 28 of the United States Code contained in Title I of the Act do not apply to cases filed in the federal courts of this Circuit prior to the Act’s effective date. Because Jeffries’ habeas petition was filed prior to April 24, 1996, the Act does not apply to his case.
C. Effect of the Act, if Applied, to Jeffries
The parties were requested to brief and argue the impact of the Act, if applied, to Jeffries. Although we need not reach this issue because of our determination that the Act does not apply, we have elected to do so in the interest of completely deciding the issues presented and avoiding any further delay should our retroactivity analysis be altered by the Supreme Court in its pending decision in Lindh.
The Act amends 28 U.S.C. § 2254(d) to provide that no habeas relief may be granted to a person in custody pursuant to a judgment of a state court unless the claimed error:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The Act requires us to give great deference to the state court’s factual findings. Newly amended section 2254(e)(1) states:
*1500 In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
Our sister circuits have examined standards of review under the Act, and we find their conclusions persuasive. State court conclusions of law, addressed by section 2254(d)(1), should be examined de novo. Lindh,
In this ease, there is no debate about whether one of the Washington Supreme Court’s critical factual findings was correct. It unfortunately was not. The Washington Supreme Court denied relief on the juror misconduct issue because it found that the misconduct was not reported until over two and a half years after it occurred. See State v. Jeffries,
There is an additional reason why the Act would not preclude a federal habeas corpus remedy. In its 1986 decision, the Washington Supreme Court required Jeffries to show actual and substantial prejudice from the alleged juror misconduct. Jeffries,
Thus, because the Washington Supreme Court’s decision was based on an unreasonable determination of facts in light of the evidence presented in the state court proceedings and was contrary to clearly established federal law, the Act if applied would not preclude the issuance of a writ of habeas corpus.
IV. JUDGMENT
The opinion in Jeffries IV,
Notes
. Intervening controlling authority includes changes in statutory as well as case law. Cf. Thomas,
. We agree with the panel that neither of the other two exceptions are at issue. Accordingly, our discussion will be limited to the "clearly erroneous” exception to law of the case. Because we must consider the merits of the juror prejudice issue in deciding whether Jeffries III was clearly erroneous, this holding also constitutes a decision on the merits.
. “In our application of Dickson v. Sullivan to the petition for rehearing, we read that case too broadly. We failed to discern the significant difference between external contamination of a jury by officers of the court (Dickson) and internal misconduct by a fellow juror____” Jeffries IV,
. In reaching this conclusion we are in accord with almost every other circuit which has addressed the question. See United States v. Swinton,
. In order to reach a verdict of aggravated first degree murder, a jury must find the defendant guilty of first degree murder and find one of several defined aggravating circumstances to exist. Wash.Rev.Code § 10.95.020 (1983). If a jury convicts a defendant of aggravated first degree murder, there is a presumption of a life sentence without possibility of parole. If the jury finds that there are insufficient mitigating circumstances to merit leniency, the sentence is death. Wash.Rev.Code §§ 10.95.030 et seq. (1983).
. "It is clear from the record that the State’s argument was that the defendant killed the victims in order to steal their property." State v. Jeffries,
. Cf. Thompson v. Borg,
. Cf. Bagley,
. Although the efficacy of instructions to ignore a defendant’s prior convictions is highly questionable, see Bayramoglu v. Estelle,
. This would include consideration of the Bayramoglu factors: (1) whether the material was actually received; (2) the length of time the information was available to the jury; (3) the extent to which the jurors discussed and consid
. Watkins v. United States Army,
. The dissent seems to acknowledge that this law of the circuit doctrine would preclude the Jeffries TV panel from contradicting the Jeffries III opinion, thus reaching the same result as the majority.
. The district court apparently concluded that Jeffries III meant that a writ of habeas corpus should issue as to the entire conviction if the district court found that the juror misconduct actually occurred. We disagree with this reading of Jeffries III and the district court’s construction is not binding on us. See Milgard Tempering, Inc. v. Selas Corp. of America,
. We recognize that the Supreme Court has granted a writ of certiorari in Lindh. Normally, we would have deferred submission until the Court had issued its opinion. However, we announced our decision prior to the grant of certiorari and the contours of our decision are now being litigated before this circuit. Thus, we believe the opinion should be issued, but acknowledge the potential impact of Lindh.
. The effective date for Title I was established in section 107(c) of the Act:
EFFECTIVE DATE. — Chapter 154 of title 28, United States Code (as added by subsection (a)) shall apply to cases pending on or after the date of enactment of this Act.
. The Second Circuit relied upon negative inference to conclude that Congress did not intend the Act to apply to pending cases. As the court noted in Boria v. Keane,
Against this background, we look to the new statute to see if Congress has indicated an intent for it to apply to pending cases. While Congress has spoken clearly in some portions of the new statute with respect to the application to pending cases, (examples omitted) in the context of non-capital habeas cases the statute’s silence is striking. This silence, coupled with the presumption against retroactivity, leads us to hold that the new statute does not apply to this case.
. See, e.g., sections 221(c), 401(f), 414(b), 440(f), 607, 732(e)(2), and 903(c).
. The Act is divided into nine titles, namely: Title I (Habeas Corpus Reform); Title II (Justice for Victims); Title III (International Terrorism Prohibitions); Title IV (Terrorist and Criminal Alien Removal and Exclusion); Title V (Nuclear, Biological, and Chemical Weapons Restrictions); Title VI (Implementation of Plastic Explosives Convention); Title VII (Criminal Law Modifications to Counter Terrorism); Title VIII (Assistance to Law Enforcement) and Title IX (Miscellaneous).
. The critical evidence was timely presented to the state trial court in support of a motion for new trial and made a part of the record before the Washington Supreme Court. The dissent suggests that because Jeffries did not include the Sims affidavit in his personal restraint petition, the Act prevents us from considering it. However, the Act requires examining the “merits in State court proceedings” based on “evidence” presented in the "State court proceeding.” 28 U.S.C. § 2254(d). The use of the plural indicates that we evaluate the state court proceedings in aggregate. Further, except in rare circumstances, “evidence” is presented to a trial court, not an appellate tribunal, adding additional support to our conclusion. A contrary interpretation would impose the impractical requirement that the voluminous trial court record be attached to each separate appellate petition in order to be considered. The dissent's suggestion that defendants would conceal an error is unlikely given the risk of procedural default.
. The court's error may be partly explained by Jeffries' submission of new affidavits bearing a later date and the sheer volume of Jeffries' brief (248 pages on direct appeal) without mention of Sims' 1983 affidavit. However, as we have noted, the crucial affidavit was timely presented to the state trial court and was part of the appellate record before the Washington Supreme Court. If this were a disputed fact which required interpretation, we would defer to our colleagues on the Washington Supreme Court. However, both parties agree this factual determination was incorrect. It was not “debatable among reasonable jurists.” Drinkard,
. There are at least two further grounds for concluding that the Act would not preclude habeas relief in this case. The Act provides that an “application for a writ of habeas corpus shall not be granted” unless the new standards in the amended section 2254(d) are met.
Dissenting Opinion
with whom Judges GOODWIN, BRUNETTI, T.G. NELSON and HAWKINS join, dissenting.
I
If you listen closely, perhaps you too can hear what the majority hears: the sounds of silence. Congress said nothing about section 2254(d)’s temporal scope anywhere in Chapter 153 of Title I of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 1996 U.S.C.C.A.N. (110 Stat.) 1214. Under Landgraf v. USI Film Prods.,
A
The cornerstone of the majority’s argument is its assertion that “Landgraf altered the legal landscape so that prospective application has unquestionably become the default rule.” Maj. op. at 1494. According to the majority, when Congress did not address the retroactivity question in passing Chapter 153, it did so with this default rule in mind, and thus meant to endorse prospective application only. But this is not what Landgraf
In fact, Landgraf was designed to preclude this precise argument. In Landgraf the Supreme Court confronted a perceived conflict between two judicially-created rules for interpreting statutes that do not specify a temporal reach: the presumption against retroactive application and the contrary presumption that each case is governed by the law in effect at the time of decision. See
The key to understanding Landgraf therefore is grasping the difference between a “retroactive law” and, what our court has called, a “retrospective law.” See United States ex rel. Lindenthal v. General Dynamics Corp.,
So, does Section 2254(d) have a retroactive effect? The answer is plainly no. While we won’t repeat the arguments made by the Eleventh, Fifth, and Seventh Circuits, see Hunter v. United States,
The fact that applying section 2254(d) to Jeffries’s case may alter the outcome to his detriment doesn’t alone make it retroactive, as almost every change in law will have an outcome determinative effect-else why bother passing a law at all? Compare Boria v. Keane,
We also note that the majority’s retroactive effect argument is incompatible with two recent Supreme Court decisions. According to the majority, at the moment an unconstitutional state judgment is entered, a prisoner’s right to habeas relief vests, and it would be unfair to take away this right because the law changed in the interim. See maj. op. at 1498. The majority therefore argues that the 1996 Act would have a retroactive effect if applied to cases where the state proceedings were completed before April 24, 1996. If the majority’s argument is sound, then the Court committed a grievous error in Felker v. Turpin, — U.S.-,
Perhaps aware of the weakness of its argument that this is a retroactive law, the majority goes to great lengths in arguing that Congress expressly resolved the retroactivity question. See maj. op. at 1497 (“[Wje find the first stage of the Landgraf analysis con-
When a ease implicates a federal statute enacted after the events in suit, the court’s first task is to determine whether Congress has expressly prescribed the statute’s proper reach____ When ... the statute contains no such express command, the court must determine whether the new statute would have retroactive effect____
Unlike the majority, we cannot read this requirement as being satisfied by anything short of a clear statement in the statute. Perhaps the majority’s interpretation would be linguistically plausible if the Supreme Court had omitted the words “express” and “expressly” from this passage. Our responsibility then would be to determine whether Congress had prescribed the statute’s temporal reach by using the normal means of statutory construction: canons, legislative history, inference. But Justice Stevens inserted the words “express” and “expressly” in the Landgraf opinion and they must be given some meaning. In our dictionary, the adjective “express” means “clearly indicated; explicit”-whieh in turn precludes the type of inferential analysis the majority engages in at length. Since the statute contains no express-! e., no explicit-temporal command, we must proceed to determine whether the statute has a retroactive effect.
Assuming, however, that something short of an explicit statutory command will suffice to signal congressional intent regarding retroactivity, the evidence of congressional intent the majority cites is very thin. The majority rightly points out that Chapter 153’s statutory companion-Chapter 154, which creates special “opt-in” capital habeas procedures-was made immediately applicable to pending cases by an express statutory command. Pub.L. No. 104-132, § 107(c), 1996 U.S.C.C.A.N. (110 Stat.) 1226. According to the majority, by explicitly making Chapter 154 retroactive but saying nothing about Chapter 153, Congress must have intended Chapter 153 to apply prospectively. Were we writing on a clean slate, this might be a pretty good argument. But Landgraf specifically rejected this sort of negative inference; in fact, our court made a very similar argument which the Court rejected. See Estate of Reynolds v. Martin,
The majority briefly cites the selective incorporation of 28 U.S.C. §§ 2254(a),(d) & (e) of Chapter 153 into Chapter 154 as evidence that Congress intended Chapter 153 to be prospective. See maj. op. at 1495; 28 U.S.C. § 2264(b).
B
Applying section 2254(d) to Jeffries’s case, it’s clear we cannot second guess the Washington Supreme Court’s adjudication of the juror misconduct claim. That court resolved the claim on the merits, applied the correct law and reasonably applied the law to the facts before it. See 28 U.S.C. § 2254(d). The majority asserts the authority to disregard the Washington Supreme Court’s opinion because that court allegedly applied the wrong harmless error standard and relied on an erroneous fact. According to the majority, these mistakes strip the opinion of the protection granted by section 2254(d)’s deferential standard of review. Ironically, this holding is itself based on serious factual and legal errors.
The factual error: The majority chastises the Washington Supreme Court for failing to apply the Chapman v. California,
The legal error: Section 2254(d)(2) provides that federal courts need give no deference to a state court adjudication “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2) (emphasis added). Significantly, section 2254(d)(2) doesn’t require that the state court discover the ultimate truth; rather it requires the state court to do its best given the information in the record before it.
Here, the Washington Supreme Court’s observation that “[ojver two and a half years passed between the trial and the time the alleged misconduct was discovered” reflected the evidence presented in Jeffries’s collateral proceeding. See Jeffries,
Mr. Tyszko came forward later after being troubled by his conscience. Until he did these issues were hidden from everybody.
Reply Brief to Personal Restraint Petition, Washington v. Jeffries, No. 52323-1, at 7 n. 1 (Wash. Mar.3, 1986). Earlier in the same brief, Jeffries states that Tyszko “came forward almost two years later and told defense counsel what happened.” Id. at 4.
Of course, we know now that this statement was incorrect, but the evidence to the contrary wasn’t presented to the Washington Supreme Court when it was adjudicating the claim of juror misconduct. Kathleen Sims’s November 16, 1983, affidavit wasn’t part of the record in the collateral proceedings. As the majority notes, it was buried in the substantial record on direct appeal, where Jeffries hadn’t raised the juror misconduct claim. See maj. op. at 1500 n. 20. This evidence therefore cannot be considered for purposes of section 2254(d)(2), which limits federal courts to evaluating a state court’s factual determinations “in light of the evidence presented in the State court proceeding” in which “the claim” at issue was adjudicated. 28 U.S.C. § 2254(d)(2).
The majority ignores this important limitation and, in so doing, threatens to render all of section 2254(d) a nullity.
While the application of the 1996 Act ends this case for us, we go on to address the majority’s arguments on the merits because they amount to a serious misapplication of various important jurisprudential doctrines.
II
If the vague comments referring to Jeffries’s prior conviction made in the juryroom were harmful in this case, there is no case where such an error could be harmless. The majority thus has created what in practice is a per se rule of reversal for cases where information adverse to the defendant is uttered by or to one of the jurors outside the courtroom. In doing so, the majority gives birth to a mutant breed of trial errors that are “inherently prejudicial” and thus indistinguishable from structural errors. This end-run around Brecht v. Abrahamson was attempted once before in Thompson v. Barg,
Of course, the majority can’t announce its new creation out loud because a per se rule of reversal for non-structural errors would squarely contradict Arizona v. Fulminante,
A genuine harmless error analysis would lead the majority to the inescapable conclu
Second, the substance of the information communicated wasn’t nearly as damaging as the majority claims. The district judge merely found that a juror stated something “to the effect that Jeffries either had a record or had been convicted of robbery.” Order on Remand, Jeffries v. Wood, No. C90925D, at 1-2 (Feb. 17,1995).
In fact, Jeffries’s own actions belie the assertion that information regarding his criminal record was “intrinsically prejudicial.” Although Jeffries tried to keep this information from the jury, he allowed one juror-the same juror who made the first misconduct allegations-to take a seat in the jury box even though she knew about his record. See Voir Dire of Kathleen Sims, Oct. 13, 1983, at 36-38. We must infer that Jeffries himself didn’t think the information about his prior record was so “intrinsically prejudicial” that any exposure to it would automatically taint a juror’s judgment.
Third, the context in which the remark was made couldn’t have been less damaging. We know this in part because no one is quite sure when and what was said: Seven of the ten jurors who gave statements couldn’t remember any comment about Jeffries’s record, one thought he had a recollection but suspected it might be imaginary, and the two that actually recall a comment gave vague and somewhat contradictory accounts. See Jeffries,
Fourth, it’s hard to imagine more effective curative steps than were taken here. Not only did the trial judge instruct jurors “to disregard any evidence which ... was not admitted,” but it also appears the jurors themselves took steps to cure the error by immediately informing whoever made the comment about Jeffries’s prior record that it wasn’t supposed to be considered. See Jeffries,
It’s therefore understandable that the district judge, who held an evidentiary hearing and heard the jurors testify in person, twice concluded the error here was harmless. In 1991, the district judge concluded that “there is no reasonable possibility that the introduction of extrinsic evidence affected the jury verdict____” Id. at 1539 (emphasis added). And upon remand from Jeffries III, the district judge in apparent exasperation declared:
This Court remains convinced that there was no prejudicial error from statements by a juror as to Jeffries’ past record or past conviction for armed robbery. However, this Court’s review is tightly circumscribed by the Court of Appeals.
Order on Remand, at 2. Likewise, our colleague Judge Fernandez has insisted throughout this case’s tortured history that the juror misconduct could only be described as harmful if one allows the nature of the information to “sweep[ ] away all other considerations.” Jeffries III,
While in many eases judges can disagree in good faith about what constitutes harmless error under Brecht, there are other eases where there’s only one reasonable conclusion; this is surely such a case. The only way the majority can find this error harmful is to disregard Brecht by holding that a finding of actual prejudice isn’t necessary: “[T]he communication by its nature was intrinsically prejudicial and necessarily had a substantial and injurious influence on the verdict.” Maj. op. at 1491 (emphasis added). This holding disregards Supreme Court caselaw.
Ill
We also disagree with the majority’s application of the law of the case doctrine. The doctrine heretofore has been a somewhat benign discretionary rule which empowers courts to swat away unwelcome requests from disappointed litigants who pester them to reverse earlier rulings; it has never before been thought to prevent a court from reconsidering its own earlier ruling in a pending case when it decides it made a mistake.
Law of the ease is a prudential doctrine; it’s a courteous and efficient way for a court to say “enough’s enough” when litigants seek reconsideration of prior interlocutory decisions. See, e.g., Remington v. Central Pacific R.R. Co.,
So what then of all those factors courts must consider in applying the law of the ease doctrine-e.y., whether there is mtervening authority, whether the prior decision was clearly erroneous or would cause a manifest injustice, or whether substantially new evidence was revealed in the interim? See, e.g., Leslie Salt Co. v. United States,
But it is the other aspect of the majority’s holding that is the most troublesome-the rule that a court is bound by its own erroneous interlocutory ruling, even when it comes to the realization that it has made a big mistake. Is this just window dressing-a lot of fancy language that we can expect will be applied sensibly in the future? Not at all. The majority’s application of this doctrine in our case is nothing short of procrustean.
The majority, it will be remembered, has concluded that the jury deliberations were impermissibly tainted because some of the jurors were aware of Jeffries’s prior robbery conviction. On this basis it reverses petitioner’s death sentence. But precisely the same analysis applies to Jeffries’s murder conviction-only more so. While the jury might well have given Jeffries the death penalty even if it did not believe he had participated in the robbery,
The majority seems to concede as much but nonetheless leaves the murder conviction intact-and defendant subject to a sentence of life imprisonment. See Wash.Rev.Code § 9A.32.040. Why? Strange as it may seem, because this is “true to our law of the case holding.” Maj. op. at 1493. If the law of the case doctrine precludes reconsideration of a first degree murder conviction we now know is tainted, we can’t imagine the ease where a panel is ever justified in defying the law of the case doctrine by reconsidering an earlier ruling.
Of course, we do not agree that either the sentence or the conviction was tainted, so we are not troubled about the substantive outcome of this part of the majority’s ruling. But the majority’s willingness to let stand a conviction that, by its own analysis, was unconstitutionally obtained-and let petitioner rot in prison for the rest of his life-just points out how powerful a doctrine law of the case is in the majority’s mind. This lesson will not be lost on future panels, and on other courts in this circuit, when they consider going back to correct their own errors. The result will be a fair number of more erroneous rulings and useless appeals to correct mistakes that could have been taken care of by the court that made the error in the first place.
. The majority's claim that Landgraf announced a default rule of prospective application is based on a single sentence whose meaning the majority distorts by ripping it out of context. Landgraf,
. In Fretwell, petitioner had a colorable ineffective assistance of counsel claim based on precedent existing at the time his state proceedings were completed. See Fretwell,
. The majority believes Landgraf can't have meant what it says because this would impose a big burden on courts: Anytime Congress doesn't explicitly provide a temporal provision, courts would have to inquire whether the statute has a retroactive effect. See maj. op. at 1496. We fail to see how the "retroactive effect” inquiry is any more burdensome than trying to figure out congressional intent in the absence of an explicit statutory command.
The majority also objects that courts will have to engage in a provision-by-provision "retroactive effect” analysis. Maj. op. at 1496. This may be undesirable, but it's precisely what Landgraf calls for. See
. Actually, it is a bit odd that Congress inserted a temporal provision into Chapter 154, but didn’t do the same in Chapter 153, but it’s not so odd that we are left with the inescapable conclusion that Congress meant to attach any significance to the difference. Congress may have focused on Chapter 154's temporal scope but overlooked Chapter 153's because of a significant difference between the two chapters: Chapter 153 merely amends existing procedures while Chapter 154 creates a brand new habeas track. Congress may have assumed that the amendments to existing procedures would go into effect immediately, but wasn't so sure about the brand new procedures, especially since these new procedures were contingent on another event occurring in the future-a state qualifying as an "opt-in.” See 28 U.S.C. § 2261 ("opt-in” state must provide
. The argument seems to be that this incorporation would have been superfluous-another section of Chapter 154 already declares that section 2254 will apply to opt-in cases-unless it was intended to make the retroactivity provision in Chapter 154 apply to sub-sections 2254(a),(d) and (e) when used in opt-in cases. This would only be necessary if section 2254 wasn't retroactive already, which could only be true if Chapter 153 weren't retroactive.
. In fact, Jeffries attempted to raise this issue again in two subsequent personal restraint petitions, and his briefs filed in those cases also contain the same factual misstatement. See Personal Restraint Petition Reply Br., In re Patrick James Jeffries, No. 53397-1, at 7 (Apr. 30, 1987); Brief of Petitioner, Personal Restraint Petition, In re Patrick James Jeffries, No. 56153-2, at 23 (June 15, 1989). In both cases, the Washington Supreme Court refused to reconsider its earlier ruling.
. We're confused by the majority’s argument that use of the plural “proceedings” in the preamble to section 2254(d) makes some difference, especially since the applicable subsection clearly uses the singular. Compare maj. op. at 1500 n. 19 with 28 U.S.C. § 2254(d)(2).
.The majority seems to think we would require petitioners to file voluminous trial court records in every state appellate proceeding. See maj. op. 1500 n. 19. Not at all. It's not where the evidence is located that matters; Jeffries could have incorporated the Sims affidavit by reference. What matters is that he never brought the evidence to the court’s attention; he never mentioned the Sims affidavit in any of his state appeals and misled the court by making contrary representations. Under such circumstances, a state court cannot then be said to have made an “unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2) (emphasis added).
. The majority also claims that new section 2254(d) doesn't apply to Jeffries because the writ was granted before April 24, 1996. See maj. op. at 1501 n. 21. The majority seems to believe that new section 2254(d)'s standard of review applies only at the moment when the initial decision to issue the writ is made. The majority therefore argues that, "[bjecause we are not considering whether to order the district court to issue a writ, but are merely affirming the prior issuance of the writ ..., the Act does not preclude relief:” Id. This argument proves too much: If it were true, courts of appeals would never be bound by section 2254(d) in reviewing a district court's decision to grant the writ. Moreover, this argument ignores the traditional rule that a “complaint ha[s] no vested right in the decree of the District Court while it [is] subject to review.” American Steel Foundries v. Tri-City Council,
. The record reflects that the jury began deliberating at 3:00 p.m. on November 4, 1983, adjourned for the night at 9:35 p.m., was ordered to return at 9:00 a.m. the next morning, and reached a verdict by 12:31 p.m. that afternoon.
. The district court made two sets of factual findings. After the evidentiary hearing in 1991, the court determined the circumstances surrounding the making of the alleged "remark”i.e., when, where and how it was made-but did not actually determine the substance of the remark. See Jeffries v. Blodgett,
. By comparison, if Jeffries had confessed, but the confession had been suppressed-or if he had pleaded guilty, but withdrawn the plea-and a prospective juror said he knew about it, there’s no doubt that Jeffries would have challenged the juror. The same would be true if Jeffries's prior conviction had been for an inflammatory crime, like child molestation. Instead, here Jeffries was willing to rely on Sims's promise not to consider the information; a promise all the jurors made.
. For example, one juror gave the following account of the incident in the jury room:
[One] of the jurors asked, “Didn’t Jeffries have a record?” I remember saying, "I think so, but that has no bearing on this case." There was general agreement. The discussion went no further at that time.
Affidavit of Kathleen Sims, Feb. 27, 1986, attached letter.
. See, e.g., Rent-A-Center, Inc. v. Canyon Television & Appliance Rental, Inc.,
. We realize that there are opinions that characterize the law of the case doctrine somewhat differently. But the language they use doesn’t appear to be particularly well-thought out. See Joan Steinman, Law of the Case: A Judicial Puzzle in Consolidated and Transferred Cases and in Multidistrict Litigation, 135 U.Pa.L.Rev. 595, 613 (1987) ("The Supreme Court has not considered the intricacies of law of the case doctrine at length or in decisions having broad precedential value.”); Miller,
Christianson v. Colt Indus. Operating Corp.,
But Christianson doesn’t announce a general rule. Its seemingly strict version of the law of the case was motivated by unique policy considerations: The Court wanted to prevent jurisdictional ping-pong-i.e., to prevent cases from being perpetually bounced back and forth between courts that disagreed over jurisdictional questions, which the Court considered inherently subject to disagreement. See id. at 818-19,
"A court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances____”
Id. at 817,
. To ensure that this mistake doesn’t recur, we would hold that, whenever law of the case and law of the circuit problems arise in the same case, the law of the circuit principle supplants any law of the case considerations. See United States v. 162.20 Acres of Land,
Many circuits have confronted the issue but decided not to resolve it. See, e.g., LaShawn A.,
Commentators are divided on how to resolve this issue. Although noting that the relationship between the law of the case and the law of the circuit “is not altogether clear,” Professor Moore appears to endorse supplanting the law of the case with the law of the circuit. See IB Moore’s Federal Practice ¶ 0.404[4.-5], at 11-25 & n. 11. Professor Wright, however, appears to disagree: "Whatever may be said of the need to bind all succeeding panels to the stare decisis effect of a circuit decision in separate litigation, [the law of the circuit] rule should not be followed on successive appeals in the same case.” See 18 Wright, Federal Practice and Procedure § 4478, at 692 n. 25 (Supp.1996) (discussing Missouri Pac. R.R.,
. The prosecution, it will be recalled, had two theories on which it sought the aggravated murder conviction: that Jeffries killed both victims to conceal the robbery and that he killed Mrs. Skiff to conceal his earlier killing of Mr. Skiff. See Jeffries,
. The state introduced the robbery evidence to show Jeffries's motive and to tie him to the murders. The state introduced evidence that $30,000 in Canadian money was missing from the Skiffs’ residence, that Jeffries was seen flashing large amounts of Canadian cash shortly after the murders, and that Jeffries sold or attempted to sell items stolen from the Skiffs shortly after the murders. See Jeffries v. Blodgett,
.We mention only in passing another curious aspect of the majority’s holding. At one point, the majority concedes that the law of the case doctrine does not apply to an en banc court. See maj. op. at 1492. And, of course, it does not-any more than our errors are binding on the Supreme Court. See Christianson,