Retroactivity, the Due Process Clause, and the Federal Question in Montgomery v. Louisiana

Jason M. Zarrow & William H. Milliken *


The Supreme Court recently granted certiorari in Montgomery v. Louisiana 1 135 S. Ct. 1546 (2015) (mem.) (granting petition for certiorari). to determine whether the Court’s holding in Miller v. Alabama, that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders,” 2 Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012). applies retroactively to cases on collateral review. 3 Petition for Writ of Certiorari at i, Montgomery v. Louisiana, No. 14-280 (U.S. Sept. 5, 2014), 2014 WL 4441518 [hereinafter Petition for Certiorari]; Montgomery v. Louisiana, SCOTUSblog, (last visited Sept. 28, 2015). That question is important in its own right, as we have previously discussed. 4 See Jason M. Zarrow & William H. Milliken, The Retroactivity of Substantive Rules to Cases on Collateral Review and the AEDPA, with a Special Focus on Miller v. Alabama, 48 Ind. L. Rev. 931, 949-77 (2015) (arguing that Miller is “partially retroactive”). But the Court also ordered argument on an additional, threshold question—one that, although perhaps less “sexy” than the merits question, may have profound implications for the scope of the Due Process Clause and retroactivity jurisprudence: Does the Supreme Court have jurisdiction over the case at all? 5 Montgomery, 135 S. Ct. at 1546. Because both parties in Montgomery agree that the Court has jurisdiction, the Court appointed an amicus to argue against jurisdiction. See Montgomery v. Louisiana, 135 S. Ct. 1729, 1729 (2015) (mem.) (inviting amicus curiae briefing); Brief of Court-Appointed Amicus Curiae Arguing Against Jurisdiction at 1, Montgomery v. Louisiana, No. 14-280 (U.S. June 16, 2015), 2015 WL 3799566 [hereinafter Amicus Brief]. That is, does Montgomery’s claim, which was nominally rejected on state law grounds by the Louisiana Supreme Court, 6 See State v. Montgomery, 141 So. 3d 264, 265 (La. 2014); infra notes 24-26 and accompanying text. even raise a federal question?

Before turning to that question, some background is necessary. The Court’s decision in Teague v. Lane 7 489 U.S. 288 (1989). provides the modern framework governing retroactivity—that is, whether a decision announcing a “new” rule of constitutional law applies to defendants who were convicted before the rule’s articulation. Under Teague, new rules apply on direct review, but not on collateral review; thus, a case announcing a new rule applies only to those defendants whose convictions were not final when the rule was announced. 8 See id. at 310 (plurality opinion) (“Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”). This rule of non-retroactivity on collateral review has two exceptions. Under Teague’s first exception, new substantive rules of criminal law—decisions that “narrow the scope of a criminal statute by interpreting its terms” or “that place particular conduct or persons covered by the statute beyond the State’s power to punish”—apply retroactively. 9 Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (citation omitted). The Court has explained that this is not really an exception at all; rather, substantive rules are “not subject to [Teague’s] bar.” Id. at 352 n.4. Nonetheless, for ease of exposition we will refer to this as an “exception” here. Importantly for our purposes, substantive rules include those that “plac[e] a certain class of individuals beyond the State’s power to punish by death,” because the Court has found such rules “analogous to . . . rule[s] placing certain conduct beyond the State’s power to punish at all.” 10 Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002). Under Teague’s second exception, “watershed” rules of criminal procedure apply retroactively. 11 Teague, 489 U.S. at 311 (plurality opinion). Montgomery concerns Teague’s first exception. 12 See Petition for Certiorari, supra note 3, at i.

The next piece of the puzzle is the Court’s 2008 decision in Danforth v. Minnesota, which held that Teague’s background rule of nonretroactivity is not binding on the states because Teague merely construed the federal habeas statute. 13 See Danforth v. Minnesota, 552 U.S. 264, 278-79 (2008). Thus under Danforth, state courts are free to determine retroactivity using more generous standards than Teague’s, although the Danforth Court was careful to leave open whether states are constitutionally required to apply Teague’s two exceptions. 14 See id. at 266 (“The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion.” (emphasis added)); id. at 269 n.4 (“[T]his case does not present the question[] whether States are required to apply ‘watershed’ rules in state post-conviction proceedings . . . .”); id. at 277 (“[T]he case before us now does not involve either of the ‘Teague exceptions’ . . . .”).

Finally, a word about the reviewability of state court decisions. The U.S. Supreme Court possesses jurisdiction to review only those state court decisions that present a dispositive federal question. Put slightly differently, the Court lacks jurisdiction to review state court decisions that rest on “adequate and independent state grounds.” 15 Michigan v. Long, 463 U.S. 1032, 1038 & n.4 (1983). Were the rule otherwise, the Court would issue an advisory opinion, because “the same judgment would be rendered by the state court after [the U.S. Supreme Court] corrected [the state court’s] views of federal laws.” 16 Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945). Not all state court decisions, though, are clear as to whether they are based on state or federal law. In those circumstances, the Court applies the Michigan v. Long presumption: if “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law,” the Court presumes that the state court decision is based on federal law. 17 Long, 463 U.S. at 1040-41. In Long, the Michigan Supreme Court ruled that a protective search for weapons pursuant to a Terry stop could not extend to an area beyond the person, relying on the Fourth Amendments of both the state and federal constitutions. People v. Long, 320 N.W.2d 866, 869-870, 869 n.4 (Mich. 1982), rev’d, 463 U.S. 1032 (1983); see also Long, 463 U.S. at 1037 (“The court below referred twice to the state constitution in its opinion, but otherwise relied exclusively on federal law.”). The U.S. Supreme Court concluded that it had jurisdiction to review the case, Long, 463 U.S. at 1045, noting that “[a]part from its two citations to the State Constitution, the court below relied exclusively on its understanding of Terry and other federal cases,” id. at 1043. This presumption is overcome only by an explicit statement to the contrary. 18 See Long, 463 U.S. at 1041.

I. The Jurisdictional Issue in Montgomery and its Due Process Implications

This brings us to Montgomery v. Louisiana, which began when the petitioner, Henry Montgomery, filed a motion in Louisiana state court arguing that Miller was retroactive and thus entitled him to resentencing. 19 Petition for Certiorari, supra note 3, at 2-3. The state trial court denied his motion, and the Louisiana Supreme Court denied review, citing its decision in State v. Tate, 20 State v. Montgomery, 141 So. 3d 264, 264 (La. 2014) (citing State v. Tate, 130 So. 3d 829 (La. 2013)). in which it held that Miller was not retroactive under Teague. 21 Tate, 130 So. 3d at 844 (holding that Miller’s new rule fell under neither of Teague’s two exceptions). Tate, in turn, cited the Louisiana Supreme Court’s seminal retroactivity decision, State ex rel. Taylor v. Whitley, which adopted the federal Teague standards for “all cases on collateral review in [Louisiana] state courts.” 22 Id. at 834 (quoting State ex rel. Taylor v. Whitley, 606 So. 2d 1292, 1296 (La. 1992)). While “recogniz[ing] that [it was] not bound to adopt the Teague standards,” the Whitley court determined that Teague’s approach was desirable because it promoted clarity and respect for finality in criminal proceedings. 23 See Whitley, 606 So. 2d at 1296-97.

This procedural background frames the jurisdictional issue. The Louisiana Supreme Court’s rejection of Montgomery’s postconviction motion rested on Tate and Whitley, two Louisiana state court decisions. Those decisions applied Teague, but the Whitley court explicitly stated that Louisiana was “not bound” by federal retroactivity standards, 24 Id. at 1296. raising the possibility that the Louisiana courts apply their own retroactivity law (which is permissible under Danforth) and look for federal law only for persuasive guidance. 25 See supra note 14 and accompanying text. If that is true, then arguably the Louisiana Supreme Court’s rejection of Montgomery’s motion does not present a federal question. 26 See Amicus Brief, supra note 5, at 12-13 (making this argument).

This issue is closely intertwined with the issue left open in Danforth—whether Teague’s exceptions are binding on the states. As a matter of federal constitutional law, all courts are required to resolve the claims before them in accordance with the Due Process Clause. 27 Yates v. Aiken, 484 U.S. 211, 218 (1988). Thus, if the Due Process Clause requires retroactivity for substantive rules, then the Louisiana Supreme Court’s allegedly erroneous failure to apply Miller retroactively in Montgomery presents a federal question. If, however, the Due Process Clause does not require the retroactivity of substantive rules, then Louisiana’s decision not to apply Miller retroactively was arguably a matter of state law and is thus unreviewable by the Supreme Court. While the Court could punt on the constitutional question and find jurisdiction under Long, the best course for the Court both doctrinally and jurisprudentially is to find federal jurisdiction on the grounds that Teague’s first exception is constitutionally required.

In our view, it is clear that the Due Process Clause requires the retroactivity of substantive rules on collateral review, and so Montgomery raises a federal question. As the Court noted in Foucha v. Louisiana, “[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” 28 504 U.S. 71, 80 (1992). Teague’s first exception provides for retroactivity where certain conduct may no longer be punished or a certain sentence may no longer constitutionally be imposed on a given class of individuals. 29 See supra note 9 and accompanying text. Because the continued imprisonment of an individual who cannot constitutionally be imprisoned would violate the Due Process Clause’s prohibition on arbitrary and unjustified governmental restraint, Teague’s substantive-rule exception must be constitutionally required. As the Seventh Circuit put it, “[i]f it would be unconstitutional to punish a person for an act that cannot be subject to criminal penalties it is no less unconstitutional to keep a person in prison for committing the same act.” 30 Muth v. Frank, 412 F.3d 808, 817 (7th Cir. 2005). Or, as Justice Brennan explained, “a decision holding certain conduct beyond the power of government to sanction or prohibit must be applied to prevent the continuing imposition of sanctions for conduct engaged in before the date of that decision.” 31 United States v. U.S. Coin & Currency, 401 U.S. 715, 726-27 (1971) (Brennan, J., concurring). Justice Brennan here, and the Seventh Circuit in Muth, were referring to “primary conduct” rules, under which the state may not constitutionally punish certain conduct at all. However, the Court has explained that rules forbidding the government from subjecting a given class of defendants to a certain type of punishment are equivalent to primary conduct rules for purposes of constitutional retroactivity analysis. See Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002). Indeed, Justice Harlan, the father of the modern retroactivity doctrine, could not have been clearer that the first Teague exception applies to “‘substantive due process’ rules.” 32 Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in the judgments in part and dissenting in part).

The Court’s amicus offers two arguments against this inescapable conclusion. Both, however, fail to account for the requirements of the Due Process Clause.

The first argument is that, under Danforth, the Teague decision was an exercise in statutory construction, and so Teague’s exceptions must not be constitutionally mandated. 33 Amicus Brief, supra note 5, at 23-25. This grossly overstates Danforth’s reasoning. Danforth held that states were not bound by Teague’s general rule of non-retroactivity; the Court was careful not to conflate that general rule with Teague’s exceptions. 34 See supra note 14 and accompanying text (noting that Danforth left open the status of the Teague exceptions). Nowhere did the Danforth majority suggest that Teague’s exceptions were statutorily grounded. In fact, the Court stated that “[f]ederal law simply ‘sets certain minimum requirements that States must meet but may exceed in providing appropriate relief.’” 35 Danforth v. Minnesota, 552 U.S. 264, 288 (2008) (emphasis added) (quoting Am. Trucking Ass’ns v. Smith, 496 U.S. 167, 178-79 (1990) (plurality opinion)). Thus, Danforth explicitly declined to resolve the question of whether states are bound by Teague’s exceptions and, if anything, suggested that the Constitution provides a “minimum” level of retroactive relief that is binding in all adjudications.

What is more, Teague’s first exception is different in kind from Teague’s background rule, given that substantive rules are not “exceptions” to Teague at all. 36 See supra note 9. They “are simply ‘not subject to the bar’—that is, they apply to all convictions, period, no matter when the conviction became final.” 37 Zarrow & Milliken, supra note 4, at 983 (quoting Schriro v. Summerlin, 542 U.S. 348, 352 n.4 (2004)). Even if Danforth had suggested that the Teague exceptions derive from the federal habeas statute, such a suggestion would still not support the amicus’s argument.

The amicus’s second argument is that the availability of federal habeas relief eliminates any constitutional problem with a state’s failure to allow the retroactive application of substantive rules. Because federal courts can grant retroactive relief, the argument goes, state courts are not required to do so. 38 See Amicus Brief, supra note 5, at 36. But this argument confuses the availability of a forum for a claim with the substance of the claim itself. In constitutional terms, it addresses an argument under the Suspension Clause, rather than one under the Due Process Clause.

It is likely true that the Suspension Clause would still be satisfied if a state court refused to apply substantive rules retroactively. Under Boumediene v. Bush, the Suspension Clause does not insist on any particular vehicle for relief so long as “an adequate substitute for the writ of habeas corpus” exists. 39 See 553 U.S. 723, 792 (2008). Federal courts are surely adequate substitutes. Indeed, as the amicus observes, “[s]tate collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings.” 40 Amicus Brief, supra note 5, at 28 (quoting Murray v. Giarratano, 492 U.S. 1, 10 (1989)).

But unlike the Suspension Clause, which apparently requires only a forum, the Due Process Clause applies in all fora, whether on direct review or collateral, in state court or federal. If it violates the Due Process Clause to continue to imprison an individual who has a valid claim under a retroactive rule, state courts are obligated to grant release. 41 See, e.g., Yates v. Aiken, 484 U.S. 211, 218 (1988) (noting that, if a state court decides to hear constitutional issues in habeas proceedings, “it has a duty to grant the relief that federal law requires”). States simply have no authority not to issue the relief required by the Due Process Clause, regardless of the availability of another forum. For this reason, the amicus’s greater-includes-the-lesser argument (because state habeas relief is not generally required, it need not be required for a particular type of claim) is a nonstarter. This is not how the Due Process Clause—or federal law more generally—works. A state is not required to hear habeas cases—but if it does, the Due Process Clause applies:

Even if a State has no constitutional obligation to grant criminal defendants a right to appeal, when it does establish appellate courts, the procedures employed by those courts must satisfy the Due Process Clause. Likewise, even if a State has no duty to authorize parole or probation, if it does exercise its discretion to grant conditional liberty to convicted felons, any decision to deprive a parolee or a probationer of such conditional liberty must accord that person due process. Similarly, if a State establishes postconviction proceedings, these proceedings must comport with due process. 42 Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 292-93 (1998) (Stevens, J., concurring in part and dissenting in part) (emphasis added) (citation omitted); cf. Yates, 484 U.S. at 218 (“Since [the South Carolina Supreme Court] has considered the merits of the federal claim, it has a duty to grant the relief that federal law requires.”).

II. Michigan v. Long: A Flawed Way to Avoid the Due Process Clause Issue

Michigan v. Long 43 463 U.S. 1032 (1983). provides an alternate route to the merits that avoids these constitutional questions. Louis    iana has chosen to apply Teague, even though, under Danforth, it is not required to do so. The Louisiana Supreme Court’s determination that Miller is not retroactive thus rests exclusively on its interpretation of federal law. To the extent that the Long presumption is even needed, it compels a finding of jurisdiction because there is no indication in the decisions below, much less the required plain statement, that they rested on state law. 44 Cf. Florida v. Powell, 559 U.S. 50, 57 (2010) (finding jurisdiction over a state court decision that applied Miranda v. Arizona and related state law because the court “treated state and federal law as interchangeable and interwoven . . . [and] at no point expressly asserted that state-law sources gave [the defendant] rights distinct from, or broader than, those delineated in Miranda”).

The Court’s amicus again contends otherwise. The amicus argues that the Louisiana Supreme Court’s decision was not interwoven with federal law because the court “appl[ied] state law to retroactivity and us[ed] non-binding federal cases as persuasive authority.” 45 Amicus Brief, supra note 5, at 14-15. This argument rests on a false premise. Louisiana did not choose to apply its own state-law retroactivity standards and use federal cases as mere “persuasive authority.” Rather, it adopted the federal standard and applied that federal standard as a matter of state law. 46 See supra notes 20-23 and accompanying text. Since the Louisiana Supreme Court made that choice, it must apply Teague correctly—just as the Michigan court in Long was required to apply federal precedents correctly, given its choice to rest its decision on federal, rather than state, search and seizure law. 47 See supra note 17. The amicus argues that finding jurisdiction on this ground would “invite a host of other petitions in civil and criminal cases where state law has been voluntarily modeled on federal law.” Amicus Brief, supra note 5, at 15. Hardly. There is a qualitative difference between a state using analogous federal law to inform its interpretation of, say, its own rules of evidence, see id. at 15-16, and a state making an explicit choice to apply a federal standard instead of fashioning its own standard.

While this may be the easiest way to dispose of the jurisdictional question in Montgomery, it is not the best. Presumably, the Court granted certiorari to resolve a deep split among lower courts about Miller’s retroactivity. However, a holding that the Court has jurisdiction under Long would do little to resolve that split since, as the law currently stands (recall that it is uncertain whether Teague’s first exception binds the states), any state court that had misconstrued Miller’s retroactivity under Teague would not be bound by the Court’s decision. Indeed, any holding on the Miller question would not even be binding in Montgomery’s case, since the Louisiana Supreme Court could articulate a different retroactivity rule on remand. Furthermore, a holding predicated on jurisdiction under Long would provide no guidance to states that simply choose not to apply the Teague framework. 48 See, e.g., Falcon v. State, 162 So. 3d 954, 956 (Fla. 2015) (“We would reach the same conclusion if we were to apply the test for retroactivity set forth in Teague.”).

The Court’s amicus recognizes that a finding of jurisdiction under Long would not be binding on state courts, but mistakenly argues that this result means that any interpretation of Teague issued by the Court in Montgomery amounts to an advisory opinion. 49 Amicus Brief, supra note 5, at 18-19. Not so. An opinion vacating a decision below is not an advisory opinion just because the lower court eventually reaches the same result on alternative grounds. 50 See, e.g., Tennant v. Jefferson Cty. Comm’n, 133 S. Ct. 3, 8 (2012) (per curiam) (“Because the District Court did not reach plaintiffs’ claims under the West Virginia Constitution and the issue has not been briefed by the parties, we leave it to the District Court to address the remaining claims in the first instance.”). If the Supreme Court were to hold that Montgomery was entitled to relief under Teague’s first exception, a state court decision denying relief under a different retroactivity standard would be entirely consistent with the Court’s ruling unless and until the Court holds that the first exception is binding on the states.

Thus, although Michigan v. Long leads to the right result, it would be along the wrong path.


The Court clearly has jurisdiction in Montgomery. What is less clear, however, is the path the Court will take to reach the merits. It has two options: a broad holding resting (perhaps implicitly) on the Due Process Clause, or a narrow holding resting on Louisiana’s voluntary decision to apply Teague. The Court should choose the former and definitively resolve the split of authority on Miller’s retroactivity while also eliminating any misconceptions about the applicability of substantive rules to cases on collateral review in the state courts.

Jason M. Zarrow is an associate at O’Melveny & Myers, LLP. William H. Milliken is an associate at Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC (beginning November 2015).