SCOTUS grants cert to decide whether Ramos is retroactive

The Court did't wait for the 9th Circuit to hold that the rule is retroactive, or for the 5th Circuit to hold that the rule is not retroactive

|The Volokh Conspiracy |

Two weeks ago, the Supreme Court decided Ramos v. Louisiana. This case decided that the Sixth Amendment requires a unanimous jury verdict for criminal convictions. Ramos did not decide whether that rule could be applied retroactively for collateral review.

I flagged that issue here. Justice Kavanaugh said it could not be applied retroactively. Justice Alito's dissent faulted Justice Kavanaugh for reaching an issue that was not briefed. Justice Gorsuch's plurality leaned towards it not being-retroactive, but it was non-committal.

Today, the Supreme Court granted review in Edwards v. Vannoy to decide this issue.

The motion of petitioner for leave to proceed in forma pauperis is granted, and the petition for a writ of certiorari is granted limited to the following question: Whether this Court's decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.

This Louisiana appeal came from the 5th Circuit. But the case was briefed well before Ramos was decided. The petition, with good reason, didn't mention retroactivity. It merely raised the unanimity issue.

Now, the Supreme Court has granted review in a case, and added a question the parties did not raise! I can't recall the last time the Court made such a move.

Here, the Court wanted to resolve the retroactivity question as soon as possible. It did't want to wait for a circuit court to rule: that is, the Ninth Circuit would (likely) hold that Ramos was retroactive for an Oregon case, and the Fifth Circuit would (likely) hold that Ramos was not retroactive for a Louisiana case.

I suspect we will see a case next term, holding that the rule is not retroactive.

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  1. Are there generally accepted principles for when retroactivity should apply?

    1. Convenience of the government.

    2. I know this one! Johnson v. New Jersey (1966)

      …in criminal litigation concerning constitutional claims, the Court may make a rule of criminal procedure prospective, basing its determination upon the purpose of the new standards, the reliance placed on the prior decisions on the subject, and the effect on the administration of justice of a retroactive application of the rule.

      1. No longer good law. See Teague v. Lane.

      2. Welch v. United States (2016) has a decent explanation of retroactivity.

      3. *shame*

    3. If it’s a new rule that isn’t announced in the opinion of Gideon v. Wainright, it won’t be retroactive.

      1. If we add the word “procedural” to your sentence, you have accurately stated retroactivity law.

  2. I think that Ramos would have been an easy case of non-retroactivity before Louisiana v. Montgomery came out. But the reasons the Court held that Miller was retroactive under the first Teague category for substantive rules were fairly expansive (probably because the Court had to get around its statement in Miller that Miller set forth a procedure by which juveniles could be sentenced to LWOP).

    Also, isn’t there an exhaustion issue here? If Louisiana or Oregon will provide a mechanism for prisoners to use collateral review courts to secure retroactive application of new law, why shouldn’t the State get the first shot at it before asking a federal habeas court to force a State to give relief?

  3. So the first person to get to SCOTUS wins, but the second one loses? With the same facts?

    1. No, there is no question that this new rule applies to all cases that still had open direct appeals when the Ramos decision came out.

    2. Ramos got there on direct review. The state court of appeals affirmed his conviction and then the state supreme court denied review, so SCOTUS granted cert.

      This new case from the Fifth Circuit is on federal habeas review, his conviction was in 2007, and there a bunch of restrictions on federal habeas review, including whether new decisions are retroactive.

    3. “So the first person to get to SCOTUS wins, but the second one loses? With the same facts?”

      Although that may be the case on collateral review. But idk if SCOTUS can create new procedural rules on collateral review.

  4. Hopefully we will see some swift action on some of those cert petitions concerning the 2nd Amendment.

    1. Please don’t hold your breath. You’ll die.

      Some of those cases have been pending for 18 months.

  5. So, as I understand it, federal habeas corpus isn’t simply a way for an offender convicted in state court to relitigate *every* error committed at his trial. Habeas corpus guarantees the right to a prompt judicial hearing on the legality of your detention, but if you’ve *already* had a judicial hearing, however flawed, the urgency of a *new* hearing is less than of someone who’s never had a hearing in the first place.

    On the other hand, historically habeas corpus *is* a way to challenge *some* aspects of your conviction even if you’ve already had a trial. But which aspects?

    The state court which convicted you has to commit a *jurisdictional* error – which cynics would say simply means an error serious enough for federal intervention, which means how Congress and the U. S. Supreme Court at a particular time balances federalism against the rights of prisoners.

    This is important because federal review of state convictions tends to come by way of habeas corpus, only in some rare cases (like that of Mr. Ramos) does it come by way of a direct appeal to the Supreme Court.

    So if you’re a prisoners-rights type, you’re going to say that habeas corpus should make sure the conviction followed the constitution – and that issue isn’t settled until it’s settled *correctly.*

    If you’re a federalism type, you’re going to reserve habeas corpus for only the most egregious abuses, leaving it to the state appeals process (and the occasional U. S. Supreme Court direct review) to handle most errors – if they get handled at all.

    When it comes to constitutional cases, of course, my sympathies are with the guy who was unconstitutionally convicted, especially when it was in violation of the basic right to a trial by jury – with one or two jurors unconvinced of your guilt. If the state courts in Oregon and Louisiana can’t bother to defend trial by jury, it’s time for the federal courts to step in and to the job.

    Especially since we’re only dealing with two states here – Oregon and Louisiana. I mean, we can imagine a situation where a violation is so widespread over the states that correcting every error would turn loose a bunch of guilty people who would then go off to kill, maim, rob and rape. But ordering a retrial in every case with a divided jury in the states of Oregon and Louisiana? That strikes me as eminently fair.

    1. Massachusetts had to do that, TWICE, because of problems in the state’s two drug labs. A *lot* of guilty people went free….

      1. Or maybe they weren’t guilty after all…

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