JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, and an opinion with respect to Parts IV and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.
In Taylor v. Louisiana, 419 U.S. 522 (1975), this Court held that the Sixth Amendment required that the jury venire be drawn from a fair cross section of the community. The Court stated, however, that "in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition." Id., at 538. The principal question presented in this case is whether the Sixth Amendment's fair cross section requirement should now be extended to the petit jury. Because we adopt Justice Harlan's approach to retroactivity for cases on collateral review, we leave the resolution of that question for another day.
Petitioner, a black man, was convicted by an all-white Illinois jury of three counts of attempted murder, two counts of
On appeal, petitioner argued that the prosecutor's use of peremptory challenges denied him the right to be tried by a jury that was representative of the community. The Illinois Appellate Court rejected petitioner's fair cross section claim. People v. Teague, 108 Ill.App.3d 891, 895-897, 439 N.E.2d 1066, 1069-1071 (1982). The Illinois Supreme Court denied leave to appeal, and we denied certiorari. 464 U.S. 867 (1983).
Petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. Petitioner repeated his fair cross section claim, and argued that the opinions of several Justices concurring in, or dissenting from, the denial of certiorari in McCray v. New York, 461 U.S. 961 (1983), had invited a reexamination of Swain v. Alabama, 380 U.S. 202 (1965), which prohibited States from purposefully and systematically denying blacks the opportunity to serve on juries. He also argued, for the first time, that under Swain a prosecutor could be questioned about his use of peremptory challenges once he volunteered an explanation. The District Court, though sympathetic to petitioner's arguments, held that it was bound by Swain and Circuit precedent. App. 5-6.
Petitioner's first contention is that he should receive the benefit of our decision in Batson even though his conviction became final before Batson was decided. Before addressing petitioner's argument, we think it helpful to explain how Batson modified Swain. Swain held that a "State's purposeful or deliberate denial" to blacks of an opportunity to serve as jurors solely on account of race violates the Equal Protection Clause of the Fourteenth Amendment. 380 U. S., at 203-204. In order to establish a prima facie case of discrimination under Swain, a defendant had to demonstrate that the peremptory challenge system had been "perverted."
In Batson, the Court overruled that portion of Swain setting forth the evidentiary showing necessary to make out a prima facie case of racial discrimination under the Equal Protection Clause. The Court held that a defendant can establish a prima facie case by showing that he is a "member of a cognizable racial group," that the prosecutor exercised "peremptory challenges to remove from the venire members of the defendant's race," and that those "facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." 476 U. S., at 96. Once the defendant makes out a prima facie case of discrimination, the burden shifts to the prosecutor "to come forward with a neutral explanation for challenging black jurors." Id., at 97.
In Allen v. Hardy, the Court held that Batson constituted an "explicit and substantial break with prior precedent" because it overruled a portion of Swain. 478 U. S., at 258. Employing the retroactivity standard of Linkletter v. Walker, 381 U.S. 618, 636 (1965), the Court concluded that the rule announced in Batson should not be applied retroactively on collateral review of convictions that became final before Batson was announced. The Court defined final to mean a case " `where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in' Batson . . . ." 478 U. S., at 258, n. 1 (citation omitted).
Petitioner's conviction became final 2 1/2 years prior to Batson, thus depriving petitioner of any benefit from the rule
We reject the basic premise of petitioner's argument. As we have often stated, the "denial of a writ of certiorari imports no expression of opinion upon the merits of the case." United States v. Carver, 260 U.S. 482, 490 (1923) (Holmes, J.). Accord, Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 366, n. 1 (1973); Brown v. Allen, 344 U.S. 443, 489-497 (1953). The "variety of considerations [that] underlie denials of the writ," Maryland v. Baltimore Radio Show, 338 U.S. 912, 917 (1950) (opinion of Frankfurter, J.), counsels against according denials of certiorari any precedential value. Concomitantly, opinions accompanying the denial of certiorari cannot have the same effect as decisions on the merits. We find that Allen v. Hardy is dispositive, and that petitioner cannot benefit from the rule announced in Batson.
Petitioner's second contention is that he has established a violation of the Equal Protection Clause under Swain. Recognizing that he has not shown any systematic exclusion of blacks from petit juries in case after case, petitioner contends that when the prosecutor volunteers an explanation for the use of his peremptory challenges, Swain does not preclude an examination of the stated reasons to determine the legitimacy of the prosecutor's motive. Brief for Petitioner 35 (citing Batson, 476 U. S., at 101, n. (WHITE, J., concurring)). See Weathersby v. Morris, 708 F.2d 1493, 1495-1496 (CA9 1983) (supporting petitioner's interpretation of Swain), cert. denied, 464 U.S. 1046 (1984).
Petitioner candidly admits that he did not raise the Swain claim at trial or on direct appeal. Brief for Petitioner 38-39. Because of this failure, petitioner has forfeited review of the claim in the Illinois courts. "It is well established that `where an appeal was taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those that could have been presented but were not are deemed waived.' " People v. Gaines, 105 Ill.2d 79, 87-88, 473 N.E.2d 868, 873 (1984) (citation omitted), cert. denied, 471 U.S. 1131 (1985). The default prevents petitioner from raising the Swain claim in collateral proceedings under the Illinois Post-Conviction Hearing Act, Ill. Rev. Stat., ch. 38, ¶ 122-1 et seq. (1987), unless fundamental fairness requires that the default be overlooked. People v. Brown, 52 Ill.2d 227, 230, 287 N.E.2d 663, 665 (1972).
The fundamental fairness exception is a narrow one, and has been applied in limited circumstances. Compare People v. Goerger, 52 Ill.2d 403, 406, 288 N.E.2d 416, 418 (1972) (improper instruction on reasonable doubt "does not constitute such fundamental unfairness as to obviate the res judicata and waiver doctrines"), with People v. Ikerd, 47 Ill.2d 211, 212, 265 N.E.2d 120, 121 (1970) (fundamental fairness exception applies "where the right relied on has been
Under Wainwright v. Sykes, 433 U.S. 72, 87-91 (1977), petitioner is barred from raising the Swain claim in a federal habeas corpus proceeding unless he can show cause for the default and prejudice resulting therefrom. See Engle v. Isaac, supra, at 113-114, 117, 124-135 (applying procedural default rule to claim that had never been raised in state court). Petitioner does not attempt to show cause for his default. Instead, he argues that the claim is not barred because it was addressed by the Illinois Appellate Court. Cf. Caldwell v. Mississippi, 472 U.S. 320, 327-328 (1985). We cannot agree with petitioner's argument. The Illinois Appellate Court rejected petitioner's Sixth Amendment fair cross section claim without mentioning the Equal Protection Clause on which Swain was based or discussing whether Swain allows a prosecutor to be questioned about his use of peremptory challenges once he volunteers an explanation. See People v. Teague, 108 Ill. App. 3d, at 895-896, 439 N. E. 2d, at 1070. Accordingly, we hold that petitioner's Swain claim is procedurally barred, and do not address its merits.
Our application of the procedural default rule here is consistent with Harris v. Reed, ante, at 263, which holds that a "procedural default does not bar consideration of a federal
Petitioner's third and final contention is that the Sixth Amendment's fair cross section requirement applies to the petit jury. As we noted at the outset, Taylor expressly stated that the fair cross section requirement does not apply to the petit jury. See 419 U. S., at 538. Petitioner nevertheless contends that the ratio decidendi of Taylor cannot be limited to the jury venire, and he urges adoption of a new rule. Because we hold that the rule urged by petitioner should not be applied retroactively to cases on collateral review, we decline to address petitioner's contention.
In the past, the Court has, without discussion, often applied a new constitutional rule of criminal procedure to the defendant in the case announcing the new rule, and has confronted the question of retroactivity later when a different defendant sought the benefit of that rule. See, e. g., Brown v. Louisiana, 447 U.S. 323 (1980) (addressing retroactivity of Burch v. Louisiana, 441 U.S. 130 (1979)); Robinson v. Neil, 409 U.S. 505 (1973) (addressing retroactivity of Waller v. Florida, 397 U.S. 387 (1970)); Stovall v. Denno, 388 U.S. 293 (1967) (addressing retroactivity of United States v. Wade, 388 U.S. 218 (1967), and Gilbert v. California, 388 U.S. 263 (1967)); Tehan v. Shott, 382 U.S. 406 (1966) (addressing retroactivity of Griffin v. California, 380 U.S. 609
The question of retroactivity with regard to petitioner's fair cross section claim has been raised only in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim. See Brief for Petitioner 21-32; Brief for Respondent 31-38. Moreover, our sua sponte consideration of retroactivity is far from novel. In Allen v. Hardy, we addressed the retroactivity of Batson even though that question had not been presented by the petition for certiorari or addressed by the lower courts. See 478 U. S., at 261-262 (MARSHALL, J., dissenting). See also Mapp v. Ohio, 367 U.S. 643, 646, n. 3 (1961) (applying exclusionary rule to the States even although such a course of action was urged only by amicus curiae).
In our view, the question "whether a decision [announcing a new rule should] be given prospective or retroactive effect should be faced at the time of [that] decision." Mishkin, Foreword: the High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 64 (1965). Cf. Bowen v. United States, 422 U.S. 916, 920 (1975) (when "issues of both retroactivity and application of constitutional doctrine are raised," the retroactivity issue should be decided first). Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. Thus, before deciding whether the fair cross section requirement
It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. See, e. g., Rock v. Arkansas, 483 U.S. 44, 62 (1987) (per se rule excluding all hypnotically refreshed testimony infringes impermissibly on a criminal defendant's right to testify on his behalf); Ford v. Wainwright, 477 U.S. 399, 410 (1986) (Eighth Amendment prohibits the execution of prisoners who are insane). To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. See generally Truesdale v. Aiken, 480 U.S. 527, 528-529 (1987) (Powell, J., dissenting). Given the strong language in Taylor and our statement in Akins v. Texas, 325 U.S. 398, 403 (1945), that "[f]airness in [jury] selection has never been held to require proportional representation of races upon a jury," application of the fair cross section requirement to the petit jury would be a new rule.
The Linkletter retroactivity standard has not led to consistent results. Instead, it has been used to limit application of certain new rules to cases on direct review, other new rules only to the defendants in the cases announcing such rules, and still other new rules to cases in which trials have not yet commenced. See Desist v. United States, 394 U.S. 244, 256-257 (1969) (Harlan, J., dissenting) (citing examples).
Application of the Linkletter standard led to the disparate treatment of similarly situated defendants on direct review. For example, in Miranda v. Arizona, 384 U.S. 436, 467-473 (1966), the Court held that, absent other effective measures to protect the Fifth Amendment privilege against self-incrimination, a person in custody must be warned prior to interrogation that he has certain rights, including the right to remain silent. The Court applied that new rule to the defendants in Miranda and its companion cases, and held that their convictions could not stand because they had been interrogated without the proper warnings. Id., at 491-499. In Johnson v. New Jersey, 384 U.S. 719, 733-735 (1966), the Court held, under the Linkletter standard, that Miranda would only be applied to trials commencing after that decision had been announced. Because the defendant in Johnson, like the defendants in Miranda, was on direct review of his conviction, see 384 U. S., at 721, the Court's refusal to give Miranda retroactive effect resulted in unequal treatment of those who were similarly situated. This inequity also generated vehement criticism. See, e. g., A. Bickel, The Supreme Court and the Idea of Progress 54-57 (1978) (decrying the "plain" injustice in Johnson and suggesting that the Court should have distinguished between direct and collateral review for purposes of retroactivity).
Dissatisfied with the Linkletter standard, Justice Harlan advocated a different approach to retroactivity. He argued that new rules should always be applied retroactively to cases on direct review, but that generally they should not be applied retroactively to criminal cases on collateral review. See Mackey v. United States, 401 U.S. 667, 675 (1971) (opinion
In Griffith v. Kentucky, 479 U.S. 314 (1987), we rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced, and adopted the first part of the retroactivity approach advocated by Justice Harlan. We agreed with Justice Harlan that "failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." 479 U. S., at 322. We gave two reasons for our decision. First, because we can only promulgate new rules in specific cases and cannot possibly decide all cases in which review is sought, "the integrity of judicial review" requires the application of the new rule to "all similar cases pending on direct review." Id., at 323. We quoted approvingly from Justice Harlan's separate opinion in Mackey, supra, at 679:
Second, because "selective application of new rules violates the principle of treating similarly situated defendants the same," we refused to continue to tolerate the inequity that resulted from not applying new rules retroactively to defendants whose cases had not yet become final. Id., at 323-324 (citing Desist, supra, at 258-259 (Harlan, J., dissenting)). Although new rules that constituted clear breaks with the past generally were not given retroactive effect under the Linkletter standard, we held that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all
The Linkletter standard also led to unfortunate disparity in the treatment of similarly situated defendants on collateral review. An example will best illustrate the point. In Edwards v. Arizona, 451 U.S. 477, 484-487 (1981), the Court held that once a person invokes his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be inferred from the fact that the person responded to police-initiated questioning. It was not until Solem v. Stumes, 465 U.S. 638 (1984), that the Court held, under the Linkletter standard, that Edwards was not to be applied retroactively to cases on collateral review. In the interim, several lower federal courts had come to the opposite conclusion and had applied Edwards to cases that had become final before that decision was announced. See Witt v. Wainwright, 714 F.2d 1069, 1072-1074 (CA11 1983); Sockwell v. Maggio, 709 F.2d 341, 343-344 (CA5 1983); McCree v. Housewright, 689 F.2d 797, 800-802 (CA8 1982), cert. denied sub nom. McCree v. Lockhart, 460 U.S. 1088 (1983). Thus, some defendants on collateral review whose Edwards claims were adjudicated prior to Stumes received the benefit of Edwards, while those whose Edwards claims had not been addressed prior to Stumes did not. This disparity in treatment was a product of two factors: our failure to treat retroactivity as a threshold question and the Linkletter standard's inability to account for the nature and function of collateral review. Having decided to rectify the first of those inadequacies, see supra, at 300-301, we now turn to the second.
Justice Harlan believed that new rules generally should not be applied retroactively to cases on collateral review. He argued that retroactivity for cases on collateral review could "be responsibly [determined] only by focusing, in the first instance,
Given the "broad scope of constitutional issues cognizable on habeas," Justice Harlan argued that it is "sounder, in adjudicating habeas petitions, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of [habeas] cases on the basis of intervening changes in constitutional interpretation." Id., at 689. As he had explained in Desist, "the threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function, . . . the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place." 394 U. S., at 262-263. See also Stumes, 465 U. S., at 653 (Powell, J., concurring in judgment) ("Review on habeas to determine that the conviction rests upon correct application of the
Justice Harlan identified only two exceptions to his general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Mackey, 401 U. S., at 692. Second, a new rule should be applied retroactively if it requires the observance of "those procedures that . . . are `implicit in the concept of ordered liberty.' " Id., at 693 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.)).
Last Term, in Yates v. Aiken, 484 U.S. 211 (1988), we were asked to decide whether the rule announced in Francis v. Franklin, 471 U.S. 307 (1985), should be applied to a defendant on collateral review at the time that case was decided. We held that Francis did not announce a new rule because it "was merely an application of the principle that governed our decision in Sandstrom v. Montana [,442 U.S. 510 (1979)], which had been decided before [the defendant's] trial took place." 484 U. S., at 216-217. We therefore found it unnecessary to adopt Justice Harlan's view of retroactivity for cases on collateral review. We stated, however, that our recent decisions had noted, as had Justice Harlan, "the important distinction between direct review and collateral review." Id., at 215. See also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (distinguishing between direct and collateral review for purposes of Sixth Amendment right to counsel on appeal). Indeed, we have expressly reconciled some of our retroactivity decisions with Justice Harlan's approach. See Shea v. Louisiana, 470 U.S. 51, 58, n. 4 (1985) (giving Edwards retroactive effect on direct, but not collateral, review "is fully congruent with both aspects of the approach to retroactivity propounded by Justice Harlan").
This Court has not "always followed an unwavering line in its conclusions as to the availability of the Great Writ. Our development of the law of federal habeas corpus has been attended, seemingly, with some backing and filling." Fay v. Noia, 372 U.S. 391, 411-412 (1963). See also Stone v. Powell, 428 U.S. 465, 475-476 (1976). Nevertheless, it has long been established that a final civil judgment entered under a given rule of law may withstand subsequent judicial change in that rule. In Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371 (1940), the Court held that a judgment based on a jurisdictional statute later found to be unconstitutional could have res judicata effect. The Court based its decision in large part on finality concerns. "The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judical declaration. . . . Questions of
These underlying considerations of finality find significant and compelling parallels in the criminal context. Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect. The fact that life and liberty are at stake in criminal prosecutions "shows only that `conventional notions of finality' should not have as much place in criminal as in civil litigation, not that they should have none." Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U. Chi. L. Rev. 142, 150 (1970). "[I]f a criminal judgment is ever to be final, the notion of legality must at some point include the assignment of final competence to determine legality." Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 450-451 (1963) (emphasis omitted). See also Mackey, 401 U. S., at 691 (Harlan, J., concurring in judgments in part and dissenting in part) ("No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation").
As explained by Professor Mishkin:
See also Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U. Pa. L. Rev. 650, 655-656 (1962).
The "costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus . . . generally far outweigh the benefits of this application." Stumes, 465 U. S., at 654 (Powell, J., concurring in judgment). In many ways the application of new rules to cases on collateral review may be more intrusive than the enjoining of criminal prosecutions, cf. Younger v. Harris, 401 U.S. 37, 43-54 (1971), for it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards. Furthermore, as we recognized in Engle v. Isaac, "[s]tate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands." 456 U. S., at 128, n. 33. See also Brown v. Allen, 344 U. S., at 534 (Jackson, J., concurring in result) (state courts cannot "anticipate, and so comply with, this Court's due process requirements or ascertain any standards to which this Court will adhere in prescribing them").
We find these criticisms to be persuasive, and we now adopt Justice Harlan's view of retroactivity for cases on collateral review. 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.
Petitioner's conviction became final in 1983. As a result, the rule petitioner urges would not be applicable to this case, which is on collateral review, unless it would fall within an exception.
The first exception suggested by Justice Harlan — that a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey, 401 U. S., at 692 (opinion concurring in judgments in part and dissenting in part) — is not relevant here. Application of the fair cross section requirement to the petit jury would not accord constitutional protection to any primary activity whatsoever.
The second exception suggested by Justice Harlan — that a new rule should be applied retroactively if it requires the observance of "those procedures that . . . are `implicit in the concept of ordered liberty,' " id., at 693 (quoting Palko, 302 U. S., at 325) — we apply with a modification. The language used by Justice Harlan in Mackey leaves no doubt that he meant the second exception to be reserved for watershed rules of criminal procedure:
In Desist, Justice Harlan had reasoned that one of the two principal functions of habeas corpus was "to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted," and concluded "from this that all `new' constitutional rules which significantly improve the pre-existing factfinding procedures are to be retroactively applied on habeas." 394 U. S., at 262. In Mackey, Justice Harlan gave three reasons for shifting to the less defined Palko approach. First, he observed that recent precedent, particularly Kaufman v. United States, 394 U.S. 217 (1969) (permitting Fourth Amendment claims to be raised on collateral review), led "ineluctably . . . to the conclusion that it is not a principal purpose of the writ to inquire whether a criminal convict did in fact commit the deed alleged." 401 U. S., at 694. Second, he noted that cases such as Coleman v. Alabama, 399 U.S. 1 (1970) (invalidating lineup procedures in the absence of counsel), gave him reason to doubt the marginal effectiveness of claimed improvements in factfinding. 401 U. S., at 694-695. Third, he found "inherently intractable the purported distinction between those new rules that are designed to improve the factfinding process and those designed principally to further other values." Id., at 695.
We believe it desirable to combine the accuracy element of the Desist version of the second exception with the Mackey requirement that the procedure at issue must implicate the fundamental fairness of the trial. Were we to employ the Palko test without more, we would be doing little more than importing into a very different context the terms of the debate over incorporation. Compare Duncan v. Louisiana, 391 U.S. 145, 171-193 (1968) (Harlan, J., dissenting), with Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). Reviving the Palko test now, in this area of law, would be unnecessarily anachronistic. Cf. Benton v.
Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge. We are also of the view that such rules are "best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus — that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods." Rose v.
An examination of our decision in Taylor applying the fair cross section requirement to the jury venire leads inexorably to the conclusion that adoption of the rule petitioner urges would be a far cry from the kind of absolute prerequisite to fundamental fairness that is "implicit in the concept of ordered liberty." The requirement that the jury venire be composed of a fair cross section of the community is based on the role of the jury in our system. Because the purpose of the jury is to guard against arbitrary abuses of power by interposing the commonsense judgment of the community between the State and the defendant, the jury venire cannot be composed only of special segments of the population. "Community participation in the administration of the criminal law . . . is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system." Taylor, 419 U. S., at 530. But as we stated in Daniel v. Louisiana, 420 U.S. 31, 32 (1975), which held that Taylor was not to be given retroactive effect, the fair cross section requirement "[does] not
Were we to recognize the new rule urged by petitioner in this case, we would have to give petitioner the benefit of that new rule even though it would not be applied retroactively to others similarly situated. In the words of JUSTICE BRENNAN, such an inequitable result would be "an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum." Stovall v. Denno, 388 U. S., at 301. But the harm caused by the failure to treat similarly situated defendants alike cannot be exaggerated: such inequitable treatment "hardly comports with the ideal of `administration of justice with an even hand.' " Hankerson v. North Carolina, 432 U.S. 233, 247 (1977) (Powell, J., concurring in judgment) (quoting Desist, 394 U. S., at 255 (Douglas, J., dissenting)). See also Fuller v. Alaska, 393 U.S. 80, 82 (1968) (Douglas, J., dissenting) (if a rule is applied to the defendant in the case announcing the rule, it should be applied to all others similarly situated). Our refusal to allow such disparate treatment in the direct review context led us to adopt the first part of Justice Harlan's retroactivity approach in Griffith. "The fact that the new rule may constitute a clear break with the past has no bearing on the `actual inequity that results' when only one of many similarly situated defendants receives the benefit of the new rule." 479 U. S., at 327-328.
For the reasons set forth above, the judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE WHITE, concurring in part and concurring in the judgment.
I join Parts I, II, and III of JUSTICE O'CONNOR'S opinion. Otherwise, I concur only in the judgment.
I regret the course the Court has taken to this point, but cases like Johnson, Shea, and Griffith have been decided, and I have insufficient reason to continue to object to them. In light of those decisions, the result reached in Parts IV and V of JUSTICE O'CONNOR'S opinion is an acceptable application in collateral proceedings of the theories embraced by the Court in cases dealing with direct review, and I concur in that result. If we are wrong in construing the reach of the habeas corpus statutes, Congress can of course correct us; but because the Court's recent decisions dealing with direct review appear to have constitutional underpinnings, see e. g., Griffith v. Kentucky, supra, at 322-323, correction of our error, if error there is, perhaps lies with us, not Congress.
I join Part I of JUSTICE STEVENS' opinion, post this page and 319-323, concurring in part and concurring in the judgment. So far as the petitioner's claim based upon Swain v. Alabama, 380 U.S. 202 (1965), is concerned, I concur in the judgment.
For the reasons stated in Part III of JUSTICE BRENNAN'S dissent, post, at 342, I am persuaded this petitioner has alleged a violation of the Sixth Amendment.
When a criminal defendant claims that a procedural error tainted his conviction, an appellate court often decides whether error occurred before deciding whether that error requires reversal or should be classified as harmless. I would follow a parallel approach in cases raising novel questions of constitutional law on collateral review, first determining
In general, I share Justice Harlan's views about retroactivity. See Mackey v. United States, 401 U.S. 667, 675-702 (1971) (opinion concurring in judgments in part and dissenting in part); Desist v. United States, 394 U.S. 244, 256-269 (1969) (dissenting opinion). Thus I joined the Court in holding that, as Justice Harlan had urged, new criminal procedural rules should be applied to all defendants whose convictions are not final when the rule is announced. Griffith v. Kentucky, 479 U.S. 314 (1987). I also agree with Justice Harlan that defendants seeking collateral review should not benefit from new rules unless those rules "fre[e] individuals from punishment for conduct that is constitutionally protected" or unless the original trial entailed elements of fundamental unfairness. Mackey, supra, at 693. Thus, although I question the propriety of making such an important change in the law without briefing or argument, cf. Allen v. Hardy,
I do not agree, however, with the plurality's dicta proposing a "modification" of Justice Harlan's fundamental fairness exception. See ante, at 311-316. "[I]t has been the law, presumably for at least as long as anyone currently in jail has been incarcerated," Justice Harlan wrote, "that procedures utilized to convict them must have been fundamentally fair, that is, in accordance with the command of the Fourteenth Amendment that `[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.' " Mackey, 401 U. S., at 689. He continued:
In embracing Justice Cardozo's notion that errors "violat[ing] those `fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' " Palko v. Connecticut, 302 U.S. 319, 328 (1937) (quoting Hebert
The plurality wrongly resuscitates Justice Harlan's early view, indicating that the only procedural errors deserving correction on collateral review are those that undermine "an accurate determination of innocence or guilt . . . ." See ante, at 313. I cannot agree that it is "unnecessarily anachronistic," ante, at 312, to issue a writ of habeas corpus to a petitioner convicted in a manner that violates fundamental principles of liberty. Furthermore, a touchstone of factual innocence would provide little guidance in certain important types of cases, such as those challenging the constitutionality of capital sentencing hearings.
As a matter of first impression, therefore, I would conclude that a guilty verdict delivered by a jury whose impartiality might have been eroded by racial prejudice is fundamentally unfair. Constraining that conclusion is the Court's holding in Allen v. Hardy, 478 U.S. 255 (1986) (per curiam) — an opinion I did not join — that Batson v. Kentucky, 476 U.S. 79 (1986), cannot be applied retroactively to permit collateral review of convictions that became final before it was decided. It is true that the Batson decision rested on the Equal Protection Clause of the Fourteenth Amendment and that this case raises a Sixth Amendment issue. In both cases, however, petitioners pressed their objections to the jury selection on both grounds. See ante, at 293; Batson v. Kentucky, supra, at 83. Both cases concern the constitutionality of allowing the use of peremptories to yield a jury that may be biased against a defendant on account of race. Identical practical ramifications will ensue from our holdings in both cases. Thus if there is no fundamental unfairness in denying retroactive relief to a petitioner denied his Fourteenth Amendment right to a fairly chosen jury, as the Court
I do not, however, agree with the Court's disposition of the contention that the prosecutor violated the Equal Protection Clause by using peremptory challenges to exclude black persons from petitioner's jury. Ante, at 297-299. The basis for this claim is Swain v. Alabama, 380 U.S. 202 (1965), which reaffirmed that equal protection requires that jurors " `be selected as individuals, on the basis of individual qualifications, and not as members of a race.' " Id., at 204 (quoting Cassell v. Texas, 339 U.S. 282, 286 (1950) (plurality opinion)). Discussing how a defendant might prove purposeful racial discrimination in jury selection, the Court stated:
The Court of Appeals rejected petitioner's claim because he "did not specifically raise [it] in the state court," 820 F.2d 832, 834, n. 6 (CA7 1987) (en banc), and because he had not rebutted the Swain presumption by "show[ing] the prosecutor's systematic use of peremptory challenges against Negroes over a period of time." 380 U. S., at 227. It thus ignored the import of petitioner's claim; i. e., that a prosecutor who volunteers explanations for using peremptories erases the Swain presumption, so that the trial judge should examine whether the race-neutral explanations are genuine or pretextual.
Petitioner's trial counsel twice moved for a mistrial on the ground that the prosecutor impermissibly had exercised peremptory challenges to effect an all-white jury. The prosecutor responded that "numerous individuals that were excused were of very young years. There was an attempt, your Honor, to have a balance of an equal number of men and women . . . ." App. 3.
I note, however, that petitioner never presented his Swain claim to the state courts before including it in the instant federal habeas petition. In Rose v. Lundy, 455 U.S. 509 (1982), the Court announced that a habeas petition containing exhausted and unexhausted claims must be dismissed. Literal adherence to that pronouncement would require that this case be remanded to the District Court with instructions to dismiss the petition without consideration of the exhausted Sixth Amendment claim. The Court avoids this result by
Because "the exhaustion rule requiring dismissal of mixed petitions . . . is not jurisdictional," Strickland v. Washington, 466 U.S. 668, 684 (1984), and because petitioner's Sixth Amendment claim is foreclosed by the decision in Allen, I concur in the Court's judgment.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Today a plurality of this Court, without benefit of briefing and oral argument, adopts a novel threshold test for federal review of state criminal convictions on habeas corpus. It does so without regard for — indeed, without even mentioning — our contrary decisions over the past 35 years delineating the broad scope of habeas relief. The plurality further appears oblivious to the importance we have consistently accorded the principle of stare decisis in nonconstitutional cases. Out of an exaggerated concern for treating similarly situated habeas petitioners the same, the plurality would for the first time preclude the federal courts from considering on collateral review a vast range of important constitutional
The federal habeas corpus statute provides that a federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. § 2254.
In particular, our decisions have made plain that the federal courts may collaterally review claims such as Teague's once state remedies have been exhausted. In Brown v. Allen, 344 U.S. 443 (1953), for example, we held that state prisoners alleging discrimination in the selection of members of the grand jury that indicted them and the petit jury that tried them were entitled to reconsideration of those allegations in federal court. "Discriminations against a race by barring or limiting citizens of that race from participation in jury service," we noted, "are odious to our thought and our Constitution. This has long been accepted as the law." Id., at 470 (citations omitted). See also Vasquez v. Hillery, 474 U.S. 254 (1986); Rose v. Mitchell, supra.
Unfortunately, the plurality turns its back on established case law and would erect a formidable new barrier to relief. Any time a federal habeas petitioner's claim, if successful, would result in the announcement of a new rule of law, the plurality says, it may only be adjudicated if that rule would "plac[e] `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,' " ante, at 307, quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in judgments in part and dissenting in part), or if it would mandate "new procedures without which the likelihood of an accurate conviction is seriously diminished." Ante, at 313.
Astonishingly, the plurality adopts this novel precondition to habeas review without benefit of oral argument on the question and with no more guidance from the litigants than a three-page discussion in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24.
Equally disturbing, in my view, is the plurality's infidelity to the doctrine of stare decisis. That doctrine "demands respect in a society governed by the rule of law," Akron v.
In this case, as when we considered the reviewability of grand jury discrimination on habeas corpus, "we have been offered no reason to believe that any such metamorphosis has rendered the Court's long commitment to a rule of reversal outdated, ill-founded, unworkable, or otherwise legitimately vulnerable to serious reconsideration." Vasquez v. Hillery, supra, at 266. None of the reasons we have hitherto deemed necessary for departing from the doctrine of stare decisis are present. Our interpretations of the reach of federal habeas corpus have not proceeded from inadequate briefing or argumentation, nor have they taken the form of assertion unaccompanied by detailed justification. See, e. g., Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 766 (1984). No new facts or arguments have come to light suggesting that our reading of the federal habeas statute or our divination of congressional intent was plainly mistaken. See, e. g., Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). In addition, Congress has done nothing to shrink the set of claims cognizable on habeas since it passed the Habeas Corpus Act of 1867, despite our consistent interpretation of the federal habeas statute to permit adjudication of
The plurality does not so much as mention stare decisis. Indeed, from the plurality's exposition of its new rule, one might infer that its novel fabrication will work no great change in the availability of federal collateral review of state convictions. Nothing could be further from the truth. Although the plurality declines to "define the spectrum of what may or may not constitute a new rule for retroactivity purposes," it does say that generally "a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." Ante, at 301. Otherwise phrased, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Ibid. This account is extremely broad.
Its impact is perhaps best illustrated by noting the abundance and variety of habeas cases we have decided in recent years that could never have been adjudicated had the plurality's new rule been in effect. Although "history reveals no exact tie of the writ of habeas corpus to a constitutional claim relating to innocence or guilt," Schneckloth v. Bustamonte, 412 U.S. 218, 257 (1973) (Powell, J., concurring), the plurality's decision to ignore history and to link the availability of relief to guilt or innocence when the outcome of a case is not "dictated" by precedent would apparently prevent a great many Fifth, Sixth, and Fourteenth Amendment cases from being brought on federal habeas.
For example, in Nix v. Whiteside, 475 U.S. 157 (1986), the Court ruled that a defendant's right to counsel under the Sixth Amendment is not violated when a defense attorney refuses to cooperate with him in presenting perjured testimony at trial. Clearly, the opposite result sought by the petitioner could not have been dictated by prior cases, nor would the introduction of perjured testimony have improved the accuracy of factfinding at trial. The claim presented on habeas was therefore novel yet well outside the plurality's
Likewise, because "the Fifth Amendment's privilege against self-incrimination is not an adjunct to the ascertainment of truth," Tehan v. Shott, 382 U.S. 406, 416 (1966), claims that a petitioner's right to remain silent was violated would, if not dictated by earlier decisions, ordinarily fail to qualify under the plurality's second exception. In Estelle v. Smith, 451 U.S. 454 (1981), for example, we held that a psychiatrist who examined the defendant before trial without warning him that what he said could be used against him in a capital sentencing proceeding could not testify against him at such a proceeding. Under the plurality's newly fashioned
Habeas claims under the Double Jeopardy Clause will also be barred under the plurality's approach if the rules they seek to establish would "brea[k] new ground or impos[e] a new obligation on the States or the Federal Government," ante, at 301, because they bear no relation to the petitioner's
These are massive changes, unsupported by precedent.
Other things are not always equal, however. Sometimes a claim which, if successful, would create a new rule not appropriate for retroactive application on collateral review is better presented by a habeas case than by one on direct review. In fact, sometimes the claim is only presented on collateral review. In that case, while we could forgo deciding the issue in the hope that it would eventually be presented squarely on direct review, that hope might be misplaced, and even if it were in time fulfilled, the opportunity to check constitutional violations and to further the evolution of our thinking in some area of the law would in the meanwhile have been lost. In addition, by preserving our right and that of the lower federal courts to hear such claims on collateral review, we would not discourage their litigation on federal habeas corpus and
The plurality appears oblivious to these advantages of our settled approach to collateral review. Instead, it would deny itself these benefits because adherence to precedent would occasionally result in one habeas petitioner's obtaining redress while another petitioner with an identical claim could not qualify for relief.
I see no reason to abandon these views. Perfectly evenhanded treatment of habeas petitioners can by no means justify the plurality's sua sponte renunciation of the ample benefits of adjudicating novel constitutional claims on habeas corpus that do not bear substantially on guilt or innocence.
Even if one accepts the plurality's account of the appropriate limits to habeas relief, its conclusion that Teague's claim may not be heard is dubious. The plurality seeks to give its decision a less startling aspect than it wears by repeatedly mischaracterizing Teague's Sixth Amendment claim. As the plurality would have it, Teague contends " `that petit juries actually chosen must mirror the community and reflect the
Once Teague's claim is characterized correctly, the plurality's assertions that on its new standard his claim is too novel to be recognized on habeas corpus, ante, at 301, and that the right he invokes is "a far cry from the kind of absolute pre-requisite to fundamental fairness that is `implicit in the concept of ordered liberty,' " ante, at 314, are dubious. The requirement Teague asks us to impose does not go far beyond our mandates in Taylor, Duren, and Batson; indeed, it flows quite naturally from those decisions. The fact that the Sixth Amendment would permit a challenge by a defendant who did not belong to a cognizable group whose members were discriminatorily excluded from the jury does not alter that conclusion. As we said in Rose v. Mitchell, 443 U. S., at 555-556:
The plurality's assertion that Teague's claim fails to fit within Justice Harlan's second exception is also questionable. It bears noting that Justice Powell, long a staunch advocate of Justice Harlan's views on the scope of collateral review, leaned to the opposite opinion: "Whenever the fairness of the petit jury is brought into question doubts are raised as to the integrity of the process that found the prisoner guilty. Collateral relief therefore may be justified even though it entails some damages to our federal fabric." Rose v. Mitchell, supra, at 584, n. 6 (Powell, J., concurring) (citation omitted). Justice Jackson rightly observed:
More recently, in Vasquez v. Hillery, 474 U. S., at 263, we expressly rejected the claim that "discrimination in the grand jury has no effect on the fairness of the criminal trials that result from that grand jury's actions." Because "intentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the State to prevent," id., at 262, we reaffirmed our decision in Rose v. Mitchell, supra, and held that a prisoner may seek relief on federal habeas for racial discrimination in the selection of the grand jury that indicted him and that such claims are not subject to harmless-error review. Compelling the State to indict and try him a second time, we said, despite the heavy burdens it imposes, "is not disproportionate to the evil that it seeks to deter." 474 U. S., at 262. The plurality's assertion that an allegation, like Teague's, of discrimination in the selection of the petit jury — with far graver impact on the fundamental fairness of a petitioner's trial than the discrimination we condemned in Hillery — is too tangentially connected with truth finding to warrant retroactive application on habeas corpus under its new approach therefore strains credibility.
A majority of this Court's Members now share the view that cases on direct and collateral review should be handled differently for retroactivity purposes. See Griffith v. Kentucky, 479 U.S. 314 (1987); Allen v. Hardy, 478 U.S. 255 (1986) (per curiam); Williams v. United States, 401 U.S. 646, 665 (1971) (opinion of MARSHALL, J.). In Griffith, the Court adopted Justice Harlan's proposal that a new rule be applied retroactively to all convictions not yet final when the rule was announced. If we had adhered to our precedents,
In my view, that is not a question we should decide here. The better course would have been to grant certiorari in another case on collateral review raising the same issue and to resolve the question after full briefing and oral argument. JUSTICES BLACKMUN and STEVENS, ante, pp. 319-320, disagree. They concur in the Court's judgment on this point because they find further discussion unnecessary and because they believe that, although Teague's Sixth Amendment claim is meritorious, neither he nor other habeas petitioners may benefit from a favorable ruling. As I said in Stovall v. Denno, supra, at 301, according a petitioner relief when his claim prevails seems to me "an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum." But I share the view of JUSTICES BLACKMUN and STEVENS that the retroactivity question is one we need not address until Teague's claim has been found meritorious. Certainly it is not one the Court need decide before it considers the merits of Teague's claim because, as the plurality mistakenly contends, its resolution properly determines whether the merits should be reached. By repudiating our familiar approach without regard for the doctrine of stare decisis, the plurality would deprive us of the manifold advantages of deciding important constitutional questions when they come to us first or most cleanly on collateral review. I dissent.
"It is, I believe, a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view. See, e. g., Fay v. Noia, 372 U. S. [391,] 445 [(1963)] (Clark, J., dissenting); Spencer v. Texas, 385 U.S. 554, 583 (1967) (Warren, C. J., concurring and dissenting). See also Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 146-151 (1970). As I have stated before, `Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community.' Sanders v. United States, 373 U. S.[ 1,] 24-25 [(1963)] (Harlan, J., dissenting). At some point, the criminal process, if it is to function at all, must turn its attention from whether a man ought properly to be incarcerated to how he is to be treated once convicted. If law, criminal or otherwise, is worth having and enforcing, it must at some time provide a definitive answer to the questions litigants present or else it never provides an answer at all. Surely it is an unpleasant task to strip a man of his freedom and subject him to institutional restraints. But this does not mean that in so doing, we should always be halting or tentative. No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved." Mackey v. United States, 401 U.S. 667, 690-691 (1971) (opinion concurring in judgments in part and dissenting in part).
"MR. MOTTA [defense counsel]: As the Court is aware State exercised 10 peremptory challenges and each challenge excused a black person. I feel that my client is entitled to a jury of his peers, your Honor. I feel that he is being denied this. I would ask the Court for a mistrial.
"MR. ANGAROLA [prosecutor]: We exercised more than 10 challenges. In fact we exercised 11 challenges and didn't just excuse black individuals. Counsel is incorrect when he stat[e]s that.
"In fact, your Honor, one of the challenges, peremptory challenges exercised was against a white woman. In addition, your Honor, numerous individuals that were excused were of very young years. There was an attempt, your Honor, to have a balance of an equal number of men and women as the jury is now comprised there are seven men and five women sitting on the jury.
"We feel that counsel's motion is totally improper.
"MR. MOTTA: If I may respond to that briefly, your Honor, State exercised 10 peremptory challenges, all of 10 black people were excused; that their one peremptory challenge for an alternate juror excused, I believe, a white woman. I think the record will reflect that ages and background of the individuals that were excused. They were all to sit on the regular jury. I am not talking about the alternate, the one white alternate that was excused by the State.
"MR. ANGAROLA: As your Honor previously pointed out, counsel himself excluded a black, Mrs. McCleary, your Honor, who was a black individual who was accepted by the People, and he excused her.
"THE COURT: Counsel, I feel that it would appear that the jury appears to be a fair jury. I will deny your motion." App. 3-4.
Our ruling in Rose v. Mitchell, supra, confirms this conclusion. We there rejected the argument that our holding in Stone v. Powell should be extended to preclude federal habeas review of claims of racial discrimination in the selection of members of a state grand jury, notwithstanding the fact that the selection of petit jurors was free from constitutional infirmity and that guilt was established beyond a reasonable doubt at a trial devoid of constitutional error. Teague's challenge to the composition of the petit jury is perforce on even firmer ground. See also Kimmelman v. Morrison, 477 U.S. 365 (1986) (counsel's failure to litigate competently petitioner's Fourth Amendment claim cognizable on habeas); Jackson v. Virginia, 443 U.S. 307, 320-324 (1979) (sufficiency of the evidence claims may be brought on habeas).