Ramos Retroactivity

The U.S. Supreme Court moved swiftly today to resolve the question of whether its April 20 decision on nonunanimous juries applies retroactively to cases on federal habeas corpus. The correct answer is clearly “no.”

As noted in this post on the day of the decision, the Supreme Court in Ramos v. Louisiana decided that juries must be unanimous in state criminal cases as well as federal cases, overruling a half-century-old precedent. The States of Oregon and Louisiana have allowed convictions despite one or two holdout jurors for nearly all of that time, although Louisiana recently adopted unanimity for new cases.

On April 27, the high court sent back to the Oregon and Louisiana courts a packet of cases that were pending on direct appeal, as discussed in this post.

From Griffith v. Kentucky (1987) to the present, when the Supreme Court makes a change in constitutional criminal procedure that change applies to all cases then pending on the first review of the case, the direct appeal based on the trial record. From Teague v. Lane (1989) to the present, changes in constitutional criminal procedure have not applied to cases where the direct appeal process was finished before the date of the new rule, and the case is on collateral review — a secondary type of review where additional evidence may be brought in. There is, in theory, an exception to the Teague bar for rules so fundamental that they rise to the magnitude of Gideon v. Wainwright (1963), but no such rules have been made since Teague was decided, so this exception does not exist in practice.

Today’s grant came in a case where all the briefing predates the Ramos decision. The retroactivity precedents are not even mentioned in the petition. That is odd, given Teague‘s corollary that a rule that would not be retroactive on collateral review cannot be made initially on collateral review.

The state’s Brief in Opposition relies on the AEDPA standard rather than retroactivity, but in this context those two paths typically lead to the same result.

The Court restated the Question Presented as one not even mentioned in the petition: “Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.”

Under existing precedent, I do not see any plausible argument for retroactivity. The defense side goes first, so we will see what they come up with.

The case is Edwards v. Vannoy, No. 19-5807.