Rewarding Bad Behavior in Initial-Review Collateral Proceedings: Teague Says Yes, Due Process Says No

70 Am. U. L. Rev. 1125 (2021).

* Junior Staff Member, American University Law Review, Volume 70; J.D. Candidate, May 2022, American University Washington College of Law; B.S., Communication, 2014, University of Miami. I am very grateful to Professors Brent Newton and Elizabeth Earle Beske for generously offering their time and brilliance to counsel me through this process; to my Law Review colleagues, with special thanks to Maddie Dolan and Kate Van Allen, for their invaluable editorial assistance; to my beloved family and friends for their endless encouragement; and finally, to Max, who continues to astonish me with his patience and grace, for always believing that I have something worthy to say.

For centuries, criminal defendants have had the opportunity to challenge their convictions with a writ of habeas corpus. The Founding Fathers described the writ as a path to liberation for those imprisoned without sufficient cause. It is a critical safeguard of individual freedom against lawless state action in criminal proceedings. However, with every safeguard comes a loophole.

The finality of state court decisions is revered in the American criminal justice system. It is no surprise, then, that the Supreme Court has approached the issue of whether to retroactively apply new laws to cases already finalized on direct review with trepidation. In Teague v. Lane, the Court established a strict nonretroactivity doctrine that prohibits the application of new laws to decisions already made final on direct review unless the new rules fall within two extremely narrow exceptions. Teague drastically limited the scope of habeas review as a potential remedy for the most egregious state action—even if the defendant only failed to raise a claim on direct appeal because the prosecution concealed the evidence that could have altered the outcome of his trial.

The Due Process Clause unquestionably provides criminal defendants a constitutional right to have their claims fully and fairly litigated. However, how can the Due Process Clause do so for defendants who have been robbed of that right due to extra-record impediments beyond the defendants’ control? As it currently stands, prosecutors who behave unethically at trial are able to invoke Teague and other state-equivalent retroactivity doctrines as a bar to relief for criminal defendants who have procedurally defaulted claims by no fault of their own. This opportunity, shield, and reward for bad behavior alone merits certiorari review. As this Comment argues, when prosecutorial misconduct prevents a defendant from raising a claim that the defendant would have otherwise raised on direct appeal, the Due Process Clause compels the court to treat the habeas proceeding as if the defendant raised the claim on direct—as an “initial-review collateral proceeding.” When this occurs, courts should set aside retroactivity doctrines to honor every criminal defendant’s constitutional right to due process.

Introduction

Convicted of capital murder and condemned to life in prison, Edward McGregor sat in a cell for six years before a habeas evidentiary hearing revealed the truth.¹ Elizabeth Shipley, the lead prosecutor in his case, admitted that she had struck a deal with three inmates in exchange for their testimonies that McGregor had confessed to them while incarcerated awaiting trial.² The witnesses denied making such agreements at trial, and Shipley did not attempt to correct their false testimonies.³ She watched her key witnesses lie under oath, and she watched as McGregor was convicted and sentenced to life in prison without parole.

Years later, when McGregor learned about the secret deals and false testimonies, he took his first opportunity to raise a prosecutorial misconduct claim in a state collateral review proceeding, which is a state court’s “reexamination of a judgment or claim . . . outside of the direct review process.”⁴ According to the materiality standard established in Napue v. Illinois,⁵ McGregor argued that by concealing evidence that could have impeached key witnesses and failing to correct false testimony by those witnesses, the prosecution violated his constitutional right to due process; therefore, his case demanded review.⁶ The trial court agreed and recommended relief, acknowledging that the concealed evidence could have materially altered the outcome of McGregor’s case.⁷ Texas’s highest criminal court, the Texas Court of Criminal Appeals (TCCA), disregarded the lower court’s recommendation, unanimously holding that the false testimony was immaterial, and the Court denied McGregor’s petition for habeas review.⁸

Persistent, McGregor submitted a petition for certiorari to the Supreme Court, and the State raised Teague v. Lane⁹ for the first time—unprompted—in response.¹⁰ Under Teague, the Supreme Court held that there can be no retroactive application of new rules in federal habeas proceedings unless the new rule falls under two very narrow exceptions.¹¹ While Teague is generally only binding in federal habeas proceedings,¹² the Supreme Court has recently clarified that state courts must also follow Teague and apply new rules retroactively when they meet one of Teague’s exceptions in collateral proceedings, where defendants must be awarded the retroactive benefit of new rules.¹³ In McGregor’s case, the State raised Teague’s retroactivity doctrine as a matter of state law¹⁴ and argued that McGregor’s novel interpretation of Napue presented a new rule barred from application under Teague.¹⁵

But the State had unclean hands.¹⁶ A prosecution that either knowingly suppresses material evidence favorable to the defense or allows materially false testimony into the record without correction violates a defendant’s due process rights.¹⁷ For McGregor, learning of Shipley’s misconduct for the first time at his state habeas evidentiary hearing meant that his first opportunity to raise the claim—to have his life-sentence reviewed and possibly have his conviction overturned—was in a petition for collateral review.¹⁸ Consequently, the state collateral proceeding was functionally equivalent to an initial-review proceeding to which retroactivity rules should not have applied.¹⁹ Although the State did not raise Teague as a bar to relief in McGregor’s state collateral proceeding—giving him the opportunity to contest the materiality of the prosecutorial conduct at issue in his case²⁰—current constitutional law does not preclude a State from invoking Teague in state collateral proceedings where a defendant failed to raise a claim on direct review because prosecutorial misconduct prevented him from doing so.²¹ Texas ultimately relied on Teague in its brief opposing McGregor’s Petition for a Writ of Certiorari to the U.S. Supreme Court;²² the Court denied McGregor’s petition,²³ and McGregor is still serving life in prison.²⁴

When a State is permitted to invoke the Teague doctrine as a bar to collateral relief, despite the defendant having had no opportunity to raise his claim in a prior proceeding, a prosecutor’s incentive to behave constitutionally at trial ceases to exist.²⁵ Instead, Teague becomes a mask for misconduct, stripping from an entire category of defendants their constitutional right to due process under law.²⁶ The Court established a remedy for this constitutional predicament in cases where defendants raise ineffective assistance of counsel claims for the first time on collateral review. In Martinez v. Ryan,²⁷ the Court held that when collateral proceedings are a defendant’s first opportunity to raise an ineffective assistance of counsel claim, “collateral review may become the functional equivalent of a direct appeal.”²⁸ By treating Martinez’s collateral claim as if it were raised on direct review, the Court effectively said no debate over the retroactive application of new rules need occur because, under Griffith v. Kentucky,²⁹ Teague’s new rules are automatically applied to all cases pending on direct appeal.

Scholars have debated and critiqued Teague’s retroactivity doctrine since its inception.³⁰ This Comment does not attempt to introduce novel insight into that discussion. Rather, this Comment argues that when a state collateral proceeding provides the first opportunity for a petitioner to present a claim due to extra-record misconduct, the Constitution’s Due Process Clause compels states to treat the case as functionally equivalent to a direct review proceeding; as such, retroactivity cannot provide a barrier to review.³¹

Part I provides the framework for retroactivity jurisprudence in the United States and explains the Court’s monumental shift in retroactivity doctrine with Teague. Additionally, Part I examines the treatment of post-conviction claims brought in habeas proceedings, with Martinez at the forefront. Part II argues that the Due Process Clause compels courts to treat all extra-record claims of trial malfeasance that petitioners raise for the first time in initial-review collateral proceedings as if the petitioners raised the claims on direct review, analogous to the Court’s treatment of ineffective assistance of counsel claims like that raised in Martinez. Part II further argues that treatment of initial-review collateral proceedings as direct appeals means that Teague cannot be available as a bar to relief under Griffith. This Comment concludes by emphasizing that the constitutional right to due process demands that all defendants receive a full and fair opportunity to have their claims litigated. Therefore, when the State’s unclean hands obstruct a defendant’s ability to exercise this constitutional right, habeas proceedings must be treated as initial-review collateral proceedings and dispose of Teague and retroactivity concerns as a bar to relief.

I. Background

The Supreme Court’s retroactivity doctrine has evolved considerably, in response to an increasing interest in limiting the power of federal habeas relief.³² This Part first provides a brief history of American retroactivity jurisprudence, outlines Teague’s lasting impact on both federal and state collateral proceedings, and discusses the Court’s treatment of post-conviction claims in initial-review collateral proceedings, using Martinez as the springboard. This Part concludes with a description of the equitable doctrine of unclean hands and its impact on habeas relief.

A. The Evolution of American Retroactivity Doctrine

Retroactivity doctrine determines when a new rule established in one case is applied to another case pending or final on direct appeal.³³ Habeas or collateral proceedings provide convicted or detained persons with an opportunity to have the legality of their imprisonment or detention reviewed.³⁴ In 1956, Justice Felix Frankfurter first hinted at retroactivity’s role in habeas cases in his concurring opinion in Griffin v. Illinois.³⁵ To prevent the “floodgates to post-conviction relief”³⁶ from bursting open, Justice Frankfurter cautioned against the broadening scope of habeas review for prisoners whose cases were made final years prior.³⁷ However, the Court’s allowance of expanded habeas relief despite Justice Frankfurter’s warnings meant that the Court could not avoid retroactivity doctrine forever.³⁸

1. A brief history

Reflective of an evolving national ideology around individual rights and post-conviction relief,³⁹ retroactivity doctrine has received multiple facelifts, spanning several decades of American jurisprudence.⁴⁰ Despite the growing support for the ideas that Justice Frankfurter expressed in his Griffin concurrence,⁴¹ the Supreme Court continued to avoid reevaluating retroactivity doctrine and indiscriminately applied new rules in habeas proceedings for seven years.⁴²

With Earl Warren’s appointment to Chief Justice came an avalanche of landmark rulings that redefined the understanding of the judicial function⁴³ and transformed criminal procedure.⁴⁴ As the Warren Court expanded the protections of the Bill of Rights and their application to the States under the Fourteenth Amendment’s Due Process Clause, the Court traded a “Blackstonian sensibility”⁴⁵ for a more legislative approach.⁴⁶ After multiple Justices had raised retroactivity warnings,⁴⁷ the Court finally addressed the issue in the 1965 case Linkletter v. Walker,⁴⁸ which caused the Court to question whether a new rule should be available to state prisoners in federal habeas proceedings whose convictions were already final on direct appeal.⁴⁹ Parting ways with precedent, the Linkletter Court held that courts should possess the power to decide whether to limit new rules to prospective application or to expand application retrospectively.⁵⁰ With this “practical approach,” the Court created a balancing test that would evaluate each new rule on a case-by-case basis by “looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation [would] further or retard its operation.”⁵¹ Linkletter’s balancing test permitted instances of “selective prospectivity,”⁵² despite acknowledging the potential inequities of denying the benefit of a new rule to defendants equally situated.⁵³ The Court had come to view finality and the potential judicial burden of retrying a flood of previously decided cases as more important than the potential for inequity.⁵⁴

However, the Linkletter balancing test was not a perfect solution, as evidenced by Justice Harlan’s repeated dissents in key habeas cases that adhered to the Linkletter standard.⁵⁵ He urged a complete overhaul of retroactivity that would repeal courts’ discretion to apply new constitutional rules entirely prospectively, while excepting the lucky defendant whose case would be the “vehicle for establishing that rule.”⁵⁶ Justice Harlan considered this a matter of basic principles of justice, including the Court’s duty to “do justice to each litigant on the merits of his own case” rather than executing decisions that are “the commands of a super-legislature.”⁵⁷

Eventually, this reasoning persuaded a majority of Justices to do away with the arbitrary guidelines of a balancing test and establish bright line rules for retroactivity.⁵⁸ In Griffith v. Kentucky, the Court formally rejected Linkletter’s selective prospectivity in the criminal context in federal direct review proceedings.⁵⁹ The Court held that new rules must apply to all cases not yet final on direct because “selective application of new rules violates the principle of treating similarly situated defendants the same” and conflicts with fundamental norms of constitutional adjudication.⁶⁰ Referencing Justice Harlan’s concurring opinion in Mackey v. United States,⁶¹ Griffith’s majority opinion noted:

If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all. . . . In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation.⁶²

Griffith thus settled whether courts would apply new rules to federal cases pending on direct review but left open whether petitioners seeking collateral review would receive equivalent treatment.⁶³ In a controversial plurality opinion, Justice O’Connor provided an answer with Teague v. Lane.

2. Teague v. Lane: A threshold test is born

Wary of wandering too far from principles of comity and finality,⁶⁴ Justice O’Connor utilized Teague v. Lane to greatly limit habeas as a powerful tool for review.⁶⁵ Teague introduced a threshold test that formally abandoned Linkletter’s balancing inquiry. While Griffith required courts to apply new rules in cases pending on direct—leaving the applicability of new rules in cases final on direct uncertain—Teague closed the gap by restricting the application of new rules in cases final on direct.⁶⁶ In Teague, the Court said it would no longer make or apply new rules to cases that had already become final on direct review,⁶⁷ save for two very narrow exceptions.⁶⁸ Federal habeas courts can only review the merits of a case after this threshold question is answered in the affirmative: is the new rule necessary to the fundamental fairness of the criminal justice system?⁶⁹ Teague only recognizes retroactivity of a new rule when the rule “breaks new ground or imposes a new obligation on the States or the Federal Government.”⁷⁰

Teague explained that new rules are only exempt from the bright line nonretroactivity standard if they fall into one of two categories: (1) if the new rule is “substantive,” meaning it is “beyond the power of the criminal law-making authority to proscribe,”⁷¹ or (2) if the rule is a “watershed” procedural rule that would undermine the criminal proceeding and “implicate the fundamental fairness of the trial.”⁷² Under the first exception, a new rule applies retroactively if the conduct for which a defendant was prosecuted is constitutionally protected; for example, Loving v. Virginia⁷³ established the freedom to marry as a new constitutionally protected right that could not be infringed by state law.⁷⁴ The second exception applies when the new rule sets forth a “watershed” rule of criminal procedure; for example, Gideon v. Wainwright⁷⁵ established the right to assistance of counsel in state felony prosecutions.⁷⁶ These are narrow exceptions.⁷⁷ Consequently, Teague’s threshold test has greatly limited a defendant’s chances of receiving habeas review.⁷⁸

States cannot restrict the application of new rules more than Teague does. The Court held in Montgomery v. Louisiana⁷⁹ that in rare instances when one of Teague’s two exceptions applies in state habeas proceedings, the State is bound to retroactively apply the new rule because the petitioner must get the benefit of the new rule.⁸⁰ While Montgomery establishes a floor, it does not inhibit state courts from using their authority to give broader effect to new rules when reviewing state habeas claims.⁸¹ However, most states have adopted Teague’s threshold test or a state-specific equivalent in habeas proceedings.⁸²

The U.S. Court of Appeals for the Fifth Circuit has established a third narrow exception to Teague, whereby a claim may be reviewed on the merits despite first arising on collateral review.⁸³ In Jackson v. Johnson,⁸⁴ the petitioner sought a federal writ of habeas corpus after his conviction for aggravated assault.⁸⁵ The district court denied Jackson’s petition, but the Fifth Circuit granted a certificate of appealability to decide whether Jackson had a valid ineffective assistance of counsel claim due to his counsel’s failure to file a timely motion for rehearing.⁸⁶ The court recognized that ruling in Jackson’s favor would create a new rule of constitutional law, barring his claim from review under Teague unless it met one of Teague’s two narrow exceptions.⁸⁷ The court acknowledged that the new constitutional rule failed to qualify for either exception; however, the Fifth Circuit established a third narrow exception to Teague to address what it perceived to be a constitutional dilemma.⁸⁸ This third exception exists when “an alleged constitutional right is susceptible of vindication only on habeas review”⁸⁹ because, in such circumstances, “application of Teague to bar full consideration of the claim would effectively foreclose any opportunity” for the constitutional right to be recognized at all.⁹⁰ Under this third exception, the court proceeded to consider the merits of Jackson’s claim despite it not falling within the purview of Teague’s two established exceptions.⁹¹

B. Initial-Review Collateral Proceedings

Finality and federalism concerns underpin the Supreme Court’s hesitancy to interfere with habeas review of state convictions.⁹² This reluctance has significantly restricted defendants’ ability to petition for federal habeas review of a state conviction, especially where the claim could have been raised during trial or on direct appeal.⁹³ For instance, in Davila v. Davis,⁹⁴ the petitioner attempted to seek federal habeas relief when his state post-conviction counsel failed to raise his claim of ineffective assistance of counsel at trial on direct appeal.⁹⁵ The court denied relief, specifying that it could not hear the claim because the petitioner’s state post-conviction counsel failed to raise the ineffective assistance of counsel claim on direct appeal.⁹⁶ In doing so, the Court relied on the doctrine of procedural default.⁹⁷ While the doctrine may have barred the petitioner’s claim in Davila, it should not have the same effect when petitioners are unable to raise claims on direct appeal due to the State’s conduct preventing such claims from being revealed.

1. Laying the constitutional groundwork

Procedural default is an equitable doctrine under which a federal court may not review the merits of a claim, constitutional or otherwise, that a state collateral court declined to hear due to a defendant’s failure to follow a state procedural rule.⁹⁸ Ordinarily, when a state prisoner fails to raise certain objections at trial under a state contemporaneous objection rule, he waives the objection and is barred from federal habeas review of his constitutional claim.⁹⁹ However, in the 1997 case Wainwright v. Sykes,¹⁰⁰ the Court announced an exception to this rule.

In Wainwright, Florida’s Supreme Court refused to consider the petitioner’s claim challenging the admission of a confession because he had not contemporaneously objected.¹⁰¹ After granting certiorari, the U.S. Supreme Court established the Wainwright cause-and-prejudice exception to the doctrine of procedural default in federal habeas proceedings.¹⁰² The cause-and-prejudice exception only provides a remedy when the petitioner can prove that there were, in fact, specific circumstances that led to his procedural default (cause), and that the jury likely would have acquitted him had those circumstances been absent (prejudice).¹⁰³ If the petitioner could have raised his objection on direct appeal and did not, he will not be awarded habeas review.¹⁰⁴ The cause-and-prejudice exception ensures that a federal habeas court has the opportunity to adjudicate the federal constitutional claim of a defendant who, in the absence of such an adjudication, will be the victim of a “miscarriage of justice.”¹⁰⁵

The Court’s cause-and-prejudice exception is rooted in principles of equity that contemporaneously protect the Constitution’s mandate that all persons receive due process under the law.¹⁰⁶ Under the Due Process Clause of the Fourteenth Amendment, no state shall “deprive any person of life, liberty, or property, without due process of law.”¹⁰⁷ While the Constitution does not explicitly include the right to a fair trial,¹⁰⁸ the Court has read the Sixth Amendment to include such a right,¹⁰⁹ and the Court has extended this right through the Fourteenth Amendment to apply in state court proceedings.¹¹⁰ The right to a fair trial is not limited to the Sixth Amendment’s explicit guarantees of the right to a speedy and public trial, an impartial jury, or to assistance of counsel, however.¹¹¹ “[A]s applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice.”¹¹² Yet, fairness is not an absolute concept.¹¹³

If a federal habeas court finds that the State failed to provide “adequate ‘corrective process’ for the full and fair litigation of federal claims, whether or not ‘jurisdictional,’ the court [can] inquire into the merits to determine whether a detention was lawful.”¹¹⁴ In Ross v. Moffitt,¹¹⁵ the Court held that there is no constitutional right to counsel in discretionary appeals beyond the first appeal as of right or in petitioning for certiorari to the Supreme Court.¹¹⁶ Notably, the Court came to this conclusion only after assessing whether the lower court had denied Ross, the petitioner, meaningful litigation of his claim.¹¹⁷ Since Ross had an adequate opportunity to “present [his] claims fairly within the adversary system”¹¹⁸ at the lower level, the Court found no violation of the defendant’s due process rights in the State’s denial of his petition for habeas review.¹¹⁹ More recently, the Court held that defendants have a due process right to counsel for a petition for a discretionary appeal where it is the “first, and likely the only, direct review the defendant’s conviction and sentence will receive.”¹²⁰ In doing so, the Court identified one scenario where a State’s procedural obstacle to “full and fair litigation”¹²¹ of a defendant’s claim could result in a due process violation.¹²²

2. Martinez v. Ryan

Although the Court continues to curtail the power of habeas review through stringent retroactivity doctrine fueled by a reluctance to interfere with state convictions,¹²³ the Court has recognized and characterized occasions where state claims raised on federal habeas review may bypass retroactivity concerns altogether in the name of due process.¹²⁴ The Court referred to such occasions as “initial-review collateral proceeding[s]” in Martinez, where a federal habeas proceeding provided the first opportunity for the petitioner to have his state claim fully and fairly litigated.¹²⁵

A jury convicted Martinez of sexual conduct with a minor, and the court sentenced him to two terms of life imprisonment.¹²⁶ On direct appeal, the defense raised several arguments on Martinez’s behalf, but it did not raise ineffective assistance of counsel because Arizona law prohibits defendants from raising ineffective assistance of counsel claims on direct appeal.¹²⁷ The only opportunity to raise such a claim is in the defendant’s first collateral proceeding; otherwise, the court considers the claim waived.¹²⁸ Martinez asserted that he missed his opportunity to raise the ineffective assistance of counsel claim at his initial collateral proceeding, by no fault of his own, because his counsel never informed him that he had a deadline to file a pro se petition to preserve his rights.¹²⁹ When Martinez’s new counsel attempted to raise the ineffective assistance of counsel claim in a second collateral proceeding about a year and a half after his case was finalized, the Arizona Supreme Court dismissed his petition, relying on Arizona law barring relief on a claim that Martinez presumably could have raised in a prior collateral proceeding.¹³⁰ In a petition for review to the U.S. District Court for the District of Arizona, Martinez continued to argue that he had cause for his procedural default because his initial post-conviction counsel had failed to raise the ineffective assistance of counsel claim at Martinez’s only opportunity to do so.¹³¹

The Supreme Court granted certiorari to answer a question left open by its decision in Coleman v. Thompson¹³² twenty years prior: whether a prisoner has a right to effective counsel in collateral proceedings that are the first occasion for the defendant to raise the claim.¹³³ The Court explained that initial-review collateral proceedings that examine the defendant’s claim of ineffective assistance of counsel at trial function equivalently to a direct appeal in which the petitioner alleges ineffective assistance of counsel in a prior proceeding.¹³⁴ In holding as such, the Court distinguished Martinez from Coleman, where the petitioner had raised an attorney error claim in a second post-conviction proceeding after previously raising that same claim at an initial collateral review proceeding.¹³⁵ No court at any level had previously heard Martinez’s claim.¹³⁶ Relying on principles of equity, the Supreme Court therefore found that “if the state did not provide postconviction counsel or if postconviction counsel was ineffective,” Martinez’s procedural default in failing to raise his ineffective assistance of counsel claim in the lower court could be excused.¹³⁷

3. Post-conviction claims beyond the scope of Martinez

With Martinez, the Court coined the term “initial-review collateral proceedings,”¹³⁸ but it explicitly limited that holding to instances of ineffective assistance of counsel claims.¹³⁹ The Court ruled similarly in Trevino v. Thaler,¹⁴⁰ where it was “virtually impossible” for the defendant to raise his post-conviction claim of ineffective assistance of counsel on direct appeal.¹⁴¹ In Trevino’s case, the Court found that the Texas procedural system—“as a matter of its structure, design, and operation”—effectively robbed defendants of a meaningful opportunity to present their claim on direct appeal.¹⁴² However, there are other extra-record claims¹⁴³ that may give rise to habeas relief where the defendant can prove that his constitutional right to fair trial was violated.¹⁴⁴

As demonstrated in Martinez, the writ of habeas corpus exists as a safeguard against unconstitutional imprisonment,¹⁴⁵ but extra-record claims may also be raised in a motion for a new trial or on direct appeal as long as the defendant becomes aware of the error within the allotted time frame for raising a motion.¹⁴⁶ Recall that the nonretroactivity doctrine does not create a bar to relief for extra-record claims pending direct review.¹⁴⁷ However, since it is not uncommon for constitutional errors to remain hidden from the defendant for years after his opportunity to file a motion for a new trial has expired,¹⁴⁸ the first opportunity for the defendant to raise his extra-record claim is often in a post-conviction habeas corpus petition.¹⁴⁹

The equitable doctrine of procedural default will usually foreclose a prosecutorial misconduct claim raised for the first time in collateral review.¹⁵⁰ However, the Court has carved out exceptions to the general rule that make possible the opportunity for habeas relief. In the 1963 case Brady v. Maryland,¹⁵¹ the petitioner brought a habeas corpus claim against the State after he learned that the State had suppressed evidence favorable to his case.¹⁵² The Supreme Court indicated that the suppression of evidence in his case was a violation of the Due Process Clause of the Fourteenth Amendment.¹⁵³ Due process violations where the prosecution fails to disclose exculpatory material evidence to the defendant in a timely manner are called Brady claims in modern court.¹⁵⁴ The burden falls on the petitioner to show a reasonable probability that timely disclosure of the evidence would have resulted in a different outcome of the case.¹⁵⁵ Significantly, however, the burden placed on the petitioner does not require a showing of a different outcome by “a preponderance of the evidence;” just one that “undermines a court’s confidence in the verdict.”¹⁵⁶

Unlike Brady claims, which can be raised with or without proof of bad faith, claims that the prosecution failed to correct perjured testimony by its witnesses require the petitioner to prove that the prosecution acted with reckless disregard for the truth.¹⁵⁷ In a perjury claim, a prosecutor violates a defendant’s due process rights under two scenarios: (1) knowingly or recklessly presenting false testimony or evidence, or (2) knowingly or recklessly failing to correct a prosecution witness’s false testimony during trial, even if the prosecutor did not elicit the false testimony himself.¹⁵⁸ The materiality standard “required to prevail on a perjury claim is considerably more favorable to a defendant” than the degree of materiality required for a Brady claim.¹⁵⁹ The materiality standard for a perjury claim requires the prosecution to prove “beyond a reasonable doubt” that the false testimony or evidence did not “contribute to the verdict obtained.”¹⁶⁰ Both Brady and perjury claims are rooted in the Due Process Clause, but they also coincide with the legal rules of ethics.¹⁶¹ While difficult to establish, each provides a path to habeas relief.

4. Precedential treatment of extra-record claims on habeas review

Unlike retroactivity doctrine, which has meandered throughout its development, claims of prosecutorial misconduct that petitioners raise for the first time on collateral review have received consistent treatment in the Court’s jurisprudence. The threshold question in this circumstance is not whether the case presents a new rule, but rather whether the petitioner can prove a valid cause for not raising his claim sooner.¹⁶² Put rudimentarily, the court in this context asks: “Whose fault is it that we are here?” By asking this question first, the court shifts the initial focus away from the potential ramifications of the collateral case’s outcome¹⁶³ and toward the source of the claim and potential constitutional violations of the defendant’s rights instead.¹⁶⁴

For example, in Alcorta v. Texas,¹⁶⁵ the Court was faced with facts similar to McGregor’s, where the State unethically and unlawfully concealed perjury-related evidence from the defense during trial.¹⁶⁶ At an evidentiary hearing on a petition for habeas corpus, a key witness in the case issued an affidavit stating that he had given false testimony at trial.¹⁶⁷ He further testified that he had informed the prosecutor of his deceit before trial, but the prosecutor instructed him not to disclose information pertaining to the false testimony unless defense counsel specifically asked him about it.¹⁶⁸ The prosecutor admitted that the witness’s statements were true and that he had omitted the information in the witness’s pre-trial statement that he submitted to the record.¹⁶⁹ The trial judge denied the defendant’s petition for habeas corpus, and the Texas Court of Criminal Appeals affirmed the lower court’s decision.¹⁷⁰ The Supreme Court granted certiorari and made explicitly clear that the “petitioner was not accorded due process of law.”¹⁷¹

Likewise, in Amadeo v. Zant,¹⁷² when addressing a defendant’s ineffective assistance of counsel claim that would have otherwise barred him from habeas review, the Court utilized a “cause-and-prejudice” standard¹⁷³ to determine that the “petitioner established . . . cause to excuse . . . [the] procedural default.”¹⁷⁴ More recently, the Supreme Court granted certiorari to hear Banks v. Dretke,¹⁷⁵ where a deputy sheriff working for the State admitted at a post-conviction evidentiary hearing—for the first time—that he had paid off a key witness for his involvement in the case and the prosecution had suppressed that evidence at trial.¹⁷⁶ Previously, the U.S. Court of Appeals for the Fifth Circuit had denied Banks’s Brady claim, reasoning that it was Banks’s own lack of diligence rather than the sheriff’s involvement in prosecutorial misconduct that caused the evidence to remain concealed.¹⁷⁷ The Supreme Court disagreed, stating that “[a] rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process.”¹⁷⁸ A defendant is entitled to treat a prosecutor’s actions and submissions of evidence as truthful; it is not the defendant’s duty to prove such representations as false.¹⁷⁹

The Supreme Court has for decades considered untimely discovery of perjured testimony a valid “cause” for procedural default. The Alcorta Court referenced Mooney v. Holohan,¹⁸⁰ where, in a petition for habeas review, the defendant claimed that the sole basis for his conviction was the presence of perjured testimony knowingly used by the prosecutors in conjunction with suppressed evidence that would have impeached one of the State’s witnesses.¹⁸¹ The Supreme Court made clear that “[s]uch a contrivance by a State to procure the conviction and imprisonment of a defendant is . . . inconsistent with the rudimentary demands of justice,” and that the actions of prosecutors fall under the purview of the Fourteenth Amendment.¹⁸² In Mooney’s case, the Court found no finality or federalism concerns in applying a cause-and-prejudice exception in state collateral claims because the “corrective judicial process” of the State “still remain[ed] open.”¹⁸³ Rather, conducting the cause-and-prejudice analysis was a way to “adequate[ly] guarantee” that state procedural rules barring federal habeas review “will not prevent a federal habeas court from adjudicating for the first time the federal constitutional claim of a defendant who in the absence of such an adjudication will be the victim of a miscarriage of justice.”¹⁸⁴

C. Underpinnings of Equity

It is impossible to separate principles of equity from a discussion on the writ of habeas corpus and collateral review in American criminal law.¹⁸⁵ As previously discussed, one of the principles of equity most relevant to this Comment is the procedural default doctrine, which “bears a kinship to the traditional equitable defense of unclean hands.”¹⁸⁶

While the procedural default doctrine is relevant where a petitioner has deprived the State of the opportunity to review his claims in the first instance and correct the wrong of his unlawful detention,¹⁸⁷ the unclean hands doctrine is relevant when the State has committed misconduct. The unclean hands doctrine provides an equitable defense for the petitioner when the State acts unlawfully at trial.¹⁸⁸ Generally, under the unclean hands doctrine, a petitioner for habeas review “brings a federal action against the State alleging that his continued detention violates his federal constitutional rights.”¹⁸⁹ Procedural default doctrine is based on the reverse posture, where the petitioner has not complied with state procedural rules while litigating his claim(s). Similarly, the unclean hands doctrine provides an equitable defense for the petitioner when the State acts unlawfully at trial, reflecting the familiar maxim, “he who comes into equity must come with clean hands.”¹⁹⁰ In the interest of preserving equity, the Court must address whether retroactivity doctrine should bar relief despite the State’s misconduct.

II. Analysis

In order to provide all defendants with a fair trial, due process requires that defendants have the opportunity to have their claims fully and fairly litigated.¹⁹¹ If the writ of habeas corpus is to continue to adhere to the constitutional mandate of the Due Process Clause, then courts should not deny habeas review to defendants who raise their claims of prosecutorial misconduct on collateral appeal when it is their first opportunity to do so.

This Part argues that the Teague retroactivity doctrine should not bar relief where extra-record malfeasance of any kind forced the defendant to raise his claim for the first time on collateral review. To allow States to invoke Teague in this way would reward unlawful behavior by shielding extra-record claims of malfeasance from being reviewed at any level. This Part explores two possible scenarios in which a defendant might raise a claim of misconduct for the first time on collateral review where the court should disregard Teague as a bar to relief. First, this Part discusses why Teague should be dismissed as the threshold test to review in initial-review collateral proceedings based on the Court’s analysis in Martinez. Next, this Part addresses why, even if the court is operating as the forum of a true collateral proceeding, the law should preclude the State from invoking Teague as a bar to relief because the State should not benefit from an equitable remedy when the State has unclean hands.¹⁹²

A. When a Petitioner Raises a Claim of Extra-Record Malfeasance for the First Time on Collateral Review Due to External Impediments, Due Process Compels the Court to Treat the Initial-Review Collateral Proceeding as Functionally Equivalent to a Direct Appeal

Martinez highlights the Supreme Court’s willingness to view collateral proceedings as if they were direct appeals when the petitioner has not been given a full and fair opportunity to raise his ineffective assistance of counsel claim¹⁹³—a right protected under the Fourteenth Amendment’s Due Process Clause.¹⁹⁴ Denying a review of analogous post-conviction claims that arise for the first time on collateral review due to extra-record malfeasance violates due process for the same reason denying review of Martinez’s case would have violated his right to due process.¹⁹⁵ In such circumstances, Teague should not be the threshold test for review; rather, the court should ask, “could the petitioner have raised his claim in a prior proceeding?” If the answer is yes, then a court may deny review of the defendant’s claim under the procedural default doctrine. However, if the answer is no, and the petitioner could not have raised his claim in an earlier proceeding by no fault of his own, then the court should treat his claim as if it were raised on direct review. Martinez provides the legal framework under which Teague need not be discussed in initial-review collateral proceedings for two reasons: (1) the Martinez Court acknowledged that denying petitioners review in initial-review collateral proceedings raises due process concerns, and (2) the Court’s analysis of Martinez’s ineffective assistance of counsel claim logically encompasses similar types of extra-record claims brought in initial-review collateral proceedings.

1. The Martinez Court acknowledged that denying petitioners review in initial-review collateral proceedings raises due process concerns

By acknowledging the existence of initial-review collateral proceedings, the Martinez Court identified a state procedural scheme that inherently violated the petitioner’s right to have his claim fully and fairly litigated.¹⁹⁶ Martinez had no choice but to raise his claim in a collateral proceeding because Arizona law actually required that ineffective assistance of counsel claims be reserved for state collateral proceedings rather than direct review.¹⁹⁷ However, the Court clarified that state procedural rules cannot preclude violations of constitutional due process.¹⁹⁸

According to the Court’s logic in Martinez, collateral relief was acceptable because it was the petitioner’s first opportunity to raise his ineffective assistance of counsel claim.¹⁹⁹ The Court described Martinez’s “first-tier” collateral proceeding as “the equivalent of a prisoner’s direct appeal” because “no other court ha[d] addressed the claim.”²⁰⁰ There is no difference in cases like McGregor’s or those of other defendants who learn of prosecutorial misconduct for the first time in a collateral proceeding. Just as in Martinez’s case, “no other court has addressed the claim.”²⁰¹ Although prosecutorial misconduct is not a state-mandated procedural scheme, it is still an impediment that results in collateral review providing the petitioner’s first opportunity to raise his claim.²⁰² In such scenarios, the initial-review collateral proceedings should be seen as functionally equivalent to a direct appeal and should be treated as such.²⁰³

There is a distinction between defendants who fail to raise an extra-record claim at trial or on direct review despite having every opportunity and defendants who could not have raised their claims at trial or on direct review because they did not know they had grounds for a claim until after the fact. Unlike the petitioner in Davila, who had every opportunity to raise his extra-record claim on direct appeal,²⁰⁴ McGregor could not have raised his claim of prosecutorial misconduct sooner because the prosecutorial misconduct was unlawfully concealed.²⁰⁵ Importantly, the Constitution does not require that the court overrule the verdict; such a requirement would disrupt foundational principles of finality.²⁰⁶ However, due process does, at a minimum, compel the court to review the verdict as if the proceeding were a direct appeal.²⁰⁷

Separating ineffective assistance of counsel claims as unique from other categories of extra-record claims of malfeasance is unfounded.²⁰⁸ Unlike “record claims,” which are based on facts apparent in the trial record, ineffective assistance of counsel, prosecutorial misconduct, and jury misconduct claims all are generally only discoverable long after trial and past the deadline for a motion for new trial.²⁰⁹ Therefore, petitioners usually must raise these types of post-conviction claims for the first time in post-conviction collateral proceedings.²¹⁰ The Martinez Court explicitly stated that the holding of the case only applied to ineffective assistance of counsel claims at initial-review collateral proceedings.²¹¹ However, if the Court’s ruling in Martinez was based on an equitable judgment due to the lower court’s inability to fairly adjudicate the claim on direct review of the state proceeding,²¹² then prosecutorial misconduct and other types of extra-record claims that are precluded from direct review by no fault of the defendant should be eligible for review in an “initial-review” collateral proceeding as well.

2. The Martinez Court’s analysis of a petitioner’s ineffective assistance of counsel claim in an initial-review collateral proceeding logically applies to similar types of extra-record claims

To treat a claim as if it were raised on direct appeal means that the collateral court may consider the merits of the petitioner’s claim without disrupting principles of finality. Once Teague is precluded as a bar to relief in initial-review collateral proceedings, the Wainwright cause-and-prejudice exception may be logically applied to types of external impediments in initial-review collateral proceedings beyond claims of ineffective assistance of counsel. The Supreme Court has done this for decades.²¹³

When a petitioner has presumably waived his right to raise a claim due to procedural error, courts utilize the Wainwright cause-and-prejudice exception to provide the petitioner with the opportunity to prove that he had cause for his default, which resulted in prejudice against his case.²¹⁴ The Court applied the Wainwright cause-and-prejudice exception to Martinez’s case once the collateral proceeding was characterized as one of initial review.²¹⁵ In Martinez, the Court reasoned that ineffective assistance of counsel claims raised in initial-review collateral proceedings may establish cause for a petitioner’s procedural default, in part because “ineffective-assistance [of counsel] claims often depend on evidence outside the trial record.”²¹⁶ Accordingly, concealed evidence that is revealed for the first time at an initial-review collateral proceeding surely gives rise to a prosecutorial misconduct claim that similarly depends on evidence outside the trial record. Just as Martinez’s “one and only appeal” was in an initial-review collateral proceeding for his ineffective assistance of counsel claim, an initial-review collateral proceeding is also a petitioner’s “one and only appeal” when the prosecution committed perjury or a Brady violation and concealed the evidence of misconduct until after the petitioner’s opportunity to raise the claim on direct appeal.²¹⁷

The Fifth Circuit created its third exception to the Teague doctrine to address this very issue.²¹⁸ In considering the appropriate application of Teague, the Fifth Circuit reasoned in Jackson that “[w]hen an alleged constitutional right is susceptible of vindication only on habeas review, application of Teague to bar full consideration of the claim would effectively foreclose any opportunity for the right ever to be recognized.”²¹⁹ Although one might argue that the Fifth Circuit’s third exception to Teague should be acknowledged by the Supreme Court and applied globally, the Supreme Court will likely not revisit the well-established doctrine that first emerged as a solution to the Court’s prior fragmentation over retroactivity.²²⁰ The best approach, instead, is to set aside Teague as a threshold question in the context of initial-review collateral proceedings altogether and utilize the tools already available to defendants and courts alike to litigate post-conviction claims.²²¹

The petitioner in Trevino was procedurally barred by the very “structure” of the Texas procedural system, but he was then awarded relief on collateral review.²²² The Alcorta petitioner was procedurally barred by default, but the Supreme Court reviewed his prosecutorial misconduct claim and determined that he had not received due process under the law following the revelation that the prosecution had committed perjury.²²³ Similarly, the petitioner in Banks was barred from raising a prosecutorial misconduct claim by the state habeas court for lack of cause and prejudice but won relief from the Supreme Court when he could prove that the cause of his procedural default was prosecutorial misconduct that prejudiced the outcome of his case.²²⁴ Certainly, then, it is not outside the realm of reason that prosecutorial malfeasance, of which a defendant is ignorant due to concealment of evidence, not only robs the defendant of a meaningful opportunity to present his claim, but offers no opportunity to do so.²²⁵

External impediments may allow a collateral court to review a claim that was presumably waived due to procedural default.²²⁶ To make a distinction between defendants on the basis of their timing is inequitable when a procedural default only occurred because extra-record prosecutorial malfeasance was concealed beyond the allotted time frame for raising such post-conviction claims. Concealing evidence that could have altered the outcome of a defendant’s trial, only to then deny him the opportunity to raise a prosecutorial misconduct claim in an initial-review collateral proceeding by invoking Teague as a bar to relief, creates an unfair dilemma for defendants. Such defendants, if given the opportunity, would be able to successfully articulate both the cause of their procedural default (prosecutorial malfeasance), and the actual prejudice suffered as a result (the inability to fully and fairly litigate a claim that would have otherwise been available to them). A defendant cannot waive something he was kept unaware of, particularly when that ignorance is the result of prosecutorial malfeasance.²²⁷

Broadening the scope of Martinez to include extra-record claims beyond ineffective assistance of counsel does not raise significant finality or federalism concerns. Federalism permits states to determine their own procedures for habeas review;²²⁸ however, the federal Constitution mandates due process for all state defendants.²²⁹ If a defendant cannot meaningfully raise a claim on collateral review that he did not know about in time to raise it on direct appeal—by no fault of his own—he is left utterly deprived of an opportunity to raise it at all. He does not receive the benefit of his right to due process under the law, a constitutional mandate that entitles him to a fair trial.²³⁰ Whether the petitioner brings an ineffective assistance of counsel, prosecutorial misconduct, or jury misconduct claim in an initial-review collateral proceeding, it is not an “attempt[] to use collateral review to obtain a second bite at the judicial apple.”²³¹ Additionally, the Court has recognized that in “extraordinary case[s], where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”²³² The scale should always tip in favor of upholding the Constitution over preventing retroactivity. For these reasons, any arguments against allowing prosecutorial misconduct claims to be heard in initial-review collateral proceedings in the name of finality and federalism fall short of convincing.²³³

B. Teague and State-Equivalent Retroactivity Doctrines Must Be Excluded as a Bar to Relief in Initial-Review Collateral Proceedings Because Teague New Rules Apply to Cases Still Pending on Direct Appeal Under Griffith v. Kentucky

If, during the course of a Wainwright cause-and-prejudice analysis conducted in an initial-review collateral proceeding, the State identifies a new rule in the petitioner’s claim for relief, Teague still would not preclude further review.²³⁴ Teague did not alter Griffith’s holding that retroactivity doctrine does not bar application of new rules in cases pending on direct or not yet final, whether in state or federal court.²³⁵ Logically, then, if the Supreme Court recognized in Martinez that initial-review collateral proceedings are functionally equivalent to direct appeals, Teague and its exceptions to nonretroactivity matter little when a court is determining whether a case is awarded review in initial-review collateral proceedings.²³⁶ Therefore, even if a petitioner raised a claim in an initial-review collateral proceeding that constitutes a “new” rule under Teague, the defendant should be given the benefit of the new rule.²³⁷

C. The State’s Unclean Hands Must Prohibit the Use of Teague as an Equitable Bar to Relief

Finally, even if a court decides not to acknowledge special treatment of initial-review collateral proceedings, Teague and other state-equivalent retroactivity doctrines “cannot fairly be invoked when the State has ‘unclean hands’” because Teague is “a non-jurisdictional ‘equitable’ doctrine that is subject to waiver.”²³⁸ Prosecutors should not be rewarded for their bad behavior, particularly not in the name of justice. Teague should not be accessible as an equitable bar to relief from a claim that is only raised in a collateral proceeding because the prosecutor’s unethical conduct “prevented it from being raised on direct appeal.”²³⁹

The unclean hands doctrine “provides that no person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct.”²⁴⁰ This is precisely what the State maneuvered with its invocation of Teague against McGregor’s prosecutorial misconduct claim.²⁴¹ By failing to disclose the agreements made with key witnesses, in addition to eliciting and failing to correct the witnesses’ false testimony regarding the agreements to the court, lead prosecutor Shipley acted fraudulently and gained an unfair advantage at trial.²⁴² McGregor’s petition for review detailed Shipley’s scheming with the possibility of future acquittal on the line, and the State unfoundedly raised an equitable doctrine as a bar to relief. This result directly conflicts with the requirements of the Constitution and thus is impermissible.

Conclusion

The right to appeal is not guaranteed in the Constitution, but the right to due process under the law is.²⁴³ If criminal defendants cannot raise a claim in a motion for a new trial or on direct appeal due to unethical prosecutorial actions, the courts are robbing those defendants of their right to have their claims fully and fairly litigated.²⁴⁴ To raise Teague or other retroactivity doctrines in initial-review collateral proceedings is to put the cart before the horse, to focus on the potential outcome of the case without first asking why the case has arrived at habeas review to begin with. This is why the threshold question for state post-conviction claims on initial-review collateral review should not be “is the rule new?” as Teague would have it,²⁴⁵ but rather, “is there an underlying cause for the claim’s delay that might signal a constitutional violation?” No court is above the “obligation to guard and enforce every right secured by [the] Constitution.”²⁴⁶ When prosecutorial misconduct causes an impediment to a defendant raising a claim on direct appeal, the Due Process Clause compels the court to treat the habeas proceeding as if it were a direct proceeding, and because retroactivity doctrine has no authority over whether relief is awarded for claims brought on direct review,²⁴⁷ any discussion of Teague and its equivalents in state court should be set aside.

Prisoners “must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”²⁴⁸

Rewarding Bad Behavior in Initial-Review Collateral Proceedings: Teague Says Yes, Due Process Says No

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