PUBLISHED OPINION
Case No.: 93-3380
†Petition to
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN R. HORTON,
Defendant-Appellant.†
Submitted on Briefs: March 13, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June 14, 1995
Opinion Filed: June 14, 1995
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Kenosha
(If "Special", JUDGE: ROBERT V. BAKER
so indicate)
JUDGES: Brown,
Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendant-appellant, the cause was submitted on the briefs of James
E. Aschenbrener of Aschenbrener, Arnold & Artery, S.C. of
Milwaukee.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent, the cause was submitted on the brief of James
E. Doyle, attorney general, and Thomas J. Balistreri, assistant
attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED June 14, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 93-3380
STATE
OF WISCONSIN IN COURT OF
APPEALS
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
STEVEN R. HORTON,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Kenosha County: ROBERT V. BAKER, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
SNYDER, J. Steven
R. Horton appeals from an order denying his § 974.06, Stats., postconviction motion for
relief from a 1987 conviction for second-degree intentional homicide and
endangering safety by conduct regardless of life. Horton, who is white, argues that his right to equal protection
under the Fourteenth Amendment was violated when the prosecutor used a
peremptory strike to remove the sole black person from the venire. Horton relies on Powers v. Ohio,
499 U.S. 400, 409-10 (1991), decided after his conviction was final, which held
that a defendant has standing under the Equal Protection Clause to object to a
race-based exclusion of potential jurors whether or not the defendant and
excluded jurors share the same race.
Recognizing our supreme
court's recent adoption of the federal rule mandating the retroactive
application of new rules for cases on direct review,[1]
we adopt the federal retroactivity rule announced in Teague v. Lane,
489 U.S. 288, 310 (1989), which generally prohibits retroactive application of
new rules for cases on collateral review.
Accordingly, we conclude that Powers does not apply
retroactively in a § 974.06, Stats.,
collateral review of a defendant's conviction, and we affirm the order denying
Horton's postconviction motion.
On April 27, 1987,
Horton was convicted of one count of second-degree intentional homicide and one
count of endangering safety by conduct regardless of life. During jury selection, the prosecutor used a
peremptory strike to remove the sole black venireperson. The prosecutor stated his reason for doing
so was that the potential juror was an unmarried mother of two children and in
his experience such people tended to be less responsible. Horton appealed his conviction on the
grounds that his Sixth Amendment rights were violated by the prosecutor's
strike of the lone black venireperson.
The court of appeals
held that the State's use of its peremptory challenge to exclude a discrete
segment of the community from a particular jury did not offend Horton's Sixth
Amendment right to an indifferent jury or the right to a fair possibility for a
jury constituting a representative cross-section of the community. State v. Horton, 151 Wis.2d
250, 257-58, 445 N.W.2d 46, 50 (Ct. App. 1989), cert. denied, 493 U.S.
1083 (1990). Both the Wisconsin and
United States Supreme Courts denied review.
In his initial appeal,
Horton acknowledged that a Fourteenth Amendment challenge to the State's use of
its peremptory strike would fail because under the applicable law at the time, Batson
v. Kentucky, 476 U.S. 79, 96 (1986), a defendant could only challenge
the strikes of jurors who were of the same race as the defendant. Horton, 151 Wis.2d at 257, 445
N.W.2d at 50. However, in Powers,
decided after Horton's conviction was final, the United States Supreme Court
extended the Batson rule prohibiting purposeful racial
discrimination in selection of the venire to peremptory challenges of members
of the venire panel even though they are a different race than the
defendant. Powers, 499 U.S.
at 409-10.
Relying on Powers,
Horton filed a § 974.06, Stats.,
postconviction motion for relief on the grounds that his Fourteenth Amendment
rights were violated by the prosecutor's discriminatory conduct. The trial court denied the motion on the merits,
concluding that the prosecutor's explanation for striking the venireperson was
race neutral. See Batson,
476 U.S. at 97-98. Horton appeals.
It is undisputed that
Horton's conviction became final upon the Supreme Court's denial of his
petition for a writ of certiorari on February 20, 1990.[2] Powers was decided on April 1,
1991. Therefore, the State argues that
Horton lacks standing to challenge the prosecutor's peremptory strike based on Powers
in his postconviction motion. Because
retroactivity of a newly-announced Supreme Court rule is properly treated as a
threshold question, Teague, 489 U.S. at 300, we address this
issue first.
We begin by briefly
discussing the evolution of the United States Supreme Court's decisions
regarding retroactivity because they have influenced the manner in which our
supreme court has dealt with the issue.
In Linkletter v. Walker, 381 U.S. 618, 629 (1965), the
Supreme Court treated the question of retroactivity as purely a matter of
policy to be decided on a case-by-case basis, stating that “the Constitution
neither prohibits nor requires retrospective effect.” In Stovall v. Denno, 388 U.S. 293, 297 (1967), the
Court codified the Linkletter approach by establishing a
three-pronged analysis to determine retroactivity based on the following
criteria: (1) the purpose to be served
by the new standards, (2) the extent of the reliance by law enforcement
authorities on the old standards and (3) the effect on the administration of
justice of a retroactive application of the new standards.
Subsequently, Justice
Harlan and a shifting minority of Justices became increasingly dissatisfied
with the inconsistent results and unfairness to individuals occasioned by the Linkletter/Stovall
practice of applying a decision retroactively only to the particular litigant
involved in the case. See Laurence H. Tribe, American Constitutional Law
§ 3‑3, at 31 n.26 (2d ed. 1988).
In Mackey v. United States, 401 U.S. 667, 675-94 (1971)
(Harlan, J., concurring and dissenting), Justice Harlan suggested the adoption
of a blanket rule whereby new constitutional rules of criminal procedure would
always be applied retroactively to cases on direct review, but that with two
limited exceptions they should not be retroactively applied to cases on
collateral review.
Finally, in Griffith
v. Kentucky, 479 U.S. 314, 328 (1987), the Court formally abandoned the
Linkletter/Stovall approach and declared that
generally new rules for the conduct of criminal prosecutions should be applied
retroactively to all pending or nonfinal cases, regardless of whether the new
rule constituted a “clear break” from the past.[3] Shortly thereafter, a plurality of the Court
in Teague held that upon federal habeas corpus review of state
court convictions, new constitutional rules of criminal procedure will
generally not be applicable to cases which have become final before the new
rule is announced. Teague,
489 U.S. at 310. The Court stated that
retroactive effect could be given on collateral review in two narrow
exceptions: (1) if the new rule places
certain kinds of primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe, id. at 307, or (2) if
the new rule requires the observance of “those procedures that ... are implicit
in the concept of ordered liberty,” id. (quoted source omitted),
or constitutes a “watershed rule[] of criminal procedure” implicating the
fundamental fairness and accuracy of the criminal proceeding, id.
at 311-13. This new test adopted by a
plurality in Teague was subsequently endorsed by a majority of
the Supreme Court. See, e.g., Graham
v. Collins, 506 U.S. ___, 113 S. Ct. 892 (1993).
It is clear that when
considering the issue of retroactivity, the Wisconsin Supreme Court has been
influenced by then-existing federal retroactivity analysis. For example, in State ex rel. Johnson
v. Cady, 50 Wis.2d 540, 555‑56, 185 N.W.2d 306, 314 (1971), our
supreme court adopted the three-factor Stovall test to determine
whether to give a procedural requirement retroactive application. The court has repeatedly used the
three-factor test since Johnson.[4]
However, in State
v. Koch, 175 Wis.2d 684, 694, 499 N.W.2d 152, 158, cert. denied,
114 S. Ct. 221 (1993), the supreme
court followed the change in the federal retroactivity analysis when it
formally replaced the three-factor test and adopted the Griffith
rule, which retroactively applies new rules for the conduct of criminal
prosecutions in all cases pending on direct review or not yet final. In doing so, however, the court made no
comment on whether it approved of the Teague retroactivity
analysis for cases on collateral review, such as the one at issue here.
Held strictly to its
terms, Teague is applicable only in federal habeas corpus
proceedings. Whether the retroactivity
principles set forth in Teague and its progeny apply to a
collateral review of a defendant's conviction pursuant to § 974.06, Stats., is a question of law as yet
undecided by our supreme court.[5] We review such legal questions de novo. See Winiarski v. Miicke,
186 Wis.2d 409, 412, 521 N.W.2d 162, 164 (Ct. App. 1994).
Upon consideration of
prior Wisconsin Supreme Court rulings regarding retroactivity, we see no reason
why the principles of Teague should not be adopted and applied to
postconviction proceedings pursuant to § 974.06, Stats. As explained
above, our supreme court has in the past been influenced by and has followed
then-existing federal retroactivity standards.
Given the court's willingness in Koch to abandon the
three-factor Stovall test in favor of the blanket rule
established by Griffith, it is only logical that our supreme
court would approve of a similar change with regard to cases on collateral
review. Accordingly, we conclude that
the reevaluation by the United States Supreme Court in Teague and
our supreme court's past deference in this area suggest that an analogous
revision is appropriate for Wisconsin.
In addition, we are
persuaded by the reasoning of the increasing number of state courts which have
adopted the Teague retroactivity analysis for new federal
constitutional rules of criminal procedure in state collateral review
proceedings.[6] First, the postconviction proceeding set
forth in § 974.06, Stats.,
is similar to a habeas corpus proceeding in that they are both collateral
attacks that are not meant to be a substitute for direct review: their primary goal is to ensure that
defendants are not denied constitutional protections. See State v. Flowers, 561 N.E.2d 674, 682
(Ill. 1990) (comparing Illinois postconviction procedure with federal habeas
corpus proceeding in Teague).
Second, like all state
courts, Wisconsin has an interest in the finality of its criminal trials, so
long as each defendant is accorded a trial consistent with constitutional
principles. See id. As the Teague Court noted:
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.
Teague, 489
U.S. at 309. The “new rule” principle
enunciated in Teague “validates reasonable, good-faith
interpretations of existing precedents made by state courts, and thus
effectuates the States' interest in the finality of criminal convictions.” Gilmore v. Taylor, 508 U.S.
___, ___, 113 S. Ct. 2112, 2113 (1993) (quoted source and citation
omitted). We believe the consideration
of finality in criminal proceedings is equally applicable in Wisconsin and
federal proceedings.
Third, public policy
dictates that we apply the federal retroactivity analysis for issues of state
law. We agree with the Arizona Supreme
Court's public policy rationale for adopting the Teague analysis:
The
law regarding retroactivity is complex enough without requiring counsel and
trial judges to apply different retroactivity rules, depending on whether the
substantive decision is grounded on
state or federal constitutional principles--especially when many decisions
are grounded on both.
State
v. Slemmer, 823 P.2d 41, 49 (Ariz. 1991).
Therefore, based upon
consideration of prior cases decided by our supreme court that have adopted
then-existing federal analysis and case law from other states adopting the
present federal analysis, we adopt the federal retroactivity rules set forth in
Teague for all cases on collateral review in our state courts
under § 974.06, Stats.
Having set forth the
relevant retroactivity standard, we must next determine whether the United
States Supreme Court decision in Powers set forth a “new rule”
such that it is not susceptible to retroactive application. A holding constitutes a “new rule” within
the meaning of Teague if it “‘breaks new ground’” or “‘imposes a
new obligation on the States or the Federal Government.’” Graham, 506 U.S. at ___, 113
S. Ct. at 897 (quoting Teague, 489 U.S. at 301). Similarly, “a case announces a new rule if
its outcome was susceptible to debate among reasonable minds, or if a contrary
result would not have been an illogical or even a grudging application of prior
precedent.” Holland v. McGinnis,
963 F.2d 1044, 1053 (7th Cir. 1992), cert. denied, 113 S. Ct. 1053
(1993) (quoted source omitted). In
contrast, a case extends an old rule only if its holding is “compelled or
dictated by existing precedent.” Id.
(quoted source omitted).
The issue of whether Powers
announced a “new rule” has been considered and resolved by at least three
federal courts of appeals, all of which have held that it is not subject to
retroactive application absent the existence of one of the recognized
exceptions in Teague.[7] We agree with the reasoning and conclusion
of these decisions. For example, the
Seventh Circuit Court of Appeals concluded that Powers announced
a new rule of criminal procedure and was not compelled by Batson
because:
[P]rior to Powers, a number
of appellate courts held that Batson did not permit a defendant
to challenge the state's discriminatory use of peremptory challenges against
venirepersons of a different race. ...
[T]hese cases, which we find to be “reasonable, good-faith
interpretations of” Batson rather than rogue elephants, strongly
indicate that the outcome in Powers was “susceptible to debate
among reasonable minds,” and hence not compelled by Batson.
....
... In sum, Batson ... had a
latent ambiguity; it did not specifically permit cross-racial attacks on the
state's peremptory challenges, and thus conceivably was limited to
circumstances where the defendant and the excluded juror shared the same race.
Holland, 963
F.2d at 1054-55 (quoted source and citations omitted). Further, we agree with the State's argument
and the federal circuits that neither of the two Teague
exceptions apply to the Powers rule.
On appeal, Horton argues
that the issue of retroactivity is irrelevant because the final judgment in
question applied only to his Sixth Amendment claims, while this § 974.06, Stats., appeal is limited to Fourteenth
Amendment claims not previously adjudicated during his direct appeal. Therefore, he contends that he is bringing a
new action based on the principle announced in Powers, not
applying Powers retroactively.
First, we cannot agree
with Horton's characterization of his appeal as a “new action.” Section 974.06(2), Stats., clearly states that “[a] motion for [postconviction]
relief is a part of the original criminal action, [and] is not a separate
proceeding.”
Second, Horton's
argument that he may rely on Powers because his Fourteenth
Amendment claims were not adjudicated on direct appeal is not persuasive. The Seventh Circuit in Holland
addressed and rejected a similar argument.
In Holland v. Illinois, 493 U.S. 474 (1990), defendant
Holland sought review in the United States Supreme Court of the Illinois
Supreme Court's ruling that the Sixth Amendment does not permit a defendant to
attack the state's discriminatory use of peremptory challenges against jurors
of a different race. Holland,
963 F.2d at 1055. However, Holland
expressly disavowed the argument that defendants can bring cross-racial Batson
claims under the Fourteenth Amendment. Id. The court noted that Holland's strategy,
while reasonable in light of Batson, turned out to be a huge
tactical mistake because five Supreme Court Justices signalled that he may have
prevailed had he raised a Fourteenth Amendment argument. Holland, 963 F.2d at 1055.
Given Holland's Sixth
Amendment strategy, the court suggested that he could only get relief if the
Supreme Court had actually settled the cross-racial Batson
issue. Holland, 963 F.2d
at 1055. The court ultimately held that
the Supreme Court did not settle anything under the Fourteenth Amendment, and
therefore Powers constituted a new rule. Holland, 963 F.2d at
1056-57. In sum, the fact that Holland
did not assert an equal protection argument in his direct appeal was irrelevant
to the retroactive effect of Powers.
Likewise, Horton chose
to rely on the Sixth Amendment instead of arguing that he could bring a
cross-racial Batson claim under the Fourteenth Amendment. The mere fact that he did not argue his
claim under the Fourteenth Amendment on his direct appeal does not afford him
cover from the Teague rule prohibiting retroactive application of
new rules in collateral proceedings. We
agree with Horton's assertion that an appellant may bring a § 974.06, Stats., action based on constitutional
grounds at any time after his or her conviction. However, the constitutional ground cannot be one that is a new
rule as set forth in Teague.
In sum, we conclude
Horton's postconviction challenge to the prosecutor's peremptory strike fails
because Powers announced a new rule which cannot be applied
retroactively according to Teague. Therefore, we affirm the trial court's denial of Horton's
§ 974.06, Stats., motion for
relief.
By the Court.—Order
affirmed.
[1] See State v. Koch, 175 Wis.2d 684, 694, 499 N.W.2d 152, 158, cert. denied, 114 S. Ct. 221 (1993).
[2] A case is final when “a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.” Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).
[3] The Supreme Court initially announced this new approach on more limited grounds in United States v. Johnson, 457 U.S. 537, 553-54, 562 (1982), where it imposed a flat rule that any decision interpreting the Fourth Amendment that does not represent a “clear break” with the past must be applied to all defendants whose convictions were pending on direct review or not final when the decision was announced. See Laurence H. Tribe, American Constitutional Law § 3-3, at 31 n.26 (2d ed. 1988).
[4] See, e.g., State v. Bangert, 131 Wis.2d 246, 276, 389 N.W.2d 12, 27 (1986); State v. Wisumierski, 106 Wis.2d 722, 729, 317 N.W.2d 484, 487‑88 (1982); Fitzgerald v. State, 81 Wis.2d 170, 174, 259 N.W.2d 743, 744 (1977).
[5]
We note here that because we are primarily an error-correcting court and
not responsible for establishing the judicial policy of this state, we
initially certified this case to our supreme court, see Rule 809.61, Stats. The supreme
court declined to accept jurisdiction.
We also note that in State v. Denny, 163 Wis.2d 352, 357, 471 N.W.2d 606, 608 (Ct. App. 1991), prior to the Wisconsin Supreme Court's decision in Koch, we relied on the Teague retroactivity rule for cases on collateral review. A petition for review was denied by the supreme court. In Denny, we held that Cruz v. New York, 481 U.S. 186 (1987), retroactively applied in the defendant's postconviction motion based on the second exception set forth in Teague. Denny, 163 Wis.2d at 357, 471 N.W.2d at 608. However, we did not offer any rationale for adopting Teague. Although we are obviously bound by our past decisions and therefore have already implicitly adopted Teague, we now take the opportunity to more fully develop our reasons for doing so.
[6] See State v. Slemmer, 823 P.2d 41, 49 (Ariz. 1991); People v. Flowers, 561 N.E.2d 674, 682 (Ill. 1990); Daniels v. State, 561 N.E.2d 487, 489-90 (Ind. 1990); Morgan v. State, 469 N.W.2d 419, 422 (Iowa), cert. denied, 502 U.S. 913 (1991); Taylor v. Whitley, 606 So.2d 1292, 1297 (La. 1992), cert. denied, 113 S. Ct. 2935 (1993); Commonwealth v. Bray, 553 N.E.2d 538, 541 (Mass. 1990); State v. Reeves, 453 N.W.2d 359, 382-83 (Neb.), vacated on other grounds, 498 U.S. 964 (1990); State v. Zuniga, 444 S.E.2d 443, 446 (N.C. 1994); Pailin v. Vose, 603 A.2d 738, 742 (R.I. 1992).