No. 00-5961 

In the Supreme Court of the United States 

MELVIN TYLER, PETITIONER 

v. 

BURL CAIN, WARDEN 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENT 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

JOHN C. KEENEY 

Acting Assistant Attorney 

General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

NINA GOODMAN 

Attorney 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

1. Whether a second or successive petition for a writ 
of habeas corpus asserting a claim under Cage v. 
Louisiana, 498 U.S. 39 (1990) (per curiam), “relies on a 
new rule of constitutional law, made retroactive to 
cases on collateral review by the Supreme Court,” 
within the meaning of 28 U.S.C. 2244(b)(2)(A) (Supp. IV 
1998). 

2. Whether Cage v. Louisiana announced a new rule 
of constitutional law that should be made retroactive to 
cases on collateral review. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
5 

Argument: 

I. Section 2244(b)(2)(A) permits a prisoner to file a 

second or successive habeas corpus petition that 

relies on a new rule of constitutional law only 

if this court has expressly made the new rule 

retroactive to cases on collateral review ....................... 

8 

A. The text of Section 2244(b)(2)(A) permits a 

second or successive petition only when this 

Court—not a court of appeals or a district 

court—has made a new rule retroactive to 

cases on collateral review .......................................... 

8 

B. A requirement that this Court pass on the 

retroactivity issue accords with Congress’s 

intent and provides a workable standard ............... 

16 

II. The new constitutional rule announced in 

Cage v. Louisiana should not be applied retro- 
actively to cases on collateral review ............................. 

23 

Conclusion ....................................................................................... 30 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
5a 

TABLE OF AUTHORITIES 

Cases: 

Adams v. Evatt, 511 U.S. 1001 (1994) ................................ 

22 

Arizona v. Fulminante, 499 U.S. 279 (1991) .................... 

26 

Arsenault v. Massachusetts, 393 U.S. 5 (1968) ................ 

13 

Bailey v. United States, 516 U.S. 137 (1995) ................ 

14, 19 

Bennett v. United States, 119 F.3d 470 (7th Cir. 

1997) ......................................................................................... 10 

(III) 

IV 

Cases—Continued: Page 

Bousley v. United States, 523 U.S. 614 (1998) .................. 

19 

Brecht v. Abrahamson, 507 U.S. 619 (1993) ..................... 

26 

Brown v. Lensing, 171 F.3d 1031 (5th Cir. 1999) ............. 

4 

Browning v. United States, No. 00-7096, 2001 

WL 202041 (10th Cir. Mar. 1, 2001) ................................... 

9 

Butler v. McKellar, 494 U.S. 407 (1990) ............................ 

8, 9, 

21, 24, 25, 30 

Cage v. Louisiana, 498 U.S. 39 (1990) .................... 
1, 3, 6, 28 

Cooper v. Aaron, 358 U.S. 1 (1958) ..................................... 

14 

Davenport, In re, 147 F.3d 605 (7th Cir. 1998) ................... 

20 

Dorsainvil, In re, 119 F.3d 245 (3d Cir. 1997) .................... 

20 

Felker v. Turpin, 518 U.S. 651 (1996) ................... 

2, 5, 16, 22 

Flowers v. Walter, No. 99-35552, 2000 WL 33157575 

(9th Cir. Feb. 9, 2001) ........................................................... 

10 

Gideon v. Wainwright, 372 U.S. 335 (1963) ....................... 

27 

Graham v. Collins, 506 U.S. 461 (1993) .......... 

9, 18, 19, 24, 30 

Gray v. Maryland, 523 U.S. 185 (1998) ............................. 

29 

Henry v. City of Rock Hill, 376 U.S. 776 (1964) .............. 

23 

Humphrey v. Cain, 138 F.3d 552 (5th Cir.), 

cert. denied, 525 U.S. 935 (1998) ......................................... 

4 

Joshua, In re, 224 F.3d 1281 (11th Cir. 2000) ..................... 

9 

Kuhlmann v. Wilson, 477 U.S. 436 (1986) ........................ 

23 

Lilly v. Virginia, 527 U.S. 116 (1999) ................................. 

29 

Mackey v. United States, 401 U.S. 667 (1971) .................. 

17 

McCleskey v. Zant, 499 U.S. 467 (1991) ............................ 

18 

Mitchell v. United States, 526 U.S. 314 (1999) ................. 

29 

Neder v. United States, 527 U.S. 1 (1999) ......................... 

26 

O’Dell v. Netherland, 521 U.S. 151 (1997) ......................... 

24 

Penry v. Lynaugh, 492 U.S. 302 (1989) ........................... 

9, 25 

Rodriguez v. Superintendent, Bay State Corr. Ctr., 

139 F.3d 270 (1st Cir. 1998) .............................................. 

10, 23 

Saffle v. Parks, 494 U.S. 484 (1990) ..................... 

9, 19, 24, 25 

Sawyer v. Smith, 497 U.S. 227 (1990) ........................... 

18, 21, 

24, 25, 27, 29, 30 
Smith, In re, 142 F.3d 832 (5th Cir. 1998) ........................... 

4 

Smith v. Robbins, 528 U.S. 259 (2000) ............................... 29 

V 

Cases—Continued: Page 

Solid Waste Agency v. United States Army Corps 

of Eng’rs, 121 S. Ct. 675 (2001) ........................................... 

14 

Stovall v. Denno, 388 U.S. 293 (1967) ................................ 

13 

Sullivan v. Louisiana, 508 U.S. 275 (1993) ..................... 

7, 22, 

23, 25, 26, 28 
Tatum, In re, 233 F.3d 857 (5th Cir. 2000) .......................... 

9 

Teague v. Lane, 489 U.S. 288 (1989) ............................. 

passim 

Triestman v. United States, 124 F.3d 361 (2d Cir. 

1997) ......................................................................................... 20 

Vial, In re, 115 F.3d 1192 (4th Cir. 1997) ............................ 

10 

Victor v. Nebraska, 511 U.S. 1 (1994) ...................... 

4, 28, 29 

West v. Vaughn, 204 F.3d 53 (3d Cir. 2000) ...................... 

10 

Williams v. Taylor, 529 U.S. 362 (2000) .................. 

5, 10, 11 

Winship, In re, 397 U.S. 358 (1970) .................................... 

8, 27 

Constitution, statutes and rule: 

U.S. Const. Amend. V (Due Process Clause) ...................... 

24 

Antiterrorism and Effective Death Penalty Act of 

1996, Pub. L. No. 104-132, Tit. I, 110 Stat. 1217 .............. 

2 

18 U.S.C. 924(c) ......................................................................... 

19 

28 U.S.C. 2241 ............................................................................ 

20 

28 U.S.C. 2244 (Supp. IV 1998) ...................................... 

1, 11, 1a 

28 U.S.C. 2244(b)(2) (Supp. IV 1998) ............ 

2, 3, 14, 18, 20, 1a 

28 U.S.C. 2244(b)(2)(A) (Supp. IV 1998) .................. 

passim, 1a 

28 U.S.C. 2244(b)(2)(B) (Supp. IV 1998) ......................... 

2, 3, 1a 

28 U.S.C. 2244(b)(3) (Supp. IV 1998) ..................................... 

18, 2a 

28 U.S.C. 2244(b)(3)(A) (Supp. IV 1998) ......................... 

2, 3, 2a 

28 U.S.C. 2244(b)(3)(C) (Supp. IV 1998) ....................... 

2, 18, 2a 

28 U.S.C. 2244(b)(3)(D) (Supp. IV 1998) ............................... 

18, 2a 

28 U.S.C. 2244(d)(1) (Supp. IV 1998) ..................................... 

15, 3a 

28 U.S.C. 2244(d)(1)(C) (Supp. IV 1998) ............................... 

15, 4a 

28 U.S.C. 2254 (Supp. IV 1998) ............................. 

1, 2, 3, 11, 20 

28 U.S.C. 2254(d)(1) (Supp. IV 1998) ........... 

4, 5, 10, 11, 12, 13 

28 U.S.C. 2255 (Supp. IV 1998) ...................................... 

1, 20, 21 

Sup. Ct. R. 10(c) ........................................................................ 21 

VI 

Miscellaneous: Page 

H.R. Conf. Rep. No. 518, 104th Cong., 2d Sess. 
(1996) .................................................................................... 
10, 16 

Robert L. Stern et al., Supreme Court Practice (7th 
ed. 1993) ................................................................................... 
23 

Webster’s Third New International Dictionary 
(1986) .................................................................................... 12, 13 

In the Supreme Court of the United States 

No. 00-5961 

MELVIN TYLER, PETITIONER 

v. 

BURL CAIN, WARDEN 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENT 

INTEREST OF THE UNITED STATES 

This case presents the question whether a state 
prisoner’s second or successive petition for a writ of 
habeas corpus asserting a claim under Cage v. Louisi- 
ana, 498 U.S. 39 (1990) (per curiam), satisfies the 
requirement of 28 U.S.C. 2244(b)(2)(A) that such peti- 
tions rely “on a new rule of constitutional law, made 
retroactive to cases on collateral review by the Su- 
preme Court.”1 An identical statutory provision 
restricts second or successive motions for post- 
conviction relief by federal prisoners. See 28 U.S.C. 
2255 para. 8(2). 

Because the Court’s ruling will apply to 
collateral attacks on federal criminal judgments, the 

1 All citations to 28 U.S.C. 2244, 2254, and 2255 in this brief 
refer to Supp. IV 1998. 

(1) 

2 

United States has a substantial interest in the outcome 
of this case. 

STATEMENT 

1. The Antiterrorism and Effective Death Penalty 
Act of 1996 (AEDPA), Pub. L. No. 104-132, Tit. I, 110 
Stat. 1217, which was signed into law on April 24, 1996, 
works substantial changes to Chapter 153 of Title 28 of 
the United States Code, pertaining to collateral review 
of criminal convictions. See Felker v. Turpin, 518 U.S. 
651, 654 (1996). It places specific restrictions on second 
or successive habeas applications. In particular, the 
Act provides that 

[a] claim presented in a second or successive habeas 
corpus application under section 2254 that was not 
presented in a prior application shall be dismissed 
unless * * * the applicant shows that the claim 
relies on a new rule of constitutional law, made 
retroactive to cases on collateral review by the 
Supreme Court, that was previously unavailable. 

28 U.S.C. 2244(b)(2)(A). The Act also provides an alter- 
native test that permits a second or successive applica- 
tion for habeas corpus based on newly discovered 
evidence. 28 U.S.C. 2244(b)(2)(B). 

The AEDPA also contains a “gatekeeping” provision. 
That provision requires that, before a prisoner may file 
a second or successive application for a writ of habeas 
corpus in a district court under 28 U.S.C. 2254, the 
prisoner must “move in the appropriate court of appeals 
for an order authorizing the district court to consider 
the application.” 28 U.S.C. 2244(b)(3)(A). To obtain 
such authorization, the prisoner must make a “prima 
facie showing” that his application “satisfies the 

3 

requirements,” 28 U.S.C. 2244(b)(3)(C), of Section 
2244(b)(2). 

2. In 1976, petitioner was convicted in Louisiana 
state court of second degree murder and sentenced to 
life imprisonment. His conviction was affirmed by the 
Louisiana Supreme Court. J.A. 4; see State v. Tyler, 
363 So.2d 902 (1978). Petitioner then filed five applica- 
tions for post-conviction relief in state court, all of 
which were denied. J.A. 4. Petitioner also filed a fed- 
eral habeas corpus petition under 28 U.S.C. 2254. The 
district court denied petitioner federal habeas corpus 
relief, and the court of appeals affirmed. See Pet. 4. 

In 1995, petitioner filed his sixth application in state 
court for post-conviction relief, claiming that the jury 
instruction on reasonable doubt that was given at his 
trial violated Cage v. Louisiana, 498 U.S. 39 (1990) (per 
curiam).2 The state court denied his application, and 
the Louisiana Supreme Court denied a similar appli- 
cation. J.A. 4-5; see State ex rel. Tyler v. Cain, 684 
So.2d 950 (1996). 

3. Petitioner then filed a motion in the court of 
appeals for authorization to file a second or successive 
habeas corpus petition in the district court. J.A. 3; see 
28 U.S.C. 2244(b)(3)(A). The court of appeals granted 
the motion, finding that petitioner had “made a prima 
facie showing that he meets the requirements of 
§ 2244(b)(2).” J.A. 3. The court limited petitioner’s suc- 
cessive habeas petition, however, to whether Cage 

2 The text of the reasonable doubt instruction given at 
petitioner’s trial is reproduced in Appendix B to this brief. In 
Cage v. Louisiana, this Court held that a similar instruction was 
unconstitutional because it permitted “a finding of guilt based on a 
degree of proof below that required by the Due Process Clause.” 
498 U.S. at 41 (footnote omitted). 

4 

should be applied retroactively on collateral review and 
whether the reasonable doubt instruction at peti- 
tioner’s trial was unconstitutional under Cage and 
Victor v. Nebraska, 511 U.S. 1 (1994). J.A. 3. 

4. The district court analyzed the case on the as- 
sumption that the court of appeals had already deter- 
mined that petitioner satisfied Section 2244(b)(2)(A). 
J.A. 4. The district court held that Cage should be 
applied retroactively to petitioner’s application for 
collateral relief, noting that the court of appeals had 
held that Cage applies retroactively to cases on collat- 
eral review. J.A. 5-7 (citing Humphrey v. Cain, 138 
F.3d 552 (5th Cir.) (en banc), cert. denied, 525 U.S. 935, 
943 (1998)). The court denied petitioner’s habeas 
corpus petition, however, concluding that petitioner 
could not satisfy the “stringent AEDPA standard,” J.A. 
12, of 28 U.S.C. 2254(d)(1), which precludes collateral 
relief on “any claim that was adjudicated on the merits 
in [s]tate court proceedings” unless the state court’s 
denial of relief “resulted in a decision that was contrary 
to, or involved an unreasonable application of, clearly 
established Federal law, as determined by the Supreme 
Court of the United States.” 

5. The court of appeals affirmed the denial of peti- 
tioner’s habeas corpus petition. J.A. 14-15. The court 
stated, however, that the district court “erred in not 
determining first whether [the] petition satisfied 
AEDPA’s successive habeas standard, 28 U.S.C. 
§ 2244(b)(2)(A).” J.A. 15. Citing its decisions in Brown 

v. Lensing, 171 F.3d 1031 (5th Cir. 1999), and In re 
Smith, 142 F.3d 832 (5th Cir. 1998), the court held that 
petitioner’s successive petition was barred by Section 
2244(b)(2)(A) because he could not show “that any Su- 
preme Court decision renders the Cage decision retro- 

5 

actively applicable to cases on collateral review.” J.A. 

15. 

SUMMARY OF ARGUMENT 

I. The AEDPA imposes stringent new limitations on 
the ability of a prisoner to file a second or successive 
petition for a writ of habeas corpus. A prisoner must, 
before filing his petition, meet a “gatekeeping” require- 
ment by having the court of appeals certify that his 
petition meets one of two narrow conditions. See 
Felker v. Turpin, 518 U.S. 651, 657 (1996). One of those 
conditions is that the petition must rely on a “new rule 
of constitutional law, made retroactive to cases on 
collateral review by the Supreme Court, that was 
previously unavailable.” 28 U.S.C. 2244(b)(2)(A). The 
text of that provision requires that the determination 
that the new rule is retroactive be made by this Court 
—not by a lower court applying the principles of 
retroactivity announced in this Court’s opinions. 

The conclusion that Section 2244(b)(2)(A) requires a 
decision of this Court on the retroactivity of a particu- 
lar new rule is reinforced by this Court’s interpretation 
of an analogous provision of the AEDPA in Williams v. 
Taylor, 529 U.S. 362 (2000). In that case, the Court 
made clear that the phrase “clearly established Federal 
law, as determined by the Supreme Court of the United 
States,” 28 U.S.C. 2254(d)(1), “refers to the holdings, as 
opposed to the dicta, of this Court’s decisions,” and 
“restricts the source of clearly established law to this 
Court’s jurisprudence.” 529 U.S. at 412. There is no 
reason to give Section 2244(b)(2)(A) a different inter- 
pretation; in both provisions, Congress intended this 
Court’s specific decisions, rather than decisions of the 
lower courts, to provide the governing rule on the 
particular point of law at issue. 

6 

If Congress had intended to invoke only the “princi- 
ples” of this Court’s retroactivity decisions, as peti- 
tioner contends (Br. 9, 21-22), it could have easily used 
the “application of * * * law” language contained in 
the provision of the AEDPA at issue in Williams, and 
simply required the lower courts to assess whether a 
new rule was retroactive to cases on collateral review 
“by application of the principles determined by the 
Supreme Court.” The italicized phrase, however, was 
not included in the statute. Indeed, on petitioner’s 
interpretation, the statute’s reference to “the Supreme 
Court” is superfluous; even without such a reference, 
the lower courts would be bound to apply this Court’s 
settled and well-established framework for the analysis 
of retroactivity questions. 

Interpreting the gatekeeping provision to require 
that this Court has made a decision retroactive before 
second or successive habeas petitions may be filed is 
consistent with the purpose of the AEDPA to restrict 
habeas litigation. The requirement ensures that, unless 
and until this Court has determined that the new rule is 
available, lower courts need not adjudicate “new rule” 
claims in second petitions. It is also consistent with the 
procedural scheme of the gatekeeping system, which 
contemplates summary decisions on a short timetable. 
There is, moreover, nothing anomalous about Con- 
gress’s requirement that this Court itself determine 
retroactivity; only a small set of new rules will qualify 
for retroactive application, and it is sensible to require 
this Court to make the decision before entitling 
repetitive habeas filers to seek relief. 

In this case, petitioner relies, for his new rule, on the 
holding of Cage v. Louisiana, 498 U.S. 39 (1990) (per 
curiam), that a particular reasonable-doubt instruction 
was unconstitutional. Cage arose on direct review, and 

7 

this Court has not made Cage retroactive to cases on 
collateral review. Accordingly, petitioner was not 
entitled to relief in the courts below. 

II. Cage should not be made retroactive to cases on 
collateral review. In a line of cases beginning with 
Teague v. Lane, 489 U.S. 288 (1989), this Court has 
established that new rules of constitutional criminal 
procedure are not retroactively applicable to cases on 
collateral review unless they satisfy one of two narrow 
exceptions. First, a new rule is retroactively applicable 
if it places primary conduct beyond the reach of the 
State to prosecute, or establishes a categorical guaran- 
tee prohibiting a particular punishment for a class of 
persons. Cage clearly does not satisfy that test; it 
simply held that a particular reasonable-doubt instruc- 
tion did not meet constitutional requirements. 

The second Teague exception is limited to “water- 
shed rules of criminal procedure” that are “central to an 
accurate determination of innocence or guilt.” Teague 

v. Lane, 489 U.S. at 311, 313 (plurality opinion). For a 
rule to fall within Teague’s second exception, it must 
satisfy two requirements: infringement of the new rule 
must “seriously diminish the likelihood of obtaining an 
accurate conviction,” id. at 315, and the new rule must 
“alter our understanding of the bedrock procedural 
elements” essential to the fairness of a proceeding, id. 
at 311. Cage is not such a rule. 

This Court’s holding in Sullivan v. Louisiana, 508 
U.S. 275 (1993), that a Cage error is “structural”—i.e., 
that it requires reversal without a harmless-error 
inquiry—does not establish that Cage is a “watershed” 
decision. The holding in Sullivan indicates that the 
Cage rule serves the goal of obtaining an accurate 
conviction. But it does not speak to whether the rule 

8 

has changed our conception of the fundamental ele- 
ments of a fair proceeding. And Cage did not do so. 

The reasonable doubt standard has been established 
at least since In re Winship, 397 U.S. 358 (1970). Cage 
was simply an application of that principle. It did not 
alter our understanding of a fair trial; it simply refined 
an existing requirement. If refinements of basic com- 
ponents of a fair trial, such as Cage, are considered 
“watershed” new rules, then many of this Court’s con- 
stitutional decisions will have to be made retroactive. 
Such a conclusion would be inconsistent with the 
Court’s recognition in Teague and later cases that it is 
“unlikely that many such components of basic due 
process have yet to emerge.” Butler v. McKellar, 494 
U.S. 407, 416 (1990) (quoting Teague v. Lane, 489 U.S. 
at 312 (plurality opinion)). 

ARGUMENT 

I. SECTION 2244(b)(2)(A) PERMITS A PRISONER 
TO FILE A SECOND OR SUCCESSIVE HABEAS 
CORPUS PETITION THAT RELIES ON A NEW 
RULE OF CONSTITUTIONAL LAW ONLY IF THIS 
COURT HAS EXPRESSLY MADE THE NEW RULE 
RETROACTIVE TO CASES ON COLLATERAL 
REVIEW. 

A. The Text Of Section 2244(b)(2)(A) Permits A 

Second Or Successive Petition Only When This 

Court—Not A Court Of Appeals Or A District Court 

—Has Made A New Rule Retroactive To Cases On 

Collateral Review 

1. Section 2244(b)(2)(A) permits a prisoner to file a 
second or successive petition for a writ of habeas corpus 
only if the petition relies on a “new rule of consti- 
tutional law, made retroactive to cases on collateral 
review by the Supreme Court, that was previously 

9 

unavailable.” A “new rule” is “made retroactive * * * 
by the Supreme Court” only when this Court explicitly 
states that the new rule is retroactive or applies the 
new rule to a case on collateral review. The text of 
Section 2244(b)(2)(A) requires that result. The 
language is not satisfied, as petitioner contends (Br. 9), 
by a determination by the lower courts making the “new 
rule” retroactive in light of “the principles of this 
Court’s decisions” (Br. 21-22) in the field of retro- 
activity. 

This Court has adopted general principles for deter- 
mining the retroactivity of new rules of criminal proce- 
dure to cases on collateral review. See Teague v. Lane, 
489 U.S. 299 (1989); see also Graham v. Collins, 506 
U.S. 461 (1993); Saffle v. Parks, 494 U.S. 484 (1990); 
Butler v. McKellar, 494 U.S. 407 (1990); Penry v. 
Lynaugh, 492 U.S. 302, 313-314 (1989). 

But the 
AEDPA does not refer to such “principles.” Rather, 
Congress specifically designated this Court as decision- 
maker on the issue of retroactivity. Thus, as the 
Eleventh Circuit has explained, “[i]t is not enough that 
the new rule is or will be applied retroactively” by the 
courts of appeals, or “that it satisfies the criteria for 
retroactive application set forth by the Supreme 
Court”; the statute clearly states that “the Supreme 
Court” must have made the rule retroactive. In re 
Joshua, 224 F.3d 1281, 1283 (2000); accord Browning v. 
United States, No. 00-7096 (10th Cir. Mar. 1, 2001), slip 
op. 4 (“[A] rule is ‘made retroactive’ by the Court only if 
the Court actually applies the rule retroactively, or 
makes some explicit statement regarding retro- 
activity.”); In re Tatum, 233 F.3d 857, 859 (5th Cir. 
2000) (petitioner “must point to a Supreme Court deci- 
sion that either expressly declares the collateral avail- 
ability of the rule . . . or applies the rule in a collateral 

10 

proceeding”); Rodriguez v. Superintendent, Bay State 
Corr. Ctr., 139 F.3d 270, 274-275 (1st Cir. 1998) 
(AEDPA “invests the [Supreme] Court with the sole 
authority” to declare new rules retroactive on collateral 
review for successive petitions); Bennett v. United 
States, 119 F.3d 470, 471 (7th Cir. 1997) (“only when a 
decision has been specifically declared retroactive by 
the Supreme Court may it be used as the basis for 
a successive motion for habeas corpus”); In re Vial, 
115 F.3d 1192, 1197 (4th Cir. 1997) (en banc) (Section 
2244(b)(2)(A) requires that “the Supreme Court 
declare[] the collateral availability of the rule in ques- 
tion, either by explicitly so stating or by applying the 
rule in a collateral proceeding”); see also H.R. Conf. 
Rep. No. 518, 104th Cong., 2d Sess. 111 (1996) (AEDPA 
provision limits successive applications for postconvic- 
tion relief to those applications “that involve new co- 
stitutional rights that have been retroactively applied 
by the Supreme Court”).3 

2. This Court’s decision in Williams v. Taylor, 529 
U.S. 362 (2000), which construed an analogous provision 
of the AEDPA, strongly supports the conclusion that 
Section 2244(b)(2)(A) requires an explicit ruling by this 
Court making a new rule retroactive. In Williams, the 
Court considered 28 U.S.C. 2254(d)(1), which permits a 
federal habeas court to grant relief on a claim adjudi- 
cated by a state court only if the state court adjudica- 
tion “resulted in a decision that was contrary to, or in- 

3 Two courts of appeals have reached the contrary conclusion, 
and permit retroactivity decisions to be made under Section 
2244(b)(2)(A) by the lower courts. For the reasons discussed 
below, those decisions are incorrect. See West v. Vaughn, 204 F.3d 
53, 59-62 (3d Cir. 2000); Flowers v. Walter, 2000 WL 33157575, at 

*5 (9th Cir. Feb. 9, 2001). 

11 

volved an unreasonable application of, clearly 
established Federal law, as determined by the Supreme 
Court of the United States.” This Court held that the 
phrase “clearly established Federal law, as determined 
by the Supreme Court of the United States” in Section 
2254(d)(1) “refers to the holdings, as opposed to the 
dicta, of this Court’s decisions,” and “restricts the 
source of clearly established law to this Court’s juris- 
prudence.” 529 U.S. at 412; accord id. at 382 (Stevens, 
J., concurring). There is no indication that Congress 
intended its requirement of action “by the Supreme 
Court” in Sections 2244 and 2254 to have different 
meanings. Rather, the phrase “made retroactive * * * 
by the Supreme Court,” like the phrase “determined by 
the Supreme Court,” requires a specific ruling by this 
Court itself; a lower court’s prediction about what this 
Court might do, or its application of principles found in 
this Court’s decisions generally, is not sufficient. 

Petitioner argues (Br. 16-17) that the provision at 
issue in Williams deserves a different construction 
because it uses the phrase “clearly established Federal 
law, as determined by the Supreme Court,” while 
Section 2244(b)(2)(A) uses the phrase “made retroactive 

* * * by the Supreme Court.” But it is natural for 
Congress to speak of this Court “determin[ing]” federal 
law, just as it is natural to speak of this Court “ma[king] 
retroactive” a particular new rule. Nothing in the two 
phrases points to an intention, in one provision, to 
require specific action by this Court while, in another 
provision, to invoke only “general principles” in this 
Court’s decisions. The point of both provisions is that 
Congress was careful to specify that this Court had to 
take the necessary action—either determining the 

12 

content of the legal rule in Section 2254(d)(1) or making 
the new rule retroactive in Section 2244(b)(2)(A).4 

Petitioner also suggests that the definition of the 
word “made” in Section 2244(b)(2)(A) is broad enough 
to embrace the meaning of “to have ‘caused to occur,’ ” 
and that the verb “make” can be defined as “to cause to 
exist.” Br. 15-16 (citing dictionary definitions). On that 
basis, he posits that Congress’s use of the word “made” 
could include the act of “‘making’ something happen 
indirectly” (Br. 16), such as by announcing general 
principles that compel particular results (Br. 21-22). 
The dictionary definitions that petitioner cites do not 
support his argument that the word “made” can refer to 
entirely indirect action, such that this Court could be 
said to have “made” an event occur by announcing a 
broad legal standard that is then applied to a specific 
context by a lower court.5 In the context of the 

4 Petitioner cites (Br. 16-17) a variety of other provisions in the 
AEDPA that, he says, clearly specify that “something be done 
directly by a specific court”; he argues that in those provisions “the 
statutory language makes unmistakably plain that a particular 
court must do something actively, directly, and expressly.” Section 
2244(b)(2)(A), however, provides an equally unmistakable require- 
ment that a new decision is not available to second or successive 
habeas petitioners until it has been “made retroactive * * * by 
the Supreme Court.” 

5 For example, petitioner relies (Br. 15) on definitions of 
“make” that the Third Circuit drew from Webster’s Third New 
International Dictionary (1986). The meanings given in that 
dictionary do not, however, apply to entirely indirect and general 
causation. For example, the dictionary does define “make” as “to 
cause to exist, occur, or appear: bring to pass: create, cause,” but 
then gives as examples “God made heaven and earth,” “make a 
disturbance,” “his entrance made a sensation,” “making a fuss over 
nothing,” and “making mischief.” Id. at 1363. The same dictionary 
also defines “make” as “to cause to be or become: put in a certain 

13 

AEDPA, the phrase “made retroactive * * * by the 
Supreme Court” clearly refers to a concrete and specific 
act of this Court that establishes that a particular “new 
rule” is applicable on collateral review. Indeed, this 
Court has itself used the phrase “made retroactive” to 
describe its own rulings concerning the retroactive 
application of particular constitutional rules.6 

3. If Congress had wished to express the meaning 
that petitioner ascribes to Section 2244(b)(2)(A), it had 
a variety of simpler and more direct ways to do so. 

The 
provision at issue in Williams, Section 2254(d)(1), itself 
suggests one model for how Congress could have 
written the statute to embody petitioner’s view that 
the retroactivity finding need merely result from an 
application of “the principles of ” this Court’s decisions. 
Pet. Br. 21-22. Congress could have framed Section 
2244(b)(2)(A), as it did Section 2254(d)(1), by speaking 
of the “application of” this Court’s decisions. Such a 

state or condition.” Ibid. The examples given for that meaning 
are: “trying to make the matter clear to everyone,” “was made 
leader of the expedition,” “made him sorry he had spoken so 
quickly,” “made the scene real for us,” and “made himself useful 
around the house.” The examples illustrate that the word “make” 
does not encompass indirect and general action, such as announc- 
ing general principles of retroactivity that are then applied by the 
lower courts. The other dictionary cited by petitioner contains 
similar examples. Nothing in either dictionary supports peti- 
tioner’s theory. 

6 See Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968) (“The 
right to counsel at the trial (Gideon v. Wainwright, 372 U.S. 335); 
on appeal (Douglas v. California, 372 U.S. 353); and at the other 
‘critical’ stages of the criminal proceedings (Hamilton v. Alabama, 
supra) have all been made retroactive.”) (emphasis added); Stovall 

v. Denno, 388 U.S. 293, 300 (1967) (“We conclude * * * that the 
Wade and Gilbert rules should not be made retroactive.”) (empha- 
sis added). 

14 

provision could have conditioned a second or successive 
habeas petition on a showing that the new rule cited in 
the petition has been “made retroactive to cases on 
collateral review by application of the principles deter- 
mined by the Supreme Court.” Instead, however, 
Congress chose the quite different formulation that 
omits the italicized portion and simply requires that the 
rule have been “made retroactive to cases on collateral 
review by the Supreme Court.” 

Indeed, on petitioner’s view, the phrase “by the 
Supreme Court” in Section 2244(b)(2) is entirely super- 
fluous. If the statute had said only that a second or 
successive habeas petitioner must invoke a “new rule of 
constitutional law, made retroactive to cases on 
collateral review,” the lower courts would have had to 
apply the well-established “principles” found in this 
Court’s retroactivity jurisprudence. Those retro- 
activity decisions—like decisions of this Court on any 
other federal question—bind all federal and state 
courts, regardless of whether Congress so provides. 
See Cooper v. Aaron, 358 U.S. 1, 18-19 (1958). 

And this 
Court’s Teague rules were announced and defined long 
before the enactment of the AEDPA. Accordingly, 
petitioner’s reading of the statute would render the 
phrase “by the Supreme Court” without function, con- 
trary to this Court’s repeated admonition to avoid an 
interpretation of a statute that renders words superflu- 
ous. See, e.g., Bailey v. United States, 516 U.S. 137, 150 
(1996); Solid Waste Agency v. United States Army 
Corps of Eng’rs, 121 S. Ct. 675, 682-683 (2001) (de- 
clining to adopt a construction that would “read[] [a] 
term * * * out of the statute” and “give it no effect 
whatever”). 

Under our reading of Section 2244(b)(2)(A), by con- 
trast, all of the terms of the statute are given effect, 

15 

and the statute can be read harmoniously as a whole. 
Section 2244(b)(2)(A) provides that a second or succes- 
sive petition must rely on a new rule “made retroactive 
to cases on collateral review by the Supreme Court.” 
The provision requires a decision by this Court holding 
that a “new rule” satisfies the stringent standards of 
Teague for retroactive application; only then can a 
second or successive habeas petitioner satisfy the gate- 
keeping requirement.7 

7 The AEDPA also provides a 1-year limitations period. 28 
U.S.C. 2244(d)(1) provides that “[t]he limitation period shall run 
from the latest of ” four dates, of which one is “the date on which 
the constitutional right asserted was initially recognized by the 
Supreme Court, if the right has been newly recognized by the 
Supreme Court and made retroactively applicable to cases on 
collateral review.” 28 U.S.C. 2244(d)(1)(C). In order to apply that 
provision, it must be determined whether “the right has been 

* * * made retroactively applicable to cases on collateral review.” 
28 U.S.C. 2244(d)(1)(C). If that phrase refers to action by this 
Court making the rule retroactive, as our construction of the 
similar language in the gatekeeping provision suggests, then the 
inquiry is manageable and a uniform nationwide standard will 
result. If, on the other hand, the question is just whether the 
principles of Teague make the new rule retroactive, as petitioner’s 
argument in this case suggests, then no decision by any court 
would be necessary, and the retroactivity clause would be entirely 
redundant. Even if the action of a court of appeals or district court 
applying Teague were necessary, it is highly unlikely that Con- 
gress intended to hinge the application of the statute of limitations 
on whether some court of appeals or district court somewhere in 
the country had found that the new rule satisfied Teague. The 
limitations provision should not be given such an indefinite 
interpretation, nor should the gatekeeping provision. The similar 
language in both provisions should be read to require specific 
action by this Court to make the new rule retroactive. 

16 

B. A Requirement That This Court Pass On The 

Retroactivity Issue Accords With Congress’s Intent 

And Provides A Workable Standard 

A test that looks to an actual Supreme Court decision 
on retroactivity is easily applied and accords with 
Congress’s intention to limit the cases in which a second 
or successive habeas petitioner may proceed to court. 
In contrast, petitioner’s position—that second or suc- 
cessive habeas petitioners may proceed “when the prin- 
ciples of this Court’s decisions compel the conclusion 
that [the new rule] must be retroactive” (Br. 15)—is 
inconsistent with Congress’s intent in enacting the 
AEDPA and would be difficult to apply in a workable 
manner. 

1. A central purpose of the AEDPA is to “curb the 
abuse of the statutory writ of habeas corpus.” H.R. 
Conf. Rep. No. 518, supra, at 111. Requiring a second 
or successive habeas petitioner, who relies on a new 
rule of constitutional law, to point to a specific ruling by 
this Court making the rule in question retroactive is 
consistent with that purpose. Any prisoner filing a 
second or successive petition has already had the oppor- 
tunity for direct review of his conviction and state post- 
conviction review. In addition, he has filed and fully 
litigated an initial federal habeas petition. Congress 
did not want to cut off all opportunity for prisoners in 
that position to bring a second or successive habeas 
petition. But Congress did want to “further restrict[],” 
Felker v. Turpin, 518 U.S. at 664, the ability of prison- 
ers who had previously filed habeas petitions to mount 
new challenges to their convictions and sentences, at a 
time when both their own attention and that of the 
courts and prosecutors should be turned to other 
matters. “No one, not criminal defendants, not the 

17 

judicial system, not society as a whole is benefitted by a 
judgment providing a man shall tentatively go to jail 
today, but tomorrow and every day thereafter his con- 
tinued incarceration shall be subject to fresh litigation.” 
Mackey v. United States, 401 U.S. 667, 691 (1971) 
(Harlan, J., concurring in the judgments in part and dis- 
senting in part). 

Section 2244(b)(2)(A) accomplishes Congress’s pur- 
pose by giving prisoners a “second bite at the apple” 
only in truly exceptional cases. Not only must the 
prisoner rely on “a new rule of constitutional law”— 
which can explain why the prisoner did not previously 
obtain relief on that basis—but the rule must have been 
“made retroactive to cases on collateral review by the 
Supreme Court.” Congress thereby eliminated the 
opportunity for prisoners to bring second or successive 
petitions in order to establish that a new rule should be 
retroactively applied. The time for establishing that a 
new legal principle should be applied on collateral 
review expired with the prisoner’s first habeas petition, 
which could have served as the vehicle for exploring 
new and controversial applications of retroactivity 
principles. And Congress sought to free the lower 
courts from adjudicating the potentially large volume of 
second or successive habeas petitions that relied on a 
new rule until this Court had determined that the rule 
is, in fact, retroactive. Only where both the validity and 
the retroactivity of the new rule have been established 
—finally and conclusively by a decision of this Court— 
did Congress intend to permit reopening criminal 
convictions and sentences in a second or successive 
petition.8 

8 Petitioner is therefore correct (Br. 14 n.4) that a consequence 
of our position is that a prisoner may be “entitled to have [a new 

18 

2. Unlike petitioner’s construction, an interpretation 
of Section 2244(b)(2)(A) that requires a Supreme Court 
decision on retroactivity fits comfortably within the 
“gatekeeping” scheme of the statute. Under 28 U.S.C. 
2244(b)(3), before a second or successive application 
for habeas relief may be filed, the habeas petitioner 
must “move in the appropriate court of appeals for 
an order authorizing the district court to consider 
the application.” The court of appeals may issue such 
an order “only if it determines that the application 
makes a prima facie showing that the application 
satisfies” the requirements of Section 2244(b)(2). 28 
U.S.C. 2244(b)(3)(C). The court of appeals has only 
thirty days to make the gatekeeping decision. 28 
U.S.C. 2244(b)(3)(D). 

Under our reading, the courts of appeals should be 
able to dispose of gatekeeping motions under Section 
2244(b)(3) relatively quickly and easily. They need only 
ascertain what claim the second or successive petition 
makes and then compare that claim with this Court’s 
decisions on retroactivity. Indeed, because the stan- 
dards for retroactivity are stringent and only a few new 
rules will likely be made retroactive, see Graham v. 
Collins, 506 U.S. at 478; Sawyer v. Smith, 497 U.S. 227, 
243 (1990); Teague v. Lane, 489 U.S. at 313 (plurality 

rule] retroactively applied in an initial habeas petition, but not in a 
successive habeas petition.” The inescapable point of Section 
2244(b)(2)(A) is that second or successive petitioners must satisfy 
substantially stricter standards to obtain relief than those litigat- 
ing a first petition. The reason for the differential treatment is not 
that a second or successive petition necessarily contains weaker 
constitutional claims than a first petition, but that a second or 
successive petition is a more severe affront to the interest in 
finality than is a first petition. See McCleskey v. Zant, 499 U.S. 
467, 492 (1991). 

19 

opinion), ruling on the gatekeeping motion will likely 
require little expenditure of time and effort. 

By contrast, under petitioner’s theory (Br. 21-22), the 
courts of appeals must determine whether “the princi- 
ples of this Court’s decisions compel the conclusion that 
[the new rule] must be retroactive.” That question can 
be quite complex. See Saffle v. Parks, 494 U.S. at 495 
(“the precise contours of [Teague’s second exception for 
‘watershed rules of criminal procedure’] may be difficult 
to discern”). The fact that Congress intended the 
gatekeeping issue to be resolved speedily and without 
full litigation is inconsistent with petitioner’s approach. 
Rather, the gatekeeping scheme suggests that Con- 
gress imposed on the courts of appeals only the efficient 
and manageable inquiry that the statutory language 
directs: whether the new rule on which the petition 
relies has already been “made retroactive to cases on 
collateral review by the Supreme Court.” 

3. Petitioner contends (Br. 18-20) that interpreting 
Section 2244(b)(2)(A) to require an express ruling by 
this Court would create an anomalous result, in that the 
Court is less likely to have the occasion to issue a 
decision making a particular rule retroactive where it is 
“obvious” that the rule should be applied retroactively. 
He notes that in Bousley v. United States, 523 U.S. 614, 
619-621 (1998), the Court held that the rule of Teague v. 
Lane did not bar application to cases on collateral 
review of the decision in Bailey v. United States, 516 
U.S. 137, 144 (1995), which narrowed the scope of crimi- 
nal liability under former 18 U.S.C. 924(c). Petitioner 
argues (Br. 18 & n.8) that adopting the court of appeals’ 
interpretation of Section 2244(b)(2)(A) would preclude 
prisoners from filing second or successive applications 
for post-conviction relief “in cases involving rules that, 

20 

under Bousley, are necessarily retroactive.” Peti- 
tioner’s contention is flawed. 

a. The AEDPA itself bars second or successive 
petitioners from raising claims under Section 2254 or 
2255 based on intervening decisions defining the scope 
of criminal statutes. Section 2244(b)(2) limits claims 
that may be raised in second or successive habeas 
petitions to those based on newly discovered evidence 
and those that rely on “new rule[s] of constitutional 
law.” Section 2255 imposes similar limits on Section 
2255 motions. As the Second Circuit has explained, a 
habeas petitioner’s claim based on an intervening 
statutory decision like the one in Bailey is “new, but 
not constitutional.” Triestman v. United States, 124 
F.3d 361, 372 (1997). 

Accordingly, there is no basis for 
petitioner’s suggestion (Br. 19 n.8) that adopting the 
court of appeals’ interpretation of “made retroactive” 
would “choke off access” to the courts for prisoners 
seeking to raise statutory claims in second or successive 
collateral attacks under Section 2255; such claims are 
not available under Section 2255 in any event because 
they are not based on a “new rule of constitutional 
law.”9 

9 The courts of appeals have uniformly held that a federal 
prisoner who relies on Bailey v. United States cannot file a second 
or successive motion under Section 2255 because the claim does not 
rely on a new constitutional rule; at the same time, those courts 
have held that such prisoners may resort to 28 U.S.C. 2241 under 
the habeas “savings clause” in Section 2255 for cases in which Sec- 
tion 2255 is “inadequate or ineffective.” See, e.g., In re Dorsainvil, 
119 F.3d 245, 251 (3d Cir. 1997); Triestman, 124 F.3d at 376-380; In 
re Davenport, 147 F.3d 605 (7th Cir. 1998). Because of the avail- 
ability of the “savings clause,” there is no concern that federal 
prisoners who have a claim based on a new decision of this Court 
cutting back on the sweep of a criminal statute (see Pet. Br. 18) 
will lack a remedy. There is therefore no basis for distorting the 

21 

b. Petitioner also errs in claiming that reading Sec- 
tion 2244(b)(2)(A) to require a decision by this Court 
that made a new rule retroactive would create an 
anomaly. Petitioner asserts (Br. 18) that the anomaly is 
produced because a new rule that is most likely to be 
retroactive is least likely to generate a conflict in the 
circuits that would warrant a decision on retroactivity 
by this Court. 

Rule 10(c) of the Rules of this Court states that a 
consideration in deciding whether to grant certiorari is 
whether a lower court “has decided an important 
question of federal law that has not been, but should be, 
settled by this Court.” Cases presenting retroactivity 
issues, where the lower courts have all agreed that the 
new rule is retroactive, may well fall within that cate- 
gory, especially in light of Congress’s express reliance 
on decisions of this Court in Section 2244(b)(2)(A). The 
number of new procedural rules that should be made 
retroactive is likely to be exceedingly small. As the 
Court has noted, new rules that should be applied retro- 
actively must establish a “bedrock procedural ele- 
ment[]” that is vital to the fairness of the proceeding, 
Sawyer v. Smith, 497 U.S. at 242 (quoting Teague v. 
Lane, 489 U.S. at 311 (plurality opinion)), and it is 
“unlikely that many such components of basic due pro- 
cess have yet to emerge.” Butler v. McKellar, 494 U.S. 
at 416 (1990) (quoting Teague v. Lane, 489 U.S. at 312 
(plurality opinion)). 

10 

text of the gatekeeping provision (either in Section 2244(b)(2)(A) 
or in the identically worded Section 2255) in an effort to create 
such a remedy. 

10 The same conclusion follows with respect to new rules that 
are exceptions to the Teague non-retroactivity principle because 
they place “certain kinds of primary, private individual conduct 
beyond the power of the criminal law-making authority to pro- 

22 

4. The court of appeals correctly held that this Court 
has not yet made the Cage rule retroactive to cases on 
collateral review for purposes of Section 2244(b)(2)(A). 
Petitioner contends (Br. 22) that the decision in Sulli- 
van v. Louisiana, 508 U.S. 275, 278-282 (1993), which 
held that a constitutionally deficient reasonable doubt 
instruction cannot be harmless error, “compels the 
conclusion” that the Cage rule should be applied 
retroactively. As discussed more fully below, see pp. 
25-29, infra, Sullivan’s holding that Cage errors are not 
amenable to harmless-error review does not resolve 
whether Cage announced a new rule that should be 
applied retroactively to proceedings on collateral 
review. 

In arguing that the Cage rule has already been made 
retroactive by this Court, petitioner also relies (Br. 28) 
on the disposition in Adams v. Evatt, 511 U.S. 1001 
(1994), in which the Court vacated a court of appeals’ 
holding that retroactive application of Cage was barred 

scribe.” Teague v. Lane, 489 U.S. at 311 (plurality opinion). Peti- 
tioner’s view (Br. 18 n.8) that questions regarding the retroactivity 
of such rules are unlikely to reach this Court is speculative at best. 
The question whether any such rule is retroactive to cases on 
collateral review may well reach this Court on a petition for 
certiorari from a first federal habeas petition and could be raised 
on an original habeas petition filed in this Court. See Felker v. 
Turpin, 518 U.S. 654, 658-663 (1996). Indeed, a first federal habeas 
petition could present a retroactivity question to this Court not 
only if a lower court directly addresses the retroactivity issue, but 
also if the lower court addresses whether the rule on which the 
habeas petitioner relies is genuinely “new” under Teague or 
whether it is genuinely a rule that protects primary conduct from 
criminal punishment. In any event, the premise of Section 
2244(b)(2)(A) is that principles of finality are of sufficient 
importance that some otherwise meritorious second and successive 
habeas petitions should be barred. 

23 

by Teague, and remanded for further consideration in 
light of Sullivan v. Louisiana, supra. As the First Cir- 
cuit has explained, however, a summary reconsidera- 
tion like the one in Adams “does ‘not amount to a final 
determination on the merits’ ”; rather, “[s]uch an order 
merely directs the lower court to reexamine the case 
against the backdrop of some recent, intervening 
precedent; [but] does not compel a different result.” 
Rodriguez, 139 F.3d at 276 (quoting Henry v. City of 
Rock Hill, 376 U.S. 776, 777 (1964) (per curiam)); see 
also Robert L. Stern et al., Supreme Court Practice 
249-250 (7th ed. 1993). Accordingly, the Court’s action 
in Adams does not satisfy the statutory requirement 
that this Court have considered the issue of retro- 
activity and have expressly decided in favor of 
retroactive application. 

II. THE NEW CONSTITUTIONAL RULE ANNOUNCED 
IN CAGE V. LOUISIANA SHOULD NOT BE AP- 
PLIED RETROACTIVELY TO CASES ON COLLAT- 
ERAL REVIEW 

1. New constitutional rules of criminal procedure are 
not retroactively applicable to proceedings on collateral 
review unless they satisfy one of the two exceptions 
discussed in this Court’s Teague line of cases. Teague’s 
non-retroactivity principle is based on the purposes of 
the writ of habeas corpus and considerations of finality 
in the criminal law. The writ of habeas corpus exists as 
a safeguard against a fundamental miscarriage of 
justice; it has never been defined “by reference to a 
perceived need to assure that an individual accused of 
crime is afforded a trial free of constitutional error.” 
Kuhlmann v. Wilson, 477 U.S. 436, 447 (1986) (plurality 
opinion); Teague v. Lane, 489 U.S. at 308 (plurality 
opinion). Generally, the purpose of collateral review is 

24 

to ensure that courts conduct their proceedings in a 
manner consistent with the law in existence at the time, 
“and not to provide a mechanism for the continuing 
reexamination of final judgments based upon later 
emerging legal doctrine.” Sawyer v. Smith, 497 U.S. at 
234. The distinction between law that prevailed at the 
time of trial and later-announced rules is important, 
because “[a]pplication 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.” Teague v. 
Lane, 489 U.S. at 309 (plurality opinion). Accordingly, 
the “new rule” principle of Teague “validates reason- 
able, good-faith interpretations of existing precedents 
made by [lower] courts even though they are shown to 
be contrary to later decisions.” Butler v. McKellar, 494 
U.S. at 414; Saffle v. Parks, 494 U.S. at 488. 

2. This Court has defined a “new rule” under Teague 
as one that was not “dictated by precedent existing at 
the time the defendant’s conviction became final.” Gra- 
ham v. Collins, 506 U.S. at 467; Sawyer v. Smith, 497 
U.S. at 234; Teague v. Lane, 489 U.S. at 301 (plurality 
opinion); see also O’Dell v. Netherland, 521 U.S. 151, 
164 (1997) (test for whether decision announces new 
rule is whether, at the time of the decision, a “reason- 
able jurist” would have felt “compelled” to adopt the 
rule it stated). As petitioner acknowledges (Br. 11-13), 
Cage clearly adopted a new rule under that standard. 
No prior decision had “dictated” that the reasonable 
doubt instruction in Cage violated the Due Process 
Clause. 

3. The Cage rule does not fall within either of the 
narrow exceptions to Teague’s principle of non-retro- 
activity. The first Teague exception covers rules 
defining a class of conduct that the legislature may not 

25 

regulate under the criminal law. Teague v. Lane, 489 
U.S. at 311 (plurality opinion); Butler v. McKellar, 494 
U.S. at 415. Relatedly, it also applies to rules prohibit- 
ing a certain type of punishment for a particular class of 
defendants. See Saffle v. Parks, 494 U.S. at 494; Penry 

v. Lynaugh, 492 U.S. 302, 330 (1989). Cage neither 
protected primary conduct, nor restricted punishment, 
so that exception is plainly inapplicable. 

4. The second Teague exception is limited to “water- 
shed rules of criminal procedure” that are “central to an 
accurate determination of innocence or guilt.” Teague 

v. Lane, 489 U.S. at 311, 313 (plurality opinion); see 
Sawyer v. Smith, 497 U.S. at 241- 242; Saffle v. Parks, 
494 U.S. at 495; Butler v. McKellar, 494 U.S. at 416. 
This Court has made clear that for a rule to fall within 
Teague’s second exception, it must satisfy two distinct 
conditions that Justice Harlan originally proposed—an 
“accuracy element” and a “fundamental fairness” ele- 
ment. Teague v. Lane, 489 U.S. at 312 (plurality opin- 
ion). First, infringement of the new rule must “seri- 
ously diminish the likelihood of obtaining an accurate 
conviction,” id. at 315, and second, the new rule must 
“‘alter our understanding of the bedrock procedural 
elements’ essential to the fairness of a proceeding,” 
Sawyer v. Smith, 497 U.S. at 242 (quoting Teague v. 
Lane, 489 U.S. at 311 (plurality opinion)). 

Petitioner contends (Br. 24-28) that the Court’s 
ruling in Sullivan v. Louisiana, 508 U.S. at 281-282, 
that violations of the Cage rule are “structural” error 
makes clear that Cage announced a “watershed” rule 
within the meaning of the second Teague exception. 
Contrary to petitioner’s argument (Br. 25), the Court 
has not adopted “essentially identical” tests for deter- 
mining whether a constitutional rule falls within the 
Teague exception and for determining whether a 

26 

violation of that rule is not subject to harmless-error 
review. A decision that a given rule is not subject to 
harmless-error review does suggest that that rule may 
satisfy the “accuracy element” in the second Teague 
exception. It has little to do, however, with the 
question whether the new rule is a “bedrock procedural 
element[].” Teague v. Lane, 489 U.S. at 311 (plurality 
opinion; emphasis omitted). 

a. As Sullivan makes clear, an error qualifies as 
“structural” when it is impossible to determine the 
effect of the error on the jury’s verdict—and therefore 
impossible to conduct harmless error review. The 
Court concluded in Sullivan that a trial court’s error in 
giving a defective reasonable-doubt instruction “was 
not subject to harmless-error analysis because it 
‘vitiates all the jury’s findings,’ * * * and produces 
‘consequences that are necessarily unquantifiable and 
indeterminate.’ ” Neder v. United States, 527 U.S. 1, 11 
(1999) (quoting Sullivan, 508 U.S. at 281-282); see 
Brecht v. Abrahamson, 507 U.S. 619, 629 (1993) (unlike 
trial error, which “is amenable to harmless-error analy- 
sis because it ‘may . . . be quantitatively assessed in 
the context of other evidence presented in order to 
determine [the effect it had on the trial],’ ” structural 
errors “defy analysis by harmless-error standards”) 
(quoting Arizona v. Fulminante, 499 U.S. 279, 307-309 
(1991)). In that respect, a “structural” error may well 
implicate the “accuracy element” of the second Teague 
exception. 

b. The fact that it may be impossible to determine an 
error’s effect on a jury verdict—and that harmless 
error analysis is therefore impossible—has little to do 
with whether the error satisfies the “fundamental 
fairness” element of the second Teague exception. To 
satisfy that element, a new rule must “‘alter our under- 

27 

standing of the bedrock procedural elements’ essential 
to the fairness of a proceeding.” Sawyer v. Smith, 497 
U.S. at 242 (quoting Teague v. Lane, 489 U.S. at 311 
(plurality opinion)). This Court’s decision in Gideon v. 
Wainwright, 372 U.S. 335 (1963), for example, estab- 
lished for the first time that a criminal trial cannot 
satisfy standards of fundamental fairness if the 
defendant does not have the opportunity to be 
represented by counsel. In that sense, it “alter[ed] our 
understanding” of what is necessary for a fair trial. 
Before Gideon, it was believed that a defendant could 
have a fair trial without being provided with the 
opportunity to have an attorney; after Gideon, it was 
clear that a fair trial could not be conducted in that 
manner. Similarly, the plurality in Teague gave as 
examples of “watershed rules” those that constituted 
“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.” 489 U.S. at 313. Each of those holdings 
similarly “altered our understanding” of the “bedrock 
procedural elements” of a fair trial 

The rule announced in Cage does not satisfy that 
standard. Cage did not announce the constitutional 
requirement of proof beyond a reasonable doubt. It 
had been well established that the government must 
prove all elements of the offense beyond a reasonable 
doubt since at least the time of In re Winship, 397 
U.S. 358, 364 (1970). Rather than altering—or even 
reinterpreting—that requirement, the Court in Cage 
merely applied it to the particular jury instruction in 
that case. Such applications of settled legal principles in 
somewhat different contexts cannot be described as 

28 

“watershed” or “bedrock”; they are instead part of the 
ordinary process of constitutional adjudication. Al- 
though such adjudication may result in a “new rule,” as 
it did in Cage, and it may even result in a rule that 
proves impervious to ordinary harmless error review, 
as Sullivan held was true of Cage, each application of 
an established constitutional protection does not 
produce a “watershed” or “bedrock” principle. 

11 

This Court’s decision in Cage itself reinforces that 
conclusion. This Court decided Cage in a three-page, 
per curiam opinion, without the benefit of full briefing 
and argument. The Court’s legal analysis consisted of a 
single paragraph, see 498 U.S. at 41, which simply 
found that some of the language in the jury instruction 
“suggest[s] a higher degree of doubt than is required 
for acquittal under the reasonable-doubt standard.” 
Ibid. That treatment of the case is entirely consistent 
with an application of a settled legal standard in a new 
context; it is not consistent with the discovery of a new 
“bedrock procedural element” or “watershed” rule. 

Moreover, the conclusion that Cage merely applied 
the Winship rule in a new context is underscored by the 
Court’s decision in Victor v. Nebraska, 511 U.S. 1 
(1994). In that case, the Court considered the constitu- 
tionality of two reasonable doubt instructions in light of 

11 Nothing in the Court’s opinion in Sullivan suggests that Cage 
was a “bedrock” or “watershed” rule in the required sense. The 
Court’s reasoning in Sullivan focused on the “pure speculation” 
that a reviewing court would have to engage in if it attempted to 
apply harmless error review where a “misdescription of the bur- 
den of proof * * * vitiate[d] all the jury’s findings.” 508 U.S. at 
281. The Court also focused on the serious nature of a denial of the 
right to trial by jury, “without which a criminal trial cannot 
reliably serve its function.” Ibid. Both of those concerns had to do 
with the “accuracy element” of the second Teague exception. 

29 

Cage. Although the instructions challenged in Victor 
were similar in many respects to the instruction at 
issue in Cage, the Court held that the particular lan- 
guage of those instructions, when read as a whole, was 
not reasonably likely to have been applied uncon- 
stitutionally. See Victor, 511 U.S. at 17 (noting that 
challenged instruction and Cage instruction “included 
an almost identical reference to ‘not a mere possible 
doubt’”); id. at 21-22 (comparing use of phrase “moral 
certainty” in instruction at issue with use of that phrase 
in Cage instruction). The difference between the in- 
structions in Victor and those in Cage is the difference 
between an adequate and an inadequate explication of 
the reasonable doubt standard. Neither decision, how- 
ever, fundamentally altered the Court’s understanding 
of the bedrock procedural elements necessary for a fair 
trial. 

5. As in Sawyer v. Smith, 497 U.S. at 243, “[i]t is dif- 
ficult to see any limit to the definition of the second 
[Teague] exception if cast as proposed by petitioner.” 
This Court regularly considers the application of the 
bedrock constitutional principles of criminal procedure 
to particular contexts, such as the right to counsel, see 
Smith v. Robbins, 528 U.S. 259 (2000); the privilege 
against compelled self-incrimination, see Mitchell v. 
United States, 526 U.S. 314 (1999); or the right to 
confront witnesses, see, e.g., Lilly v. Virginia, 527 U.S. 
116 (1999); Gray v. Maryland, 523 U.S. 185 (1998). 
Under petitioner’s reasoning, each such case (if decided 
in favor of the defendant) would result in a “watershed” 
or “bedrock” rule that satisfies the second Teague 
exception, because each such case would be based on 
the lack of a protection—the right to counsel, to a jury 
trial, to confront witnesses, etc.—that is, in the ab- 
stract, “fundamental to the fairness of the proceeding.” 

30 

Pet. Br. 27. If that were so, this Court would surely 
have been wrong in insisting that the second Teague 
exception would apply only to “a small core of rules,” 
Graham v. Collins, 506 U.S. at 478, and that “it [is] 
unlikely that many such components of basic due 
process have yet to emerge.” Teague v. Lane, 489 U.S. 
at 313 (plurality opinion); accord Sawyer v. Smith, 497 
U.S. at 243; Butler v. McKellar, 494 U.S. at 416. The 
premise of this Court’s Teague cases has been that 
retroactive application to cases on collateral review 
should be reserved for the truly exceptional rule in 
which the Court has altered a fundamental under- 
standing of what constitutes a fair trial. Because no 
such alteration took place in Cage, the decision in that 
case does not apply retroactively. 

CONCLUSION 

The judgment of the court of appeals should be 
affirmed. 

Respectfully submitted. 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

JOHN C. KEENEY 

Acting Assistant Attorney 

General 

MICHAEL R. DREEBEN 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

NINA GOODMAN 

Attorney 

MARCH 2001 

APPENDIX A 

STATUTORY PROVISION INVOLVED 

Section 2244 of Title 28 of the United States Code 
(Supp. IV 1998) provides as follows: 

Finality of determination 

(a) No circuit or district judge shall be required 
to entertain an application for a writ of habeas 
corpus to inquire into the detention of a person 
pursuant to a judgment of a court of the United 
States if it appears that the legality of such 
detention has been determined by a judge or court 
of the United States on a prior application for a writ 
of habeas corpus, except as provided in section 2255. 

(b)(1) A claim presented in a second or successive 
habeas corpus application under section 2254 that 
was presented in a prior application shall be 
dismissed. 

(2) A claim presented in a second or suc- 
cessive habeas corpus application under section 
2254 that was not presented in a prior application 
shall be dismissed unless— 

(A) the applicant shows that the claim relies 
on a new rule of constitutional law, made retro- 
active to cases on collateral review by the 
Supreme Court, that was previously unavailable; 
or 

(B)(i) the factual predicate for the claim could 
not have been discovered previously through the 
exercise of due diligence; and 

(1a) 

2a 

(ii) the facts underlying the claim, if proven 
and viewed in light of the evidence as a whole, 
would be sufficient to establish by clear and 
convincing evidence that, but for constitutional 
error, no reasonable factfinder would have found 
the applicant guilty of the underlying offense. 

(3)(A) Before a second or successive 
application permitted by this section is filed 
in the district court, the applicant shall 
move in the appropriate court of appeals for 
an order authorizing the district court to 
consider the application. 

(B) A motion in the court of appeals for 
an order authorizing the district court to 
consider a second or successive application 
shall be determined by a three-judge panel 
of the court of appeals. 

(C) The court of appeals may authorize 
the filing of a second or successive appli- 
cation only if it determines that the appli- 
cation makes a prima facie showing that the 
application satisfies the requirements of this 
subsection. 

(D) The court of appeals shall grant or 
deny the authorization to file a second or 
successive application not later than 30 days 
after the filing of the motion. 

(E) The grant or denial of an authoriza- 
tion by a court of appeals to file a second or 
successive application shall not be appeal- 

3a 

able and shall not be the subject of a petition 
for rehearing or for a writ of certiorari. 

(4) A district court shall dismiss any 
claim presented in a second or successive 
application that the court of appeals has 
authorized to be filed unless the applicant 
shows that the claim satisfies the require- 
ments of this section. 

(c) In a habeas corpus proceeding brought in 
behalf of a person in custody pursuant to the 
judgment of a State court, a prior judgment of the 
Supreme Court of the United States on an appeal or 
review by a writ of certiorari at the instance of the 
prisoner of the decision of such State court, shall be 
conclusive as to all issues of fact or law with respect 
to an asserted denial of a Federal right which 
constitutes ground for discharge in a habeas corpus 
proceeding, actually adjudicated by the Supreme 
Court therein, unless the applicant for the writ of 
habeas corpus shall plead and the court shall find 
the existence of a material and controlling fact 
which did not appear in the record of the proceeding 
in the Supreme Court and the court shall further 
find that the applicant for the writ of habeas corpus 
could not have caused such fact to appear in such 
record by the exercise of reasonable diligence. 

(d)(1) A 1-year period of limitation shall apply to 
an application for a writ of habeas corpus by a 
person in custody pursuant to the judgment of a 
State court. The limitation period shall run from the 
latest of— 

4a 

(A) the date on which the judgment became final 
by the conclusion of direct review or the expiration 
of the time for seeking such review; 

(B) the date on which the impediment to filing 
an application created by State action in violation of 
the Constitution or laws of the United States is 
removed, if the applicant was prevented from filing 
by such State action; 

(C) the date on which the constitutional right 
asserted was initially recognized by the Supreme 
Court, if the right has been newly recognized by the 
Supreme Court and made retroactively applicable to 
cases on collateral review; or 

(D) the date on which the factual predicate of 
the claim or claims presented could have been 
discovered through the exercise of due diligence. 

(2) The time during which a properly filed appli- 
cation for State post-conviction or other collateral 
review with respect to the pertinent judgment or claim 
is pending shall not be counted toward any period of 
limitation under this subsection. 

5a 

APPENDIX B 

The following reasonable doubt instruction was given 
at petitioner’s trial: 

If you entertain any reasonable doubt as to any 
fact or element necessary to constitute the 
defendant’s guilt, it is your sworn duty to give him 
the benefit of that doubt and return a verdict of 
acquittal. Even where the evidence demonstrates a 
probability of guilt, yet if it does not establish it 
beyond a reasonable doubt, you must acquit the 
accused. This doubt must be a reasonable one; that 
is, one founded upon a real, tangible, substantial 
basis, and not upon mere caprice, fancy or conjec- 
ture. It must be such a doubt as would give rise to a 
grave uncertainty, raised in your minds by reason of 
the unsatisfactory character of the evidence; one 
that would make you feel that you had not an 
abiding conviction to a moral certainty of the defen- 
dant’s guilt. If after giving a fair and impartial con- 
sideration of all of the facts in the case, you find the 
evidence unsatisfactory upon any single point indis- 
pensably necessary to constitute the defendant’s 
guilt, this would give rise to such a reasonable doubt 
as would justify you in rendering a verdict of not 
guilty. 

The prosecution must establish guilt by legal and 
sufficient evidence beyond a reasonable doubt, but 
the rule does not go further and require a pre- 
ponderance of testimony. It is incumbent upon the 
state to prove the offense charged, or legally in- 
cluded in the indictment, to your satisfaction and 
beyond a reasonable doubt. A reasonable doubt is 

6a 

not a mere possible doubt. It should be an actual or 
substantial doubt. It is such a doubt as a reasonable 
man would seriously entertain. It is a serious doubt, 
for which you could give good reason. 

See J.A. 9-10.