Legal Memorandum: Constitutional Rule on a Collateral Challenge

Issue: Under federal law, when will a court determine whether a constitutional right asserted is ‘new’ for purposes of raising a post-conviction challenge after the time for challenge has expired?

Generally, a constitutional rule or principle adopted by the United States Supreme Court is considered “new” for purposes of assessing whether a particular post-conviction challenge is permissible, “if the Supreme Court bases its decision in the Constitution and the rule it announces was not dictated or compelled by precedent.”  Simpson v. United States, 376 F.3d 679, 681 (7th Cir. 2004) (citing Beard v. Banks, 542 U.S. 406, 4011 (2004)); see Butler v. McKellar, 494 U.S. 407, 412 (1990); Teague v. Lane, 489 U.S. 288, 301 (1989).  Put another way, to determine whether a particular constitutional rule applies on a collateral challenge, the court must ask, inter alia, “whether the Constitution, as interpreted by the precedent then existing [at the time the conviction became final], compels the rule.  That is, the court must decide if the rule is actually ‘new’.”  Beard, 542 U.S. at 411.  A new rule is thus not “established” until adopted by controlling United States Supreme Court or Florida Supreme Court precedent.  See People v. Kabre, 905 N.Y.S.2d 887, 893 (N.Y. City Crim. Ct. 2010).

Merely because the rule may be characterized as “an application of [earlier precedent] to a slightly different set of facts” is not determinative.  Butler, 494 U.S. at 414-15.  Similarly, the fact that some lower courts view the new decision as one within the “‘logical compass’ of an earlier decision, is not conclusive for purposes of deciding whether the current decision is a ‘new rule’ under Teague.”  Id. at 415.  Indeed, […]