718 N. W. 2d 451, reversed and remanded.

HTML version
PDF version
HTML version
PDF version
HTML version
PDF version

Justice Stevens, Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.



on writ of certiorari to the supreme court ofminnesota

[February 20, 2008]

Justice Stevens delivered the opinion of the Court.

New constitutional rules announced by this Court that place certain kinds of primary individual conduct beyond the power of the States to proscribe, as well as “watershed” rules of criminal procedure, must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings. All other new rules of criminal procedure must be applied in future trials and in cases pending on direct review, but may not provide the basis for a federal collateral attack on a state-court conviction. This is the substance of the “Teague rule” described by Justice O’Connor in her plurality opinion in Teague v. Lane, 489 U. S. 288 (1989) .1 The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. We have never suggested that it does, and now hold that it does not.


In 1996 a Minnesota jury found petitioner Stephen Danforth guilty of first-degree criminal sexual conduct with a minor. See Minn. Stat. §609.342, subd. 1(a) (1994). The 6-year-old victim did not testify at trial, but the jury saw and heard a videotaped interview of the child. On appeal from his conviction, Danforth argued that the tape’s admission violated the Sixth Amendment ’s guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Applying the rule of admissibility set forth in Ohio v. Roberts, 448 U. S. 56 (1980) , the Minnesota Court of Appeals concluded that the tape “was sufficiently reliable to be admitted into evidence,” and affirmed the conviction. State v. Danforth, 573 N. W. 2d 369, 375 (1997). The conviction became final in 1998 when the Minnesota Supreme Court denied review and petitioner’s time for filing a writ of certiorari elapsed. See Caspari v. Bohlen, 510 U. S. 383, 390 (1994) .

After petitioner’s conviction had become final, we announced a “new rule” for evaluating the reliability of testimonial statements in criminal cases. In Crawford v. Washington, 541 U. S. 36, 68–69 (2004) , we held that where testimonial statements are at issue, “the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”

Shortly thereafter, petitioner filed a state postconviction petition, in which he argued that he was entitled to a new trial because the admission of the taped interview violated the rule announced in Crawford. Applying the standards set forth in Teague, the Minnesota trial court and the Minnesota Court of Appeals concluded that Crawford did not apply to petitioner’s case. The State Supreme Court granted review to consider two arguments: (1) that the lower courts erred in holding that Crawford did not apply retroactively under Teague; and (2) that the state court was “free to apply a broader retroactivity standard than that of Teague,” and should apply the Crawford rule to petitioner’s case even if federal law did not require it to do so. 718 N. W. 2d 451, 455 (2006). The court rejected both arguments. Ibid.

With respect to the second, the Minnesota court held that our decisions in Michigan v. Payne, 412 U. S. 47 (1973) , American Trucking Assns., Inc. v. Smith, 496 U. S. 167 (1990) , and Teague itself establish that state courts are not free to give a Supreme Court decision announcing a new constitutional rule of criminal procedure broader retroactive application than that given by this Court.2 The Minnesota Court acknowledged that other state courts had held that Teague does not apply to state postconviction proceedings,3 but concluded that “we are not free to fashion our own standard of retroactivity for Crawford.” 718 N. W. 2d, at 455–457.

Our recent decision in Whorton v. Bockting, 549 U. S. ___ (2007), makes clear that the Minnesota court correctly concluded that federal law does not require state courts to apply the holding in Crawford to cases that were final when that casewas decided. Nevertheless, we granted certiorari, 550 U. S. ___ (2007), to consider whether Teague or any other federal rule of law prohibits them from doing so.4


We begin with a comment on the source of the “new rule” announced in Crawford. For much of our Nation’s history, federal constitutional rights—such as the Sixth Amendment confrontation right at issue in Crawford—were not binding on the States. Federal law, in fact, imposed no constraints on the procedures that state courts could or should follow in imposing criminal sanctions on their citizens. Neither the Federal Constitution as originally ratified nor any of the Amendments added by the Bill of Rights in 1791 gave this Court or any other federal-court power to review the fairness of state criminal procedures. Moreover, before 1867 the statutory authority of federal district courts to issue writs of habeas corpus did not extend to convicted criminals in state custody. See Act of Feb. 5, 1867, ch. 28, §1, 14 Stat. 385.

The ratification of the Fourteenth Amendment radically changed the federal courts’ relationship with state courts. That Amendment, one of the post-Civil War Reconstruction Amendments ratified in 1868, is the source of this Court’s power to decide whether a defendant in a state proceeding received a fair trial—i.e., whether his deprivation of liberty was “without due process of law.” U. S. Const., Amdt. 14, §1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law”). In construing that Amendment, we have held that it imposes minimum standards of fairness on the States, and requires state criminal trials to provide defendants with protections “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 325 (1937) .

Slowly at first, and then at an accelerating pace in the 1950’s and 1960’s, the Court held that safeguards afforded by the Bill of Rights—including a defendant’s Sixth Amendment right “to be confronted with the witnesses against him”—are incorporated in the Due Process Clause of the Fourteenth Amendment and are therefore binding upon the States. See Gideon v. Wainwright, 372 U. S. 335 (1963) (applying the Sixth Amendment right to counsel to the States); Pointer v. Texas, 380 U. S. 400, 403 (1965) (holding that “the Sixth Amendment ’s right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment ”). Our interpretation of that basic Sixth Amendment right of confrontation has evolved over the years.

In Crawford we accepted the petitioner’s argument that the interpretation of the Sixth Amendment right to confrontation that we had previously endorsed in Roberts, 448 U. S. 56 , needed reconsideration because it “stray[ed] from the original meaning of the Confrontation Clause.” 541 U. S., at 42. We “turn[ed] to the historical background of the Clause to understand its meaning,” id., at 43, and relied primarily on legal developments that had occurred prior to the adoption of the Sixth Amendment to derive the correct interpretation. Id., at 43–50. We held that the “Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising.” Id., at 67.

Thus, our opinion in Crawford announced a “new rule”—as that term is defined in Teague—because the result in that case “was not dictated by precedent existing at the time the defendant’s conviction became final,” Teague, 489 U. S., at 301 (plurality opinion). It was not, however, a rule “of our own devising” or the product of our own views about sound policy.


Our decision today must also be understood against the backdrop of our somewhat confused and confusing “retroactivity” cases decided in the years between 1965 and 1987. Indeed, we note at the outset that the very word “retroactivity” is misleading because it speaks in temporal terms. “Retroactivity” suggests that when we declare that a new constitutional rule of criminal procedure is “nonretroactive,” we are implying that the right at issue was not in existence prior to the date the “new rule” was announced. But this is incorrect. As we have already explained, the source of a “new rule” is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the “retroactivity” of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.5

Originally, criminal defendants whose convictions were final were entitled to federal habeas relief only if the court that rendered the judgment under which they were in custody lacked jurisdiction to do so. Ex parte Watkins, 3Pet. 193 (1830); Ex parte Lange, 18Wall. 163, 176 (1874); Ex parte Siebold, 100 U. S. 371, 376–377 (1880) .6 In 1915, the realm of violations for which federal habeas relief would be available to state prisoners was expanded to include state proceedings that “deprive[d] the accused of his life or liberty without due process of law.” Frank v. Mangum, 237 U. S. 309, 335 (1915) . In the early 1900’s, however, such relief was only granted when the constitutional violation was so serious that it effectivelyrendered the conviction void for lack of jurisdiction. See, e.g., Moore v. Dempsey, 261 U. S. 86 (1923) (mob domination of a trial); Mooney v. Holohan, 294 U. S. 103 (1935) (per curiam) (knowing use of perjured testimony by the prosecution); Waley v. Johnston, 316 U. S. 101 (1942) (per curiam) (coerced guilty plea).7

The serial incorporation of the Amendments in the Bill of Rights during the 1950’s and 1960’s imposed more constitutional obligations on the States and created more opportunity for claims that individuals were being convicted without due process and held in violation of the Constitution. Nevertheless, until 1965 the Court continued to construe every constitutional error, including newly announced ones, as entitling state prisoners to relief on federal habeas. “New” constitutional rules of criminal procedure were, without discussion or analysis, routinely applied to cases on habeas review. See, e.g., Jackson v. Denno, 378 U. S. 368 (1964) ; Gideon, 372 U. S. 335 ; Eskridge v. Washington Bd. of Prison Terms and Paroles, 357 U. S. 214 (1958) (per curiam).

In Linkletter v. Walker, 381 U. S. 618 (1965) , the Court expressly considered the issue of “retroactivity” for the first time. Adopting a practical approach, we held that the retroactive effect of each new rule should be determined on a case-by-case basis by examining the purpose of the rule, the reliance of the States on the prior law, and the effect on the administration of justice of retroactive application of the rule. Id., at 629. Applying those considerations to the exclusionary rule announced in Mapp v. Ohio, 367 U. S. 643 (1961) , we held that the Mapp rule would not be given retroactive effect; it would not, in other words, be applied to convictions that were final before the date of the Mapp decision.8 Linkletter, 381 U. S., at 636–640.

During the next four years, application of the Linkletter standard produced strikingly divergent results. As Justice Harlan pointed out in his classic dissent in Desist v. United States, 394 U. S. 244, 257 (1969) , one new rule was applied to all cases subject to direct review, Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966) ; another to all cases in which trials had not yet commenced, Johnson v. New Jersey, 384 U. S. 719 (1966) ; another to all cases in which tainted evidence had not yet been introduced at trial, Fuller v. Alaska, 393 U. S. 80 (1968) (per curiam); and still others only to the party involved in the case in which the new rule was announced and to all future cases in which the proscribed official conduct had not yet occurred, Stovall v. Denno, 388 U. S. 293 (1967) ; DeStefano v. Woods, 392 U. S. 631 (1968) (per curiam). He reasonably questioned whether such decisions “may properly be considered the legitimate products of a court of law, rather than the commands of a super-legislature.” 394 U. S., at 259.

Justice Harlan’s dissent in Desist, buttressed by his even more searching separate opinion in Mackey v. United States, 401 U. S. 667, 675 (1971) (opinion concurring in judgments in part and dissenting in part), and scholarly criticism,9 laid the groundwork for the eventual demise of the Linkletter standard. In Griffith v. Kentucky, 479 U. S. 314 (1987) , the Court rejected as “unprincipled and inequitable,” the application of the Linkletter standard to cases pending ondirect review. In Teague, Justice O’Connor reaffirmed Griffith’s rejection of the Linkletter standard for determining the “retroactive” applicability of new rules to state convictions that were not yet final and rejected the Linkletter standard for cases pending on federal habeas review. She adopted (with a significant modification) the approach advocated by Justice Harlan for federal collateral review of final state judgments.

Justice O’Connor endorsed a general rule of nonretroactivity for cases on collateral review, stating that “[u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U. S., at 310 (plurality opinion). The opinion defined two exceptions: rules that render types of primary conduct “ ‘beyond the power of the criminal law-making authority to proscribe,’ ” id., at 311, and “watershed” rules that “implicate the fundamental fairness of the trial,” id., at 311, 312, 313.10

It is clear that Linkletter and then Teague considered what constitutional violations may be remedied on federal habeas.11 They did not define the scope of the “new” constitutional rights themselves. Nor, as we shall explain, did Linkletter or Teague (or any of the other cases relied upon by respondent and the Minnesota Supreme Court) speak to the entirely separate question whether States can provide remedies for violations of these rights in their own postconviction proceedings.


Neither Linkletter nor Teague explicitly or implicitly constrained the authority of the States to provide remedies for a broader range of constitutional violations than are redressable on federal habeas. Linkletter spoke in broad terms about the retroactive applicability of new rules to state convictions that had become final prior to our announcement of the rules. Although Linkletter arose on federal habeas, the opinion did not rely on that procedural posture as a factor in its holding or analysis. Arguably, therefore, the approach it established might have been applied with equal force to both federal and state courts reviewing final state convictions. But we did not state—and the state courts did not conclude—that Linkletter imposed such a limitation on the States.12

A year after deciding Linkletter, we granted certiorari in Johnson to address the retroactivity of the rules announced in Escobedo v. Illinois, 378 U. S. 478 (1964) , and Miranda v. Arizona, 384 U. S. 436 (1966) . Applying the standard announced in Linkletter,we held that those rules should be applied only to trials that began after the respective dates of those decisions; they were given no retroactive effect beyond the parties in Miranda and Escobedo themselves.13

Notably, the Oregon Supreme Court decided to give retroactive effect to Escobedo despite our holding in Johnson. In State v. Fair, 263 Ore. 383, 502 P. 2d 1150 (1972), the Oregon court noted that it was continuing to apply Escobedo retroactively and correctly stated that “we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires.” 263 Ore., at 387–388, 502 P. 2d, at 1152. In so holding, the Oregon court cited our language in Johnson that “ ‘States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.’ ” 263 Ore., at 386, 502 P. 2d, at 1151 (quoting Johnson, 384 U. S., at 733).14

Like Linkletter, Teague arose on federal habeas. Unlike in Linkletter, however, this procedural posture was not merely a background fact in Teague. A close reading of the Teague opinion makes clear that the rule it established was tailored to the unique context of federal habeas and therefore had no bearing on whether States could provide broader relief in their own postconviction proceedings than required by that opinion. Because the case before us now does not involve either of the “Teague exceptions,” it is Justice O’Connor’s discussion of the general rule of nonretroactivity that merits the following three comments.

First, not a word in Justice O’Connor’s discussion—or in either of the opinions of Justice Harlan that provided the blueprint for her entire analysis—asserts or even intimates that her definition of the class eligible for relief under a new rule should inhibit the authority of any state agency or state court to extend the benefit of a new rule to a broader class than she defined.

Second, Justice O’Connor’s opinion clearly indicates that Teague’sgeneral rule of nonretroactivity was an exercise of this Court’s power to interpret the federal habeas statute. Chapter 153 of Title 28 of the U. S. Code gives federal courts the authority to grant “writs of habeas corpus,” but leaves unresolved many important questions about the scope of available relief. This Court has interpreted that congressional silence—along with the statute’s command to dispose of habeas petitions “as law and justice require,” 28 U. S. C. §2243—as an authorization to adjust the scope of the writ in accordance with equitable and prudential considerations. See, e.g., Brecht v. Abrahamson, 507 U. S. 619 (1993) (harmless-error standard); McCleskey v. Zant, 499 U. S. 467 (1991) (abuse-of-the-writ bar to relief); Wainwright v. Sykes, 433 U. S. 72 (1977) (procedural default); Stone v. Powell, 428 U. S. 465 (1976) (cognizability of Fourth Amendment claims). Teague is plainly grounded in this authority, as the opinion expressly situated the rule it announced in this line of cases adjusting the scope of federal habeas relief in accordance with equitable and prudential considerations. 489 U. S., at 308 (plurality opinion) (citing, inter alia, Wainwright and Stone).15 Since Teague is based on statutory authority that extends only to federal courts applying a federal statute, it cannot be read as imposing a binding obligation on state courts.

Third, the text and reasoning of Justice O’Connor’s opinion also illustrate that the rule was meant to apply only to federal courts considering habeas corpus petitions challenging state-court criminal convictions. Justice O’Connor made numerous references to the “Great writ” and the “writ,” and expressly stated that “[t]he relevant frame of reference” for determining the appropriate retroactivity rule is defined by “the purposes for which the writ of habeas corpus is made available.” 489 U. S., at 306 (plurality opinion). Moreover, she justified the general rule of nonretroactivity in part by reference to comity and respect for the finality of state convictions. Federalism and comity considerations are unique to federal habeas review of state convictions. See, e.g., State v. Preciose, 129 N. J. 451, 475, 609 A. 2d 1280, 1292 (1992) (explaining that comity and federalism concerns “simply do not apply when this Court reviews procedural rulings by our lower courts”). If anything, considerations of comity militate in favor of allowing state courts to grant habeas relief to a broader class of individuals than is required by Teague. And while finality is, of course, implicated in the context of state as well as federal habeas, finality of state convictions is a state interest, not a federal one. It is a matter that States should be free to evaluate, and weigh the importance of, when prisoners held in state custody are seeking a remedy for a violation of federal rights by their lower courts.

The dissent correctly points out that Teague was also grounded in concerns over uniformity and the inequity inherent in the Linkletter approach. There is, of course, a federal interest in “reducing the inequity of haphazard retroactivity standards and disuniformity in the application of federal law.” Post, at 12. This interest in uniformity, however, does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees. The fundamental interest in federalism that allows individual States to define crimes, punishments, rules of evidence, and rules of criminal and civil procedure in a variety of different ways—so long as they do not violate the Federal Constitution—is not otherwise limited by any general, undefined federal interest in uniformity. Nonuniformity is, in fact, an unavoidable reality in a federalist system of government. Any State could surely have adopted the rule of evidence defined in Crawford under state law even if that case had never been decided. It should be equally free to give its citizens the benefit of our rule in any fashion that does not offend federal law.

It is thus abundantly clear that the Teague rule of nonretroactivity was fashioned to achieve the goals of federal habeas while minimizing federal intrusion into state criminal proceedings. It was intended to limit the authority of federal courts to overturn state convictions—not to limit a state court’s authority to grant relief for violations of new rules of constitutional law when reviewing its own State’s convictions.16

Our subsequent cases, which characterizethe Teague rule as a standard limiting only the scope of federal habeas relief, confirm that Teague speaks only to the context of federal habeas. See, e.g., Beard v. Banks, 542 U. S. 406, 412 (2004) (“Teague’s nonretroactivity principle acts as a limitation on the power of federal courts to grant habeas corpus relief to state prisoners” (internal quotation marks, ellipsis, and brackets omitted)); Caspari, 510 U. S., at 389 (“The [Teague] nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final”).

It is also noteworthy that for many years following Teague, state courts almost universally understood the Teague rule as binding only federal habeas courts, not state courts. See, e.g., Cowell v. Leapley, 458 N. W. 2d 514 (S. D. 1990); Preciose, 129 N. J. 451, 609 A. 2d 1280; State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 256–257, 548 N. W. 2d 45, 49 (1996) (choosing of its own volition to adopt the Teague rule); but see State v. Egelhoff, 272 Mont. 114, 900 P. 2d 260 (1995).17 Commentators were similarly confident that Teague’s “restrictions appl[ied] only to federal habeas cases,” leaving States free to “determine whether to follow the federal courts’ rulings on retroactivity or to fashion rules which respond to the unique concerns of that state.” Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State Postconviction Remedies, 44 Ala. L. Rev. 421, 423–424, 422–423 (1993).

In sum, the Teague decision limits the kinds of constitutional violations that will entitle an individual to relief on federal habeas, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed “nonretroactive” under Teague.


The State contends that two of our prior decisions—Michigan v. Payne and American Trucking Assns., Inc. v. Smith—cast doubt on state courts’ authority to provide broader remedies for federal constitutional violations than mandated by Teague. We disagree.


In Michigan v. Payne, 412 U. S. 47 , we considered the retroactivity of the rule prohibiting “vindictive” resentencing that had been announced in our opinion in North Carolina v. Pearce, 395 U. S. 711, 723–726 (1969) .18 Relying on the approach set forth in Linkletter and Stovall, we held that the Pearce rule did not apply because Payne’s resentencing had occurred prior to Pearce’s date of decision.19 We therefore reversed the judgment of the Michigan Supreme Court, which had applied Pearce retroactively, and remanded for further proceedings.

At first blush the fact that we reversed the judgment of the Michigan court appears to lend support to the view that state courts may not give greater retroactive effect to new rules announced by this Court than we expressly authorize. But, as our opinion in Payne noted, the Michigan Supreme Court had applied the Pearce rule retroactively “ ‘pending clarification’ ” by this Court. 412 U. S., at 49. As the Michigan Court explained, it had applied the new rule in the case before it in order to give guidance to Michigan trial courts concerning what it regarded as an ambiguity in Pearce’s new rule.20 The Michigan Court did not purport to make a definitive ruling on the retroactivity of Pearce; nor did it purport to apply a broader state rule of retroactivity than required by federal law. Our opinion in Payne did not require the Michigan Supreme Court to modify its disposition of the case; it simply remanded for further proceedings after providing the clarification that the Michigan Court sought. Most significantly, other than the fact that the case was remanded for further proceedings, not a word in our Payne opinion suggests that the Court intended to prohibit state courts from applying new constitutional standards in a broader range of cases than we require.21

Notably, at least some state courts continued, after Payne, to adopt and apply broader standards of retroactivity than required by our decisions. In Pennsylvania v. McCormick, 359 Pa. Super. 461, 470, 519 A. 2d 442, 447 (1986), for example, the Superior Court of Pennsylvania chose not to follow this Court’s nonretroactivity holding in Allen v. Hardy, 478 U. S. 255 (1986) (per curiam). The Pennsylvania court correctly explained that our decision was “not binding authority [in part] because neither the federal nor the state constitution dictate which decisions must be given retroactive effect.” 359 Pa. Super., at 470, 519 A. 2d, at 447.


In American Trucking Assns., Inc. v. Smith, 496 U. S. 167 , petitioners challenged the constitutionality of an Arkansas statute enacted in 1983 that imposed a discriminatory burden on interstate truckers. While their suit was pending, this Court declared a virtually identical Pennsylvania tax unconstitutional. See American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987) . Shortly thereafter, the Arkansas Supreme Court struck down the Arkansas tax at issue. The primary issue in Smith was whether petitioners were entitled to a refund of taxes that were assessed before the date of our decision in Scheiner.

The Arkansas Court held that petitioners were not entitled to a refund because our decision in Scheiner did not apply retroactively. Four Members of this Court agreed. The plurality opinion concluded that federal law did not provide petitioners with a right to a refund of pre-Scheiner tax payments because Scheiner did not apply retroactively to invalidate the Arkansas tax prior to its date of decision. Four Members of this Court dissented. The dissenting opinion argued that the case actually raised both the substantive question whether the tax violated the Commerce Clause of the Federal Constitution and the remedial question whether, if so, the petitioners were entitled to a refund. The dissent concluded as a matter of federal law that the tax was invalid during the years before Scheiner, and that petitioners were entitled to a decision to that effect. Whether petitioners should get a refund, however, the dissent deemed a mixed question of state and federal law that should be decided by the state court in the first instance.

Justice Scalia concurred with the plurality’s judgment because he disagreed with the substantive rule announced in Scheiner, but he did not agree with the plurality’s reasoning. After stating that his views on retroactivity diverged from the plurality’s “in a fundamental way,” Justice Scalia explained:

“I share [the dissent’s] perception that prospective decisionmaking is incompatible with the judicial role, which is to say what the law is, not to prescribe what [the law] shall be. The very framing of the issue that we purport to decide today—whether our decision in Scheiner shall ‘apply’ retroactively—presupposes a view of our decisions as creating the law, as opposed to declaring what the law already is. Such a view is contrary to that understanding of ‘the judicial Power,’ U. S. Const., Art. III, § 1, which is not only the common and traditional one, but which is the only one that can justify courts in denying force and effect to the unconstitutional enactments of duly elected legislatures, see Marbury v. Madison, 1 Cranch 137 (1803)—the very exercise of judicial power asserted in Scheiner. To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it; and when, as in this case, the constitutionality of a state statute is placed in issue, the question is not whether some decision of ours ‘applies’ in the way that a law applies; the question is whether the Constitution, as interpreted in that decision, invalidates the statute. Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense. Either enforcement of the statute at issue in Scheiner (which occurred before our decision there) was unconstitutional, or it was not; if it was, then so is enforcement of all identical statutes in other States, whether occurring before or after our decision; and if it was not, then Scheiner was wrong, and the issue of whether to ‘apply’ that decision needs no further attention.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 201.

Because Justice Scalia’s vote rested on his disagreement with the substantive rule announced in Scheiner—rather than with the retroactivity analysis in the dissenting opinion—there were actually five votes supporting the dissent’s views on the retroactivity issue. Accordingly, it is the dissent rather than the plurality that should inform our analysis of the issue before us today.22

Moreover, several years later, a majority of this Court explicitly adopted the Smith dissent’s reasoning in Harper v. Virginia Dept. of Taxation, 509 U. S. 86 (1993) . Harper, like Smith, involved a request for a refund of taxes paid before we declared a similar Michigan tax unconstitutional. We held that the Virginia tax at issue in Harper was in fact invalid—even before we declared the similar tax unconstitutional—but that this did not necessarily entitle the petitioners to a full refund. We explained that the Constitution required Virginia to “ ‘provide relief consistent with federal due process principles,’ ” 509 U. S., at 100 (citing American Trucking Assns., Inc. v. Smith, 496 U. S., at 181), but that “ ‘a State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination’ ” under the due process clause, 509 U. S., at 100 (citing McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 39–40 (1990) ). We left to the “Virginia courts this question of state law and the performance of other tasks pertaining to the crafting of any appropriate remedy.” 509 U. S., at 102. And we specifically noted that Virginia “ ‘is free to choose which form of relief it will provide, so long as that relief satisfies the minimum federal requirements we have outlined.’ ” Ibid. (citing McKesson, 496 U. S.,at 51–52); see also 509 U. S., at 102 (“State law may provide relief beyond the demands of federal due process, but under no circumstances may it confine petitioners to a lesser remedy” citations omitted)).

Thus, to the extent that these civil retroactivity decisions are relevant to the issue before us today,23 they support our conclusion that the remedy a state court chooses to provide its citizens for violations of the Federal Constitution is primarily a question of state law. Federal law simply “sets certain minimum requirements that States must meet but may exceed in providing appropriate relief.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 178–179 (plurality opinion). They provide no support for the proposition that federal law places a limit on state authority to provide remedies for federal constitutional violations.


Finally, while the State acknowledges that it may grant its citizens broader protection than the Federal Constitution requires by enacting appropriate legislation or by judicial interpretation of its own Constitution, it argues that it may not do so by judicial misconstruction of federal law. Oregon v. Hass, 420 U. S. 714 (1975) —like our early decisions in Ableman v. Booth, 21How. 506 (1859), and Tarble’s Case, 13Wall. 397 (1872)—provides solid support for that proposition. But the States that give broader retroactive effect to this Court’s new rules of criminal procedure do not do so by misconstruing the federal Teague standard. Rather, they have developed state law to govern retroactivity in state postconviction proceedings. See, e.g., State v. Whitfield, 107 S. W. 3d 253, 268 (Mo. 2003) (“[A]s a matter of state law, this Court chooses not to adopt the Teague analysis . . .”). The issue in this case is whether there is a federal rule, either implicitly announced in Teague, or in some other source of federal law, that prohibits them from doing so.

The absence of any precedent for the claim that Teague limits state collateral review courts’ authority to provide remedies for federal constitutional violations is a sufficient reason for concluding that there is no such rule of federal law. That conclusion is confirmed by several additional considerations. First, if there is such a federal rule of law, presumably the Supremacy Clause in Article V of the Federal Constitution would require all state entities—not just state judges—to comply with it. We have heldthat States can waive a Teague defense, during the course of litigation, by expressly choosing not to rely on it, see Collins v. Youngblood, 497 U. S. 37, 41 (1990) , or by failing to raise it in a timely manner, see Schiro v. Farley, 510 U. S. 222, 228–229 (1994) . It would indeed be anomalous to hold that state legislatures and executives are not bound by Teague, but that state courts are.

Second, the State has not identified, and we cannot discern, the source of our authority to promulgate such a novel rule of federal law. While we have ample authority to control the administration of justice in the federal courts—particularly in their enforcement of federal legislation—we have no comparable supervisory authority over the work of state judges. Johnson v. Fankell, 520 U. S. 911 (1997) . And while there are federal interests that occasionally justify this Court’s development of common-law rules of federal law,24 our normal role is to interpret law created by others and “not to prescribe what it shall be.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 201 (Scalia, J., concurring in judgment). Just as constitutional doubt may tip the scales in favor of one construction of a statute rather than another, so does uncertainty about the source of authority to impose a federal limit on the power of state judges to remedy wrongful state convictions outweigh any possible policy arguments favoring the rule that respondent espouses.

Finally, the dissent contends that the “end result [of this opinion] is startling” because “two criminal defendants, each of whom committed the same crime, at the same time, whose convictions became final on the same day, and each of whom raised an identical claim at the same time under the Federal Constitution” could obtain different results. Post, at 1. This assertion ignores the fact that the two hypothetical criminal defendants did not actually commit the “same crime.” They violated different state laws, were tried in and by different state sovereigns, and may—for many reasons—be subject to different penalties. As previously noted, such nonuniformity is a necessary consequence of a federalist system of government.


It is important to keep in mind that our jurisprudence concerning the “retroactivity” of “new rules” of constitutional law is primarily concerned, not with the question whether a constitutional violation occurred, but with the availability or nonavailability of remedies. The former is a “pure question of federal law, our resolution of which should be applied uniformly throughout the Nation, while the latter is a mixed question of state and federal law.” American Trucking Assns., Inc. v. Smith, 496 U. S., at 205 (Stevens, J., dissenting).

A decision by this Court that a new rule does not apply retroactively under Teague does not imply that there was no right and thus no violation of that right at the time of trial—only that no remedy will be provided in federal habeas courts. It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process.

Accordingly, the judgment of the Supreme Court of Minnesota is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. As was true in Michigan v. Payne, the Minnesota Court is free to reinstate its judgment disposing of the petition for state postconviction relief.

It is so ordered.


1 Although Teague was a plurality opinion that drew support from only four Members of the Court, the Teague rule was affirmed and applied by a majority of the Court shortly thereafter. See Penry v. Lynaugh, 492 U. S. 302, 313 (1989) (“Because Penry is before us on collateral review, we must determine, as a threshold matter, whether granting him the relief he seeks would create a new rule. Under Teague, new rules will not be applied or announced in cases on collateral review unless they fall into one of two exceptions” (citation and internal quotation marks omitted)).

2 The relevant passage in the Minnesota Supreme Court opinion states: “Danforth argues that Teague dictates the limits of retroactive application of new rules only in federal habeas corpus proceedings and does not limit the retroactive application of new rules in state postconviction proceedings. Danforth is incorrect when he asserts that state courts are free to give a Supreme Court decision of federal constitutional criminal procedure broader retroactive application than that given by the Supreme Court. … In light of Payne and American Trucking Associations, we cannot apply state retroactivity principles when determining the retroactivity of a new rule of federal constitutional criminal procedure if the Supreme Court has already provided relevant federal principles.” 718 N. W. 2d 451, 456 (2006).

3 See, e.g., Daniels v. State, 561 N. E. 2d 487, 489 (Ind. 1990); State ex rel. Taylor v. Whitley, 606 So. 2d 1292, 1296–1297 (La. 1992); State v. Whitfield, 107 S. W. 3d 253, 266–268 (Mo. 2003); Colwell v. State, 118 Nev. 807, 816–819, 59 P. 3d 463, 470–471 (2002) (per curiam); Cowell v. Leapley, 458 N. W. 2d 514, 517–518 (S. D. 1990).

4 We note at the outset that this case does not present the questions whether States are required to apply “watershed” rules in state post-conviction proceedings, whether the Teague rule applies to cases brought under 28 U. S. C. §2255 (2000 ed., Supp. V), or whether Congress can alter the rules of retroactivity by statute. Accordingly, we express no opinion on these issues.

5 It may, therefore, make more sense to speak in terms of the “redressability” of violations of new rules, rather than the “retroactivity” of such rules. Cf. American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 201 (1990) (Scalia, J., concurring in judgment) (“The very framing of the issue that we purport to decide today—whether our decision in [American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987) ,] shall ‘apply’ retroactively—presupposes [an incorrect] view of our decisions as creating the law, as opposed to declaring what the law already is”). Unfortunately, it would likely create, rather than alleviate, confusion to change our terminology at this point. Accordingly, we will continue to utilize the existing vocabulary, despite its shortcomings.

6 Although our post-1867 cases reflected a “softening” of the concept of jurisdiction to embrace claims that the statute under which the petitioner had been convicted was unconstitutional or that the detention was based on an illegally imposed sentence, the Court adhered to the basic rule that habeas was unavailable to review claims of constitutional error that did not go to the trial court’s jurisdiction. See Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 471, 483–484 (1963); Hart, The Supreme Court 1958 Term, Foreword: The Time Chart of the Justices, 73 Harv. L. Rev. 84, 103–104 (1959).

7 “[I]n Waley v. Johnston, 316 U. S. 101 (1942) , the Court openly discarded the concept of jurisdiction—by then more [of] a fiction than anything else—as a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of disregard of the constitutional rights of the accused . . . .” Wainwright v. Sykes, 433 U. S. 72, 79 (1977) (internal quotation marks omitted).

8 Linkletter arose in the context of a denial of federal habeas relief, so its holding was “necessarily limited to convictions which had become final by the time Mapp … [was] rendered.” Johnson v. New Jersey, 384 U. S. 719, 732 (1966) . We noted in Linkletter that Mapp was being applied to cases that were still pending on direct review at the time it was decided, so the issue before us was expressly limited to “whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final before rendition of our opinion.” 381 U. S., at 622 (footnote omitted). Shortly thereafter, however, we held that the three-pronged Linkletter analysis should be applied both to convictions that were final before rendition of our opinions and to cases that were still pending on direct review. See Johnson, 384 U. S., at 732; Stovall v. Denno, 388 U. S. 293 (1967) .

9 See, e.g., Haddad, “Retroactivity Should be Rethought”: A Call for the End of the Linkletter Doctrine, 60J. Crim. L., C. & P. S. 417 (1969).

10 Rules of the former type “are more accurately characterized as substantive rules not subject to [Teague’s] bar.” Schriro v. Summerlin, 542 U. S. 348 , n. 4 (2004).

11 Similarly, Johnson, and Griffith v. Kentucky, 479 U. S. 314 (1987) , defined the scope of constitutional violations that would be remedied on direct appeal.

12 The dissent is correct that at least one “thoughtful legal scholar” believed that Linkletter did preclude States from applying new constitutional rules more broadly than our cases required. Post, at 4 (citing Mishkin, Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 91, n. 132 (1965)). Notably, this comment was made in the context of an attack on Linkletter’s prospective approach as inconsistent with the idea that judges are “bound by a body of fixed, overriding law.” Mishkin, 79 Harv. L. Rev., at 62. Moreover, the footnote cited by the dissent concludes with a statement that “the reservation to the states of the power to apply [new rules] to all convictions, … is … the preferable pattern.” Id., at 91, n. 132. In all events, even if Linkletter and its progeny rested on the assumption that “new rules” of constitutional law did not exist until announced by this Court, that view of the law was rejected when we endorsed Justice Harlan’s analysis of retroactivity.

13 That same year, we similarly denied retroactive effect to the rule announced in Griffin v. California, 380 U. S. 609 (1965) , prohibiting prosecutorial comment on the defendant’s failure to testify. See Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966) . Shortly thereafter, in a case involving a Griffin error, we held for the first time that there are some constitutional errors that do not require the automatic reversal of a conviction. Chapman v. California, 386 U. S. 18, 22 (1967) . Both Shott and Chapman protected the State of California from a potentially massive exodus of state prisoners because their prosecutors and judges had routinely commented on a defendant’s failure to testify.

14 Although the plain meaning of this language in Johnson is that a state creating its own substantive standards can be as generous with their retroactive effect as it wishes, courts and commentators both before and after Teague v. Lane, 489 U. S. 288 (1989) , cited this language in support of the proposition that state courts “may apply new constitutional standards ‘in a broader range of cases than is required’ by th[is] Court’s decision not to apply the standards retroactively.” Colwell v. State, 118 Nev. 807, 818, 59 P. 3d 463, 470–471 (2002) (per curiam); see also Stith, A Contrast of State and Federal Court Authority to Grant Habeas Relief, 38 Val. U. L. Rev. 421, 443 (2004). Thirty years after deciding State v. Fair, the Oregon Supreme Court “disavowed” this analysis based on our decisions in Oregon v. Hass, 420 U. S. 714 (1975) , and American Trucking Assns., Inc. v. Smith, 496 U. S. 167 . Page v. Palmateer, 336 Ore. 379, 84 P. 3d 133 (2004). As we explain infra, at 19, 20, its reliance on those cases was misplaced, and its decision to change course was therefore misguided.

15 Subsequent decisions have characterized Teague in a similar fashion. See, e.g., Brecht, 507 U. S., at 633, 634 (stating that “in defining the scope of the writ, we look first to the considerations underlying our habeas jurisprudence,” and identifying Teague as an example). And individual Justices have been even more explicit. See Day v. McDonough, 547 U. S. 198, 214 (2006) (Scalia, J., dissenting) (describing, inter alia, the Teague rule as having been “created by the habeas courts themselves, in the exercise of their traditional equitable discretion . . . because [it was] seen as necessary to protect the interests of comity and finality that federal collateral review of state criminal proceedings necessarily implicates”); Withrow v. Williams, 507 U. S. 680, 699 (1993) (O’Connor, J., concurring in part and dissenting in part) (listing Teague as one illustration of the principle that “federal courts exercising their habeas powers may refuse to grant relief on certain claims because of ‘prudential concerns’ such as equity and federalism”); 507 U. S., at 718 (Scalia, J., concurring in part and dissenting in part) (stating that Teague and other “gateways through which a habeas petitioner must pass before proceeding to the merits of a constitutional claim” are “grounded in the equitable discretion of habeas courts” (internal quotation marks and brackets omitted)); Teague, 489 U. S., at 317 (White, J., concurring in part and concurring in judgment) (characterizing Teague as a decision “construing the reach of the habeas corpus statutes” and contrasting it with Griffith, which “appear[s] to have constitutional underpinnings”); 489 U. S., at 332–333 (Brennan, J., dissenting) (characterizing Teague as an unwarranted change in “[this Court’s] interpretation of the federal habeas statute”); see also Mackey v. United States, 401 U. S. 667, 684 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (describing the problem of retroactivity as “a problem as to the scope of the habeas writ”).

16 The lower federal courts have also applied the Teague rule to motions to vacate, set aside, or correct a federal sentence pursuant to 28 U. S. C. §2255 (2000 ed., Supp. V). Much of the reasoning applicable to applications for writs of habeas corpus filed pursuant to §2254 seems equally applicable in the context of §2255 motions. See United States v. Hayman, 342 U. S. 205 (1952) (explaining that §2255 was enacted as a functional equivalent for habeas corpus to allow federal prisoners to bring a collateral attack in the court that imposed the sentence rather than a court that happened to be near the prison).

17 Today, the majority of state courts still read Teague this way. As far as we can tell, only three States—Minnesota, Oregon, and Montana—have adopted a contrary view. See Page, 336 Ore. 379, 84 P. 3d 133; Egelhoff, 272 Mont. 114, 900 P. 2d 260.

18 In Pearce, we held: “[W]henever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 U. S., at 726. As the concurrence pointed out, some States already provided equivalent or broader protection against vindictive sentencing. See id., at 733–734, n. 4 (opinion of Douglas, J.).

19 Given the fact that Payne’s appeal was still pending on that date, however, the result would have been different and the views of the dissenting Justices would have prevailed if the case had been decided after our decision in Teague.

20 The relevant footnote in the Michigan Supreme Court’s opinion explained: “The United States Supreme Court has not yet decided whether Pearce is to be applied retroactively. Although the Court twice granted certiorari to consider the question, in each case the writ was subsequently dismissed as improvidently granted. Moon v. Maryland, cert granted (1969), 395 US 975, writ dismissed (1970), 398 US 319; Odom v. United States, cert granted (1970), 399 US 904, writ dismissed (1970), 400 US 23. We decline to predict the high Court’s answer to the question of Pearce’s retroactive or prospective application, but we will apply Pearce in the present case in order to instruct our trial courts as to the Michigan interpretation of an ambiguous portion of Pearce, discussed Infra, pending clarification by the United States Supreme Court.” People v. Payne, 386 Mich. 84, 90–91, n. 3, 191 N. W. 2d 375, 378, n. 2 (1971) (citations omitted). See also Reply Brief for Petitioner in Michigan v. Payne, O. T. 1972, No. 71–1005, p. 4 (“People v Payne, 386 Mich 84,191 NW2d 375 (1971) expressly withheld ruling on the retroactivityof Pearce but applied it to Payne to instruct the lower courts inMichigan”).

21 See American Trucking Assns., Inc. v. Smith, 496 U. S., at 210, n. 4 (Stevens, J., dissenting) (“Payne does not stand for the expansive proposition that federal law limits the relief a State may provide, but only for the more narrow proposition that a state court’s decision thata particular remedy is constitutionally required is itself a federal question”).

22 While the opinions discussed at great length our earlier cases raising retroactivity issues, none of them suggested that federal law would prohibit Arkansas from refunding the taxes at issue if it wanted to do so.

23 The petitioners and the dissenters in American Trucking Assns., Inc. v. Smith relied heavily on separate opinions authored by Justice Harlan, and on the Court’s then-recent opinion in Griffith, 479 U. S. 314 , supporting the proposition that a new constitutional holding should be applied not only in cases that had not yet been tried, but also in all cases still pending on direct review. The plurality, however, declined to follow Griffith because of its view that “there are important distinctions between the retroactive application of civil and criminal decisions that make the Griffith rationale far less compelling in the civil sphere.” 496 U. S., at 197. While Justice Harlan would probably disagree with the suggestion that the distinction between civil and criminal cases provided an acceptable basis for refusing to follow Griffith in the American Trucking Assns., Inc. v. Smith litigation, see Mackey, 401 U. S., at 683, n. 2 (opinion concurring in judgments in part and dissenting in part), if relevant, that same distinction would make it appropriate to disregard the plurality’s opinion in American Trucking Assns., Inc. v. Smith in this case.

24 See Boyle v. United Technologies Corp., 487 U. S. 500, 504 (1988) (“[W]e have held that a few areas, involving ‘uniquely federal interests,’ are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed … by the courts—so-called ‘federal common law’ ” (citation omitted)); United States v. Kimbell Foods, Inc., 440 U. S. 715 (1979) ; Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964) .