The year was 1981 and Gary Graham was living the life of a troubled teenager. There was evidence that in one week, during his 17^th year, Gary committed several robberies, several assaults, as well as rape. To make matters worse, there was strong evidence that Gary committed murder during that same week. The state of Texas tried Gary for murder and sought the death penalty. The jury found Gary guilty of murder, and the trial court proceeded to its sentencing phase. During this phase, the defense offered evidence that Gary was just a young, temporarily misguided kid who was a strong contributor to his family and a young man of generally good character.

The Texas capital-sentencing statute at this time instructed the jury that they must impose the death penalty if it found three special issues to be present:

1. that the murder was committed deliberately. . ,
2. that there is a probability that the defendant would constitute a continuing threat to society. . , and
3. that the defendant's conduct was unprovoked.

The jury found these issues to be present and Gary was sentenced to death. On September 10, 1984, Gary's conviction became final because that was the date on which his time to file a certiorari petition from his direct appeal expired. In 1976, the Supreme Court had approved the Texas capital-sentencing scheme that Gary was sentenced under. See Jurek v. Texas, 428 U.S. 262 (1976). Two years later the Court cited Jurek with affirmance in its Lockett v. Ohio, 438 U.S. 586 (1978), decision which struck down Ohio's capital-sentencing scheme because it did not allow full consideration of mitigating circumstances.

In 1987, Gary sought federal habeas corpus review on the grounds that the sentencing jury had been unable to meaningfully consider his mitigating evidence in violation of the 8^th and 14^th Amendments to the United States Constitution. While his petition was getting bounced around the lower federal courts, the Supreme Court reached a decision directly relevant to Gary's claim. In Penry v. Lynaugh, 492 U.S. 302 (1989), the Court granted certiorari from a failed habeas petition. The petitioner claimed that his constitutional rights were violated under the Texas sentencing scheme because the jury was not able to give meaningful effect to his claims of mental retardation and an abusive childhood. The Court denied that under Teague v. Lane, 489 U.S. 288 (1989), Penry did not ask for a "new rule" because the result was "dictated" by the Supreme Court's decision in Lockett, supra.

Gary's lawyer jumps for joy because Gary currently has a cert. petition pending in the Supreme Court from his failed habeas petition based on the same grounds. If the Supreme Court were to grant cert. to Gary's rejected habeas petition, they will certainly hear his claim and rule in his favor based on Penry, supra. Miraculously, the Supreme Court grants cert. to Gary's claim. Under Penry, Gary can't lose, can he?

You are a Supreme Court Justice. Here are your choices:

1. Review Gary's habeas petition and decide that under the Penry precedent, the jury was prevented from giving his mitigating evidence meaningful effect under the Texas "special-issue" sentencing scheme.
2. Refuse to review Gary's habeas petition because, unlike the petitioner in Penry, Gary is asking the Court to decide a "new rule." See Teague, supra.

Jerry Block
Emory Law

Answer

Under Teague restriction on habeas review, new rules will not be applied on collateral review of cases that are final (retroactively) unless they fall into one of the two exceptions.  The holding sought by petitioner in this case, that the jury should consider some mitigating factors to his rapes and murders of his fellow Texans under the 8th Amendment as incorporated by the 14th Amendment against Texas, is final and does not fall within any of the Teague exceptions: 

(1) if it places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404, or (2) if it requires the observance of “those procedures that ... are ‘implicit in the concept of ordered liberty,’ ” id., at 693, 91 S.Ct., at 1180-such new rules will not be applicable to those cases that have become final before the new rules were announced. Pp. 1073-1075.

Therefore, there cannot be a new rule applied retroactively to this case on collateral habeas attack.