489 U.S. 288 (1989)
Petitioner Teague, a black man, was convicted in an Illinois state court of three counts of attempted murder, two counts of armed robbery, and one count of aggravated battery by an all-white jury.1
During jury selection for petitioner's trial, the prosecutor used all 10 of his peremptory challenges to exclude blacks.2 Petitioner's counsel used one of his 10 peremptory challenges to exclude a black woman who was married to a police officer.3 After the prosecutor had struck six blacks, petitioner's counsel moved for a mistrial.4 When the prosecutor struck four more blacks, petitioner's counsel again moved for a mistrial, arguing that petitioner was entitled to a jury of his peers.5 The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury.6 The trial court denied the motion, reasoning that the jury appeared to be a fair one.7
On appeal, petitioner argued that the prosecutor's use of peremptory challenges denied him the right to be tried by a jury that was representative of the community.8 The Illinois Appellate Court rejected petitioner's fair cross section claim.9 The Illinois Supreme Court denied leave to appeal, and the United States Supreme Court denied certiorari in 1983.10
Petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois.11 Petitioner repeated his fair cross section claim, and argued that the opinions of several Justices concurring in, or dissenting from, the denial of certiorari in McCray v. New York had invited a reexamination of Swain v. Alabama.12 The District Court, though sympathetic to petitioner's arguments, held that it was bound by Swain and Circuit precedent.13
On appeal, petitioner repeated his fair cross section claim and his McCray argument.14 A panel of the Court of Appeals agreed with petitioner that the Sixth Amendment's fair cross section requirement applied to the petit jury and held that petitioner had made out a prima facie case of discrimination.15 A majority of the judges on the Court of Appeals voted to rehear the case en banc, and the panel opinion was vacated.16 Rehearing was postponed until after Batson v. Kentucky was decided.17 The Court of Appeals held that petitioner could not benefit from the rule in that case because Allen v. Hardy had held that Batson would not be applied retroactively to cases on collateral review.18 The Court of Appeals also held that petitioner's Swain claim was procedurally barred and in any event meritless.19 The Court of Appeals rejected petitioner's fair cross section claim, holding that the fair cross section requirement was limited to the jury venire.20 Petitioner's conviction became final two and a half years prior to Batson.21
Whether the rule announced in Batson v. Kentucky applies retroactively on collateral review to convictions that became final before that decision?22
New constitutional rules of criminal procedure do not apply retroactively to cases that became final before the new rules were announced, unless the new rule places kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe or is implicit in the concept of ordered liberty.23
No. Teague's conviction became final in 1983, two and a half years before Batson.24 Batson announced a new rule that does not place any primary conduct beyond the power of the state to proscribe.25 The rule is not implicit in the concept of ordered liberty because the absence of a peremptory challenge rule does not undermine the fundamental fairness of the trial.26
The rule announced in Batson does not apply retroactively on collateral review to Teague's conviction.27
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Joined by Kennedy, J.
Justice White joined Parts I through IV of the opinion and agreed that petitioner is not entitled to habeas relief on the fair cross section claim.28
He wrote separately to note that he would not decide the question whether a defendant can raise a Sixth Amendment fair cross section claim with respect to the composition of the petit jury.29 That question is not presented in this case.30
White noted that the fair cross section claim regarding the petit jury itself raises distinct issues that should await a case where they are squarely presented.
Justice Scalia joined the Court's opinion except for its discussion of the plurality opinion in Marks v. United States.31
He stated that Marks does not provide the proper standard for determining what constitutes the holding of a case in which no single rationale commands the assent of five Justices.32
Scalia focused on the need for clear rules when identifying holdings in fragmented opinions.
Joined by Marshall, J., Stevens, J.
Justice Blackmun agreed that petitioner has not made out an equal protection claim under Swain and that the fair cross section requirement does not apply to the petit jury.33
He dissented, however, from the Court's refusal to apply Batson retroactively on collateral review.34 In his view, Batson did not announce a new rule for purposes of retroactivity analysis but was instead a logical extension of Swain.35
Even if Batson did announce a new rule, that rule should be applied retroactively because it is implicit in the concept of ordered liberty.36 Blackmun argued that the costs of applying Batson retroactively are not as great as the Court suggests and that the benefits of correcting racial discrimination in the jury selection process are substantial.37
Joined by Marshall, J.
Justice Stevens joined Justice Blackmun's opinion and wrote separately to emphasize that the plurality opinion's approach to retroactivity is flawed.38
The distinction between direct review and collateral review for purposes of retroactivity is not supported by the Constitution or by precedent.39 Stevens argued that the Court's decision today will have the unfortunate effect of allowing convictions tainted by racial discrimination in jury selection to stand.40
This result is inconsistent with the principle that our criminal justice system must be free of racial bias.41 He agreed with adopting Justice Harlan's analysis for habeas cases but disagreed with the plurality's modification of the fundamental fairness exception, contending that it should not be limited to accuracy concerns and that racial bias in jury selection implicates fundamental fairness.42
Joined by Marshall, J.
Justice Brennan dissented from the adoption of a novel threshold test for federal habeas review that would preclude consideration of a vast range of constitutional challenges.43
He argued that the plurality's approach contracts the Great Writ's sweep without regard for stare decisis and that Teague's claim should be reached on the merits.44 Brennan contended that the plurality's new precondition to habeas review lacks support in precedent and would bar adjudication of many important constitutional claims that do not bear directly on factual innocence.45
He maintained that the uniform treatment of habeas petitioners is not worth the price of denying relief where constitutional violations have occurred.46
Whether the Sixth Amendment's fair cross section requirement applies to the composition of the petit jury?47
The Sixth Amendment's fair cross section requirement applies only to the venire from which the jury is selected, not to the petit jury itself, and extending it to the petit jury would constitute a new rule.48
No. The Court declines to address the claim because any rule extending the fair cross section requirement to the petit jury would be a new rule that does not fall within either exception to the general rule of nonretroactivity on collateral review.49 The requirement that the jury venire be composed of a fair cross section is based on the role of the jury in guarding against arbitrary abuses of power.50 The absence of such a requirement on the petit jury does not undermine fundamental fairness.51
The fair cross section requirement does not apply to the petit jury in this case on collateral review.52
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Joined by Marshall, J.
Justice Brennan would have reached the merits of Teague's Sixth Amendment claim and held in his favor.53
He argued that the requirement flows naturally from Taylor and Duren and that discrimination in petit jury selection raises doubts about the integrity of the process.54 Brennan emphasized that the harm from racial discrimination in jury selection is not limited to the defendant but extends to society as a whole, impairing public confidence in the fairness of the criminal justice system.55
He rejected the plurality's characterization of the claim as requiring proportional representation and maintained that the Sixth Amendment prohibits the prosecution from using peremptory challenges to exclude venirepersons on account of race.56
Whether petitioner's equal protection claim under Swain v. Alabama is procedurally barred from federal habeas review?57
A claim not raised in state court is procedurally barred on federal habeas unless the petitioner shows cause for the default and prejudice resulting therefrom under Wainwright v. Sykes.58
Yes. Petitioner did not raise the Swain claim at trial or on direct appeal.59 He failed to show cause for the default, and the Illinois Appellate Court did not address any Equal Protection claim, so the claim is barred under Wainwright v. Sykes.60
The fundamental fairness exception under Illinois law is narrow and does not apply here.61
Petitioner's equal protection claim under Swain is procedurally barred from federal habeas review.62
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Joined by Marshall, J.
Justice Stevens would treat the Swain claim as unexhausted because it is not clear that Illinois courts would hold it procedurally barred under the fundamental fairness exception.63
He noted that the exhaustion rule requires dismissal of mixed petitions and that the Illinois courts should first have the opportunity to decide whether the claim falls within their fundamental fairness exception.64 Stevens argued that without a plain statement from the state courts, the federal habeas court should not assume procedural default.65
Whether a new constitutional rule of criminal procedure should be applied retroactively on collateral review only if it falls within specified exceptions?66
New constitutional rules of criminal procedure will not be applicable to cases that have become final before the new rules are announced unless the rule places kinds of primary private conduct beyond the power of the criminal law-making authority or requires observance of procedures implicit in the concept of ordered liberty.67
Yes. The Court adopts Justice Harlan's approach to retroactivity for collateral review, modifying the second exception to require that the procedure be one without which the likelihood of an accurate conviction is seriously diminished, and applies it to bar the new rule urged by petitioner.68
Interests of comity and finality support limiting the scope of habeas review to rules existing at the time the conviction became final.69
New rules are generally not applied retroactively on collateral review except in the two specified exceptions.70
Related opinions on this issue
Joined by Marshall, J., Stevens, J.
Justice Blackmun concurred in the judgment on the Swain claim but dissented on retroactivity.71
He argued that Batson did not announce a new rule or, if it did, should apply retroactively as implicit in ordered liberty.72 Blackmun viewed the costs of retroactive application as overstated and emphasized the substantial benefits of correcting racial discrimination in jury selection.73
He maintained that the plurality's approach unduly restricts the availability of habeas relief for claims that promote fundamental fairness.
Joined by Marshall, J.
Justice Stevens agreed with adopting Justice Harlan's analysis for habeas cases but disagreed with the plurality's modification of the fundamental fairness exception.74
He argued that it should not be limited to accuracy concerns and that racial bias in jury selection implicates fundamental fairness.75 Stevens contended that the plurality wrongly resuscitates an early view of Justice Harlan linking the exception to factual innocence, and that a guilty verdict delivered by a jury whose impartiality might have been eroded by racial prejudice is fundamentally unfair.76