Van Daalwyk v. U.S., 92-2017

• Decision Date: 07 April 1994
• Docket Number: No. 92-2017,92-2017
• Citation: 21 F.3d 179
• Parties: William P. VAN DAALWYK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 179

21 F.3d 179

William P. VAN DAALWYK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 92-2017.

United States Court of Appeals Seventh Circuit.

Argued Jan. 5, 1994.

Decided April 7, 1994.

Thomas L. Shriner, Jr. and Walter E. Zimmerman (argued), Foley & Lardner, Milwaukee, WI, for petitioner-appellant.

Elsa Lamelas and Chris R. Larsen (argued), Asst. U.S. Attys., Office of the U.S. Atty., Milwaukee, WI, for respondent-appellee.

Before POSNER, Chief Judge, and FAIRCHILD and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

The issue presented in this case is whether the retroactivity principles articulated by a plurality of the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and adopted by majorities in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), Butler v. McKellar, 494 U.S. 407, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990), and Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), are applicable to collateral challenges to federal convictions under 28 U.S.C. Sec. 2255. We conclude that they are and accordingly affirm the district court's denial of relief.

Subsequent to William Van Daalwyk's conviction in 1986 for drug related offenses and our affirmance of his conviction in 1988, see United States v. Van Daalwyk, 840 F.2d 494 (7th Cir.1988), (and long after certiorari could have been sought) the Supreme Court held in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), that a criminal defendant has standing under the Equal Protection Clause to challenge prosecutorial use of racially discriminatory peremptory challenges to strike jurors who do not share the defendant's race. Less than three months after Powers was decided, Van Daalwyk, who is white, filed a Sec. 2255 motion challenging the government's peremptory strikes of two black venirepersons during jury selection for his 1986 trial. Because Powers announced a new constitutional rule of criminal procedure, see Holland v. McGinnis, 963 F.2d 1044, 1052-57 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1053, 122 L.Ed.2d 360 (1993), Van Daalwyk's attempt to benefit from its retroactive application is barred if Teague's new-rule rule--generally forbidding the announcement or application of new constitutional rules on habeas corpus review of state convictions--is applicable to collateral attacks on federal convictions.

In Teague and its progeny, the Supreme Court discarded its previous practice of entertaining habeas petitioners' requests for new constitutional rules of criminal procedure while postponing for future determination whether to apply such rules retroactively across the board to other prisoners mounting collateral challenges to their convictions. In so doing, the Court adopted much of Justice Harlan's proposed approaches to the announcement and retroactive application of new constitutional rules on collateral review. ¹ Building on Justice Harlan's separate opinions in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), and Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971), the plurality opinion in Teague declared that retroactivity should be a threshold question for the proposal of new rules on habeas review of state convictions. If all state prisoners whose convictions are final cannot benefit from a rule, none should, and thus (in light of Article III's case-or-controversy requirement) none can propose such a rule in the first instance. ²

In conducting its threshold retroactivity analysis, the Teague court worked another somewhat quieter alteration of existing law. Previously, the issue of retroactive application of a new decision to a case on collateral review was resolved by applying an open-ended, three-factor balancing test. See Allen v. Hardy, 478 U.S. 255, 258, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986) (weighing "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards") (quoting Solem v. Stumes, 465 U.S. 638, 643, 104 S.Ct. 1338, 1341-42, 79 L.Ed.2d 579 (1984) (quoting Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967))); see also Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737-38, 14 L.Ed.2d 601 (1965). ³ The Teague plurality distanced itself from the Stovall test, declaring instead that a new rule--that is (with several exceptions ⁴ ), a nonretroactive rule--is one "not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301, 109 S.Ct. at 1070. In later cases, the Court made clear that the Teague formulation and its exceptions were indeed intended to constitute the general test of retroactivity for collateral challenges to state convictions, applicable not just to attempts to have new rules declared but also efforts to benefit from existing new rules which were promulgated after a challenged conviction became final. See, e.g., Penry, 492 U.S. at 313, 109 S.Ct. at 2943-44.

Although Justice Harlan issued his predecessor opinions to Teague in cases presenting collateral challenges to federal convictions under Sec. 2255 and did not "propose to make any distinction, for retroactivity purposes, between state and federal prisoners seeking collateral relief," Mackey, 401 U.S. at 681 n. 1, 91 S.Ct. at 1174 n. 1 (Harlan, J., concurring in the judgments in part and dissenting in part), Van Daalwyk points out that Teague and the cases which followed only dealt with federal habeas corpus challenges to state convictions. He argues that their retroactivity principles are inapplicable to his attempt to collaterally attack his federal conviction on the basis of the Powers new rule. Federalism concerns indeed were not ignored by the Court as its recent retroactivity jurisprudence took shape. Teague itself noted that the deterrence rationale behind federal habeas oversight of state court protection of federal rights loses much of its force when new rules are applied retroactively to convictions already final. ⁵ See Teague, 489 U.S. at 310, 109 S.Ct. at 1075. Similarly, " '[t]he new rule principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts' ... and thus effectuates the States' interest in the finality of criminal convictions and fosters comity between federal and state courts." Gilmore v. Taylor, --- U.S. ----, ----, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306 (1993) (quoting Butler, 494 U.S. at 414, 110 S.Ct. at 1217). The Court has also stated that "interests in finality, predictability, and comity underl[ie] our new rule jurisprudence." Stringer v. Black, --- U.S ----, ----, 112 S.Ct. 1130, 1135, 117 L.Ed.2d 367 (1992).

It is clear, however, that federalism in the abstract was not the moving force behind Teague. Rather the desire to maintain a healthy respect for the finality of state judgments rendered in accordance with contemporaneous constitutional norms motivated the Court to preclude later attacks on such convictions based on subsequent changes in doctrine. See Teague, 489 U.S. at 309-10, 109 S.Ct. at 1074-75. As Teague was a habeas case, regard for finality dovetailed with the general hesitancy of federal courts to intrude upon the States' administration of their criminal laws. See id. at 310, 109 S.Ct. at 1075. Yet society's interest that at some point its dispositions of criminal prosecutions should no longer be disturbed by later changes in ceaselessly evolving procedural law is not peculiar to state criminal proceedings. Federal convictions implicate like issues of repose as "[i]nroads on the concept of finality tend to undermine confidence in the integrity of our procedures," United States v. Addonizio, 442 U.S. 178, 184 n. 11, 99 S.Ct. 2235, 2240 n. 11, 60 L.Ed.2d 805 (1979) and because retroactivity doctrine is at root concerned with finality, ⁶ similar principles should apply to federal prisoners' collateral challenges premised on subsequent developments in the law. (Indeed, Teague "adopt[ed] Justice Harlan's approach to retroactivity for cases on collateral review," Teague, 489 U.S. at 292, 109 S.Ct. at 1065, which was developed in the context of a 2255 attack on a federal conviction.)

Of course, one could argue that federal convictions are never final because a 2255 collateral challenge procedurally consists of a motion in the underlying criminal case before the original sentencing court and not a separate civil action a la Sec. 2254, and Van Daalwyk does make some intimations along those lines in his briefs. ⁷ One problem with this theory is that it is already clearly established that strong finality values attach to federal convictions when avenues of direct review are closed; after all, section 2255 motions are vehicles for collateral relief. See United States v. Frady, 456 U.S. 152, 164-65, 102 S.Ct. 1584, 1592-93, 71 L.Ed.2d 816 (1982) ("Once the defendant's chance to appeal has been waived or exhausted, however, we are entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum. Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless postconviction collateral attacks. To the contrary, a final judgment commands respect."); United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979) ("When Congress enacted Sec. 2255 in 1948, it simplified the procedure for making a collateral attack on a final judgment entered in a federal criminal case, but it did not purport to modify the basic distinction between direct review and collateral review."); Johnson v. United States,...