DANFORTH v. MINNESOTA

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264 OCTOBER TERM, 2007
Syllabus
DANFORTH v. MINNESOTA
certiorari to the supreme court of minnesota
No. 06–8273. Argued October 31, 2007—Decided February 20, 2008
After this Court announced a “new rule” for evaluating the reliability of
testimonial statements in criminal cases, see Crawford v. Washington,
541 U. S. 36, 68–69, petitioner sought state postconviction relief, arguing
that he was entitled to a new trial because admitting the victim’s taped
interview at his trial violated Crawford’s rule. The Minnesota trial and
appeals courts concluded that Crawford did not apply retroactively
under Teague v. Lane, 489 U. S. 288. The State Supreme Court agreed,
and also concluded that state courts are not free to give a decision of
this Court announcing a new constitutional rule of criminal procedure
broader retroactive application than that given by this Court.
Held: Teague does not constrain the authority of state courts to give
broader effect to new rules of criminal procedure than is required by
that opinion. Pp. 269–291.
(a) Crawford announced a “new rule”—as defined by Teague—be
cause its result “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 [this Court’s] own devising”
or the product of its own views about sound policy, Crawford, 541 U. S.,
at 67. Pp. 269–271.
(b) The Court first adopted a “retroactivity” standard in Linkletter
v. Walker, 381 U. S. 618, 629, but later rejected that standard for cases
pending on direct review, Griffith v. Kentucky, 479 U. S. 314, and on
federal habeas review, Teague v. Lane, 489 U. S. 288. Under Teague,
new constitutional rules of criminal procedure may not be applied retro
actively to cases on federal habeas review unless they place certain pri
mary individual conduct beyond the States’ power to proscribe or are
“watershed” rules of criminal procedure. Id., at 310 (plurality opin
ion). Pp. 271–275.
(c) Neither Linkletter nor Teague explicitly or implicitly constrained
the States’ authority to provide remedies for a broader range of consti
tutional violations than are redressable on federal habeas. And Teague
makes clear that its rule was tailored to the federal habeas context and
thus had no bearing on whether States could provide broader relief in
their own postconviction proceedings. Nothing in Justice O’Connor’s
general nonretroactivity rule discussion in Teague asserts or even inti
mates that her definition of the class eligible for relief under a new rule

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Syllabus
should inhibit the authority of a state agency or state court to extend a
new rule’s benefit to a broader class than she defined. Her opinion also
clearly indicates that Teague’s general nonretroactivity rule was an ex
ercise of this Court’s power to interpret the federal habeas statute.
Since Teague is based on statutory authority that extends only to federal
courts applying a federal statute, it cannot be read as imposing a bind
ing obligation on state courts. The opinion’s text and reasoning also
illustrate that the rule was meant to apply only to federal courts consid
ering habeas petitions challenging state-court criminal convictions.
The federal interest in uniformity in the application of federal law does
not outweigh the general principle that States are independent sover
eigns with plenary authority to make and enforce their own laws as long
as they do not infringe on federal constitutional guarantees. The
Teague rule was intended to limit federal courts’ authority to overturn
state convictions—not to limit a state court’s authority to grant relief
for violations of new constitutional law rules when reviewing its own
State’s convictions. Subsequent cases confirm this view. See, e. g.,
Beard v. Banks, 542 U. S. 406, 412. Pp. 275–282.
(d) Neither Michigan v. Payne, 412 U. S. 47, nor American Trucking
Assns., Inc. v. Smith, 496 U. S. 167, cast doubt on the state courts’ au
thority to provide broader remedies for federal constitutional violations
than mandated by Teague. Pp. 282–288.
(e) No federal rule, either implicitly announced in Teague, or in some
other source of federal law, prohibits States from giving broader retro
active effect to new rules of criminal procedure. Pp. 288–290.
718 N. W. 2d 451, reversed and remanded.
Stevens, J., delivered the opinion of the Court, in which Scalia, Sou
ter, Thomas, Ginsburg, Breyer, and Alito, JJ., joined. Roberts,
C. J., filed a dissenting opinion, in which Kennedy, J., joined, post, p. 291.
Benjamin J. Butler argued the cause for petitioner. With
him on the briefs was Roy G. Spurbeck.
Patrick C. Diamond argued the cause for respondent.
With him on the brief were Lori Swanson, Attorney General
of Minnesota, Michael O. Freeman, and Jean Burdorf. *
*Jeffrey A. Lamken and Pamela Harris filed a brief for the National
Association of Criminal Defense Lawyers as amicus curiae urging
reversal.
[Footnote * is continued on p. 266]

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266 DANFORTH v. MINNESOTA
Opinion of the Court
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 ha
beas corpus proceedings. All other new rules of criminal
procedure must be applied in future trials and in cases pend
ing 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.
Talis J. Colberg, Attorney General of Alaska, and Timothy W. Terrell,
Assistant Attorney General, filed a brief for the State of Alaska et al. as
amici curiae urging affirmance.
Briefs of amici curiae were filed for the State of Kansas et al. by Paul
J. Morrison, Attorney General of Kansas, Stephen R. McAllister, Solicitor
General, and Jared S. Maag, Deputy Solicitor General, and by the Attor
neys General for their respective States as follows: Troy King of Alabama,
Tom Miller of Iowa, Michael A. Cox of Michigan, W. A. Drew Edmondson
of Oklahoma, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Robert
F. McDonnell of Virginia; and for the American Civil Liberties Union
et al. by Larry Yackle, Steven R. Shapiro, and John Holdridge.
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)).

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Opinion of the Court
I
In 1996, a Minnesota jury found petitioner Stephen Dan
forth 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 vi
olated the Sixth Amendment’s guarantee that “[i]n all crimi
nal 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 peti
tioner’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 an
nounced a “new rule” for evaluating the reliability of testi
monial statements in criminal cases. In Crawford v. Wash
ington, 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 Minne
sota Court of Appeals concluded that Crawford did not apply
to petitioner’s case. The State Supreme Court granted re
view 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

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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 Minne
sota court acknowledged that other state courts had held
that Teague does not apply to state postconviction proceed
ings,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. 406
(2007), makes clear that the Minnesota court correctly con
cluded that federal law does not require state courts to apply
the holding in Crawford to cases that were final when that
case was decided. Nevertheless, we granted certiorari, 550
2 The relevant passage in the Minnesota Supreme Court opinion states:
“Danforth argues that Teague dictates the limits of retroactive applica
tion of new rules only in federal habeas corpus proceedings and does not
limit the retroactive application of new rules in state postconviction pro
ceedings. 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 retroac
tivity of a new rule of federal constitutional criminal procedure if the Su
preme 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. Whit
field, 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).

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U. S. 956 (2007), to consider whether Teague or any other
federal rule of law prohibits them from doing so.4
II
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 fair
ness 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 crimi
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. and Supp. V), or whether Congress can
alter the rules of retroactivity by statute. Accordingly, we express no
opinion on these issues.

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nal 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 confron
tation 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 pri
marily on legal developments that had occurred prior to the
adoption of the Sixth Amendment to derive the correct inter
pretation, id., at 43–50. We held that the “Constitution pre
scribes a procedure for determining the reliability of testi
mony 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

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own devising” or the product of our own views about sound
policy.
III
Our decision today must also be understood against the
backdrop of our somewhat confused and confusing “retroac
tivity” cases decided in the years between 1965 and 1987.
Indeed, we note at the outset that the very word “retroactiv
ity” 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 “ret
roactivity” 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 enti
tle 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 cus
tody lacked jurisdiction to do so. Ex parte Watkins, 3 Pet.
193 (1830); Ex parte Lange, 18 Wall. 163, 176 (1874); Ex parte
5 It may, therefore, make more sense to speak in terms of the “redress
ability” 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’ retro
actively—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 termi
nology at this point. Accordingly, we will continue to utilize the existing
vocabulary, despite its shortcomings.

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Siebold, 100 U. S. 371, 376–377 (1880).6 In 1915, the realm
of violations for which federal habeas relief would be avail
able to state prisoners was expanded to include state pro
ceedings that “deprive[d] the accused of his life or liberty
without due process of law.” Frank v. Mangum, 237 U. S.
309, 335. In the early 1900’s, however, such relief was only
granted when the constitutional violation was so serious that
it effectively rendered the conviction void for lack of jurisdic
tion. 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 constitu
tional obligations on the States and created more opportu
nity for claims that individuals were being convicted without
due process and held in violation of the Constitution. Nev
ertheless, until 1965 the Court continued to construe every
constitutional error, including newly announced ones, as enti
tling state prisoners to relief on federal habeas. “New” con
stitutional rules of criminal procedure were, without discus
sion or analysis, routinely applied to cases on habeas review.
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 dis
carded the concept of jurisdiction—by then more [of] a fiction than any
thing 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).

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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 retro
active 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 ex
clusionary rule announced in Mapp v. Ohio, 367 U. S. 643
(1961), we held that the Mapp rule would not be given ret
roactive effect; it would not, in other words, be applied to
convictions that were final before the date of the Mapp deci
sion.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 evi
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).

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dence 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 deci
sions “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 stand
ard. 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 on direct 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 pend
ing on federal habeas review. She adopted (with a signifi
cant modification) the approach advocated by Justice Harlan
for federal collateral review of final state judgments.
Justice O’Connor endorsed a general rule of nonretroactiv
ity for cases on collateral review, stating that “[u]nless they
fall within an exception to the general rule, new constitu
tional 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”
9 See, e. g., Haddad, “Retroactivity Should be Rethought”: A Call for the
End of the Linkletter Doctrine, 60 J. Crim. L., C. & P. S. 417 (1969).

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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 ha
beas.11 They did not define the scope of the “new” constitu
tional rights themselves. Nor, as we shall explain, did Link
letter 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 reme
dies for violations of these rights in their own postconvic
tion proceedings.
IV
Neither Linkletter nor Teague explicitly or implicitly con
strained the authority of the States to provide remedies for
a broader range of constitutional violations than are redress
able on federal habeas. Linkletter spoke in broad terms
about the retroactive applicability of new rules to state con
victions 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 con
clude—that Linkletter imposed such a limitation on the
States.12
10 Rules of the former type “are more accurately characterized as sub
stantive rules not subject to [Teague’s] bar.” Schriro v. Summerlin, 542
U. S. 348, 352, n. 4 (2004).
11 Similarly, Johnson and Griffith v. Kentucky, 479 U. S. 314 (1987), de
fined the scope of constitutional violations that would be remedied on di
rect appeal.
12 The dissent is correct that at least one “thoughtful legal schola[r]”
believed that Linkletter did preclude States from applying new constitu
tional rules more broadly than our cases required. Post, at 294 (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

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The Term after deciding Linkletter, we granted certiorari
in Johnson to address the retroactivity of the rules an
nounced in Escobedo v. Illinois, 378 U. S. 478 (1964), and Mi
randa v. Arizona, 384 U. S. 436 (1966). Applying the stand
ard 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 retro
active 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 retroac
tively and correctly stated that “we are free to choose the
degree of retroactivity or prospectivity which we believe ap
propriate 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 Ore
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 Har
lan’s analysis of retroactivity.
13 That same year, we similarly denied retroactive effect to the rule an
nounced in Griffin v. California, 380 U. S. 609 (1965), prohibiting prosecu
torial 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 convic
tion. 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 rou
tinely commented on a defendant’s failure to testify.

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gon 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 re
lief in their own postconviction proceedings than required by
that opinion. Because the case before us now does not in
volve either of the “Teague exceptions,” it is Justice O’Con
nor’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
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 ret
roactive 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, 118 Nev., at 818, 59 P. 3d, at
470–471; 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
288–289, its reliance on those cases was misplaced, and its decision to
change course was therefore misguided.

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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’s general 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 congres
sional 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
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 juris
prudence,” and identifying Teague as an example). And individual Jus
tices 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 exer
cise of their traditional equitable discretion . . . because [it was] seen as
necessary to protect the interests of comity and finality that federal collat
eral review of state criminal proceedings necessarily implicates”); With
row v. Williams, 507 U. S. 680, 699 (1993) (O’Connor, J., concurring in part

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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 fed
eral 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 con
victions. 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 “sim
ply do not apply when this Court reviews procedural rulings
by our lower courts”). If anything, considerations of comity
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” (inter
nal 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) (character
izing 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”).

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militate in favor of allowing state courts to grant habeas re
lief 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 mat
ter that States should be free to evaluate, and weigh the
importance of, when prisoners held in state custody are seek
ing 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 inher
ent 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 301. This interest in uniformity, however,
does not outweigh the general principle that States are inde
pendent sovereigns with plenary authority to make and en
force their own laws as long as they do not infringe on fed
eral 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 other
wise 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 non
retroactivity was fashioned to achieve the goals of federal
habeas while minimizing federal intrusion into state crimi
nal 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

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rules of constitutional law when reviewing its own State’s
convictions.16
Our subsequent cases, which characterize the 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
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. and Supp. V). Much of the reasoning applicable to appli
cations for writs of habeas corpus filed pursuant to § 2254 seems equally
applicable in the context of § 2255 motions. See United States v. Hay
man, 342 U. S. 205 (1952) (explaining that § 2255 was enacted as a func
tional 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.

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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.” Hut
ton, 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 constitu
tional 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 con
victions, to provide a remedy for a violation that is deemed
“nonretroactive” under Teague.
V
The State contends that two of our prior decisions—Mich
igan 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.
A
In Michigan v. Payne, 412 U. S. 47, we considered the ret
roactivity 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
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 iden
tifiable 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 equiva
lent or broader protection against vindictive sentencing. See id., at 733–
734, n. 4 (opinion of Douglas, J.).

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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 there
fore 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 Mich
igan 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 defin
19 Given the fact that Payne’s appeal was still pending on that date, how
ever, the result would have been different and the views of the dissenting
Justices would have prevailed if the case had been decided after our deci
sion 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). 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 NW 2d 375 (1971) expressly withheld

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itive 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 pro
viding the clarification that the Michigan court sought.
Most significantly, other than the fact that the case was re
manded 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 Commonwealth v. McCor
mick, 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 retroac
tive effect.” 359 Pa. Super., at 470, 519 A. 2d, at 447.
B
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 bur
den on interstate truckers. While their suit was pending,
ruling on the retroactivity of Pearce but applied it to Payne to instruct
the lower courts in Michigan”).
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 propo
sition that federal law limits the relief a State may provide, but only for
the more narrow proposition that a state court’s decision that a particular
remedy is constitutionally required is itself a federal question”).

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this Court declared a virtually identical Pennsylvania tax un
constitutional. See American Trucking Assns., Inc. v.
Scheiner, 483 U. S. 266 (1987). Shortly thereafter, the Ar
kansas 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 pay
ments because Scheiner did not apply retroactively to invali
date 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, petitioners were entitled to a refund. The dissent con
cluded 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 de
cisionmaking 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

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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 de
claring what the law already is. Such a view is con
trary 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 judi
cial power asserted in Scheiner. To hold a governmen
tal 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 deci
sion 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 Consti
tution does not change from year to year; since it does
not conform to our decisions, but our decisions are sup
posed 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 enforce
ment 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 stat
utes 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 opin

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ion—there were actually five votes supporting the dissent’s
views on the retroactivity issue. Accordingly, it is the dis
sent 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 ex
plicitly 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 be
fore 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 unconstitu
tional—but that this did not necessarily entitle petition
ers to a full refund. We explained that the Constitution re
quired Virginia to “ ‘provide relief consistent with federal
due process principles,’ ” 509 U. S., at 100 (quoting American
Trucking Assns., Inc. v. Smith, 496 U. S., at 181 (plurality
opinion)), but that “ ‘a State found to have imposed an imper
missibly discriminatory tax retains flexibility in responding
to this determination’ ” under the Due Process Clause, 509
U. S., at 100 (quoting McKesson Corp. v. Division of Alco
holic Beverages and Tobacco, Fla. Dept. of Business Regula
tion, 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 pro
vide, so long as that relief satisfies the minimum federal re
quirements we have outlined.’ ” Ibid. (quoting 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” (citation omitted)).
22 While the opinions discussed at great length our earlier cases raising
retroactivity issues, none of them suggested that federal law would pro
hibit Arkansas from refunding the taxes at issue if it wanted to do so.

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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 pri
marily a question of state law. Federal law simply “sets cer
tain minimum requirements that States must meet but may
exceed in providing appropriate relief.” American Truck
ing 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 reme
dies for federal constitutional violations.
VI
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 Able
man v. Booth, 21 How. 506 (1859), and Tarble’s Case, 13 Wall.
397 (1872)—provides solid support for that proposition. But
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, support
ing 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 be
cause of its view that “there are important distinctions between the retro
active 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 (Harlan, J., concur
ring 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.

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the States that give broader retroactive effect to this Court’s
new rules of criminal procedure do not do so by misconstru
ing the federal Teague standard. Rather, they have devel
oped 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 an
nounced 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 con
siderations. First, if there is such a federal rule of law, pre
sumably 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 held that States can
waive a Teague defense, during the course of litigation, by
expressly choosing not to rely on it, see Collins v. Young
blood, 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 leg
islatures and executives are not bound by Teague, but that
state courts are.
Second, the State has not identified, and we cannot dis
cern, the source of our authority to promulgate such a novel
rule of federal law. While we have ample authority to con
trol the administration of justice in the federal courts—par
ticularly 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

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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 ar
guments 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 292.
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 rea
sons—be subject to different penalties. As previously
noted, such nonuniformity is a necessary consequence of a
federalist system of government.
VII
It is important to keep in mind that our jurisprudence con
cerning the “retroactivity” of “new rules” of constitutional
law is primarily concerned, not with the question whether a
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).

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Roberts, C. J., dissenting
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 uni
formly 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 con
ducted before a certain date depends on how much time was
required to complete the appellate process.
Accordingly, the judgment of the Supreme Court of Minne
sota is reversed, and the case is remanded for further pro
ceedings 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 postconvic
tion relief.
It is so ordered.
Chief Justice Roberts, with whom Justice Kennedy
joins, dissenting.
Some of our new rulings on the meaning of the United
States Constitution apply retroactively—to cases already
concluded—and some do not. This Court has held that the
question whether a particular ruling is retroactive is itself a
question of federal law. It is basic that when it comes to
any such question of federal law, it is “the province and duty”
of this Court “to say what the law is.” Marbury v. Madi
son, 1 Cranch 137, 177 (1803). State courts are the final ar
biters of their own state law; this Court is the final arbiter

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of federal law. State courts are therefore bound by our
rulings on whether our cases construing federal law are
retroactive.
The majority contravenes these bedrock propositions.
The end result is startling: Of 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, one may be executed while the other is set
free—the first despite being correct on his claim, and the
second because of it. That result is contrary to the Suprem
acy Clause and the Framers’ decision to vest in “one supreme
Court” the responsibility and authority to ensure the uni
formity of federal law. Because the Constitution requires
us to be more jealous of that responsibility and authority,
I respectfully dissent.
I
One year after Teague v. Lane, 489 U. S. 288 (1989)—our
leading modern precedent on retroactivity—Teague’s author
explained:
“The determination whether a constitutional decision
of this Court is retroactive . . . is a matter of federal law.
When questions of state law are at issue, state courts
generally have the authority to determine the retroac
tivity of their own decisions. The retroactive applica
bility of a constitutional decision of this Court, however,
‘is every bit as much of a federal question as what
particular federal constitutional provisions themselves
mean, what they guarantee, and whether they have been
denied.’ ” American Trucking Assns., Inc. v. Smith,
496 U. S. 167, 177–178 (1990) (plurality opinion of O’Con
nor, J.) (quoting Chapman v. California, 386 U. S. 18, 21
(1967); citation omitted).
For that reason, “we have consistently required that state
courts adhere to our retroactivity decisions.” American

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Trucking, supra, at 178 (citing Michigan v. Payne, 412 U. S.
47 (1973), and Arsenault v. Massachusetts, 393 U. S. 5 (1968)
(per curiam)). Even more recently, we held that the “Su
premacy Clause does not allow federal retroactivity doctrine
to be supplanted by the invocation of a contrary approach to
retroactivity under state law.” Harper v. Virginia Dept. of
Taxation, 509 U. S. 86, 100 (1993) (citation omitted).
Indeed, about the only point on which our retroactivity
jurisprudence has been consistent is that the retroactivity of
new federal rules is a question of federal law binding on
States. The Court’s contrary holding is based on a misread
ing of our precedent and a misunderstanding of the nature
of retroactivity generally.
A
As the Court correctly points out, before 1965 we took for
granted the proposition that all federal constitutional rights,
including rights that represented a break from earlier prece
dent, would be given full retroactive effect on both direct
and collateral review. That all changed with Linkletter v.
Walker, 381 U. S. 618 (1965). In that case, a Louisiana pris
oner brought a federal habeas petition arguing that illegally
seized evidence was introduced against him at trial in viola
tion of Mapp v. Ohio, 367 U. S. 643 (1961). Mapp, however,
had been decided after his conviction became final. We
granted certiorari to decide whether the Mapp rule “oper
ates retrospectively upon cases finally decided in the period
prior to Mapp.” 381 U. S., at 619–620. In answering this
question, we broke from our past practice of assuming full
retroactivity, holding that “we are neither required to apply,
nor prohibited from applying, a decision retrospectively.”
Id., at 629. Our analysis turned entirely on the nature and
scope of the particular constitutional right at issue: “[W]e
must . . . weigh the merits and demerits [of retroactive appli
cation] in each case by looking to the prior history of the rule
in question, its purpose and effect, and whether retrospec
tive operation will further or retard its operation.” Ibid.

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Under this framework, we held that Mapp would apply only
prospectively. 381 U. S., at 639–640.
The next year, we decided Johnson v. New Jersey, 384
U. S. 719 (1966). Johnson was a direct appeal from the New
Jersey Supreme Court’s denial of state collateral relief. The
precise question in Johnson was whether the rules an
nounced in Escobedo v. Illinois, 378 U. S. 478 (1964), and Mi
randa v. Arizona, 384 U. S. 436 (1966), would apply to state
prisoners whose convictions had become final before those
cases were decided. In holding that Escobedo and Miranda
should apply only prospectively, 384 U. S., at 732, we im
ported Linkletter’s mode of retroactivity analysis into re
view of state postconviction proceedings, 384 U. S., at 726–
727. Finally, in Stovall v. Denno, 388 U. S. 293 (1967), we
announced that, for purposes of retroactivity analysis, “no
distinction is justified between convictions now final, as in
the instant case, and convictions at various stages of trial
and direct review.” Id., at 300.
Thus, by 1967, the Linkletter analysis was applied in re
view of criminal convictions, whether final or not. No mat
ter at what stage of proceedings this Court considered a ret
roactivity question, the issue was decided with reference to
the purposes and practical impact of the precise federal right
in question: “Each constitutional rule of criminal procedure
has its own distinct functions, its own background of prece
dent, and its own impact on the administration of justice,
and the way in which these factors combine [to decide the
retroactivity issue] must inevitably vary with the [constitu
tional] dictate involved.” Johnson, supra, at 728.
Because the question of retroactivity was so tied up with
the nature and purpose of the underlying federal constitu
tional right, it would have been surprising if any of our cases
had suggested that States were free to apply new rules of
federal constitutional law retroactively even when we would
not. As one of the more thoughtful legal scholars put it in
discussing the effect of the Linkletter analysis on state col

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lateral review, “[i]f a state gave relief in such a case on the
exclusive authority of Mapp, under the rationale of the Link
letter opinion it would presumably have to be reversed.”
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).
Our precedents made clear that States could give greater
substantive protection under their own laws than was avail
able under federal law, and could give whatever retroactive
effect to those laws they wished. As the Court explained in
Johnson, “[o]f course, States are still entirely free to effectu
ate 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.” 384 U. S.,
at 733. The clear implication of this statement was that
States could apply their own retroactivity rules only to new
substantive rights “under their own law,” not to new federal
rules announced by this Court.
Thus, contrary to the Court’s view, our early retroactivity
cases nowhere suggested that the retroactivity of new fed
eral constitutional rules of criminal procedure was anything
other than “a matter of federal law.” Daniel v. Louisiana,
420 U. S. 31, 32 (1975) (per curiam.) It is no surprise, then,
that when we held that a particular right would not apply
retroactively, the language in our opinions did not indicate
that our decisions were optional. See, e. g., Fuller v.
Alaska, 393 U. S. 80, 81 (1968) (per curiam) (the rule
announced in Lee v. Florida, 392 U. S. 378 (1968), “is to be
applied only to trials in which the evidence is sought to
be introduced after the date of [that] decision” (emphasis
added)). And, of course, when we found that a state court
erred in holding that a particular right should not apply ret
roactively, the state court was bound to comply. See, e. g.,
Kitchens v. Smith, 401 U. S. 847 (1971) (per curiam); McCon
nell v. Rhay, 393 U. S. 2, 3–4 (1968) (per curiam); Arsenault,
supra, at 6.

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Although nothing in our decisions suggested that state
courts could determine the retroactivity of new federal rules
according to their own lights, we had no opportunity to con
front the issue head on until Payne, 412 U. S. 47.1 In Payne,
the defendant had argued before the Michigan Supreme
Court that his resentencing violated the rule we had an
nounced in North Carolina v. Pearce, 395 U. S. 711 (1969).
In considering this question, the state court noted that this
Court had “not yet decided whether Pearce is to be applied
retroactively.” People v. Payne, 386 Mich. 84, 90, n. 3, 191
N. W. 2d 375, 378, n. 2 (1971). Nevertheless, without so
much as citing any federal retroactivity precedent, the court
decided that it would “apply Pearce in the present case in
order to instruct our trial courts as to the Michigan interpre
tation of an ambiguous portion of Pearce . . . , pending clari
fication by the United States Supreme Court.” Id., at 91,
n. 3, 191 N. W. 2d, at 378, n. 2.
We granted certiorari in Payne only on the question of
retroactivity, and decided that Pearce should not apply retro
actively. In reversing the contrary decision of the state
court, our language was not equivocal: “Since the resentenc
ing hearing in this case took place approximately two years
before Pearce was decided, we hold that the Michigan Su
preme Court erred in applying its proscriptions here.” 412
U. S., at 57.
The majority argues that Payne did not preclude States
from applying retroactivity rules different from those we an
nounced; rather, the argument goes, the Michigan Supreme
Court simply elected to follow the federal retroactivity rule,
“pending clarification.” See ante, at 282–284. That is cer
tainly a possible reading of Payne, but not the most plausible
one. The Michigan Supreme Court did not purport to rest
its decision to apply Pearce retroactively on the federal
1 Payne came to us on direct appeal, but as noted, supra, at 294, we did
not at the time distinguish between direct appeal and collateral review for
purposes of retroactivity.

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Linkletter analysis, and this Court’s reversal is most reason
ably read as requiring state courts to apply our federal ret
roactivity decisions. Notably, this is not the first time Mem
bers of this Court have debated the meaning of Payne, with
Teague’s author explaining that Payne supports the proposi
tion that “we have consistently required that state courts
adhere to our retroactivity decisions,” American Trucking,
496 U. S., at 178 (plurality opinion of O’Connor, J.), and the
author of today’s opinion disagreeing in dissent, see id., at
210, n. 4 (opinion of Stevens, J.). But whichever way
Payne is read, it either offers no support for the majority’s
position, because the state court simply applied federal ret
roactivity rules, or flatly rejects the majority’s position, be
cause the state court failed to apply federal retroactivity
rules, and was told by this Court that it must.
Meanwhile, Justice Harlan had begun dissenting in our
retroactivity cases, pressing the view that new rules an
nounced by the Court should be applied in all cases not yet
final, without regard to the analysis set forth in Linkletter.
See Desist v. United States, 394 U. S. 244, 256–269 (1969);
Mackey v. United States, 401 U. S. 667, 675–702 (1971) (opin
ion concurring in judgments in part and dissenting in part).
In Griffith v. Kentucky, 479 U. S. 314 (1987), we abandoned
Linkletter as it applied to cases still on direct review and
adopted Justice Harlan’s view in such cases. Noting that
nonretroactivity on direct appeal “violates basic norms of
constitutional adjudication” and that “selective application of
new rules violates the principle of treating similarly situated
defendants the same,” 479 U. S., at 322, 323, we held that
“a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending
on direct review or not yet final,” id., at 328 (emphasis
added). Just as in previous cases, Griffith by its terms
bound state courts to apply our retroactivity decisions.
Two months after Griffith was decided, we granted certio
rari in Yates v. Aiken, 484 U. S. 211 (1988). In that case, a

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South Carolina state habeas court had decided that our deci
sion in Francis v. Franklin, 471 U. S. 307 (1985), should not
be applied retroactively. If the authority of state courts to
apply their own retroactivity rules were well established
under our precedents—as the majority would have it, see
ante, at 275–282—this case should have been easily decided
on the ground that whatever the federal retroactivity rule,
the State could adopt its own rule on the retroactivity of
newly announced federal constitutional standards.
Instead, the State argued to this Court “that we should
adopt Justice Harlan’s theory that a newly announced consti
tutional rule should not be applied retroactively to cases
pending on collateral review unless” the rule meets certain
criteria—the flip side of Justice Harlan’s view about cases on
direct review that we had accepted in Griffith. 484 U. S., at
215. Under that approach, the State argued, Francis would
not be applied retroactively on collateral review. 484 U. S.,
at 215. In response, we discussed Justice Harlan’s “distinc
tion between direct review and collateral review.” Ibid.
We found, however, that it was “not necessary to determine
whether we should . . . adopt Justice Harlan’s reasoning as
to the retroactivity of cases announcing new constitutional
rules to cases pending on collateral review,” id., at 215–216,
because Francis did not announce a new rule.
This Court went on, however, to address South Carolina’s
alternative argument—that it “has the authority to establish
the scope of its own habeas corpus proceedings,” which
would allow it in the case before the Court “to refuse to
apply a new rule of federal constitutional law retroactively
in such a proceeding.” 484 U. S., at 217. This argument
should sound familiar—whatever the federal retroactivity
rule, a State may establish its own retroactivity rule for its
own collateral proceedings. This Court rejected that propo
sition, not only because it did not regard Francis as a new
rule, but also because the state court did not “plac[e] any
limit on the issues that it will entertain in collateral proceed

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ings.” 484 U. S., at 218. As this Court explained, if the
state court “consider[s] the merits of the federal claim, it has
a duty to grant the relief that federal law requires.” Ibid.
(emphasis added).
Given all this, the present case should come out the way
it does only if Teague changed the nature of retroactivity as
a creature of federal law binding on the States, and adopted
the argument rejected in Yates—that when it comes to ret
roactivity, a State “has the authority to establish the scope
of its own habeas corpus proceedings.” Teague did no such
thing.
B
In Teague, we completed the project of conforming our
view on the retroactivity of new rules of criminal procedure
to those of Justice Harlan. Justice O’Connor’s plurality
opinion posed the problem by noting, with more than a bit
of understatement, that the “Linkletter retroactivity stand
ard has not led to consistent results.” 489 U. S., at 302. In
light of these concerns, and because of “ ‘the important dis
tinction between direct review and collateral review,’ ” id.,
at 307 (quoting Yates, supra, at 215), we generally adopted
Justice Harlan’s approach to retroactivity on collateral re
view, 489 U. S., at 310, just as we had previously adopted his
approach on direct review in Griffith.
The Linkletter approach to retroactivity was thus over
ruled in favor of the Harlan approach in two steps: Griffith
and Teague. There is no dispute that Griffith is fully bind
ing on States; a new rule “is to be applied retroactively to
all cases, state or federal, pending on direct review or not
yet final.” 479 U. S., at 328 (emphasis added). Teague is
simply the other side of the coin, and it too should be binding
in “all cases, state or federal.” The fact that Linkletter was
overruled in two stages rather than one should not lead to a
different result.
Indeed, Teague did not purport to distinguish between fed
eral and state collateral review. Justice O’Connor’s opinion

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noted that “in Yates v. Aiken, we were asked to decide
whether the rule announced in Francis v. Franklin should
be applied to a defendant on collateral review at the time
that case was decided,” but that we were able to decide the
case on alternative grounds. 489 U. S., at 307 (citations
omitted). This citation of Yates—a state habeas case—
makes clear that Teague contemplated no difference between
retroactivity of new federal rules in state and federal collat
eral proceedings. Thus, our unqualified holding—that “[u]n
less they fall within an exception to the general rule, new
constitutional rules of criminal procedure will not be applica
ble to those cases which have become final before the new
rules are announced,” 489 U. S., at 310 (plurality opinion)—
is enough to decide this case.
Moreover, the reasons the Teague Court provided for
adopting Justice Harlan’s view apply to state as well as fed
eral collateral review. The majority is quite right that
Teague invoked the interest in comity between the state and
federal sovereigns. Id., at 308. But contrary to the im
pression conveyed by the majority, there was more to Teague
than that. Teague also relied on the interest in finality: “Ap
plication of constitutional rules not in existence at the time
a conviction became final seriously undermines the principle
of finality which is essential to the operation of our criminal
justice system. Without finality, the criminal law is de
prived of much of its deterrent effect.” Id., at 309. The
Court responds by flatly stating that “finality of state convic
tions is a state interest, not a federal one.” Ante, at 280.
But while it is certainly true that finality of state convictions
is a state interest, that does mean it is not also a federal one.
After all, our decision in Griffith made finality the touch
stone for retroactivity of new federal rules, and bound States
to that judgment. See 479 U. S., at 328 (new rules are “to
be applied retroactively to all cases, state or federal, pending
on direct review or not yet final” (emphasis added)).

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It is quite a radical proposition to assert that this Court
has nothing to say about an interest “essential to the opera
tion of our criminal justice system,” without which “the
criminal law is deprived of much of its deterrent effect,”
when the question is whether this interest is being under
mined by the very rules of federal constitutional procedure
that we are charged with expounding. A State alone may
“evaluate, and weigh the importance of ” finality interests,
ante, at 280, when it decides which substantive rules of crim
inal procedure state law affords; it is quite a leap to hold, as
the Court does, that they alone can do so in the name of the
Federal Constitution.
Teague was also based on the inequity of the Linkletter
approach to retroactivity. After noting that the disparate
treatment of similarly situated defendants led us in Griffith
to adopt Justice Harlan’s view for cases on direct appeal, the
Court then explained that the “Linkletter standard also led
to unfortunate disparity in the treatment of similarly situ
ated defendants on collateral review.” 489 U. S., at 305 (plu
rality opinion). See also id., at 316 (the Court’s new ap
proach to retroactivity “avoids the inequity resulting from
the uneven application of new rules to similarly situated
defendants”).
This interest in reducing the inequity of haphazard retro
activity standards and disuniformity in the application of fed
eral law is quite plainly a predominantly federal interest.
Indeed, it was one of the main reasons we cited in Griffith
for imposing a uniform rule of retroactivity upon state courts
for cases on direct appeal. And, more to the point, it is the
very interest that animates the Supremacy Clause and our
role as the “one supreme Court” charged with enforcing it.
Justice Story, writing for the Court, noted nearly two cen
turies ago that the Constitution requires “uniformity of de
cisions throughout the whole United States, upon all subjects
within [its] purview.” Martin v. Hunter’s Lessee, 1 Wheat.
304, 347–348 (1816). Indeed, the “fundamental principle” of

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our Constitution, as Justice O’Connor once put it, is “that a
single sovereign’s laws should be applied equally to all.”
Our Judicial Federalism, 35 Case W. Res. L. Rev. 1, 4 (1984–
1985). States are free to announce their own state-law rules
of criminal procedure, and to apply them retroactively in
whatever manner they like. That is fully consistent with
the principle that “a single sovereign’s laws should be ap
plied equally to all.” But the Court’s opinion invites just
the sort of disuniformity in federal law that the Supremacy
Clause was meant to prevent. The same determination of a
federal constitutional violation at the same stage in the crim
inal process can result in freedom in one State and loss of
liberty or life in a neighboring State.2 The Court’s opinion
allows “a single sovereign’s law”—the Federal Constitution,
as interpreted by this Court—to be applied differently in
every one of the several States.
Finally, from Linkletter through Johnson to Teague, we
have always emphasized that determining whether a new
federal right is retroactive turns on the nature of the sub
stantive federal rule at issue. See Linkletter, 381 U. S., at
2 The Court points out that the defendants in such a case are differently
situated because they violated the laws of and were tried in different
States. Ante, at 290. But disparate treatment under substantively dif
ferent state laws is something we expect in our federal system; disparate
treatment under the same Federal Constitution is quite a different matter.
The majority also points out that the rule announced in Griffith v. Ken
tucky, 479 U. S. 314 (1987)—that full retroactive application ends with the
conclusion of direct appeal—creates its own disuniformity, because finality
turns on how quickly a State brings its direct appeals to a close. Ante,
at 291. The same point was raised by the Griffith dissenters, 479 U. S.,
at 331–332 (opinion of White, J.), and rejected as pertinent by the majority
in that case, id., at 327–328. The disuniformity that the majority empha
sizes today and the dissenters emphasized in Griffith is a necessary conse
quence of our having chosen a relatively clear rule—finality—to delineate
the line between full retroactivity and presumptive nonretroactivity. The
relevant point is that whatever inequity arises from the Griffith rule, it is
based on a balancing of costs and benefits that this Court—not 50 different
sovereigns—has performed.

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629 (in deciding retroactivity, we “loo[k] to the prior history
of the rule in question, its purpose and effect, and whether
retrospective operation will further or retard its operation”);
Johnson, 384 U. S., at 728 (“Each constitutional rule of crimi
nal procedure has its own distinct functions, its own back
ground of precedent, and its own impact on the administra
tion of justice, and the way in which these factors combine
[to decide the retroactivity issue] must inevitably vary with
the dictate involved”); Teague, supra, at 311–315 (plurality
opinion) (deciding whether rule is applicable to cases on col
lateral review turns on whether the rule “places ‘certain
kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe,’ ”
and whether the rule is an “absolute prerequisite to funda
mental fairness that is ‘implicit in the concept of ordered
liberty’ ”). That is how we determine retroactivity—by
carefully examining the underlying federal right. See, e. g.,
Whorton v. Bockting, 549 U. S. 406, 418–421 (2007); Schriro
v. Summerlin, 542 U. S. 348, 353–354 (2004); Sawyer v.
Smith, 497 U. S. 227, 243–245 (1990); Penry v. Lynaugh, 492
U. S. 302, 318–319 (1989).
When this Court decides that a particular right shall not
be applied retroactively, but a state court finds that it should,
it is at least in part because of a different assessment by the
state court of the nature of the underlying federal right—
something on which the Constitution gives this Court the
final say. The nature and scope of the new rules we an
nounce directly determines whether they will be applied ret
roactively on collateral review. Today’s opinion stands for
the unfounded proposition that while we alone have the final
say in expounding the former, we have no control over the
latter.
II
The Court’s holding is not only based on a misreading of
our retroactivity cases, but also on a misunderstanding of the
nature of retroactivity generally. The majority’s decision is

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grounded on the erroneous view that retroactivity is a reme
dial question. See ante, at 290–291 (“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 oc
curred, but with the availability or nonavailability of reme
dies”). But as explained in the lead opinion in American
Trucking—penned by the author of the lead opinion in
Teague—it is an “error” to “equat[e] a decision not to apply
a rule retroactively with the judicial choice of a remedy.”
496 U. S., at 194 (plurality opinion of O’Connor, J.). As Jus
tice O’Connor went on to emphasize, “[n]or do this Court’s
retroactivity decisions, whether in the civil or criminal
sphere, support the . . . assertion that our retroactivity doc
trine is a remedial principle.” Ibid. “While application of
the principles of retroactivity may have remedial effects,
they are not themselves remedial principles. . . . A decision
defining the operative conduct or events that will be adjudi
cated under old law does not, in itself, specify an appropriate
remedy.” Id., at 195. See also Lemon v. Kurtzman, 411
U. S. 192, 199 (1973) (plurality opinion) (describing the ques
tion of retroactivity as “whether we will apply a new consti
tutional rule of criminal law in reviewing judgments of con
viction obtained under a prior standard,” and contrasting
this with the question of the “appropriate scope of federal
equitable remedies”).
In other words, when we ask whether and to what extent
a rule will be retroactively applied, we are asking what
law—new or old—will apply. As we have expressly noted,
“[t]he Teague doctrine . . . does not involve a special ‘reme
dial’ limitation on the principle of ‘retroactivity’ as much as
it reflects a limitation inherent in the principle itself.”
Reynoldsville Casket Co. v. Hyde, 514 U. S. 749, 758 (1995).
The foregoing prompts a lengthy rejoinder from the
Court, to the effect that it is wrong to view retroactivity as
a federal choice-of-law question rather than a remedial one.

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Roberts, C. J., dissenting
That view, we are told, was rejected by five Justices in
American Trucking and then by the Court in Harper.
Ante, at 284–288. But the proposition on which five Mem
bers of the Court agreed in American Trucking, and that
the Court adopted in Harper, was that the Griffith rule of
retroactivity—that is, that newly announced constitutional
decisions should apply to all cases on direct review—should
apply to civil cases as well as criminal. See American
Trucking, 496 U. S., at 201 (Scalia, J., concurring in judg
ment) (“I share Justice Stevens’ perception that prospec
tive decisionmaking is incompatible with the judicial role,
which is to say what the law is, not to prescribe what it shall
be”); id., at 212 (Stevens, J., dissenting) (“Fundamental no
tions of fairness and legal process dictate that the same rules
should be applied to all similar cases on direct review”);
Harper, 509 U. S., at 97 (“When this Court applies a rule of
federal law to the parties before it, that rule is the control
ling interpretation of federal law and must be given full ret
roactive effect in all cases still open on direct review”).
Neither Justice Scalia’s concurrence in Amer ican
Trucking combined with the dissent, nor the Court’s opinion
in Harper, resolved that retroactivity was a remedial ques
tion. That is why, the year after American Trucking was
decided, two of the Justices in today’s majority could explain:
“Since the question is whether the court should apply
the old rule or the new one, retroactivity is properly
seen in the first instance as a matter of choice of law, ‘a
choice . . . between the principle of forward operation
and that of relation backward.’ Great Northern R. Co.
v. Sunburst Oil & Refining Co., 287 U. S. 358, 364 (1932).
Once a rule is found to apply ‘backward,’ there may then
be a further issue of remedies, i. e., whether the party
prevailing under a new rule should obtain the same re
lief that would have been awarded if the rule had been
an old one. Subject to possible constitutional thresh
olds, the remedial inquiry is one governed by state law,

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306 DANFORTH v. MINNESOTA
Roberts, C. J., dissenting
at least where the case originates in state court. See
American Trucking Assns., Inc. v. Smith, 496 U. S. 167,
210 (1990) (Stevens, J., dissenting). But the ante
cedent choice-of-law question is a federal one where
the rule at issue itself derives from federal law, con
stitutional or otherwise. See Smith, supra, at 177–178
(plurality opinion).” James B. Beam Distilling Co. v.
Georgia, 501 U. S. 529, 534–535 (1991) (opinion of Sou
ter, J., joined by Stevens, J.) (citation omitted; em
phasis added).
And Harper certainly did not view the retroactivity of fed
eral rules as a remedial question for state courts. Quite the
contrary: Harper held that the “Supremacy Clause does not
allow federal retroactivity doctrine to be supplanted by the
invocation of a contrary approach to retroactivity under
state law,” 509 U. S., at 100 (citation omitted), and expressly
treated retroactivity and remedy as separate questions, id.,
at 100–102.
The majority explains that when we announce a new rule
of law, we are not “ ‘creating the law,’ ” but rather “ ‘declar
ing what the law already is.’ ” Ante, at 286 (quoting Ameri
can Trucking, supra, at 201 (Scalia, J., concurring in judg
ment)). But this has nothing to do with the question before
us. The point may lead to the conclusion that nonretroactiv
ity of our decisions is improper—the position the Court has
adopted in both criminal and civil cases on direct review—
but everyone agrees that full retroactivity is not required
on collateral review. It necessarily follows that we must
choose whether “new” or “old” law applies to a particular
category of cases. Suppose, for example, that a defendant,
whose conviction became final before we announced our deci
sion in Crawford v. Washington, 541 U. S. 36 (2004), argues
(correctly) on collateral review that he was convicted in vio
lation of both Crawford and Ohio v. Roberts, 448 U. S. 56
(1980), the case that Crawford overruled. Under our deci
sion in Whorton, 549 U. S. 406, the “new” rule announced in

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Roberts, C. J., dissenting
Crawford would not apply retroactively to the defendant.
But I take it to be uncontroversial that the defendant would
nevertheless get the benefit of the “old” rule of Roberts, even
under the view that the rule not only is but always has been
an incorrect reading of the Constitution. See, e. g., Yates,
484 U. S., at 218. Thus, the question whether a particular
federal rule will apply retroactively is, in a very real way, a
choice between new and old law. The issue in this case is
who should decide.
The proposition that the question of retroactivity—that is,
the choice between new or old law in a particular case—is
distinct from the question of remedies has several important
implications for this case. To begin with, whatever intuitive
appeal may lie in the majority’s statement that “the remedy
a state court chooses to provide its citizens for violations of
the Federal Constitution is primarily a question of state
law,” ante, at 288, the statement misses the mark. The rele
vant inquiry is not about remedy; it is about choice of law—
new or old. There is no reason to believe, either legally or
intuitively, that States should have any authority over this
question when it comes to which federal constitutional rules
of criminal procedure to apply.3
Indeed, when the question is what federal rule of decision
from this Court should apply to a particular case, no Court
but this one—which has the ultimate authority “to say what
the law is,” Marbury, 1 Cranch, at 177—should have final
say over the answer. See Harper, supra, at 100 (“Suprem
acy Clause does not allow federal retroactivity doctrine to
3 A federal court applying state law under Erie R. Co. v. Tompkins, 304
U. S. 64 (1938), follows state choice-of-law rules as well, see Klaxon Co. v.
Stentor Elec. Mfg. Co., 313 U. S. 487, 496 (1941). It is not free to follow
its own federal rule simply because the issue arises in federal court. By
the same token, a state court considering a federal constitutional claim on
collateral review should follow the federal rule on whether new or old law
applies. It is not free to follow its own state-law view on the question
simply because the issue arises in state court.

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308 DANFORTH v. MINNESOTA
Roberts, C. J., dissenting
be supplanted by the invocation of a contrary approach to
retroactivity under state law” (citation omitted)). This is
enough to rebut the proposition that there is no “source of
[our] authority” to bind state courts to follow our retroactiv
ity decisions. Ante, at 290. Retroactivity is a question of
federal law, and our final authority to construe it cannot, at
this point in the Nation’s history, be reasonably doubted.
Principles of federalism protect the prerogative of States
to extend greater rights under their own laws than are avail
able under federal law. The question here, however, is the
availability of protection under the Federal Constitution—
specifically, the Confrontation Clause of the Sixth Amend
ment. It is no intrusion on the prerogatives of the States
to recognize that it is for this Court to decide such a question
of federal law, and that our decision is binding on the States
under the Supremacy Clause.
Consider the flip side of the question before us today: If a
State interprets its own constitution to provide protection
beyond that available under the Federal Constitution, and
has ruled that this interpretation is not retroactive, no one
would suppose that a federal court could hold otherwise, and
grant relief under state law that a state court would refuse
to grant. The result should be the same when a state court
is asked to give retroactive effect to a right under the Fed
eral Constitution that this Court has held is not retroactive.
The distinction between retroactivity and available reme
dies highlights the fact that the majority’s assertion “that
Teague’s general rule of nonretroactivity was an exercise of
this Court’s power to interpret the federal habeas statute,”
ante, at 278—even if correct—is neither here nor there.4
4 The majority’s assertion, however, is a bit of an overstatement.
Teague v. Lane, 489 U. S. 288 (1989), would be an odd form of statutory
interpretation; 28 U. S. C. § 2254 is cited once in passing, 489 U. S., at 298,
and § 2243—the statute that the Court believes Teague was interpreting—
is not cited at all. As support for its proposition, the Court cites several
cases having nothing to do with retroactivity, and numerous concurring

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309 Cite as: 552 U. S. 264 (2008)
Roberts, C. J., dissenting
While Congress has substantial control over federal courts’
ability to grant relief for violations of the Federal Constitu
tion, the Constitution gives us the responsibility to decide
what its provisions mean. And with that responsibility nec
essarily comes the authority to determine the scope of those
provisions—when they apply and when they do not.
This proposition—and the importance of the distinction
between retroactivity and available remedies—were con
firmed when we considered the availability of federal col
lateral review of state convictions under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). See 28
U. S. C. § 2254(d)(1). Whatever control Congress has over
federal courts’ ability to grant postconviction remedies, the
availability or scope of those remedies has no bearing on our
decisions about whether new or old law should apply in a
particular case. That is why, after AEDPA’s passage, we
view the Teague inquiry as distinct from that under AEDPA.
See Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam)
(“While it is of course a necessary prerequisite to federal
habeas relief that a prisoner satisfy the AEDPA standard of
review set forth in 28 U. S. C. § 2254(d) . . . , none of our
post-AEDPA cases have suggested that a writ of habeas cor
pus should automatically issue if a prisoner satisfies the
AEDPA standard, or that AEDPA relieves courts from the
responsibility of addressing properly raised Teague argu
ments”). The majority today views the issue as simply one
of what remedies a State chooses to apply; our cases confirm
that the question whether a federal decision is retroactive
is one of federal law distinct from the issue of available
remedies.
Lurking behind today’s decision is of course the question
of just how free state courts are to define the retroactivity
of our decisions interpreting the Federal Constitution. I do
not see any basis in the majority’s logic for concluding that
and dissenting opinions that did not command a majority. See ante, at
278, and n. 15.

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310 DANFORTH v. MINNESOTA
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States are free to hold our decisions retroactive when we
have held they are not, but not free to hold that they are not
when we have held they are. Under the majority’s reason
ing, in either case the availability of relief in state court is
a question for those courts to evaluate independently. The
majority carefully reserves that question, see ante, at 269,
n. 4, confirming that the majority regards it as open.
Nor is there anything in today’s decision suggesting that
States could not adopt more nuanced approaches to retroac
tivity. For example, suppose we hold that the Sixth Amend
ment right to be represented by particular counsel of choice,
recently announced in United States v. Gonzalez-Lopez, 548
U. S. 140 (2006), is a new rule that does not apply retroac
tively. Under the majority’s rationale, a state court could
decide that it nonetheless will apply Gonzalez-Lopez retroac
tively, but only if the defendant could prove prejudice, or
some other criterion we had rejected as irrelevant in defin
ing the substantive right. Under the majority’s logic, that
would not be a misapplication of our decision in Gonzalez
Lopez—which specifically rejected any required showing of
prejudice, id., at 147–148—but simply a state decision on the
scope of available remedies in state court. The possible per
mutations—from State to State, and federal right to federal
right—are endless.
* * *
Perhaps all this will be dismissed as fine parsing of some
what arcane precedents, over which reasonable judges may
disagree. Fair enough; but I would hope that enough has
been said at least to refute the majority’s assertion that its
conclusion is dictated by our prior cases. This dissent is
compelled not simply by disagreement over how to read
those cases, but by the fundamental issues at stake—our role
under the Constitution as the final arbiter of federal law,
both as to its meaning and its reach, and the accompanying
duty to ensure the uniformity of that federal law.

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311 Cite as: 552 U. S. 264 (2008)
Roberts, C. J., dissenting
Stephen Danforth’s conviction became final before the new
rule in Crawford was announced. In Whorton v. Bockting,
549 U. S. 406, we held that Crawford shall not be applied
retroactively on collateral review. That should be the end
of the matter. I respectfully dissent.