* Judge King was not present at oral argument but reserved

the right to participate in the determination of this case.

1 United States Court of Appeals,

Fifth Circuit.

No. 92-3319.

Robert WILKERSON, Petitioner-Appellant,

v.

John P. WHITLEY, Warden, Louisiana State Penitentiary, and

Richard P. Ieyoub, Attorney General, State of Louisiana,

Respondents-Appellees.

Aug. 12, 1994.

Appeal from the United States District Court for the Middle

District of Louisiana.

Before POLITZ, Ch ief Judge, and KING, * GARWOOD, JOLLY,

HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO

M. GARZA, DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Robert Wilkerson was convic ted of second-degree murder and

sentenced to life imprisonment in 1975. Prior to the conviction's

becoming fi nal, the United States Supreme Court declared

Louisiana's jury selection system unconstitutional but declined to

apply the ruling retroactively.

Fourteen years later, after significant revision of

retroactivity jurisprudence by the Court, Wilkerson unsuccessfully

sought post-conviction relief, claiming, i nter alia, that he was

indicted by a grand jury that unconstitutionally excluded women.

Wilkerson then brought a habeas corpus action in federal district

court, which also denied relief. Concluding that we may apply

retroactively neither the Supreme Court's rule declaring1 Louisiana did not exclude women from grand juries but

merely provided them with an exemption. At the time of

Wilkerson's trial, the state constitution provided that "no woman

shall be drawn for jury service unless she shall have previously

filed with the clerk of the District Court a written declaration

of her desire to be subject to such service." L A

. C ONST . art.

VII, § 41 (repealed eff. Jan. 1, 1975).

2 unconstitutional Louisiana's system of exempting women fr om jury

venires nor modern retroactivity rules themselves, we affirm.

I.

Wilkerson and his codefendant, Grady Brewer, currently inmates

at the Louisiana State Pe nitentiary, were indicted in September

1973 for second-degree murder. They moved to quash the indictment

on the ground tha t the grand jury venire contained no women, and

consequently none served on the grand jury that indicted them. 1

The court denied their mo tion, and a jury found them guilty. On

their initial appeal, the Louisiana Supreme Court affirmed Brewer's

conviction and sentence but reversed as to Wilkerson and remanded

for a new trial. S tate v. Brewer, 301 So.2d 630 (La.1974) (finding

no error in the indictment but deciding that trial court committed

reversible error in shackling Wilkerson and taping his mouth shut

during trial).

Wilkerson's second trial (on the same indictm ent) began on

January 15, 1975. The same attorney represented him in both

trials. Again he was convicted, and he appealed.

The Louisiana Supreme Court affirmed and did not revisit the

previously-denied motion to quash the grand jury venire. S tate v.

Wilkerson, 326 So.2d 353 (La.1976). In the meantime, the United

States Supreme Court had decided Taylor v. Louisiana, 419 U.S. 522,3

95 S.Ct. 692, 42 L.Ed.2d 690 (1975), holding that the state

constitutional provision, insofar as it permitted women to be

exempted from petit jury venires, violated the Sixth and Fourteenth

Amendments, and Daniel v. Louisiana, 420 U.S. 31, 32, 95 S.Ct. 704,

705, 42 L.Ed.2d 790 (1975), holding that Taylor would not be

applied retroactively to "convictions obtained by juries empaneled

prior to the date of [ Taylor ]." In February 1989, Wilkerson filed

an application for post-conviction relief in the state trial court,

raising five issues, one of which was that he was denied his Sixth

and Fourteenth Amendment rights because of the exemption of women

from jury service. The trial court denied post-conviction relief

in March 1989, and the Louisiana Supreme Court denied writs two

months later. W ilkerson v. Smith, 580 So.2d 370 (La.1991).

Wilkerson t hen sought habeas relief in federal district court,

which adopted the magistrate judge's recommendation that relief be

denied.

A panel of this court, bound by circuit precedent in Leichman

v. Secretary, La. Dep't of Corrections, 939 F.2d 315 (5th Cir.1991)

(per curiam), r eversed and remanded with instructions to grant

habeas relief. W ilkerson v. Whitley, 16 F.3d 64 (5th Cir.1994).

That opinion was vacated by the en ba nc vote on the panel's

recommendation that Leichman be reconsidered. Id. at 68.

II.

A.

Wilkerson argues that he should receive the benefit of Taylor

because the decision was announced before his conviction became2 Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708,

716, 93 L.Ed.2d 649 (1987). New rules will not be applied or

announced in cases on collateral review unless they fall into one

of two narrow exceptions: A new rule should be applied

retroactively only if (1) it places certain kinds of individual

conduct beyond the power of the criminal lawmaking authority to

proscribe or (2) it requires the observance of those procedures

that are implicit in the concept of ordered liberty. Teague v.

Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 1073, 103 L.Ed.2d 334

(1989). Neither exception applies to this case. The second

exception applies to procedures without which the accuracy of the

conviction is seriously diminished. Teague held that a rule

requiring that petit juries be composed of a fair cross-section

of the community would not be such a bedrock procedural element

requiring retroactive application. Id. at 315, 109 S.Ct. at

1078.

4 final. The panel assumed that a decision declaring

unconstitutional Louisiana's petit jury selection system would also

apply to grand juries. I d. at 65 ("Wilkerson was indicted by a

grand jury that unconstitutionally excluded women...."). We do not

find it necessary to decide whether this assumption is valid, as we

resolve this case by applying D aniel, as we explain infra.

Nonetheless, we explore the assumption to show that there is a

colorable argument that a holding regarding the exclusion of women

from grand juries would constitute a new rule.

If our decision here would be the first time a cou rt had

declared Louisiana's former grand jury system unconstitutional,

arguably we would be declaring a new rule. If so, Wilkerson could

not take advantage of it, as his di rect appeal long ago became

final. 2 Thus, the question is whether a conclusion regarding g rand

juries departs significantly from the conclusion regarding p etit

juries so as to be considered a new rule.

1.3 419 U.S. at 538, 95 S.Ct. at 702 ("in holding that petit

juries must be drawn from a source fairly representative of the

community ...") (emphasis added); id. at 527, 95 S.Ct. at 696

("[T]he American concept of the jury trial contemplates a jury

drawn from a fair cross section of the community.") (emphasis

added); id. at 533, 95 S.Ct. at 699 ("[W]omen cannot be

systematically excluded from jury panels from which petit juries

are drawn.") (emphasis added). Not only does Taylor limit its

holding to petit juries, but the rationales for that holding

apply uniquely to the petit jury. In at least eighteen separate

instances in Taylor, the Court emphasized either the

guilt-determination role of the petit jury, the petit jury's role

as a check on prosecutorial mistake, or the defendant's Sixth

Amendment right to a trial jury venire composed of a fair

cross-section of the community.

5 The Taylor Court limited its holding to petit jury selection

and did not announce a rule about the exclusion of women from grand

juries. 3 The Supreme Court case addressing the exclusion of women

from grand juries, Edwards v. Healy, 421 U.S. 772, 95 S.Ct. 2410,

44 L.Ed.2d 571 (1975), merely remanded to the district court to

determine whether the matter had become moot because Louisiana had

changed its jury selection rule. Although the Court has addressed

racial dis crimination in grand jury selection, s ee Castaneda v.

Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), it has

never explicitly declared unconstitutional the exemption of women

from grand jury pools.

In Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31

L.Ed.2d 536 (1972), the Court raised the issue but set aside the

conviction on other grounds. The Court passed on another

opportunity to address the issue of under-representation of women

on grand juries in Ford v. Kentucky, 469 U.S. 984, 105 S.Ct. 392,4 J.E.B. v. Alabama ex rel. T.B., --- U.S. ----, 114 S.Ct.

1419, 128 L.Ed.2d 89 (1994), dealing with sex discrimination in

peremptory challenges, is inapposite to the inquiry, as we must

determine whether the result is dictated by Taylor, not by

another line of authority subsequent to Taylor (and therefore

subsequent to the finality of Wilkerson's appeal).

6 83 L.Ed.2d 325 (1984) (denying certiorari). 4

2.

"[A] case announces a new rule when it breaks new ground or

imposes a new obligation on the States or the Federal Government."

Teague, 489 U .S. at 301, 109 S.Ct. at 1070. T aylor declared

unconstitutional Louisiana's petit jury selection system. The

relevant inquiry is whether that rule controls the issue of grand

juries selected under the same system. If the conclusion is

"susceptible to debate among reasonable minds," the latter decision

is a new rule, even if "controlled" or "governed" by the earlier

decision. Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212,

1217, 108 L.Ed.2d 347 (1990); s ee also Stringer v. Black,

--- U.S.

----, ---- - ----, 112 S.Ct. 1130, 1140-41, 117 L.Ed.2d 367 (1992)

(Souter, J., dissenting). The test is whether the result is

"dictated" by existing precedent. T eague, 489 U.S. at 301, 109

S.Ct. at 1070.

3.

The right to trial by jury finds its constitutional bases in

article III, § 2, cl. 3, of the Constitution ("The Trial of all

Crimes

... shall be by Jury....") and the Sixth Amendment ("In all

criminal prosecutions, the accused shall enjoy the right to a ...

trial[ ] by an impartial jury...."). The Founding Fathers7

obviously considered the right to a jury trial of paramount

importance; Hamilton called this right "the very palladium of free

g overnment." T H E F EDERALIST No. 83, at 499 (Alexander Hamilton)

(Clinton Rossiter ed., 1961); see also Letter from Richard Henry

Lee to Edmund Randolph (Oct. 16, 1787) (describing trial by jury as

"this great security of human rights"). Colonial revolutionaries

listed in the Dec laration of Independence the deprivation of the

right as a grievance against England. And, as Joseph Story noted

in the Commentaries on the Constitution,

[Trial by jury] was from very early times insisted on by our

ancestors in the parent country, as the great bulwark of their

civil and political liberties, and watched with an unceasing

jealousy and solicitude....

... "A celebrat ed French writer, who concludes, that

because Rome, Sparta, and Carthage have lost their liberties,

therefore those of England in time must perish, should have

recollected, that Rome, Sparta, and Carthage, at the time,

when their liberties were lost, were strangers to the trial by

jury."

3 J OSEPH S TORY

, C OMMENTARIES ON THE C ONSTITUTION

, §§ 1773-1774 (1833)

(quoting Justice Blackstone).

The right to indictment by a grand jury finds its

c onstitutional basis in the Fifth Amendment ("No person shall be

held to answer for a capital, or otherwise infamous crime, unless

on

... indictment of a Grand Jury...."). In contrast to the right

to trial by jury, the right to grand jury indictment received

little attention at the Constitutional Convention. The provision

does not prevent states from instituting prosecutions without an5 See 2 T HE D EBATES IN THE S EVERAL S TATE C ONVENTIONS ON THE A DOPTION OF

THE F EDERAL C ONSTITUTION AS R ECOMMENDED BY THE G ENERAL C ONVENTION AT

P HILADELPHIA IN 1787, at 109 (Jonathan Elliot, ed., 1888) (remarks

of Mr. Holmes at Massachusetts Ratifying Convention, Jan. 30,

1788).

6 Most states that require a grand jury indictment require

only a majority or supermajority vote; three states may require

a unanimous vote, depending upon the number of jurors. 1 B EALE &

B RYSON

, supra, § 2.04. A federal grand jury must have an

affirmative vote of at least 12 of the 16 to 23 jurors to indict.

F ED .R.C RIM .P. 6(a)(1), (f).

8 indictment, 5 and the Supreme Court has concluded that neither the

Grand Jury Clause of the Fifth Amendment nor the Due Process Clause

of the Fourteenth Amendment requires the state to aff ord the

accused the right to grand jury revie w before trial. H urtado v.

California, 110 U.S. 516, 534-35, 4 S.Ct. 111, 120-21, 28 L.Ed. 232

(1884).

By the end of the nineteenth century, many states had

abandoned the grand jury system and amended their constitutions to

allow the initiation of prosecution by informat ion. Currently,

only twenty-three states require indictment by grand jury, four of

which require an indictment only in cases punishable by life

imprisonment or death. 1 S A R A S. B EALE & W ILLIAM C. B RYSON

, G RAND J URY

L AW & P RACTICE § 2.04 (1986).

The grand jury determines (by majority vote 6 ) whether

probable cause exists to issue an indictment. The grand jury meets

in secret and, except in certain circumstances, must n ot reveal

testimony before it. F E D .R.C RIM .P. 6 (e). It is not bound by

evidentiary restrictions. S ee F ED .R.E V I D

. 1101(d)(2); U nited

States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 387 Take, for example, then-Justice Rehnquist's dissent in

Taylor. He would have required a showing of prejudice to the

defendant by the exemption of women from service. 419 U.S. at

522, 95 S.Ct. at 692 (Rehnquist, J., dissenting).

9 L.Ed.2d 561 (1974); C ostello v. United States, 350 U.S. 359, 363,

76 S.Ct. 406, 408-09, 100 L.Ed. 397 (1956) (holding indictment

valid even if based exclusively upon hearsay). It is not bound by

constitutional exclusionary rules. Calandra, 414 U.S. at 349, 94

S.Ct. at 620-21. And there is no right to counsel when appearing

before the grand jury. F E D .R.C RIM .P. 6(d). Moreover, prosecutorial

misconduct in a grand jury proceeding may be deemed harmless if the

petit jury convicts. United States v. Mechanik, 475 U.S. 66, 72,

106 S.Ct. 938, 942-43, 89 L.Ed.2d 50 (1986).

Despite these differences , the Supreme Court has said that

"[t]he principles that apply to the syst ematic exclusion of

potential jurors on the ground of race are essentially the same for

grand juries and for petit juries." A lexander, 405 U.S. at 626 n.

3, 92 S.Ct. a t 1223 n. 3. The A lexander Court did not, however,

address Louisiana's exemption of women from jury service, leaving

that issue for Taylor

. Thus, even if we could conclude that the

exclusion of protected groups from jury duty would be

unconstitutional for both petit and grand juries, this result would

not necessarily be dictated for a system that merely exempts a

group from service. 7

4.

Although an exemption for women s eems archaic and even

offensive by today's standards, we present the foregoing discussion10

to show that there is a colorable argument that, at the time Taylor

was decided, Taylor did not dictate the result Wilkerson seeks to

employ. If the result was not dictated, Wilkerson could not, under

Teague, benefit even if it were squarely announced today that the

former Louisiana grand jury provision was unconstitutional. And,

as the following discussion conclud es, even if the result was

dictated, Daniel bars its application in this case. Accordingly,

we pretermit the new-rule issue and decide this case on the basis

of the applicability of Daniel.

B.

Even if Taylor dictates the result here—and Louisiana's grand

jury selection system was unconstitutional—we still must resolve

whether Wilkerson can take advantage of that result under Griffith

and Teague. We conclude that he may not.

In Leichman, a panel of this court held that a habeas

petitioner could take advantage of the rule announced in Taylor

before his co nviction was final because "[t]he law regarding

retroactivity changed drastically when the court decided Griffith

... and Teague. " 939 F.2d at 317. That panel did not consider the

implications under Teague of applying Griffith retroactively; it

merely appeared to assume that it could do so.

Althoug h bound by L eichman to grant habeas relief, another

panel in Williams v. Whitley, 994 F.2d 226 (5th Cir.), cert.

denied,

--- U.S. ----, 114 S.Ct. 608, 126 L.Ed.2d 572 (1993),

suggested that Daniel still should control the application of

Taylor. As the W illiams panel re commended, s ee id. at 236, we8 Id. (citing Rodriquez de Quijas v. Shearson/Am. Express,

Inc., 490 U.S. 477, 484-85, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d

526 (1989) ("If a precedent of this Court has direct application

in a case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the case

which directly controls, leaving to this Court the prerogative of

overruling its own decisions.")).

11 elected to rehear Williams en banc sub nom. Fulford v. Whitley, see

Williams, id., to decide this issue, but the case was mooted by the

petitioner's violent death while in prison.

In W illiams, Judge Higginbotham, writing for the pane l

,

discussed the retroactivity issue at length. S ee id. at 234-36.

The petitioners in Williams presented the same claims Wilkerson now

asserts. "Recognizing that they would have been entitled to new

trials had Griffith governed questions of retroactivity at the time

Taylor was decided, [the petitioners] asserted they should now be

given the benefit of that decision because Griffith had "overruled'

Daniel. " I d. at 230. The panel observed that the petitioners

sought to apply selectively the law prevailing at the time their

convictions became final, as they wanted to invoke Taylor but avoid

Daniel. Id. at 235.

Wilkerson follows Williams and Fulf ord in arguing that

Griffith overruled Daniel. As Judge Higginbotham stated, however,

" absent clear indications from the Supreme Court itself, lower

courts should not lightly assume that a prior decision has been

overruled sub s ilentio merely because its reasoning and result

appear inconsistent with later cases." 8 Thus, the court concluded

that Griffith did not overrule Daniel. Moreover, even if G riffith

established a new rule of constitutional law, it should not apply12

retroactively to cases on collateral attack.

In his en banc brief, Wilkerson makes four arguments regarding

the grand jury. He contends, first, that the state waived the

retroactivity defense; second, that G riffith overr uled D aniel;

third, that Griffith should apply retroactively; and fourth, that

his claim is independent of Taylor.

1.

Wilkerson claims that the state waived the retroactivity

defense. Because G riffith 's nonretroactivity doctrine is

nonjurisdictional, Collins v. Youngblood, 497 U.S. 37, 40-41, 110

S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990), a state can waive the

defense by not raising it. Godinez v. Moran, --- U.S. ----, ----

n. 8, 113 S.Ct. 2680, 2685 n. 8, 125 L.Ed.2d 321 (1993); s ee also

Schiro v. Farley, --- U.S. ----, ---- - ----, 114 S.Ct. 783, 788-

89, 127 L.Ed.2d 47 (1994). Nevertheless, in S chiro the Court

acknowledged that it would have discretion to reach the

retroactivity issue, as the state may rely upon any legal argument

in support of the judgment. I d. at ----, 114 S.Ct. at 788 (citing

Dandridge v. Williams, 397 U.S. 471, 475 n. 6, 90 S.Ct. 1153, 1156-

57 n. 6, 25 L.Ed.2d 491 (1970)).

It is true that the state failed to raise this issue in its

original brief and failed to attend oral argument before the panel.

Nonetheless, we elect to reach the retroactivity issue, first

because we have discretion to do so, and second because it was the

primary reason given by the district court for its judgment. This

case has been about retroactivity from its inception; this9 See Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct.

140, 148, 54 L.Ed. 228 (1910) (Holmes, J., dissenting) ("I know

of no authority in this court to say that in general state

decisions shall make law only for the future. Judicial decisions

have had retrospective operation for near a thousand years.").

13 question demands resolution.

2.

The crux of Wilkersons' argument is th at L eichman was

correctly decided, because Griffith overruled Daniel. As stated in

Williams, however, this argument is flawed.

Prior to 1965, constitutional decisions creating new rules of

criminal procedur e were applied retroactively. Paul E. McGreal,

Note, Back to the Future: The Supreme Court's Retroactivity

Jurisprudence, 15 H ARV .J.L. & P UB

. P OL ' Y 595, 595 (1992). At common

law, the judges could make neither prospective nor nonretroactive

rulings. 9 The common law followed the Blackstonian view that a

judge's duty was not to "pronounce a new law, but to maintain and

expound the old one." 1 W ILLIAM B LACKSTONE

, C OMMENTARIES *69. The

judge, rather than creating law, discovere d it. An overruled

decision was thought to be only a failure at true discovery; the

overruling decision was not new law, but an application of what is,

and theretofore had been, the true law. New decisions applied

retroactively to avoid the injustice caused by the earlier

application of "incorrect" law.

In Linkletter v. Walker, 381 U.S. 618, 636-37, 85 S.Ct. 1731,

1741-42, 14 L.Ed.2d 601 (1965), however, the Court ad opted a

three-part test for claims of retroactivity of new constitutional

rules of criminal procedure. Retroactive application of a new rule14

dep ended upon the purpose to be served by the new standard, the

extent of reliance by law enforcement authorities upon the old

standard, and the effect of retroactive application u pon the

administration of justice. S tovall v. Denno, 388 U.S. 293, 297, 87

S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967).

The Court determined that the Linkletter analysis applied both

to convictions that were final and to those pending on direct

review. Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772,

1780, 16 L.Ed.2d 882 (1966). Courts declaring a rule of criminal

procedure to be "a cl ear break with the past," D esist v. United

States, 394 U.S. 244, 248, 89 S.Ct. 1030, 1032, 22 L.Ed.2d 248

(1969), almost always found the new rule nonretroactive because the

second and third Stovall factors— reliance by law enforcement

authorities upon the old rule and the effect upon the

administration of justice—compelled a finding of nonretroactivity.

United States v. Johnson, 457 U.S. 537, 549-50, 102 S.Ct. 2579,

2586-87, 73 L.Ed.2d 202 (1982). As a result, a number of Supreme

Court decisions held new rules nonretroactive even fo r cases

pending on direct review. One of these cases was Daniel.

Griffith ove r ruled Linkletter 's retroactivity test (as

clarified by Johnson v. New Jersey, Stovall, and Desist ) by

creating a bright-line rule that applies new rules to all cases not

yet final. This line of cases had established the test for how to

apply new constitutional decisions. On the other hand, cases such

as Daniel merely applied the test to particular new constitutional

rules. Thus, while G riffith changed the methodology for10 See supra note 8.

15

determining retroactivity, it did not abrogate the results of the

prior retroactivity test. In the absence of explicit language

overruling cases such as Daniel, we must assume that these results

are still valid as to those new rules for which retroactive

application was rejected. 10

Wilkerson argues that Griffith "accuses Daniel by name." But

Griffith mentions Daniel only as a c ase applying the L inkletter

/ Stovall retroactivity analysis. Wilkerson argues that the

Williams panel was mistak en in concluding that the Supreme Court

has "given no indication Daniel is no longer goo d law."

Significantly, however, Teague cites Daniel, apparently with

appro val: "[b]ut as we stated in D aniel, which held that Taylor

was not to be given retroactive effect... ." Teague, 489 U.S. at

314, 109 S.Ct. at 1077.

Of course, Daniel does not reflect the current state of the

law. In the absence of Linkletter and Stovall, the Daniel court

presumably would have reached a contrary result. But the question

is whether, for cases on collateral review, to apply the Daniel

r ule or the G riffith rule to cases not yet final when Taylor was

announced.

Teague instructs us to " "apply the law prevailing at the time

a conviction became final.' " 489 U.S. at 306, 109 S.Ct. at 1073

(quoting with approval Mackey v. United States, 401 U.S. 667, 689,

91 S.Ct. 1160, 1178, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring

in part, dissenting in part)). The law in 1975 was Daniel, which11 Wilkerson's argument, if accepted, would prove too much.

Logically, if Griffith controls instead of Daniel, it also

controls instead of the following cases: Johnson v. New Jersey,

384 U.S. 719, 721, 86 S.Ct. 1772, 1774-75, 16 L.Ed.2d 882 (1966)

(holding nonretroactive Escobedo v. Illinois, 378 U.S. 478, 84

S.Ct. 1758, 12 L.Ed.2d 977 (1964), which established right to

counsel at police interrogation in some circumstances, and

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), which held certain warnings and waivers required before

police interrogation); Stovall v. Denno, 388 U.S. 293, 300, 87

S.Ct. 1967, 1971, 18 L.Ed.2d 1199 (1967) (holding nonretroactive

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d

1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct.

1951, 18 L.Ed.2d 1178 (1967), which required the conclusion of

witness identification that occurred in the absence of counsel);

DeStefano v. Woods, 392 U.S. 631, 635, 88 S.Ct. 2093, 2096, 20

L.Ed.2d 1308 (1968) (holding nonretroactive Duncan v. Louisiana,

391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), which

established right to jury trial in state criminal prosecutions,

and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d

522 (1968), which established right to jury trial in state

contempt prosecutions) Desist v. United States, 394 U.S. 244,

254, 89 S.Ct. 1030, 1036, 22 L.Ed.2d 248 (1969) (holding

nonretroactive Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967), which held physical intrusion not required

for Fourth Amendment violation); and United States v. Peltier,

422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374 (1975)

(holding nonretroactive Almeida-Sanchez v. United States, 413

U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), which invalidated

warrantless automobile searches conducted without probable cause

by roving border patrols). No one could seriously contend that

Griffith opened the door to scores of habeas petitioners to

challenge their convictions obtained prior to, but which became

final after, these landmark decisions.

16 forthrightly held that Taylor was not to be applied retroactively

and that criminal defendants whose juries were empaneled prior to

Taylor could not take advantage of the new rule. G riffith does not

change this result. 11

3.

In a conceptually similar line of reasoning, Wilkerson argues

that Griffith sho uld itself apply retroactively. He relies upon

Penry v. Lynaugh, 492 U.S. 302, 315, 109 S.Ct. 2934, 2944, 10612 Wiley v. Puckett, 969 F.2d 86, 101 (5th Cir.1992)

(applying without discussion Griffith retroactivity principles to

claim, ultimately barred on another ground, under Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986),

where appeal became final after Batson but before Griffith );

Pitts v. Cook, 923 F.2d 1568, 1571 n. 3 (11th Cir.1991) (same,

but not barring Batson claim on another ground); Liles v.

Saffle, 945 F.2d 333, 335 n. 2 (10th Cir.1991) (same situation

with claim under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84

L.Ed.2d 53 (1985)), cert. denied, --- U.S. ----, 112 S.Ct. 956,

117 L.Ed.2d 123 (1992); Hill v. Maloney, 927 F.2d 646, 648 n. 2

(1st Cir.1990) (same situation with claim under Sandstrom v.

Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)).

Contrary to the statement in Judge Parker's special concurrence

that these courts "conclude that the Griffith approach to "new

rule' retroactivity is to be itself retroactively applied to

cases not yet final," special concurrence, infra at 5708, these

courts appear to have assumed this, without explanation. Their

silence is best viewed as a failure to address or decide the

issue, and in the absence of such analysis they are unpersuasive.

17 L.Ed.2d 256 (1989), where th e Court applied G riffith 's

retroactivity rule to allow a habeas petitioner to take advantage

of two Supreme Court cases decided before his appeal was final but

before the decision in Griffith. Thus, Griffith 's retroactivity

principles were applied by the Court even though the law of

retroactivity at the time the petitioner's conviction became final

was still Linkletter / Stovall.

Although the Penry Court did not explain its reasoning,

Wilkerson argues that the ret r oactive application of a

retroactivity rule do es not raise the problems voiced in T eague

concerning the state's interest in finality. He contends that a

retroactivity rule imposes no new obligations on law enforcement or

on the judicial system. Moreover, Wilkerson points out that in the

only five cases where the issue of the retroactivity of Griffith

has come up, the courts applied Griffith retroactively. 12 Thus,18

both the Supreme Court and other circuits have applied Griffith 's

retroactivity rule to cases that became final before Griffith (but

after some relevant Supreme Court decision).

We reject this argument for four reasons. First, P enry dealt

with a capital murder habeas petitioner whom in 1980 the trial

court had denied the right to have the sentencing jury instructed

to consider his retardation as a mitigating circumstance. The

Court applied the rule established in Lockett v. Ohio, 438 U.S.

586, 60 4, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978), that the

Eighth and Fourteenth Amendments required that a sentencer "not be

precluded from considering, as a mitigating factor, any aspect of

a defendant's character

... that the defendant proffers as a basis

for a sentence less than death," and Eddings v. Oklahoma, 455 U.S.

104, 113-14, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982), which

required that a sentencer must consider such mitigating evidence.

In applying these cases, the Court noted that Lockett was decided

not just before Penry's appeal became final, but before his trial

even began. Thus, L ockett was the law at the time of Penry's

sentencing; retroactivity was not actually at issue.

Second, the Court concluded that the relief Penry sought was

not a "new rule," because it did not impose a new obligation on the

state, as the obligation to present special issues to the jury

already existed in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49

L.Ed.2d 929 (1976). Implicit in the requirement that the jury

answer th ree special questions is the requirement that the jury

consider mitigating evidence. "Penry simply asks the State to19

fulfill the assurance upon which Jurek was based: namely, that the

special issues would be inter preted broadly enough to permit the

sentencer to c onsider all of the relevant mitigating evidence a

defendant might present in imposing sentence." P enry, 492 U.S. at

315, 109 S.Ct. at 2945. Thus, the state had been obligated since

1976 to give the relief Penry sought. No retroactivity problems

therefore attached.

Third, Wilkerson claims that the retroactive application of a

retroactivity rule does not impair a state's interest in finality.

But a retroactivity rule is exactly the type of decision that would

seriously disrupt a state's interest in finality: If the laws of

retroactivity change, any future decision conceivably could be

employed by a habeas petitioner, regardless of how long ago his

appeal became final. Depending upon the change in the

retroactivity rule, convictions could be subject to collateral

attack indefinitely.

As Judge Higginbotham notes, "the Court has made p lain that

the rule established in Teague is asymmetric, cutting only one

way—in the state's favor." Patrick E. Higginbotham, T he Future of

Habeas Corpus: Reflections on Teague v. Lane and Beyond, 66

C AL .L.R EV

. 2433, 2440 (1993) (citing Lockhart v. Fretwell,

--- U.S.

----, ----, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993)). A state

can take advantage of changes in the law occurring after a

conviction becomes final, as well as before, while, under Teague,

the defendant generally may rely only upon legal developments

occurring before his conviction is final.13 Although the Penry Court purported to apply Griffith

retroactively, see 492 U.S. at 315, 109 S.Ct. at 2945 ("Under the

retroactivity principles adopted in Griffith ..., Penry is

entitled to the benefit of those decisions."), it did not appear

actually to do so. It granted relief based upon Lockett and

Jurek, both of which were decided before Penry's trial began.

Thus, in merely requiring the state to apply the law as it

existed at the time, the Court implicated neither Griffith nor

Linkletter.

20 Thus, Teague acts as a substantial limitation on the

availability of habeas relief by protecting the state's interest in

finality. The retroactive application of G riffith unavoidably

would upset that interest. S ee supra note 11. As this court

explained in Williams, 994 F.2 d at 236, that is why we give

retroactive treatment to Teague but not to Griffith. S ee Fretwell,

--- U.S. at ----, 113 S.Ct. at 844; G ilmore v. Taylor,

--- U.S.

--

--, ----, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306 (1993).

And fourth, even if, arguendo, we were to conclude that in

Penry, 492 U.S. at 315, 109 S.Ct. at 2945, the Court applied

Griffith 's retroactivity principles retroactively in a case that

became final before Griffith, 13 the Court did not even colorably

overrule sub silentio any prior decisions, as no prior decision had

declared Lockett or Eddings nonretroactive. But here, we have

Daniel. Where (1) a specific case decides (2) a specific outcome

concerning (3) a specific new rule (e.g., D aniel 's declari n g

nonretroactiv e Taylor 's holding), an inferior court may not

disregard that precedent unless it has been explicitly overruled by

t he Supreme Court. S ee Rodriguez de Quijas, 490 U.S. at 484-85,

109 S.Ct. at 1921-22.

We are not called upon here merely t o determine which14 Furthermore, the retroactive application of Griffith would

violate Teague because it would be applying a new rule on

collateral review. We decline to follow the other circuits that

implicitly, and perhaps inadvertently, have applied Griffith

retroactively. See supra note 12.

In his well-intentioned concurrence, Judge Parker does

not appear to recognize that it is in fact Griffith that

constitutes the "new rule" that we may not apply on

collateral review, under Teague, because Griffith was

announced in 1987, well after Wilkerson's conviction became

final in 1976. Thus, when Judge Parker quotes Teague for

the proposition that " "new constitutional rules of criminal

procedure will not be applicable to those cases which have

become final before the new rules are announced,' " special

concurrence, infra at 5710 (quoting Teague, 489 U.S. at 310,

109 S.Ct. at 1075), it is actually Griffith that is the new

rule that we are forbidden to apply.

Judge Parker would have us fashion, out of whole cloth,

a third Teague exception for habeas petitioners whose

convictions became final after some directly relevant

Supreme Court decision was announced, but before Griffith,

unless a retroactivity "companion case" (such as Daniel )

blocked the result. We find no support for this third

exception in Teague or elsewhere.

21 retroactivity principles to apply to a new rule. Instead, we are

bound by stare decisis. The specific question of whether a

particular new rule ( Taylor ) should be applied retroactively has

already been resolved by Daniel. Thus, retroactive application of

Griffith is blocked by Daniel.

In other wo rds, where a determination of retroactivity has

been made for a particular new ru le, stare decisis prohibits

revisiting the question with ne w retroactivity principles. In

every case cited by Wilkerson, the court applied Griffith

retroactively where no specific c ase precluded the result by

deciding the retroactivity of the new rule. Here, D aniel blocks

that result. This distinction defeats Wilkerson's argument. 1422 4.

Finally, Wilkerson argues opaquely that the right to a fair

cross-section of the community in state grand juries was firmly

rooted before Taylor. This argument seeks to avoid the D aniel bar

because the relief Wilker son wants would be dictated by e arlier

authorities, not by Taylor. And the argument avoids the T eague bar

because he claims the relief is dictated by these earlier cases (so

that no new rule would be announced today by declarin g the grand

jury system unconstitutional).

The problem with this analysis is that earlier cases do not

necessarily dictate that Louisiana's grand jury exemption of women

was unconstitutional, see supra part II.A., and, to the extent that

Taylor dictates the result, Daniel would bar the application of the

rule, and Teague would prohibit us from ignoring Daniel. Wilkerson

cites Smith v. Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 166, 85

L.Ed. 84 (1940), prohibiting racial discrimination in the selection

of state grand juries; C arter v. Jury Comm'n of Greene County, 396

U.S. 320, 338-39, 90 S.Ct. 518, 528, 24 L.Ed.2d 549 (1970), which

rejected a claim of racial discrimination in the selection of the

Alabama jury commission; and P eters v. Kiff, 407 U.S. 493, 501, 92

S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972), which allowed a white

defendant to challenge a state grand jury system that excluded

blacks. Of course, none of these cases deals with the exemption of

women from jury service. Given the standard required to prove that

a result is dictated by a particular precedent, it is meritless to

claim that these cases dictate that Louisiana's system of exempting15 Moreover, even if we applied these earlier cases to

provide the relief Wilkerson seeks, we would still be bound by

Teague to apply the retroactivity rules at the time the

conviction became final. Under Linkletter, the then-binding

authority on retroactivity, the result would not have been

applied retroactively.

23 women from grand jury service was unconstitutional.

The closest the Sup reme Court has come to declaring

unconstitutional Louisiana's grand jury selection system is Taylor,

which held the state's petit jury selection system

unconstitutional. Although the same system was used to select both

petit and grand juries, the constitutional ri ghts that attach to

each vary. Accordingly, these earlier grand jury cases do not come

close to dictating the result Wilkerson seeks, so the result is

barred by Daniel and Teague. 15

III.

In summary, the pivotal issue in this case is whether Daniel

was overruled. Since the Supreme Court has never explicitly

overruled Daniel, it is still valid, but only, as here, where

habeas petitioners seek to take advantage of the rule announced in

Taylor but whose convictions became final before Griffith. Even if

Daniel was overruled, the retroactive application of G riffith is

barred by Teague.

Daniel is a specific case that reache s a specific result

regarding a particular new rule. We are not free merely to apply

the modern set of retroactivity principles instead of the old ones.

We would have to ignore not only the square holding of Daniel, but

the T eague ban on retroactive application of new rules on24

collateral review. Finding that result impermissible, we overrule

Leichman v. Secretary, La. Dep't of Corrections, 939 F.2d 315 (5th

Cir.1991) (per curiam), and affirm the district court's denial of

habeas relief.

IV.

Wilkerson ra ises several other assignments of error. These

issues were adequately addressed by the panel opinion. In all

respects other than as to matters discussed herein, the panel

opinion is reinstated. The judgment of the district court is

AFFIRMED.

KING, Circuit Judge, concurs in the judgment.

E. GRADY JOLLY, Circuit Judge, specially concurring:

I concur in the judgment on the sole grounds that the doctrine

of stare decisis commands that Daniel v. Louisiana, 420 U.S. 31, 95

S.Ct. 704, 42 L.Ed.2d 790 (1975), remains binding pre cedent.

Consequently, Mr. Wilkerson is not entitled to the benefit of

Taylor v. Louisiana, 419 U.S . 522, 95 S.Ct. 692, 42 L.Ed.2d 690

(1975), and we correctly deny his petition for habeas relief.

ROBERT M. PARKER, Circuit Judge, specially concurring:

Judge Smith's thorough and commendable attempt to navigate

through retroactivity jurisprudence with a less th an consistent

Supreme Court roadmap leaves me i n agreement with the result

obtained and with some of the reasons for the result. Yet I am

sufficiently troubled by other reasoning in the opinion that I have

found myself constrained to the options of concurring in the result

only or writing a special concurrence. I choose the latter.25

I agree with the majority's assumption that the " Taylor rule"

applies to the grand jury context. In my view, the Fourteenth

Amendment's eq ual protection clause undoubtedly requires a fair

cross-section of the community with respect to grand juries. There

may be no requirement for states to utilize grand juries, but when

they do, this fair cross-section requirement exists. Because I see

no legitimate basis for distinguishing between petit an d grand

juries in this regard, I agree with the majority's course in this

particular case—of assuming that Taylor applies to grand juries.

I cannot, however, join the majority's position abo ut the

nonretroactivity of Griffith. In addition to reversing the law in

the F ifth Circuit, the majority's conclusion that T eague v. Lane

bars the retroactive application of the approach to "new rule"

retroactivity embraced in Griffith places this Circuit at odds with

all of the other circuits that have addressed the issue and with

the Supreme Court. The First Circuit in H ill v. Maloney, 927 F.2d

646 (1st Cir.1990), the Eighth in Hamilton v. Jones, 907 F.2d 807

(8th Cir.1990), the Tenth in Liles v. Saffle, 945 F.2d 333 (10th

Cir.1991), cert. denied,

--- U.S. ----, 112 S.Ct. 956, 117 L.Ed.2d

123 (1992), and the Eleventh in Pitts v. Cook, 923 F.2d 1568 (11th

Cir.1991) , all conclude that the G riffith approach to "new rule"

retroactivity is to be itself retroactively a pplied to cases not

yet final when the "new rule" in question was announced. And, as

the Supreme Court states in Penry:

Penry's conviction became final on January 13, 1986, when

this Court denied his petition for certiorari on direct review

of his conviction and sentence. This Court's decisions in

Lockett v. Ohio and Eddings v. Oklahoma were rendered before26

his conviction became final. Under the retroactivity

principles adopted in Griffith v. Kentucky, Penry is entitled

to the benefit of those decisions.

Penry, 492 U.S. 302, 314-315, 109 S.Ct. 2934, 2944-45, 106 L.Ed.2d

256 (1989) (citations omitted).

The majority takes the positio n that the Supreme Court does

not mean what it says in Penry —because, given that the case rules

to which Mr. Penr y claimed entitlement were announced b efore his

trial even started, their retroactivity was not really in issue and

thus Griffith was not squarely implicated. Majority Opinion at

5706 n. 13 ("Although the Penry Court purported to apply Griffith

retroactively,

... it did not appear actually to do so. It granted

relief based upon Lockett and Jurek, both of which were decided

before Penry's trial began."). The majority's characterization of

Penry in th is respect is incomplete. It is accurate as far as

Lockett and Jurek are concerned. However, the P enry Court gives at

least equal billing to Eddings —which came down in 1982, after the

start of Mr. Penry's trial but nonetheless before his con viction

and sentence became final.

We could of course debate whether the E ddings decision

announces a "new rule" or whether it merely reaffirms and refines

the rule of Lockett. Essentially, such a debate would be a replay

of the one that took place between the majority and dissenting

opinions in Eddings itself. But E ddings certainly seems to fit the

majority's understanding of what co nstitutes a "new rule." S ee

Majority Opinion at 5699 ("If the conclusion is "susceptible to

debate among reasonable minds,' the

... decision is a new rule,27

even if "controlled' or "governed' by the earlier decision.")

(quoting Butler v. McKellar, 494 U.S. 407, 415, 110 S.Ct. 1212,

1 217, 108 L.Ed.2d 347 (1990); and citing S tringer v. Black,

---

U.S. ----, ---- - ----, 112 S.Ct. 1130, 1140-1141, 117 L.Ed.2d 367

(1992) (Souter, J., dissenting)).

At any rate, the Penry Court relies heavily upon Eddings in

order to provide relief to Mr. Penry, and it applies Griffith

retroactively in order to do so. If the P enry Court had viewed

only Lockett and Jurek as important to its holding, and not

Eddings, the Court knew how to say so. Instead, P enry's plain

language clarifies the Court's intention that Griffith be given

retroactive application to habeas petitioners claiming the

entitlement to benefit from "new ru les" announced before their

convictions and sentences became final. I think we must take the

Supreme Court at its word, rather than effectively "picking and

choosing" the Supreme Court precedents we will and will not

faithfully follow.

The majority views this case as presenting a choice between

Daniel and Griffith, apparently concluding that the two cases are

in conflict. I see no such conflict as these opinions relate to

Mr. Wilkerson's case.

Mr. Wilkerson was in the state's direct review system, after

his jury had been empaneled but before his case had become final,

when the Taylor was announced by the Supreme Court. Six days after

announcing T aylor, the Court rendered its decision in

Daniel —specif ically holding that the " T aylor rule" should be28

applied only to cases in which the juries had not yet been

empaneled at the time Taylor was decided. In U nite d States v.

Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), the

Supreme Court holds that a defendant's retroactive entitlement to

the benefit of a "new rule" like the one in Taylor is dependent

upon whether the "new rule" case at issue has a specific,

retroactivity-focused companion among the Supreme Court's body of

precedents. If it does, as it does here (in the form of D aniel ),

the companion case will govern the retroactivity question.

Griffith does not purport to overrule Johnson, and as the majority

points out, we are not at liberty to presume that it does so s ub

silentio.

In my vie w, the " Griffith" retroactivity approach to "new

rule" entitlement claims applies to all cases that were not yet

final at the time the "new rule" in question was announced, unless

(pursuant to Johnson ) the issue of the new rule's retroactivity is

already settled by precedent—that is, by a specific,

retroactivity-focused, companion case. It matters not to this

analysis whether one raises entitlement to the benefit of a "new

rule" by way of direct review or by way of collateral attack. S ee

e.g., Teague, supra, 489 U.S. at 308-309, 310-311, 109 S.Ct. at

1074, 1075-76 (1989) (O'Connor, J. (plurality opinion)).

The majority effectively holds that, in any circumstance,

Teague bars the retroactiv e application of the " G riffith "

retroactivity approach to cases that are on collateral re view.

T his holding stretches Teague beyond its elastic limits. T ea gue29

itself says:

We

... now adopt Justice Harlan's view of retroactivity for

cases on collateral review. [That is,] [u]nless they fall

within an exception to the general rule , new constitutional

rules of criminal procedure wi ll not be applicable to those

cases which have become final before the new rules are

announced.

Teague, supra, 489 U.S. at 310-311, 109 S.Ct. at 1075 (emphasis

added). The most recent cases on point solidify the Supreme

Court's position that habeas courts are to set their "new rule"

entitlement sights upon the law as it exi sted at the time the

petitioner's conviction and sentence became final. See e.g.,

Lockhart v. Fretwell,

--- U.S. ----, 113 S.Ct. 838, 122 L.Ed.2d 180

(1993). S ee also Gilmore v. Taylor,

--- U.S. ----, 113 S.Ct. 2112,

124 L.Ed.2d 306 (1993) (holding that subjec t to two narrow

exceptions, a case that is decided after a defendant's conviction

and sentence have become final may not provide the basis for

federal habeas relief if that case announces a "new rule"). In one

of its most recent reflections upon T eague (the Brecht "harmless

error" decision), the Court notes that "new rules" seldom have

retroactive application to criminal cases o n federal habeas.

Brecht v. Abrahamson,

--- U.S. ----, ----, 113 S.Ct. 1710, 1720,

123 L.Ed.2d 353 (1993). "Seldom" is not the same as "never."

The law appears settled. Assuming no specific,

retroactivity-focused "companion case" exists to foreclose

app lication, the following represent the "seldom" areas in which

"new rules" are to be applied on § 2254 collateral review:

1. cases not yet final when the "new rule" was announced;

2. cases that had become final before the "new rule" was30

announced, but which concern a "new rule" that places "certain

kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe;"

and

3. cases that had become final before the "new rule" was

announced, but which concern a "n ew rule" requiring the

observance of "those procedures that

... are "implicit in the

concept or ordered liberty.' "

See Teague, supra, 489 U.S. at 310-311, 109 S.Ct. at 1075 ("We

...

no w adopt Justice Harlan's view of retroactivity for cases on

collateral review. [That is,] [u]nless they fall within an

exception to the general rule, new constitutional rules of criminal

procedure will not be applicable to those cases which have become

final before the new rules are announced. ") (emphasis added). S ee

also Teague, supra, 489 U.S. at 307, 109 S.Ct. at 1073 (quoting

Mackey v. United States, 401 U.S. 667, 692-693, 91 S.Ct. 1160,

1179-80, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments

in part and dissenting in part); which in turn quotes P alko v.

Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288

(1937) (Cardozo, J.)). Of course, "new rule" benefits so applied

will still ofte n be subject to B recht "harmless error" analysis.

See Brecht, supra.

Thus, in light of Johnson, supra, I agree with the majority

that Daniel prevents Mr. Wilkerson from benefiting from the Taylor

rule. I regret that the majority has found it necessary to commit

the Fifth Circuit to the lonely and novel position that Teague

effectively forecloses the collateral application of the " Griffith

" approach to "new rule" retroactivity questions—even when the "new

rule" in issue was announced before the petitio ner's case became31

final; and even when there is no specific, retroactivity-focused,

"companion case" foreclosing such application.