ZANT, WARDEN
v.
MOORE
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Per Curiam.
The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Teague v. Lane, ante, p. 288.
Justice Brennan,
concurring.
While I concur in the disposition of this case, I share Justice Blackmun’s concern as to whether petitioner should be permitted to raise the retroactivity issue at this point in the proceedings. In my view this is a matter for the Court of Appeals to address in the first instance, when it reconsiders the case in light of our recent decision in Teague v. Lane, ante, p. 288.
Justice Blackmun,
dissenting.
I would dismiss the petition for certiorari as having been improvidently granted, rather than vacate and remand the case for reconsideration in the light of Teague v. Lane, ante, p. 288. The Court’s discussion of retroactivity in Teague, to be sure, could have some bearing on the issues in this case. But petitioner did not raise nonretroactivity as a defense to respondent’s claim for federal habeas relief, and that defense therefore should be deemed waived.
In Teague, the Court did not consider the claim of non-retroactivity to have been waived. Instead, it addressed retroactivity as a threshold matter. But that approach was dictated by the posture of the case. The petitioner in Teague sought the announcement of a new rule of constitutional law to be applied for the first time in his case. It was this Court’s judgment that no new rule of law should be announced in the first instance in a habeas case if similarly situated habeas petitioners could not benefit from that rule because of established principles of nonretroactivity. The present litigation is in a different posture in that respondent here did not seek the announcement of a new rule of constitutional law in his case in the first instance. I see no reason to give petitioner a second opportunity to interject the issue of nonretroactivity as a defense.
In any event, I must assume that it is not the thrust of this Court’s order to prejudge the availability of a retroactivity defense. That issue is for the Court of Appeals on remand.
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Penry v. Lynaugh, 492 U.S. 302 (U.S. 1989)…n. 2 (1989), it is neither logical nor prudent to consider a rule’s retroactive application before the rule itself is articulated. Nor am I at all sure that courts should decide the retroactivity issue if it was not raised below. Cf. Zant v. Moore, 489 U. S. 836, 837 (1989) (Blackmun, J., dissenting). Finally, I do not support the Court’s assertion, without benefit of argument or briefing on the issue, that Teague's retroactivity principles pertain to capital cases. Cf. Teague, 489 U. S., at 321, and n. 3 (…
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Saffle v. Parks, 494 U.S. 484 (U.S. 1990)…Teague, supra, at 300 (amicus briefed issue). The wiser course would be to vacate the Tenth Circuit’s decision and remand for reconsideration in light of Teague and the novel standard adopted in Butler v. McKellar, ante, p. 407. See Zant v. Moore, 489 U. S. 836 (1989) (remanding case after oral argument for reconsideration in light of Teague)-, see ibid. (Brennan, J., concurring) (appellate court should consider in first instance whether State waived any claim relating to retroactivity). The Court’s applic…
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Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992)…tes, 908 F. 2d 890, 896 (11th Cir.1990) (same), cert. denied, — U.S. -, 111 S.Ct. 2916, 115 L.Ed.2d 1080 (1991); Williams v. Dixon, 961 F. 2d 448, 456 (4th Cir.1992) (same); Hanrahan v. Greer, 896 F. 2d 241, 245 (7th Cir.1990) (same); Zant v. Moore, 489 U.S. 836, 836-37, 109 S.Ct. 1518, 1519, 103 L.Ed.2d 922 (1989) (Blackmun, J., dissenting from denial of certio-rari) (same); Boardman v. Estelle, 957 F. 2d 1523, 1536 (9th Cir.1992) (courts of appeals have discretion to apply Teague despite state’s waiver; h…1 / 2
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