Miller v. State

McDONALD, J., concurring. I will explain why I join neither of the thoughtful opinions in this case, although it may simply reveal my own ignorance in this arena. I agree with the result reached by the Majority opinion, but do not follow its reasoning — it says it is not applying the Teague standard for retroactivity, but is compelled to follow the result in Chaidez, which was based on the Teague standard. The Dissent points that out and states quite clearly that it believes a different standard set forth in this Court’s Daughtry case should be applied.

But I do not grasp the distinction that the Dissent makes between the Daughtry standard and the Teague standard in reference to this case, particularly in that the Dissent relies on Justice Sotomayor’s dissent in Chaidez — a dissent that applied the Teague standard. In the end, I find Justice Kagan’s analysis for the Chaidez majority persuasive and would apply it here, whether one views it an application of the Teague standard or another standard that operates similarly. That brings me to the same place as the Majority. BARBERA, C.J., GREENE, J., and BELL, C.J., (ret.) dissent.

BATTAGLIA, J. Lincoln Miller, Petitioner, a native of Belize, had lived as a permanent resident in the United States since 1981. On June 1, 1999, Miller pled guilty in the Circuit Court for Prince George’s County to possession of cocaine with intent to distribute, in violation of Section 286(f)(l)(ii) of Article 27 of the Maryland Code (1957, 1996 Repl. Vol.) 1 and was sentenced to five years’ incarceration. During sentencing, Miller was informed of his right to file an application for leave to appeal his conviction to the Court of Special Appeals, but he did not pursue that path. 2 Miller finished serving his mandatory five- ¹⁷⁹ year sentence and while incarcerated also did not file any petition for post-conviction relief.

United States Department of Immigration and Customs Enforcement (ICE) initiated deportation proceedings against Miller, because of his 1999 conviction, after he traveled to his native country in 2008 and was detained upon reentry into the United States. In order to forestall his being deported, Miller filed a Petition for a Writ of Error Coram Nobis, pursuant to Maryland Rule 15-1202. 3 In that Petition, Miller asserted ¹⁸⁰ “that his guilty plea was not entered knowingly and intelligently, due to the failure to advise him on the record of the possible immigration consequences attendant to his plea.” On August 21, 2009, Judge Maureen M. Lamasney of the Circuit Court for Prince George’s County conducted a hearing on Miller’s Petition, during which she accepted the transcript of his guilty plea proceeding, which had been made an attachment to Miller’s Petition and showed Miller was not advised on the record of the possibility of adverse immigration consequences. Miller testified during the hearing that he was not aware nor was he advised of the possibility of deportation by his attorney, even though his attorney was aware that he was not a citizen. Judge Lamasney denied the Petition, ruling that a trial court needed only inform a defendant of the “direct” consequences of a plea, which did not include the possibility of deportation: “[i]t is clear from the record that the plea Court did not inform [Miller] of ... possible immigration consequences....

However, ‘consequences of the plea’ has been interpreted to mean ‘direct’ consequences.” Miller appealed to the Court of Special Appeals; while his appeal was pending, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, 360 , 130 S.Ct. 1473, 1478 , 176 L.Ed.2d 284, 290 (2010), in which the Court held that “constitutionally competent counsel” was required to inform Padilla “that his conviction for drug distribution made him subject to automatic deportation.” In so holding, the Court analyzed the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) and Hill v. Lockhart, 474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985) (applying Strickland in the context of guilty pleas), by which courts would determine initially wheth ¹⁸¹ er an attorney’s representation fell below an objective standard of reasonableness considering prevailing professional norms and, if so, whether there is a reasonable probability the result of the proceeding would have been different, but for the errors. Padilla, 559 U.S. at 365 , 130 S.Ct. at 1484 , 176 L.Ed.2d at 294 . The Court explained that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland ” and that the collateral versus direct distinction was “ill-suited to evaluating a Strickland claim concerning the specific risk of deportation” due to its “close connection to the criminal process.” Id. at 366, 130 S.Ct. at 1481-82 , 176 L.Ed.2d at 293-94 . The Court concluded, therefore, “that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel [and, therefore] Strickland applied] to Padilla’s claim.” Id. at 366, 130 S.Ct. at 1482 , 176 L.Ed.2d at 294 .

The Court held that constitutionally competent counsel is required to “provide her client with available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.’ ” Id. at 371, 130 S.Ct. at 1484 , 176 L.Ed.2d at 297 , quoting Hill, 474 U.S. at 62 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (White, J., concurring in judgment). The Court then remanded the case for consideration of whether Padilla suffered prejudice because of his counsel’s deficient performance. Id. at 375, 130 S.Ct. at 1487 , 176 L.Ed.2d at 299 . In light of the Supreme Court’s holding, the Court of Special Appeals considered Miller’s claim to be controlled by the determination of whether Padilla applied “to invalidate [Miller’s] guilty plea entered on June 1, 1999[.]” Miller v. State, 196 Md.App. 658, 660 , 11 A.3d 340, 341 (2010).

In determining that Padilla did not retroactively apply, prior to 2010, to vacate Miller’s conviction, the intermediate appellate court determined that “Padilla v. Kentucky announced new law” inapplicable to Miller’s conviction. Id. at 679-80, 11 A.3d at 352 . In so doing, the court applied the retroactivity test set forth in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 ¹⁸² L.Ed.2d 334 (1989), in which the Supreme Court had determined that a “new rule,” defined as a rule that “breaks new ground or imposes a new obligation on the States” or a rule where “the result was not dictated by precedent existing at the time the defendant’s conviction became final,” would not apply retroactively. Miller, 196 Md.App. at 666 , 11 A.3d at 344 (emphasis omitted), quoting Teague, 489 U.S. at 301 , 109 S.Ct. at 1070 , 103 L.Ed.2d at 349 .

Miller, thereafter, filed a Petition for Writ of Certiorari in this Court presenting the sole question of whether Padilla’s holding “that failure to advise a non-citizen client about deportation as a possible consequence of a guilty plea constitutes ineffective representation, [should] be applied retroactively” to cases finalized before Padilla. 423 Md. 453 , 31 A.3d 921 (2011). This question, however, previously had been queued up in the case of Denisyuk v. State in which we already had granted certiorari to answer whether Padilla applied to Denisyuk’s challenge to his 2006 conviction, which, he averred, should have been vacated because his counsel had been ineffective for having failed to advise him of potential adverse immigration consequences prior to pleading guilty. 415 Md. 38 , 997 A.2d 789 (2010). In Denisyuk v. State, 422 Md. 462, 466, 473 , 30 A.3d 914, 916, 920 (2011), we subsequently determined that Padilla should be applied retroactively to Sixth Amendment claims arising after the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, after which deportation for certain crimes became practically inevitable for noncitizens: “[W]e hold that Padilla applies to postconviction claims arising from guilty pleas obtained after the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (effective April 1,1997)----” The retroactivity test relied upon in Denisyuk was derived from State v. Daughtry, 419 Md. 35 , 18 A.3d 60 (2011), which required a determination “of whether a particular judicial decision ... overrules prior law and declares a new principle of law. If a decision does not ... the decision applies retroactively in the same manner as most court decisions.” ¹⁸³ Id. at 78 , 18 A.3d at 86 , quoting Houghton v. County Com’rs of Kent Co., 307 Md. 216, 220 , 513 A.2d 291, 293 (1986).

We also noted, “ ‘where a decision has applied settled precedent to new and different factual situations, the decision always applies retroactively[,]’ and it is only ‘where a new rule ... constitutes a clear break from the past ... ’ that the question of prospective only application arises.” Denisyuk, 422 Md. at 478 , 30 A.3d at 923 , quoting Potts v. State, 300 Md. 567, 577 , 479 A.2d 1335, 1341 (1984), quoting in turn United States v. Johnson, 457 U.S. 537, 549 , 102 S.Ct. 2579 , 73 L.Ed.2d 202 (1982). Utilizing this test, we determined Padilla did not overrule prior law and declare a new principle of law, but rather applied settled precedent — Strickland—to a new and different factual situation, and, therefore, Padilla applied retroactively. Denisyuk, 422 Md. at 481-82 , 30 A.3d at 925 , citing Daughtry, 419 Md. at 78 , 18 A.3d at 86 ; Potts, 300 Md. at 577 , 479 A.2d at 1341 . In so doing, we noted that a number of courts had previously addressed the retroactivity of Padilla and although “the decisions [were] not uniform in holding that Padilla applie[d] retroactively, we [were] persuaded that those” cases that held Padilla applied retroactively “represented] the better reasoned view,” Denisyuk, 422 Md. at 479 , 30 A.3d at 923-24 , but also recognized that “all of these courts used the retroactivity test set forth in Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989).” Id. at 480 n. 8, 30 A.3d at 924 n. 8.

We suggested, nevertheless, that were the Supreme Court to determine Padilla did not apply retroactively under Teague , our opinion regarding retroactivity would remain valid because “Maryland has not adopted Teague , nor must it. Thus, even if the Supreme Court ever were to hold that Padilla is not retroactive under Teague , that holding would have no adverse effect on our analysis here.” Id. at 480 n. 8, 30 A.3d at 924 -25 n. 8, citing Danforth v. Minnesota, 552 U.S. 264, 282 , 128 S.Ct. 1029 , 169 L.Ed.2d 859 (2008). We, then, granted Miller’s petition for certiorari, 423 Md. 453 , 31 A.3d 921 (2011), and remanded the case to the Court of Special Appeals for reconsideration in light of Denisyuk. 423 Md. 474 , 32 A.3d 1 (2011). Prior to the Court of Special ¹⁸⁴ Appeals’ decision on remand, however, the Supreme Court granted certiorari in Chaidez v. United States, 655 F.3d 684 (7th Cir.2011), to consider whether Padilla had retroactive effect. 566 U.S. -, 132 S.Ct. 2101 , 182 L.Ed.2d 867 .

Thereafter, the Court of Special Appeals once again affirmed the denial of Miller’s Petition for a Writ of Error Coram Nobis, holding that Miller had raised the issue of the voluntariness of his plea in his Petition but not ineffective assistance of counsel, so that Padilla and Denisyuk were not applicable to his case: [O]ur Miller v. State[, 196 Md.App. 658 , 11 A.3d 340 (2010) ] deals only with the voluntariness of a guilty plea. Padilla v. Kentucky, for its part, does not deal with and has absolutely nothing to say about the voluntariness of a guilty plea. The Court of Appeals’s opinion in Denisyuk v. State also does not deal with and has absolutely nothing to say about the voluntariness of a guilty plea. Conversely, the retroactive Sixth Amendment relief sanctioned by Denisyuk was never requested by Miller____The petition for coram nobis relief never so much as mentioned the Sixth Amendment, and the subject was not raised at the subsequent hearing.

Our opinion in Miller v. State was not predicated on the Sixth Amendment in any way----This is our primary reason for concluding, on reconsideration, that Denisyuk v. State neither compels nor persuades us to reach a different result in Miller v. State. The two cases deal with totally different subjects. Miller v. State, 207 Md.App. 453, 464-65 , 53 A.3d 385, 392 (2012). In the midst of this whirlwind of judicial activity, we granted certiorari, 429 Md. 528 , 56 A.3d 1241 (2012), 4 and prior to ¹⁸⁵ oral argument before us, the Supreme Court decided Chaidez v. United States, — U.S. -, 133 S.Ct. 1103 , 185 L.Ed.2d 149 (2013), in which the Court held that Padilla did not apply retroactively under Teague because Padilla had announced a “new rule” of constitutional criminal procedure.

The Court acknowledged that “garden variety” applications of the test in Strickland “do not produce new rules” but concluded that “Padilla did something more”: Before deciding if failing to provide [advice regarding the possibility of adverse immigration consequences] “fell below an objective standard of reasonableness,” Padilla considered a threshold question: Was advice about deportation “categorically removed” from the scope of the Sixth Amendment right to counsel because it involved only a “collateral consequence” of a conviction, rather than a component of the criminal sentence? In other words, prior to asking how the Strickland test applied (“Did the attorney act unreasonably?”), Padilla asked whether the Strickland test applied (“Should we even evaluate if this attorney acted unreasonably?”) .... [T]hat preliminary question about Strickland’s ambit came to the Padilla Court unsettled — so that the ¹⁸⁶ Court’s answer (“Yes, Strickland governs here”) required a new rule. Chaidez, — U.S. at -, 133 S.Ct. at 1107-08 , 185 L.Ed.2d at 156-57 . The Court further noted that prior to Padilla , ten federal appellate courts and thirty state appellate courts to which the issue was presented determined that the Sixth Amendment did not require defense counsel to inform a client that a guilty plea would have adverse immigration consequences, and “if [holding contrary to this weight of authority] does not count as ‘breaking] new ground’ or ‘imposing] a new obligation,’ we are hard pressed to know what would.” Id. at -, 133 S.Ct. at 1109-10 , 185 L.Ed.2d at 159 , quoting Teague, 489 U.S. at 301 , 109 S.Ct. at 1070 , 103 L.Ed.2d at 349 .

The somewhat circuitous path, thus, brings us to the present dilemma: whether Padilla applies to Miller’s 1999 plea colloquy and subsequent conviction given that the Supreme Court held Padilla would not have retroactive effect. We granted certiorari in this case to answer that question, but the State presents us with the preliminary question of whether we can even consider if Miller is entitled to relief because, by failing to file an application for leave to appeal from his guilty plea, Miller waived the right to file his coram nobis petition. Miller, however, contends that waiver does not bar consideration of his arguments before the trial court and on appeal, because, at the time of his guilty plea in 1999 he could not have anticipated that the Supreme Court would decide Padilla . “[T]he waiver standards embodied in the Post Conviction [Procedure] Act” apply to coram nobis proceedings, “[therefore, the same body of law concerning waiver and final litigation of an issue, which is applicable under the Maryland Post Conviction Procedure Act ... [is] applicable to a coram nobis proceeding challenging a criminal conviction.” Holmes v. State, 401 Md. 429, 442, 454-55 , 932 A.2d 698, 706, 714 (2007). The issue of waiver in the Post Conviction Procedure Act is governed by Section 7-106(b) of the Criminal Procedure ¹⁸⁷ Article, Maryland Code (2001, 2008 Repl.

Yol., 2012 Supp.), which provides: (b) Waiver of allegation of error. — (l)(i) Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation: 1. before trial; 2. at trial; 3. on direct appeal; whether or not the petitioner took an appeal, 4. in an application for leave to appeal a conviction based on a guilty plea; 5. in a habeas corpus or coram nobis proceeding began by the petitioner; 6. in a prior petition under this subtitle; or 7. in any other proceeding that petitioner began. (ii) 1. Failure to make an allegation of error shall be excused if special circumstances exist. 2. The petitioner has the burden of proving that special circumstances exist.

(2) When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (l)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation. (c) Effect of judicial decision that Constitution imposes new standard. — (1) this subsection applies after a decision on the merits of an allegation of error or after a proceeding in which an allegation of error may have been waived. (2) Notwithstanding any other provision of this title, an allegation of error may not be considered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower courts of the State holds that: (i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a proce ¹⁸⁸ dural or substantive standard not previously recognized; and (ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence. In Holmes, 401 Md. at 431 , 932 A.2d at 699 , we addressed “whether an individual who enters a guilty plea but who does not file an application for leave to appeal challenging the resulting conviction and sentence waives his right to subsequently challenge his conviction and sentence through a petition for a writ of error coram nobis when the individual is not incarcerated on parole or probation.” In that case, Holmes pled guilty in 1992 to robbery with a deadly weapon.

During his guilty plea colloquy, Holmes had been informed of his right to file an application for leave to appeal to the Court of Special Appeals but did not do so. Twelve years later, Holmes was convicted of various drug charges and weapons offenses in the United States District Court for the District of Maryland and was classified as a “career offender” under the Federal Sentencing Guidelines, in part because of his 1992 conviction. In order to avoid being so classified, Holmes thereafter filed a coram nobis petition, seeking to vacate his 1992 guilty plea, alleging his plea was involuntary. We held that his failure to file an application for leave to appeal after being advised of that right during the guilty plea proceedings raised a “rebut-table presumption ... that he waived his right to challenge his conviction through a coram nobis proceeding” id. at 475 , 932 A.2d at 725 , which could only be rebutted if Holmes could demonstrate “special circumstances” to excuse waiver, which he had not done.

Id. at 473-75 , 932 A.2d at 724-25 . Miller does not allege “special circumstances,” but argues, rather, that he did not waive his ability to argue that his plea was involuntary and his attorney was ineffective, because he could not have foreseen in 1999 that the Supreme Court would have decided Padilla in 2010. The Court of Special Appeals agreed with this argument, noting that “[djuring the 30-day window in which to apply for leave to appeal, between June 1, 1999 and July 1, 1999, [Miller], of course, had no reason to ¹⁸⁹ anticipate the Padilla v. Kentucky decision that was eleven years in the future.” Miller, 196 Md.App. at 683 , 11 A.3d at 354 . We disagree because, although Padilla was not omnipresent in 1999, at the time of his conviction Miller could have raised the implications of his having not been informed of the adverse immigration consequences of his plea by the trial court and his attorney.

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (IIRIRA), effective date April 1, 1997. Prior to 1990, non-citizens convicted of certain crimes could avoid deportation if the sentencing judge made a judicial recommendation against deportation (JRAD), and until IIRIRA, the Attorney General of the United States could exercise his or her discretion to halt deportation. As the Supreme Court in Padilla noted, after IIRIRA, deportation became practically inevitable for non-citizens convicted of certain crimes, including those for which Miller was convicted: [T]he JRAD procedure is no longer part of our law. Congress first circumscribed the JRAD provision in the 1952 Immigration and Nationality Act (INA), and in 1990 Congress entirely eliminated it, 104 Stat. 5050 .

In 1996, Congress also eliminated the Attorney General’s authority to grant discretionary relief from deportation, 110 Stat. 3009 -596, an authority that had been exercised to prevent the deportation of over 10,000 noncitizens during the 5-year period prior to 1996, Immigration & Naturalization Service v. St. Cyr, 533 U.S. 289, 296 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001). Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses. See 8 U.S.C. § 1229b. Subject to limited exceptions, this discretionary relief is not available for an offense ¹⁹⁰ related to trafficking in a controlled substance.

See § 1101(a)(43)(B); § 1228. Padilla, 559 U.S. at 363 , 130 S.Ct. at 1480 , 176 L.Ed.2d at 292 . In 1997, prompted by concerns raised by the Maryland Hispanic Bar Association after enactment of IIRIRA, Chief Judge Robert M. Bell of this Court referred the matter of requiring advisement of immigration consequences during the guilty plea colloquy, which was not required by Rule 4-242 at that time, to this Court’s Standing Committee on Rules of Practice. In November of 1998, in its One Hundred Forty-First Report, which was published in the Maryland Register, the Rules Committee proposed the addition of subsection (e) to Rule 4-242, which would require a defendant be informed that a guilty plea could entail adverse immigration consequences prior to the acceptance of that plea: (e) Collateral Consequences of a Plea of Guilty or Nolo Contendere Before the court accepts a plea of guilty or nolo contendere, the court, the State’s Attorney, the attorney for the defendant, or any combination thereof shall advise the defendant (1) that by entering the plea, the defendant may face additional consequences including but not limited to more severe punishment if the defendant is convicted of another crime in the future, and, if the defendant is not a United States citizen, deportation, detention, or ineligibility for citizenship and (2) that defendant should consult with defense counsel if the defendant need additional information concerning the potential consequences of the plea.

The omission of advice concerning the collateral consequences of a plea does not require that the plea be declared invalid. Maryland Register, Vol. 25, Nov. 20, 1998. On January 20, 1999, this Court, having considered the proposal of the Rules Committee, adopted Rule 4-242(e), which provided: (e) Collateral Consequences of a Plea of Guilty or Nolo Contendré Before the court accepts a plea of guilty or nolo contendré, the court, the State’s Attorney, the attorney for the defendant, or any combination thereof shall advise the ¹⁹¹ defendant (1) that by entering the plea, if the defendant is not a United States citizen, the defendant may face additional consequences of deportation, detention, or ineligibility for citizenship and (2) that the defendant should consult with defense counsel if the defendant is represented and needs additional information concerning the potential consequences of the plea. The omission of advice concerning the collateral consequences of a plea does not itself mandate that the plea be declared invalid.

Rule 4-242(e) 5 became effective on July 1, 1999, after having been subject to public comment during its period of proposal and before this Court. In 1999, when Miller entered his guilty plea and was sentenced, therefore, the issues of the voluntariness of his plea and effectiveness of counsel based upon the failure to advise of adverse immigration consequences were available to him, so that waiver of his ability to subsequently raise them, absent having filed an application for leave to appeal, would otherwise be an impediment to our considering his claims. We shall, nonetheless, exercise our discretion to address Miller’s contentions, because of the unique circumstances of this case: its long and circuitous history; the fact that when we granted Miller’s second petition for certiorari, the Supreme Court had taken certiorari to decide in Chaidez if Padilla had retroactive application; and that before oral argument in the instant case, the Supreme Court in Chaidez held that Padilla did not apply retroactively. As a result, we will enter the fray in order to resolve an issue which begs for resolution after the Supreme Court’s decision in Chaidez, which held, contrary to Denisyuk , that Padilla does not have retroactive effect. 6 ¹⁹² After exhausting state avenues for relief, an individual in custody after conviction on a state charge may file a federal habeas corpus petition in federal court pursuant to Section 2254(a) of Title 28 of the United States Code. 7 In order to uphold the principles of federalism and comity between federal and state courts, retroactivity of Supreme Court rulings in federal courts considering a habeas petition is governed by the dictates of Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), the application of which involves a three-part test for determining whether a rule articulated by the Supreme Court is to have retroactive effect. “[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague v. Lane, [ 489 U.S. 288 , 109 S.Ct. 1060, at 1070 , 103 L.Ed.2d 334 (1989).] In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps.

First, the court must ascertain the date on which the defendant’s conviction and sentence became final for Teague purposes. Second, the court must “[s]urve[y] the legal landscape as it then existed,” Graham v. Collins, [ 506 U.S. 461, 468 , 113 S.Ct. 892, 898 , 122 L.Ed.2d 260, 270 (1993) ], and “determine whether a state court considering [the defendant’s] claim at the time of his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,” Saffle v. Parks, [ 494 U.S. 484, 488 , 110 S.Ct. 1257, 1260 , 108 L.Ed.2d 415, 424 (1990) ]. Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroac ¹⁹³ tivity principle. See Gilmore v. Taylor, [ 508 U.S. 333, 345 , 113 S.Ct. 2112, 2113 , 124 L.Ed.2d 306 (1993) ].

Caspari v. Bohlen, 510 U.S. 383, 390 , 114 S.Ct. 948, 953 , 127 L.Ed.2d 236, 245-46 (1994). Two exceptions to the nonretroactivity of “new rules,” are for “watershed rules of criminal procedure” and for rules placing “conduct beyond the power of the government to proscribe.” Chaidez, -U.S. at - n. 3, 133 S.Ct. at 1107 n. 3, 185 L.Ed.2d at 155 n. 3. Teague , therefore, “makes the retroactivity of [Supreme Court] criminal procedure decisions turn on whether they are novel. When [the Court] announce^] a ‘new rule,’ a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding.” Id. at -, 133 S.Ct. at 1107 , 185 L.Ed.2d at 155 .

The rule generally prohibiting the retroactivity of novel rules, in turn, “‘validates reasonable good-faith interpretations of existing precedents made by state courts,’ and thus effectuates the States’ interest in the finality of criminal convictions and fosters comity between federal and state courts.” Gilmore v. Taylor, 508 U.S. 333, 340 , 113 S.Ct. 2112, 2116 , 124 L.Ed.2d 306, 316-17 (1993), quoting Butler v. McKellar, 494 U.S. 407, 414 , 110 S.Ct. 1212, 1216 , 108 L.Ed.2d 347, 356 (1990). In Danforth v. Minnesota, 552 U.S. 264 , 128 S.Ct. 1029 , 169 L.Ed.2d 859 (2008), the Petitioner filed for state post-conviction relief arguing that the videotaped testimony of his six-year-old victim was admitted in violation of Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), which was decided after his conviction became final. The Minnesota Supreme Court concluded that it was bound to apply Teague in determining whether Crawford applied retroactively, and that under Teague, Crawford did not have retroactive effect. Subsequently, in Whorton v. Bockting, 549 U.S. 406 , 127 S.Ct. 1173 , 167 L.Ed.2d 1 (2007), the Supreme Court likewise concluded pursuant to Teague that Crawford did not have retroactive effect “mak[ing] clear that the Minnesota court correctly concluded that federal law does not require state courts to apply the holding in Crawford to cases that were final when that case was decided.” Danforth, 552 U.S. ¹⁹⁴ at 268, 128 S.Ct. at 1034 , 169 L.Ed.2d at 864 (emphasis in original).

The Court, nevertheless, considered in Danforth “whether Teague or any other federal rule of law prohibited] ” the Minnesota court from applying Crawford retroactively. Id. at 269, 128 S.Ct. at 1034 , 169 L.Ed.2d at 864 (emphasis in original). The Supreme Court traced the history of its own retroactivity jurisprudence leading to Teague and concluded that its standards for retroactivity were intended “to apply only to federal courts considering habeas corpus petitions challenging state-court criminal convictions,” id. at 279, 128 S.Ct. at 1040 , 169 L.Ed.2d at 871 , therefore, Teague “does not in any way