COA: Estrada not Retroactive

Today, the Court of Appeals followed the dicta in Vavold v. State that Estrada is not retroactively applicable. Kriebel v. State, http://www.isc.idaho.gov/opinions/Kriebel,%20Richard.pdf.


The COA does not discuss the effect of Curless on retroactivity analysis (See: "Further Thoughts: Estrada Retroactivity," August 25 SCOIDBlog). Nor does it discuss how Kriebel should have known he had an Estrada claim prior to Estrada being issued, as Curless said he did not have a Sixth Amendment right to the assistance of counsel at a presentence interview.

Instead the Court applies the retroactivity test from Teague v. Lane. This analysis is incorrect because Teague is the rule used in federal habeas corpus petitions to determine whether a new rule from the United States Supreme Court applies retroactively to state court convictions. That is not the Idaho retroactivity rule, which is set forth in State v. Whitman, 96 Idaho 489, 491, 531 P.2d 579, 581 (1975). The Court said in Whitman that:

"The prospective or retrospective application of a decision is a discretionary determination of judicial policy made by the Court after balancing certain criteria. The Court must weigh:
(1) The purpose of the new rule;
(2) Reliance on the prior decisions of this Court; and
(3) The effect of the new rule on the administration of justice."

This issue of whether Whitman or Teague applies in state post-conviction petitions is currently pending before the Supreme Court in Gene Stuart, et al., v. State, which was argued on August 24.