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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 92-1500
- --------
- PAUL CASPARI, SUPERINTENDENT, MISSOURI
- EASTERN CORRECTIONAL CENTER et al.,
- PETITIONERS v. CHRISTOPHER BOHLEN
- on writ of certiorari to the united states court
- of appeals for the eighth circuit
- [February 23, 1994]
-
- Justice Stevens, dissenting.
- The nonretroactivity principle announced in the
- plurality opinion in Teague v. Lane, 489 U. S. 288
- (1989), is a judge-made defense that can be waived.
- Collins v. Youngblood, 497 U. S. 37, 41 (1990). In
- recent years, the Court has fashioned harsh rules
- regarding waiver and claim forfeiture to defeat substan-
- tial constitutional claims. See, e.g., Coleman v. Thomp-
- son, 501 U. S. ___ (1991); Murray v. Carrier, 477 U. S.
- 478 (1986). If we are to apply such a strict approach to
- waiver in habeas corpus litigation, we should hold the
- warden to the same standard. Accordingly, given the
- treatment accorded the private litigant in Izumi
- Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp.,
- 510 U. S. ___ (1993) (per curiam), I would hold that
- petitioner Caspari forfeited his Teague defense under
- this Court's Rule 14.1(a).
- Distinguishing Izumi, the Court explains that the
- intervention question in that case was -wholly divorced
- from the question on which we granted review,- whereas
- here the Teague issue -is a necessary predicate to the
- resolution of the question presented in the petition.-
- Ante, at 5. Yet Izumi itself opened by acknowledging
- that it -would have to address- the intervention issue
- -[i]n order to reach the merits of this case.- 510 U. S.,
- at ___ (slip op., at 1). It is no more -necessary- to
- answer the Teague question in this case than it was, for
- example, in Collins, supra.
- On the merits, I agree with the Court of Appeals.
- Under Missouri law courts must make findings of fact
- that persistent offender status is warranted for those
- convicted of certain offenses when the prosecutor
- establishes requisite facts by proof beyond a reasonable
- doubt. That status subjects the defendant to more
- severe sentences, Mo. Rev. Stat. 558.016.1 (Supp. 1982),
- and deprives him of the opportunity to have a jury
- sentence him. 557.036.2. The sentence enhancement
- thus has the same legal effect as conviction of a sepa-
- rate offense; the separate sentencing hearing likewise is
- the practical equivalent of the trial. Missouri law
- acknowledges as much by properly requiring prosecutors
- to prove the factual predicate for the enhanced sentence
- beyond a reasonable doubt.
- A defendant opposing such an enhancement undoubt-
- edly has a constitutional right to counsel and to the
- basic procedural protections the Due Process Clause
- affords. I have no hesitation in concluding that these
- protections include the right not to be -twice put in
- jeopardy- for the same offense. U. S. Const., Amdt. 5.
- I would affirm the judgment of the Court of Appeals.
-