In re the Personal Restraint of Haghighi , 178 Wash. 2d 435 ( 2013 )

Gordon McCloud, J.

¶31 (concurring in part/dissenting in part) — The majority adopts a rule that drastically limits amendment of pleadings in the personal restraint petition (PRP) context. This rule conflicts with our jurisprudence allowing amendment of pleadings that comply with Civil Rule (CR) 15(c) in all other civil cases. I therefore dissent from the decision to affirm dismissal of Nadder Baron Haghighi’s ineffective assistance of counsel claim.

¶32 I concur in the majority’s decision that Winterstein⁶ does not apply retroactively in this case. However, I write separately to emphasize how narrow that holding is. In 1989, the United States Supreme Court decided Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). The 1989 Teague rule was designed for the express purpose of promoting federalism by granting greater deference to state high court decisions. In fact, Teague “was intended to limit the authority of federal courts to overturn state convictions — not to limit a state court’s authority.” Danforth v. Minnesota, 552 U.S. 264, 280, 128 S. Ct. 1029, 169 L. Ed. 2d 859 (2008). In 1992, however, this court adopted the federal Teague analysis and applied it to our review of lower court decisions. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 324-26, 823 P.2d 492 (1992). This court did not do a thorough analysis of the state values at stake before adopting that somewhat inapposite federal rule. Then, in 2008, the United States Supreme Court decided Danforth and ruled, for the first time, that Teague was not designed for state courts and that state high courts can fashion their own retroactivity rules to serve their own state values. Danforth, 552 U.S. at 279-82.

¶33 This court has not yet done that post -Danforth analysis. The majority does not do so here — understandably, given that we have not been presented with a plausible alternative retroactivity theory under which Mr. Haghighi’s claim would survive. Thus, despite its protestations to the contrary, the majority effectively leaves that question open for another day. I concur in that decision.

I. Amendment of Pleadings

¶34 The majority states that we have consistently rejected amendments to PRPs beyond the one-year time limit, see RCW 10.73.090, and that we should continue to do so in this case. The majority’s statement that we “have allowed amendment only if made within the one-year statutory time limit” however, is not quite accurate. Majority at 446. Actually, our application of this rule has been inconsistent.

¶35 First, in Vandervlugt, we reviewed a claim brought as an untimely amendment to a timely PRP, and we granted relief. In re Pers. Restraint of Vandervlugt, 120 Wn.2d 427, 430-31, 436, 842 P.2d 950 (1992). Then, in Pirtle, we allowed an amendment to a PRP outside the one-year time limit because the case involved “unusual circumstances.” In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 471 n.1, 965 P.2d 593 (1998). We expressly stated that we were allowing the filing of his “amended PRP” outside the time limit. Id.

¶36 The majority now calls Pirtle a case of “extraordinary circumstances” to justify its decision to allow that amended PRP but not this one. Majority at 446 n.3. That sounds like an argument to replace the CR 15⁷ standard for allowing amendment of pleadings in other civil cases, with a far higher “extraordinary circumstances” amendment of pleadings standard in civil cases like this involving deprivations of liberty, rather than of property. There is no rule, law, or policy that would justify that distinction.

¶37 After Pirtle, in Bonds, we indicated that equitable tolling could provide a way for a petitioner to add a claim after the one-year time limit. In re Pers. Restraint of Bonds, 165 Wn.2d 135, 140, 196 P.3d 672 (2008).⁸

¶38 The majority is certainly correct that in Benn, we said that we could not allow amendments to relate back to the time of filing even “to serve the ends of justice,” RAP 18.8(a), because that would mean waiving the statutorily required time limits of RCW 10.73.090 and “RAP 18.8(a) does not allow the court to waive or alter statutes.” In re Pers. Restraint of Benn, 134 Wn.2d 868, 939, 952 P.2d 116 (1998). That statement from Benn, however, predated Pirtle, which expressly allowed the petitioner to amend his PRP after the one-year time limit ran. That statement from Benn also conflicts with the result in Vandervlugt and with the discussion in Bonds, which indicated that equitable tolling might allow a petitioner to amend his PRP after the one-year time limit ran.

¶39 Further, that statement from Benn runs counter to the well-established rule that “[w]henever there is a conflict between a procedural statute and a court rule, the court’s rulemaking power is supreme.” Nearing v. Golden State Foods Corp., 114 Wn.2d 817, 821, 792 P.2d 500 (1990). A statute of limitations is considered procedural.⁹ Thus, if RCW 10.73.090 stood in conflict with RAP 18.8(a) on this procedural matter, RAP 18.8(a) would certainly be “supreme.”

¶40 But I see no such conflict. Statutes of limitations are not strict jurisdictional prerequisites to suit. They are indisputably subject to certain other nonstatutory considerations — for example, equitable tolling. See McQuiggin v. Perkins,_U.S,_, 133 S. Ct. 1924, 1931-35, 185 L. Ed. 2d 1019 (2013) (even mandatory federal statute of limitations on federal habeas may be tolled to serve the interests of justice, including a claim of actual innocence that did not support equitable tolling).

¶41 In fact, allowing amendment of PRPs after the statute of limitations has run — at least for certain types of claims — is the only way to harmonize RCW 10.73.090 and CR 15. CR 15(c), of course, permits amendment of pleadings even after the statute of limitations has passed if the amendment “relates back” to the time of filing.¹⁰ CR 15 applies to civil cases in the superior court. CR 1. A PRP is a civil case.¹¹ Thus, CR 15 expressly applies to PRPs in the superior court.

¶42 The majority is correct that PRPs are usually commenced in the appellate court, not the superior court. But sometimes a PRP is commenced as a CrR 7.8 motion in superior court — and the Civil Rules would apply directly at that point. And sometimes, after filing, a PRP is referred to the superior court for a hearing. RAP 16.11(b). CR 15 would apply directly at that point, too. It would be the height of formalism — and exceedingly inefficient — to bar such amendments at a different and likely earlier time in the PRP proceeding, before a reference hearing (as the majority’s holding does here). In the past, Washington courts have eschewed such formalism — they have applied CR 15 even by analogy, where the rule did not apply literally.¹²

¶43 Pirtle, Vandervlugt, Bonds, CR 15, RAP 18.8(a), and RAP 1.2(a) (requiring rule interpretation that furthers decisions “on the merits” rather than on procedural grounds) thus all weigh in favor of applying the ordinary civil amendment-of-pleadings rule to PRPs in the appellate court, just as that rule would apply to PRPs later referred to the superior court. To the extent Benn states that amendments beyond the statutory time limit are always impermissible, it conflicts with those authorities. Under the ordinary rules governing amendment of pleadings, the amendment in this case should have been considered.

¶44 In fact, the United States Supreme Court has come to a similar conclusion in the similar context of federal habeas corpus claims filed under 28 U.S.C. § 2254. Those postconviction challenges, like Washington PRPs, are subject to a strict one-year time bar. 28 U.S.C. § 2244(d)(1). But the federal courts, like Washington courts, consider habeas petitions to be civil cases, and the circuit courts of appeals thus have treated them as subject to the Federal Rules of Civil Procedure, including Fed. R. Civ. P. 15, allowing amendment of pleadings. The Supreme Court, cognizant of the one-year time bar and of the unique nature of civil habeas proceedings as an attack on a previously final judgment, nevertheless agreed that Fed. R. Civ. P. 15 applied to habeas proceedings. Mayle v. Felix, 545 U.S. 644, 664, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005). But it adopted a very strict limiting principle: amendments proposed after the statute of limitations has run will not be permitted unless they arise out of the same “ ‘conduct, transaction, or occurrence’ ” as that identified in the original habeas petition. Id. at 656 (quoting Fed. R. Civ. P. 15(c)(2)). The Supreme Court noted that the circuit courts had been in conflict about what sorts of claims could “relate back” to a timely filed habeas petition. Id. at 657. It rejected a broad construction of Fed. R. Civ. P. 15’s phrase “conduct, transaction, or occurrence” that would have permitted belated amendments raising any claim attacking the final criminal judgment. Id. at 664. But it did not reject the application of Fed. R. Civ. P. 15 to habeas petitions completely. Instead, it ruled that the “conduct, transaction, or occurrence” to which the relation-back rule applied was the challenge raised in the original habeas petition, not the original criminal case. Id. at 660-61, 664. Under that extremely restrictive definition, the court barred an amendment based on a completely different claim than the one in the initial habeas petition. Id. at 660-61 (confrontation clause claim based on one set of statements does not arise from the same conduct, transaction, or occurrence as self-incrimination claim based on different statements).

¶45 Washington’s CR 15 is essentially the same as Fed. R. Civ. P. 15. Washington’s interest in finality, but also in fair and even-handed application of the Civil Rules, is certainly as important as the federal interests identified in Mayle. But the majority adopts an interpretation of CR 15 that is far more restrictive than even the restrictive interpretation adopted by the Supreme Court in Mayle, and more restrictive than any of the circuits that construed Fed. R. Civ. P. 15 before Mayle. It offers no justification for such a nontextual reading of the rules.

¶46 To be sure, we can have a healthy debate in the future about which claims relate back and which claims do not here in Washington. But even under the most restrictive interpretation of CR 15(c)’s language — the one adopted by the Supreme Court — the appellate court in Mr. Haghighi’s case should have addressed whether the claim of ineffective assistance of counsel for failure to preserve the “inevitable discovery” argument in this court (following the appellate court’s affirmance on appeal) “relates back” to the initial filing of the PRP, with its ordinary, unadorned, “inevitable discovery” claim. Under CR 15(c), an amendment to a complaint relates back if “the claim . . . asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” If the amendment relates back to such conduct, it is irrelevant that the claim is based on a different theory.¹³ “[T]he test for relation back . . . is . . . whether the defendant had notice of the lawsuit and accordingly was not prejudiced . . . .”¹⁴ Here, the State had notice that the PRP petitioner’s claims challenged not just his criminal conviction but, more importantly, the trial and appellate courts’ embrace of the “inevitable discovery” exception to the exclusionary rule. The proposed amendment in this case — a challenge to the same criminal conviction implicating those same “inevitable discovery” holdings— therefore relates back to the initial filing of the PRP. “The judicial preference to allow amendments that relate back is consistent with the policy that a case should be decided on the merits.” Watson v. Emard, 165 Wn. App. 691, 700, 267 P.3d 1048 (2011) (citing Herron v. Tribune Publ’g Co., 108 Wn.2d 162, 167, 736 P.2d 249 (1987)).

¶47 The majority insists that even if ordinary civil relation-back rules applied to this civil case, an ineffective assistance of counsel claim based on counsel’s failure to take a specific action does not relate back to the substantive claim of error on which the ineffective assistance of counsel is based because they are too different. Majority at 446-47. This assertion flatly contradicts our long history of characterizing an ineffective assistance of counsel claim based on a particular legal error as virtually identical to the substantive error itself, for the purpose of barring a petitioner’s ability to raise the ineffective assistance of counsel claim on a PRP following rejection of the substantive claim on appeal.¹⁵ If both claims are considered the same ground for relief in the latter context, they must certainly be considered the same — or nearly the same — ground for relief in the former context.

¶48 The ineffective assistance claim should therefore be decided on the merits. Petitioner argues that appellate defense counsel’s failure to preserve the “inevitable discovery” issue on direct appeal by seeking review of that claim in this court constituted ineffective assistance. Whether that failure fell below the required objective standard of reasonableness, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is a difficult issue. On the one hand, appellate defense counsel’s failure to anticipate changes in the law does not fall below the required objective standard of reasonableness.¹⁶ On the other hand, appellate defense counsel does have a duty to provide effective assistance,¹⁷ so the failure to give correct advice about the advisability of an appeal does fall below the required objective standard of reasonableness.¹⁸

¶49 Where did appellate defense counsel’s conduct fall on this spectrum? This depends in part on facts about what appellate counsel did and in part on facts about what he reasonably should have done during the relevant time period. See Strickland, 466 U.S. at 698 (claim of ineffective assistance is mixed question of fact and law); In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). That is the proper subject of a RAP 16.11(b) reference hearing.¹⁹

¶50 I therefore dissent from the majority’s decision to affirm the denial of petitioner’s motion to amend his PRP. That decision should be reversed, and this PRP should be referred to the superior court for a hearing on the ineffective assistance claim that was the subject of the proposed amendment.

II. Retroactivity

¶51 The majority also holds that the illegal search claim contained in the original, timely filed PRP cannot be decided on the merits because the dispositive case— Winterstein — was decided after Mr. Haghighi’s appeal became final. The majority relies on St. Pierre’s 1992 adoption of the 1989 federal Teague case to govern this retroactivity analysis.

¶52 Whether Teague should still guide state court retro-activity analysis post -Danforth is another difficult question. In St. Pierre, we transitioned to the Teague analysis largely without comment. We did note, citing the earlier case Sauve, that “we have attempted from the outset to stay in step with the federal retroactivity analysis.” St. Pierre, 118 Wn.2d at 324 (citing Ire re Pers. Restraint of Sauve, 103 Wn.2d 322, 326-28, 692 P.2d 818 (1985)). But the cited portion of Sauve merely describes and then follows the federal analysis without explanation of why it should be followed. State court decisions following St. Pierre continued to follow Teague but still lacked a full analysis of whether it advanced or impeded relevant state values.

¶53 In 2008, however, the United States Supreme Court made clear, for the first time, that the federal judge-made Teague rule does not consider state interests for and against retroactivity and, hence, that Teague does not control this court’s retroactivity analysis. Danforth, 552 U.S. at 282.

¶54 This court has not had an opportunity since Danforth was decided to consider whether the values informing our retroactivity analysis are the same as the values animating Teague. The majority suggests that those values are identical, so no further analysis is needed: “no explanation is offered [by petitioner] as to why our state would favor finality of judgments to a lesser extent than the federal system. Thus, we see no reason to depart from our established retroactivity analysis.” Majority at 445.

¶55 The majority is correct that our state values finality, just as the federal courts do. But the majority is incorrect to imply that finality is the only value at stake here in state court. In any criminal appeal or postconviction proceeding, there are at least two competing values: the value of finality, on the one hand, and the value of error correction, on the other hand. Teague places tight limits on postconviction review in large part out of respect for the state courts’ ability, and duty, to do their own error correction. Teague’s federal-based concerns, which caused it to tip the balance in favor of finality and against error correction, do not have the same weight where, as here, a state court is reviewing state convictions and trying to do the error correction that Teague expects of state courts.²⁰ In fact where, as here, a state constitutional right is at stake, the state court is the only one that can perform the error correction function; federal courts do not reach state constitutional claims at all.

¶56 St. Pierre imported Teague into Washington law without discussing these policy concerns. The majority does not discuss them here. That is certainly understandable, since Mr. Haghighi provided only limited discussion about which of many possible retroactivity tests would best further our state’s values, why any one of them should be adopted, and whether the suggested test would dictate a different outcome here.²¹

¶57 Our research reveals numerous possible non-Teague tests. Some might weigh against retroactivity in this situation. For example, many of the state courts rejecting Teague have stuck with the earlier federal test from Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965).²² Courts often interpret the Linkletter test as favoring retroactivity of new rules tending to strengthen the reliability of the guilt-innocence determination²³ over new rules aimed at deterring official misconduct. For example, the New York Supreme Court (trial level court) just issued a decision declining to apply the United States Supreme Court’s holding regarding ineffective assistance in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), retroactively because of the Linkletter test: “New York . . . has continued to rely on the [.Linkletter] criteria, even post-Teague” People v. Marshall, No. 3018/1995, 2013 WL 1729392, at *2, 2013 N.Y. Misc. LEXIS 1602, at *3-4 (N.Y. Sup. Ct. Apr. 19,2013) (unpublished).²⁴ Other possible retroactivity tests place great weight on the integrity of the proceedings. E.g., Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) (applying Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), barring systematic use of peremptory challenges to exclude jurors on account of their race, retroactively). At least one state asks mainly whether, under a state analysis, the new decision constitutes a “clear break” from past precedent. Denisyuk v. State, 422 Md. 462, 478, 30 A.3d 914 (2011) (quoting Potts v. State, 300 Md. 567, 577, 479 A.2d 1335 (1984)). If not, it applies to earlier cases. Using this analysis, the Maryland Court of Appeals held that Padilla was not a clear break so “under Maryland retroactivity jurisprudence, Padilla is retroactively applicable.” Id. at 482. The court clarified that “Maryland has not adopted Teague, nor must it.” Id. at 480 n.8.

¶58 The majority does not discuss which one of these or other possible tests²⁵ best serves our own state values of finality and error correction, of reliability and integrity, of factual accuracy and procedural fairness. That means that this remains an open question that we will have to answer, post -Danforth, in the appropriate case.

¶59 For the reasons given above, I dissent from the decision to affirm denial of the motion to amend the PRP. I concur in the majority’s conclusion about nonretroactivity.

Stephens and Wiggins, JJ., concur with Gordon McCloud, J.

6 State v. Winterstein, 167 Wn.2d 620, 220 P.3d 1226 (2009).

7 See discussion of CR 15, infra at pp. 452-56.

8 Our reliance on RAP 16.10(c) to reach this conclusion made clear that equitable tolling could permit even an otherwise untimely amendment to a PRP. Bonds, 165 Wn.2d at 140 (“Though the appellate rules do not expressly authorize or prohibit amendments to PRPs, we have accepted amendments to a PRP made within the statutory time limit. This discretionary allowance accords with RAP 16.10(c), which permits an appellate court to call for additional briefs at any stage of consideration of a PRP.”).

9 Merrigan v. Epstein, 112 Wn.2d 709, 717, 773 P.2d 78 (1989) (quoting Lewis H. Orland & David G. Stebing, Retroactivity in Review: The Federal and Washington Approaches, 16 Gonz. L. Rev. 855, 881-82 (1981)).

10 E.g., Kommavongsa v. Haskell, 149 Wn.2d 288, 317, 67 P.3d 1068 (2003); Beal v. City of Seattle, 134 Wn.2d 769, 782, 954 P.2d 237 (1998); Grant v. Morris, 7 Wn. App. 134, 137, 498 P.2d 336 (1972).

11 Limstrom v. Ladenburg, 136 Wn.2d 595, 607 n.5, 963 P.2d 869 (1998) (“personal restraint petition is a civil procedure”); In re Pers. Restraint of Lord, 123 Wn.2d 737, 739 n.2, 870 P.2d 964 (1994) (same).

12 See State v. Eppens, 30 Wn. App. 119, 123, 633 P.2d 92 (1981) (permitting State to amend information after time limit had passed based “on the relation back doctrine, embodied in CR 15(c) and applicable to criminal cases”).

13 Grant, 7 Wn. App. at 137 (“ And an amendment which changes only the legal theory of the action . . . will relate back.’ ” (quoting 3 James Wm. Moore, Moore’s Federal Practice 15.15(3), at 1027 (2d ed. 1968))).

14 Kommavongsa, 149 Wn.2d at 317; see also Beal, 134 Wn.2d at 782 (“The purpose of CR 15(c) ... is to permit amendment provided the defendant is not prejudiced and has notice.”).

15 E.g., In re Pers. Restraint of Davis, 152 Wn.2d 647, 671 & n.19, 101 P.3d 1 (2004) (defendant “ ‘may not recast the same issue as an ineffective assistance claim; simply recasting an argument in that manner does not create a new ground for relief’ ” (quoting In re Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001))).

16 Benn, 134 Wn.2d at 939; see also State v. Brown, 159 Wn. App. 366, 372, 245 P.3d 776 (collecting cases), review denied, 171 Wn.2d 1025 (2011).

17 See Evitts v. Lucey, 469 U.S. 387, 395-96, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985) (first appeal as of right not adjudicated in accord with due process if appellant lacks effective assistance of counsel, whether retained or appointed); McCoy v. Court of Appeals, 486 U.S. 429, 436, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988); In re Pers. Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004) (ineffective assistance for appellate defense counsel to fail to raise issue on appeal that would have resulted in new trial); State v. Tomal, 133 Wn.2d 985, 990-91, 948 P.2d 833 (1997).

18 See State v. Rolax, 104 Wn.2d 129, 135, 702 P.2d 1185 (1985); see also State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (“Reasonable conduct for an attorney includes carrying out the duty to research the relevant law.”).

19 Since ineffective assistance is a mixed question of fact and law, Washington courts admit expert testimony on that issue. E.g.,In re Pers. Restraint of Elmore, 162 Wn.2d 236, 264, 172 P.3d 335 (2007) (considering expert testimony proffered by petitioner Elmore on Strickland standard of care and ruling against Elmore on the merits). In fact this court has found expert testimony admissible and persuasive on an ineffective assistance issue. Brett, 142 Wn.2d at 876-80 (summarizing evidence), 871 (“the reference hearing’s expert legal testimony establishes that counsel, by failing to take any meaningful steps to develop the evidence available for use in Brett’s defense, deprived Brett of effective counsel”).

20 See Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 778, 178 L. Ed. 2d 624 (2011) (“state courts are the principal forum for asserting constitutional challenges to state convictions”).

21 Mr. Haghighi’s initial appellate court brief asked that court to abandon Teague in the “interests of justice.” Br. of Pet’r at 15, In re Pers. Restraint of Haghighi (Wash. Ct. App. No. 65130-7-1 (2011)). His reply brief in the appellate court cited numerous out-of-state cases rejecting Teague but provided no specific alternative. Reply Br. of Pet’r at 4, In re Haghighi (Wash. Ct. App. No. 65130-7-1 (2011)). The petitioner’s supplemental brief in this court does not urge adoption of a specific test either, but it points to one developed in the context of purely civil matters that places no weight at all on concerns unique to criminal cases (for example, the importance of finality in the criminal context not just to crime victims but also to the need for effective consequences, the concerns about placing special emphasis on the guilt-innocence determination, or the value of deterring official misconduct). Suppl. Br. of Pet’r at 13-14 (citing Lunsford v. Saberhagen Holdings, Inc., 166 Wn.2d 264, 271-73, 208 P.3d 1092 (2009)).

22 E.g., State v. Whitfield, 107 S.W.3d 253 (Mo. 2003); State v. Nakata, 76 Haw. 360, 378, 878 P.2d 699 (1994); Cowell v. Leapley, 458 N.W.2d 514 (S.D. 1990); see also Ex parte Coker, 575 So. 2d 43, 51-52 (Ala. 1990); Moen v. Peterson, 104 Or. App. 481, 483 n.1, 802 P.2d 76 (1990); People v. Carrera, 49 Cal. 3d 291, 326-28, 777 P.2d 121, 261 Cal. Rptr. 348 (1989); State v. Lark, 117 N.J. 331, 339-40, 567 A.2d 197 (1989).

23 See, e.g., United States v. Williams, 615 F.2d 585, 592-93 (3d Cir. 1980); Sauve, 103 Wn.2d at 327-28 (noting consideration of the “truth-finding function” in Linkletter/Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967) retroactivity analysis).

24 Although this case is unpublished, under New York law, “unpublished decisions may still be considered as persuasive authority.” Yellow Book of N.Y. LP v. Dimilia, 188 Misc. 2d 489, 490, 729 N.Y.S.2d 286 (Dist. Ct. 2001). While there is no rule that bars this court’s opinions from citing any authority, we permit parties to cite unpublished cases “if citation to that opinion is permitted under the law of the jurisdiction of the issuing court.” GR 14.1.

25 Other retroactivity tests are possible, too. See Christopher N. Lasch, The Future of Teague Retroactivity, or “Redressability,” after Danforth v. Minnesota: Why Lower Courts Should Give Retroactive Effect to New Constitutional Rules of Criminal Procedure in Postconviction Proceedings, 46 Am. Crim. L. Rev. 1,60 (2009) (suggesting that benefits of complete retroactivity on collateral review outweigh finality concerns).