Tharpe v. Sellers, J. Thomas, with whom J. Alito and J. Gorsuch join, dissenting (Per Curiam opinion), Docket 17-6075

Retroactivity (here in a criminal context): (…) First, no reasonable jurist could argue that Pena-Rodriguez applies retroactively on collateral review. Pena-Rodriguez established a new rule: The opinion states that it is answering a question “left open” by this Court’s earlier precedents. 580 U. S., at ___ (slip op., at 13). A new rule does not apply retroactively unless it is substantive or a “watershed rule of criminal procedure.” Teague v. Lane, 489 U. S. 288, 311 (1989) (plurality opinion). Since Pena-Rodriguez permits a trial court “to consider [certain] evidence,” 580 U. S., at ___ (slip op., at 17), and does not “alter the range of conduct or the class of persons that the law punishes,” Schriro v. Summerlin, 542 U. S. 348, 353 (2004), it cannot be a substantive rule.And Tharpe does not even attempt to argue that Pena-Rodriguez estab­lished a watershed rule of criminal procedure—a class of rules that…

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