kinds of primary, private individual conduct beyond the State's powerto prohibit, which
the Court also characterizes as a substantive rule;4 and (2) a watershed rule of criminal
procedure. Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S. Ct. 2519, 159 L. Ed. 2d
442 (2004); Teague, 489 U.S. at 311; Rhome, 172 Wn.2d at 666. Carney argues that
because both of the Teague exceptions apply, he is entitled to collaterally attack the
1982 acquittal and commitment.
(1) Substantive Rule Exception
Generally, the substantive rule exception encompasses rules which either
decriminalize behavior for which the individual was punished or "narrow the scope of a
criminal statute by interpreting its terms." Schriro, 542 U.S. at 351-52; Rhome, 172
3(Emphasis in original.)
4 Cara H. Drinan, Graham on the Ground. 87 Wash. L. Rev. 51, 65-66 (2012) (noting that the
Court "has shifted its terminology somewhat" in describing the first Teague exception as substantive).
10
No. 68168-1-1/11
Wn.2d at 666; see ajso Market 154 Wn.2d at 269 (exception includes "rule[s] of
substantive law" and not "a change in the procedures required under the Sixth
Amendment[]"). The Court also applied the first Teague exception to "rules prohibiting a
certain category of punishment for a class of defendants because of their status or
offense." Penrv v. Lvnaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L. Ed. 2d 256
(1989). abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242,
153 L. Ed. 2d 335 (2002).
Carney relies on Penrv to argue the first exception applies to the rule in Jones.5
In Penrv, the Supreme Court held that as a substantive matter under the Eight