Amendment, a rule prohibiting the execution of mentally retarded persons regardless of
the procedures allowed would apply retroactively to defendants on collateral review.
Penrv, 492 U.S. at 330. The rule the Court considered in Penrv prohibited the
government from imposing a certain type of punishment on a certain class of persons.
Penrv, 492 U.S. at 329-30. Here, unlike in Penrv, the rule in Jones is procedural, not
substantive, does not decriminalize any conduct, and does not categorically prohibit the
assertion of a plea of not guilty by reason of insanity.
(2) Watershed Rule Exception
The second Teague exception applies only to "a small set of 'watershed rules of
criminal procedure implicating the fundamental fairness and accuracy of the criminal
proceeding.'" Markel, 154 Wn.2d at 2696 (quoting Schriro. 542 U.S. at 352). " 'That a
new procedural rule is fundamental in some abstract sense is not enough; the rule must
5 Carnev also cites Graham v. Florida. 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
As in Penrv, in Graham, the Court held that imposing a life sentence without parole on a juvenile for a
non-homicide offense violates the Eighth Amendment. Graham, 560 U.S. at 80-82.
6(Internal quotation marks omitted.)
11
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be one without which the likelihood of an accurate conviction is seriously diminished.'"
Rhome. 172 Wn.2d at 6677 (quoting Schriro. 542 U.S. at 352). To qualify as a new
watershed rule, the rule must be necessary to prevent" 'an impermissibly large risk'" of
an inaccurate conviction, Teague. 489 U.S. at 312 (quoting Desist v. United States. 394
U.S. 244, 262, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969)), and must" 'alter our