JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, and an opinion with respect to Parts IV and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.
In Taylor v. Louisiana, 419 U. S. 522 (1975), this Court held that the Sixth Amendment required that the jury venire be drawn from a fair cross-section of the community. The Court stated, however, that,
in holding that petit juries must be drawn from a source fairly representative of the community, we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition.
Id. at 419 U. S. 538. The principal question presented in this case is whether the Sixth Amendment's fair cross-section requirement should now be extended to the petit jury. Because we adopt Justice Harlan's approach to retroactivity for cases on collateral review, we leave the resolution of that question for another day.
I
Petitioner, a black man, was convicted by an all-white Illinois jury of three counts of attempted murder, two counts of armed robbery, and one count of aggravated battery. During jury selection for petitioner's trial, the prosecutor used all 10 of his peremptory challenges to exclude blacks. Petitioner's counsel used one of his 10 peremptory challenges to exclude a black woman who was married to a police officer. After the prosecutor had struck six blacks, petitioner's counsel moved for a mistrial. The trial court denied the motion. App. 2-3. When the prosecutor struck four more blacks, petitioner's counsel again moved for a mistrial, arguing that petitioner was "entitled to a jury of his peers." Id. at 3. The prosecutor defended the challenges by stating that he was trying to achieve a balance of men and women on the jury. The trial court denied the motion, reasoning that the jury "appear[ed] to be a fair [one]." Id. at 4.
On appeal, petitioner argued that the prosecutor's use of peremptory challenges denied him the right to be tried by a jury that was representative of the community. The Illinois Appellate Court rejected petitioner's fair cross-section claim. People v. Teague, 108 Ill.App.3d 891, 895-897, 439 N.E.2d 1066, 1069-1071 (1982). The Illinois Supreme Court denied leave to appeal, and we denied certiorari. 464 U. S. 867 (1983).
Petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. Petitioner repeated his fair cross-section claim, and argued that the opinions of several Justices concurring in and dissenting from the denial of certiorari in McCray v. New York, 461 U.S. 961 (1983), had invited a reexamination of Swain v. Alabama, 380 U. S. 202 (1965), which prohibited States from purposefully and systematically denying blacks the opportunity to serve on juries. He also argued, for the first time, that, under Swain, a prosecutor could be questioned about his use of peremptory challenges once he volunteered an explanation. The District Court, though sympathetic to petitioner's arguments, held that it was bound by Swain and Circuit precedent. App. 5-6.
On appeal, petitioner repeated his fair cross-section claim and his McCray argument. A panel of the Court of Appeals agreed with petitioner that the Sixth Amendment's fair cross-section requirement applied to the petit jury, and held that petitioner had made out a prima facie case of discrimination. A majority of the judges on the Court of Appeals voted to rehear the case en banc, and the panel opinion was vacated. United States ex rel. Teague v. Lane, 779 F.2d 1332 (CA7 1985) (en banc) (Cudahy, J., dissenting). Rehearing was postponed until after our decision in Batson v. Kentucky, 476 U. S. 79 (1986), which overruled a portion of Swain. After Batson was decided, the Court of Appeals held that petitioner could not benefit from the rule in that case because Allen v. Hardy, 478 U. S. 255 (1986) (per curiam), had held that Batson would not be applied retroactively to cases on collateral review. 820 F.2d 832, 834, n. 4 (CA7 1987) (en banc). The Court of Appeals also held that petitioner's Swain claim was procedurally barred and, in any event, meritless. Id. at 834, n. 6. The Court of Appeals rejected petitioner's fair cross-section claim, holding that the fair cross-section requirement was limited to the jury venire. Id. at 834-843. Judge Cudahy dissented, arguing that the fair cross-section requirement should be extended to the petit jury. Id. at 844.
II
Petitioner's first contention is that he should receive the benefit of our decision in Batson even though his conviction became final before Batson was decided. Before addressing petitioner's argument, we think it helpful to explain how Batson modified Swain. Swain held that a "State's purposeful or deliberate denial" to blacks of an opportunity to serve as jurors solely on account of race violates the Equal Protection Clause of the Fourteenth Amendment. 380 U.S. at 380 U. S. 203 -204. In order to establish a prima facie case of discrimination under Swain, a defendant had to demonstrate that the peremptory challenge system had been "perverted." A defendant could raise an inference of purposeful discrimination if he showed that the prosecutor in the county where the trial was held "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be," has been responsible for the removal of qualified blacks who had survived challenges for cause, with the result that no blacks ever served on petit juries. Id. at 380 U. S. 223.
In Batson, the Court overruled that portion of Swain setting forth the evidentiary showing necessary to make out a prima facie case of racial discrimination under the Equal Protection Clause. The Court held that a defendant can establish a prima facie case by showing that he is a "member of a cognizable racial group," that the prosecutor exercised "peremptory challenges to remove from the venire members of the defendant's race," and that those
facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.
476 U.S. at 476 U. S. 96. Once the defendant makes out a prima facie case of discrimination, the burden shifts to the prosecutor "to come forward with a neutral explanation for challenging black jurors." Id. at 476 U. S. 97.
In Allen v. Hardy, the Court held that Batson constituted an "explicit and substantial break with prior precedent" because it overruled a portion of Swain. 478 U.S. at 478 U. S. 258. Employing the retroactivity standard of Linkletter v. Walker, 381 U. S. 618, 381 U. S. 636 (1965), the Court concluded that the rule announced in Batson should not be applied retroactively on collateral review of convictions that became final before Batson was announced. The Court defined final to mean a case
'where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in' Batson.…
478 U.S. at 478 U. S. 258, n. 1 (citation omitted).
Petitioner's conviction became final 2 1/2 years prior to Batson, thus depriving petitioner of any benefit from the rule announced in that case. Petitioner argues, however, that Batson should be applied retroactively to all cases pending on direct review at the time certiorari was denied in McCray because the opinions filed in McCray destroyed the precedential effect of Swain. Brief for Petitioner 23. The issue in McCray and its companion cases was whether the Constitution prohibited the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor's assumption that they would be biased in favor of other members of that same group. JUSTICES MARSHALL and BRENNAN dissented from the denial of certiorari, expressing the views that Swain should be reexamined, and that the conduct complained of violated a defendant's Sixth Amendment right to be tried by an impartial jury drawn from a fair cross-section of the community. 461 U.S. at 964-970. JUSTICES STEVENS, BLACKMUN, and Powell concurred in the denial of certiorari. They agreed that the issue was an important one, but stated that it was a
sound exercise of discretion for the Court to allow the various States to serve as laboratories in which the issue receives further study before it is addressed.
Id. at 963.
We reject the basic premise of petitioner's argument. As we have often stated, the "denial of a writ of certiorari imports no expression of opinion upon the merits of the case." United States v. Carver, 260 U. S. 482, 260 U. S. 490 (1923) (Holmes, J.). Accord, Hughes Tool Co. v. Trans World Airlines, Inc., 409 U. S. 363, 409 U. S. 366, n. 1 (1973); Brown v. Allen, 344 U. S. 443, 344 U. S. 489 -497 (1953). The "variety of considerations [that] underlie denials of the writ," Maryland v. Baltimore Radio Show, 338 U. S. 912, 917 (1950) (opinion of Frankfurter, J.), counsels against according denials of certiorari any precedential value. Concomitantly, opinions accompanying the denial of certiorari cannot have the same effect as decisions on the merits. We find that Allen v. Hardy is dispositive, and that petitioner cannot benefit from the rule announced in Batson.
III
Petitioner's second contention is that he has established a violation of the Equal Protection Clause under Swain. Recognizing that he has not shown any systematic exclusion of blacks from petit juries in case after case, petitioner contends that, when the prosecutor volunteers an explanation for the use of his peremptory challenges, Swain does not preclude an examination of the stated reasons to determine the legitimacy of the prosecutor's motive. Brief for Petitioner 35 (citing Batson, 476 U.S. at 476 U. S. 101, n. (WHITE, J., concurring)). See Weathersby v. Morris, 708 F.2d 1493, 1495-1496 (CA9 1983) (supporting petitioner's interpretation of Swain ), cert. denied, 464 U.S. 1046 (1984).
Petitioner candidly admits that he did not raise the Swain claim at trial or on direct appeal. Brief for Petitioner 38-39. Because of this failure, petitioner has forfeited review of the claim in the Illinois courts.
It is well established that where an appeal was taken from a conviction, the judgment of the reviewing court isres judicata as to all issues actually raised, and those that could have been presented but were not are deemed waived.
People v. Gaines, 105 Ill.2d 79, 87-88, 473 N.E.2d 868, 873 (1984) (citation omitted), cert. denied, 471 U.S. 1131 (1985). The default prevents petitioner from raising the Swain claim in collateral proceedings under the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat., ch. 38, 122-1 et seq. (1987), unless fundamental fairness requires that the default be overlooked. People v. Brown, 52 Ill.2d 227, 230, 287 N.E.2d 663, 665 (1972).
The fundamental fairness exception is a narrow one, and has been applied in limited circumstances. Compare People v. Goerger, 52 Ill.2d 403, 406, 288 N.E.2d 416, 418 (1972) (improper instruction on reasonable doubt "does not constitute such fundamental unfairness as to obviate the res judicata and waiver doctrines"), with People v. Ikerd, 47 Ill.2d 211, 212, 265 N.E.2d 120, 121 (1970) (fundamental fairness exception applies "where the right relied on has been recognized for the first time after the direct appeal"), and People v. Hamby, 32 Ill.2d 291, 294-295, 205 N.E.2d 456, 458 (1965) (fundamental fairness exception applies to claims that defendant asked counsel to raise on direct appeal). It is clear that collateral relief would be unavailable to petitioner. See People v. Beamon, 31 Ill.App.3d 145, 145-146, 333 N.E.2d 575, 575-576 (1975) (abstract of decision) (not invoking fundamental fairness exception and holding that Swain claim not raised on direct appeal could not be raised for the first time in collateral proceedings). As a result, petitioner has exhausted his state remedies under 28 U.S.C. § 2254(b) with respect to the Swain claim. See Engle v. Isaac, 456 U. S. 107, 456 U. S. 125 -126, n. 28 (1982); United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1385-1386 (CA7 1974).
Under Wainwright v. Sykes, 433 U. S. 72, 433 U. S. 87 -91 (1977), petitioner is barred from raising the Swain claim in a federal habeas corpus proceeding unless he can show cause for the default and prejudice resulting therefrom. See Engle v. Isaac, supra, at 456 U. S. 113 -114, 456 U. S. 117, 456 U. S. 124 -135 (applying procedural default rule to claim that had never been raised in state court). Petitioner does not attempt to show cause for his default. Instead, he argues that the claim is not barred because it was addressed by the Illinois Appellate Court. Cf. Caldwell v. Mississippi, 472 U. S. 320, 472 U. S. 327 -328 (1985). We cannot agree with petitioner's argument. The Illinois Appellate Court rejected petitioner's Sixth Amendment fair cross-section claim without mentioning the Equal Protection Clause on which Swain was based or discussing whether Swain allows a prosecutor to be questioned about his use of peremptory challenges once he volunteers an explanation. See People v. Teague, 108 Ill.App.3d at 895-896, 439 N.E.2d at 1070. Accordingly, we hold that petitioner's Swain claim is procedurally barred, and do not address its merits.
Our application of the procedural default rule here is consistent with Harris v. Reed, ante at 489 U. S. 263, which holds that a
procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar
(citations and internal quotations omitted). The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding. It is simply inapplicable in a case such as this one, where the claim was never presented to the state courts. See ante at 489 U. S. 268 -270 (O'CONNOR, J., concurring).
IV
Petitioner's third and final contention is that the Sixth Amendment's fair cross-section requirement applies to the petit jury. As we noted at the outset, Taylor expressly stated that the fair cross-section requirement does not apply to the petit jury. See 419 U.S. at 419 U. S. 538. Petitioner nevertheless contends that the ratio decidendi of Taylor cannot be limited to the jury venire, and he urges adoption of a new rule. Because we hold that the rule urged by petitioner should not be applied retroactively to cases on collateral review, we decline to address petitioner's contention.
A
In the past, the Court has, without discussion, often applied a new constitutional rule of criminal procedure to the defendant in the case announcing the new rule, and has confronted the question of retroactivity later, when a different defendant sought the benefit of that rule. See, e.g., Brown v. Louisiana, 447 U. S. 323 (1980) (addressing retroactivity of Burch v. Louisiana, 441 U. S. 130 (1979)); Robinson v. Neil, 409 U. S. 505 (1973) (addressing retroactivity of Waller v. Florida, 397 U. S. 387 (1970)); Stovall v. Denno, 388 U. S. 293 (1967) (addressing retroactivity of United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967)); Tehan v. Shott, 382 U. S. 406 (1966) (addressing retroactivity of Griffin v. California, 380 U. S. 609 (1965)). In several cases, however, the Court has addressed the retroactivity question in the very case announcing the new rule. See Morrissey v. Brewer, 408 U. S. 471, 408 U. S. 490 (1972); Witherspoon v. Illinois, 391 U. S. 510, 391 U. S. 523, n. 22 (1968). These two lines of cases do not have a unifying theme, and we think it is time to clarify how the question of retroactivity should be resolved for cases on collateral review.
The question of retroactivity with regard to petitioner's fair cross-section claim has been raised only in an amicus brief. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 22-24. Nevertheless, that question is not foreign to the parties, who have addressed retroactivity with respect to petitioner's Batson claim. See Brief for Petitioner 21-32; Brief for Respondent 31-38. Moreover, our sua sponte consideration of retroactivity is far from novel. In Allen v. Hardy, we addressed the retroactivity of Batson even though that question had not been presented by the petition for certiorari or addressed by the lower courts. See 478 U.S. at 478 U. S. 261 -262 (MARSHALL, J., dissenting). See also Mapp v. Ohio, 367 U. S. 643, 367 U. S. 646, n. 3 (1961) (applying exclusionary rule to the States even although such a course of action was urged only by amicus curiae ).
In our view, the question
whether a decision [announcing a new rule should] be given prospective or retroactive effect should be faced at the time of [that] decision.
Mistakin, Foreword: the High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 64 (1965). Cf. Bowen v. United States, 422 U. S. 916, 422 U. S. 920 (1975) (when "issues of both retroactivity and application of constitutional doctrine are raised," the retroactivity issue should be decided first). Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. Thus, before deciding whether the fair cross-section requirement should be extended to the petit jury, we should ask whether such a rule would be applied retroactively to the case at issue. This retroactivity determination would normally entail application of the Linkletter standard, but we believe that our approach to retroactivity for cases on collateral review requires modification.
It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. See, e.g., Rock v. Arkansas, 483 U. S. 44, 483 U. S. 62 (1987) ( per se rule excluding all hypnotically refreshed testimony infringes impermissibly on a criminal defendant's right to testify on his behalf); Ford v. Wainwright, 477 U. S. 399, 477 U. S. 410 (1986) (Eighth Amendment prohibits the execution of prisoners who are insane). To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. See generally Tresdale v. Aiken, 480 U. S. 527, 480 U. S. 528 -529 (1987) (Powell, J., dissenting). Given the strong language in Taylor and our statement in Akins v. Texas, 325 U. S. 398, 325 U. S. 403 (1945), that "[f]airness in [jury] selection has never been held to require proportional representation of races upon a jury," application of the fair cross-section requirement to the petit jury would be a new rule. [ Footnote 1 ]
Not all new rules have been uniformly treated for retroactivity purposes. Nearly a quarter of a century ago, in Linkletter, the Court attempted to set some standards by which to determine the retroactivity of new rules. The question in Linkletter was whether Mapp v. Ohio, which made the exclusionary rule applicable to the States, should be applied retroactively to cases on collateral review. The Court determined that the retroactivity of Mapp should be determined by examining the purpose of the exclusionary rule, the reliance of the States on prior law, and the effect on the administration of justice of a retroactive application of the exclusionary rule. Using that standard, the Court held that Mapp would only apply to trials commencing after that case was decided. 381 U.S. at 381 U. S. 636 -640.
The Linkletter retroactivity standard has not led to consistent results. Instead, it has been used to limit application of certain new rules to cases on direct review, other new rules only to the defendants in the cases announcing such rules, and still other new rules to cases in which trials have not yet commenced. See Desist v. United States, 394 U. S. 244, 394 U. S. 256 -257 (1969) (Harlan, J., dissenting) (citing examples). Not surprisingly, commentators have "had a veritable field day" with the Linkletter standard, with much of the discussion being "more than mildly negative." Beytagh, Ten Years of Non-Retroactivity: A Critique and a Proposal, 61 Va.L.Rev. 1557, 1558, and n. 3 (1975) (citing sources).
Application of the Linkletter standard led to the disparate treatment of similarly situated defendants on direct review. For example, in Miranda v. Arizona, 384 U. S. 436, 384 U. S. 467 -473 (1966), the Court held that, absent other effective measures to protect the Fifth Amendment privilege against self-incrimination, a person in custody must be warned prior to interrogation that he has certain rights, including the right to remain silent. The Court applied that new rule to the defendants in Miranda and its companion cases, and held that their convictions could not stand because they had been interrogated without the proper warnings. Id. at 384 U. S. 491 -499. In Johnson v. New Jersey, 384 U. S. 719, 384 U. S. 733 -735 (1966), the Court held, under the Linkletter standard, that Miranda would only be applied to trials commencing after that decision had been announced. Because the defendant in Johnson, like the defendants in Miranda, was on direct review of his conviction, see 384 U.S. at 384 U. S. 721, the Court's refusal to give Miranda retroactive effect resulted in unequal treatment of those who were similarly situated. This inequity also generated vehement criticism. See, e.g., A. Bickel, The Supreme Court and the Idea of Progress 54-57 (1978) (decrying the "plain" injustice in Johnson, and suggesting that the Court should have distinguished between direct and collateral review for purposes of retroactivity).
Dissatisfied with the Linkletter standard, Justice Harlan advocated a different approach to retroactivity. He argued that new rules should always be applied retroactively to cases on direct review, but that generally they should not be applied retroactively to criminal cases on collateral review. See Mackey v. United States, 401 U. S. 667, 401 U. S. 675 (1971) (opinion concurring in judgments in part and dissenting in part); Desist, 394 U.S. at 394 U. S. 256 (dissenting opinion).
In Griffith v. Kentucky, 479 U. S. 314 (1987), we rejected as unprincipled and inequitable the Linkletter standard for cases pending on direct review at the time a new rule is announced, and adopted the first part of the retroactivity approach advocated by Justice Harlan. We agreed with Justice Harlan that
failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.
479 U.S. at 479 U. S. 322. We gave two reasons for our decision. First, because we can only promulgate new rules in specific cases, and cannot possibly decide all cases in which review is sought, "the integrity of judicial review" requires the application of the new rule to "all similar cases pending on direct review." Id. at 479 U. S. 323. We quoted approvingly from Justice Harlan's separate opinion in Mackey, supra, at 401 U. S. 679 :
'If we do not resolve all cases before us on direct review in light of our best understanding of governing constitutional principles, it is difficult to see why we should so adjudicate any case at all…. In truth, the Court's assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review is quite simply an assertion that our constitutional function is not one of adjudication, but in effect of legislation.'
479 U.S. at 479 U. S. 323. Second, because "selective application of new rules violates the principle of treating similarly situated defendants the same," we refused to continue to tolerate the inequity that resulted from not applying new rules retroactively to defendants whose cases had not yet become final. Id. at 479 U. S. 323 -324 (citing Desist, supra, at 394 U. S. 258 -259 (Harlan, J., dissenting)). Although new rules that constituted clear breaks with the past generally were not given retroactive effect under the Linkletter standard, we held that
a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past.
479 U.S. at 479 U. S. 328.
The Linkletter standard also led to unfortunate disparity in the treatment of similarly situated defendants on collateral review. An example will best illustrate the point. In Edwards v. Arizona, 451 U. S. 477, 451 U. S. 484 -487 (1981), the Court held that, once a person invokes his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be inferred from the fact that the person responded to police-initiated questioning. It was not until Solem v. Stumes, 465 U. S. 638 (1984), that the Court held, under the Linkletter standard, that Edwards was not to be applied retroactively to cases on collateral review. In the interim, several lower federal courts had come to the opposite conclusion, and had applied Edwards to cases that had become final before that decision was announced. See Witt v. Wainwright, 714 F.2d 1069, 1072-1074 (CA11 1983); Sockwell v. Maggio, 709 F.2d 341, 343-344 (CA5 1983); McCree v. Housewright, 689 F.2d 797, 800-802 (CA8 1982), cert. denied sub nom. McCree v. Lockhart, 460 U.S. 1088 (1983). Thus, some defendants on collateral review whose Edwards claims were adjudicated prior to Stumes received the benefit of Edwards, while those whose Edwards claims had not been addressed prior to Stumes did not. This disparity in treatment was a product of two factors: our failure to treat retroactivity as a threshold question and the Linkletter standard's inability to account for the nature and function of collateral review. Having decided to rectify the first of those inadequacies, see supra, at 489 U. S. 300 -301, we now turn to the second.
B
Justice Harlan believed that new rules generally should not be applied retroactively to cases on collateral review. He argued that retroactivity for cases on collateral review could
be responsibly [determined] only by focusing, in the first instance, on the nature, function, and scope of the adjudicatory process in which such cases arise. The relevant frame of reference, in other words, is not the purpose of the new rule whose benefit the [defendant] seeks, but instead the purposes for which the writ of habeas corpus is made available.
Mackey, 401 U.S. at 401 U. S. 682 (opinion concurring in judgments in part and dissenting in part). With regard to the nature of habeas corpus, Justice Harlan wrote:
Habeas corpus always has been a collateral remedy, providing an avenue for upsetting judgments that have become otherwise final. It is not designed as a substitute for direct review. The interest in leaving concluded litigation in a state of repose, that is, reducing the controversy to a final judgment not subject to further judicial revision, may quite legitimately be found by those responsible for defining the scope of the writ to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed.
Id. at 401 U. S. 682 -683. Given the "broad scope of constitutional issues cognizable on habeas," Justice Harlan argued that it is
sounder, in adjudicating habeas petitions, generally to apply the law prevailing at the time a conviction became final than it is to seek to dispose of [habeas] cases on the basis of intervening changes in constitutional interpretation.
Id. at 401 U. S. 689. As he had explained in Desist,
the threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. In order to perform this deterrence function,… the habeas court need only apply the constitutional standards that prevailed at the time the original proceedings took place.
394 U.S. at 394 U. S. 262 -263. See also Stumes, 466 U.S. at 466 U. S. 653 (Powell, J., concurring in judgment) ("Review on habeas to determine that the conviction rests upon correct application of the law in effect at the time of the conviction is all that is required to forc[e] trial and appellate courts… to toe the constitutional mark'") (citation omitted).
Justice Harlan identified only two exceptions to his general rule of nonretroactivity for cases on collateral review. First, a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Mackey, 401 U.S. at 401 U. S. 692. Second, a new rule should be applied retroactively if it requires the observance of "those procedures that… are implicit in the concept of ordered liberty.'" Id. at 401 U. S. 693 (quoting Palko v. Connecticut, 302 U. S. 319, 302 U. S. 325 (1937) (Cardozo, J.)).
Last Term, in Yates v. Aiken, 484 U. S. 211 (1988), we were asked to decide whether the rule announced in Francis v. Franklin, 471 U. S. 307 (1985), should be applied to a defendant on collateral review at the time that case was decided. We held that Francis did not announce a new rule, because it
was merely an application of the principle that governed our decision in Sandstrom v. Montana, [ 442 U. S. 510 (1979)], which had been decided before [the defendant's] trial took place.
484 U.S. at 484 U. S. 216 -217. We therefore found it unnecessary to adopt Justice Harlan's view of retroactivity for cases on collateral review. We stated, however, that our recent decisions had noted, as had Justice Harlan, "the important distinction betwee