Whether the federal constitution requires a state court to retroactively apply a new interpretation of a substantive criminal statute that narrows its scope

QUESTION PRESENTED In 2001, this Court left open the question of whether due process requires the states to retroactively apply a decision narrowing the interpretation of a substantive criminal statute. Fiore v. White, 531 U.S. 225, 228 (2001). A deep and intractable split then emerged in the state courts, with a majority granting full retroactivity while a small number imposing a retroactivity bar. In 2016, this Court issued two opinions that resolve this split. In Montgomery v. Louisiana, 136 S. Ct. 718, 727-29, 731-32 (2016), this Court constitutionalized the “substantive rule” exception to Teague. “A rule is substantive land, hence, retroactive] if it alters the range of conduct .. . that the law punishes.” Schriro v. Summerlin, 542 U.S. 348, 353 (2004). In Welch v. United States, 136 S. Ct. 1257, 1267 (2016), this Court made clear the “substantive rule” exception includes decisions narrowing the interpretation of a substantive criminal statute. This new constitutional rule sets the constitutional floor for how the “substantive rule” exception must be applied in the state courts. Those states that do not allow for full retroactivity are wrong. This includes Nevada. After Branham’s first-degree murder conviction became final, the Nevada Supreme Court narrowed the definition of the first-degree murder statute. However, even in light of Montgomery and Welch, Nevada continues to hold that a narrowing statutory interpretation has no retroactive effect. See Branham v. State, 434 P.3d 313, 316-17 (Nev. Ct. App. 2018). To ensure uniformity and to correct Nevada’s clear error, this Court should grant certiorari on the following question: 1. Under the new constitutional rule of retroactivity established in Montgomery v. Louisiana and clarified in Welch v. United States, is a state court required under the federal constitution to retroactively apply interpretations of a substantive criminal statute that narrow its scope? i