Issues
Whether a court can grant federal habeas relief based on a Supreme Court decision decided after the last state court adjudication on the merits, but before the petitioner has exhausted all appeal options.
Petitioner Eric Greene was accused of participating in a grocery store robbery that left the storeowner dead. Greene argues that statements made by non-testifying co-defendants improperly implicated him, because the trial court redacted co-defendant statements by replacing references to Greene with blanks or neutral pronouns. While Greene awaited appeal, the Supreme Court decided Gray v. Maryland, which held that obvious redactions of the kind in Greene’s case do not sufficiently protect the accused. Based on this development, Greene petitioned for habeas relief. The U.S. Court of Appeals for the Third Circuit denied relief, reasoning that Section 2254(d) of the Antiterrorism and Effective Death Penalty Act does not apply because Gray was not “clearly established Federal law” during Greene’s trial. Greene argues under Teague v. Lane that habeas petitioners benefit from any Supreme Court decision handed down before their convictions become final. Respondent Jon Fisher argues that the phrase “clearly established” precludes re-litigation of issues settled by state courts unless the state’s decision was unreasonable in light of law existing when the decision was handed down. The Supreme Court’s decision in this case will address the meaning of “clearly established federal law,” posing broad implications for future and ongoing habeas petitions.
Questions as Framed for the Court by the Parties
For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as "clearly established Federal law" under 28 U.S.C . § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?
Facts
In December 1993, three or four men robbed a North Philadelphia grocery store, stealing the cash register and killing the storeowner. A week later, police arrested Petitioner Eric Greene and three other men in connection with the robbery. In February 1995, Greene’s alleged co-conspirators gave statements implicating Greene in the robbery. Shortly thereafter, Greene and the others were charged with second-degree murder, robbery, and conspiracy.
Greene tried to sever his trial from his co-defendants, claiming that their incriminating statements against him would prejudice him and violate his rights under the Confrontation Clause of the Sixth Amendment. The judge denied severance and instead ordered the prosecution to simply redact anything in the statements that implicated Greene.
During Greene’s trial, the redacted statements substituted defendants’ names with phrases like “this guy,” “someone,” the word “blank,” or deleted a name entirely, leaving sentences like: “One is and the other is.” After closing arguments, the judge instructed the jury to consider the redacted statements only as evidence against the speaker, not as evidence against any of the co-defendants. The jury pronounced Greene guilty of second-degree murder, three counts of robbery, one count of conspiracy, and the court sentenced him to life imprisonment.
Greene appealed the decision to the Pennsylvania Superior Court, arguing that the court should have severed the trial because the statements were not “suitable for redaction.” However, the Superior Court affirmed, holding that the redactions were sufficient to protect Greene and did not violate his rights under the Confrontation Clause of the Sixth Amendment.
Greene then appealed to the Pennsylvania Supreme Court. While Greene’s appeal was pending, the United States Supreme Court issued its decision in Gray v. Maryland, holding that “redactions that replace a proper name with an obvious blank, the word ‘delete’, a symbol, or similarly notify the jury that a name has been deleted” should be treated as un-redacted statements. The Pennsylvania Supreme Court granted Greene’s appeal, but subsequently dismissed it as being improvidently granted. Greene’s conviction became final on July 28, 1999, when he did not appeal to the United States Supreme Court.
Greene sought federal habeas corpus relief under Section 2254(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), arguing that his conviction was “contrary to . . . clearly established Federal law.”Greene argued that “clearly established Federal law” means the law at the time the decision became final, so the Supreme Court’s decision in Gray was controlling when the Pennsylvania Supreme Court dismissed his appeal. The district court and the Third Circuit Court of Appeals interpreted “clearly established Federal law” as the law at the time of the last state court decision on the merits, giving the decision in Gray no effect on Greene’s case. The Supreme Court will now determine whether the cutoff should be the time of the last state court decision on the merits, or the time when the conviction ultimately becomes final.
Analysis
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) Section 2254(d), state prisoners will not receive habeas corpus relief for “any claim that was adjudicated on the merits in state court unless” it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States.” In this case, the Supreme Court will decide what “clearly established Federal law” in Section 2254(d) means in relation to the timing of state court decisions.
On the one hand, Petitioner Eric Greene argues that habeas petitioners should benefit from any Supreme Court decision handed down before their convictions become final. On the other hand, Respondents Jon Fisher and other state officials (collectively “Fisher”) argue that habeas relief is only possible if a Supreme Court rule existed at the time of the last state court decision on the merits of a defendant’s case. Because the Supreme Court decided Gray v. Maryland— holding that “redactions that . . . notify the jury that a name has been deleted” should be treated as un-redacted statements—after an intermediate state court ruled on the merits of Greene’s case, but before the state supreme court rejected his appeal, this question of timing will determine whether Greene receives the benefit of the Gray decision.
The Temporal Effect of “Clearly Established” in Section 2254(d)
Petitioner Greene argues that Section 2254(d) establishes only a standard of review. Because the standard of review for habeas relief is separate from the issue of retroactivity, Greene says the statute’s “clearly established” language does not disturb the retroactivity principle from Teague v. Lane. (In Teague, the Supreme Court interpreted Section 2243 to mean that prisoners may benefit from any Court decisions handed down before the conviction becomes final. ) As further evidence that Section 2254(d) does not modify the retroactivity principle, Greene notes that the Supreme Court has looked to Section 2254(d) to interpret the standard of review, but to Section 2243 to derive the retroactivity principle in Teague.
However, Respondent Fisher insists that the AEDPA's plain language creates a temporal cutoff. Fisher contends that the words “clearly established” in Section 2254(d) do include a consideration of time; once a state court decides a claim “on the merits,” Section 2254(d) forecloses federal re-litigation under principles of res judicata. Fisher argues that this limits habeas relief to exceptional circumstances, where courts “unreasonably” decided questions of law, as established at that time. Moreover, Fisher notes that Congress’s use of “clearly established” would serve no purpose, and would therefore run afoul of principles of statutory construction, if the retroactivity principles announced in Teague unqualifiedly govern the temporal cutoff.
On the other hand, Greene asserts that, under normal rules of statutory construction, absent explicit statutory language or congressional intent to the contrary, AEDPA does not disrupt previous federal law. Greene notes that Congress left the retroactivity provision in Section 2243 unchanged post-Teague, even though it has significantly overhauled other aspects of federal habeas review since then. Greene suggests that this implies that Congress intended to leave the Court’s retroactivity principle intact. Further, although Congress amended Section 2254, the legislative record never mentions retroactivity. Therefore, Greene concludes that Congress did not intend Section 2254(d) to change the cutoff that would be applied under Teague. Additionally, following the amendment to Section 2254, state courts immediately noted that the standard of review had changed, but did not reconsider retroactivity procedures for another ten years.
Fisher repeats that Section 2254's plain language requires a res judicata effect, and that Greene’s focus on retroactivity is misplaced. Fisher argues that Section 2243 retroactivity and Section 2254 res judicata may in some cases overlap, but that res judicata may also preempt considerations of retroactivity altogether. Here, he argues, the state court’s decision came down before Gray, thus precluding the question of retroactivity. According to Fisher,Section 2254(d) only allows habeas review of unreasonable, not merely erroneous, state court decisions. Thus, though a state decision may be in error in light of new federal law, a state court cannot act unreasonably, triggering the possibility of habeas relief, if that federal law did not exist at the time of the court’s decision.
Applicable Precedent – Teague or Pinholster
Greene argues that, because Congress did not intend to change the retroactivity cutoff, past precedent still applies. Greene maintains that, in Teague, the Supreme Court held that retroactivity is the threshold inquiry in a habeas case; because, under Teague, the Gray holding applies to his case, he is eligible for habeas relief. In particular, Greene distinguishes Cullen v. Pinholster because the Court in that case did not directly address the question he presents here, only deciding issues relating to the introduction of evidence after trial.
On the other hand, Fisher argues that Supreme Court precedent supports his interpretation of Section 2254(d)’s use of “clearly established.” Fisher contends that the Supreme Court’s decision in Pinholster applies to Section 2254(d) as a whole, such that courts are bound to both the factual record and existing federal law at the time of the relevant state court decision. By analogy, Fisher argues, just as state courts cannot apply law to evidence absent from the record, state courts are equally incapable of applying a Supreme Court rule not yet in existence.
Greene argues that the Third Circuit's use of Williams v. Taylor incorrectly relied on dicta, since in that case the court was not required to reach the question of timing for retroactivity. Moreover Greene also notes that in Williams, Justice O’Connor explicitly confirmed that the Teague retroactivity analysis controls by stating that a rule in existence before a prisoner’s conviction becomes final constitutes “clearly established Federal law” under Teague. Greene also points to other cases, including the recently decided Harrington v. Richter, which held that Supreme Court precedent need not exist at the time of the state court’s decision because higher courts may apply the new holding hypothetically to the state decision.
Fisher notes that, on the very same page Greene cites in Williams, the Court had defined “clearly established” in Section 2254(d) to mean that only Supreme Court decisions existing at the time “of the relevant state court decision” could be considered on habeas review. Moreover, Fisher argues that Greene persistently ignores the portion of O’Connor’s Williams decision that focuses on habeas review’s true purpose: to prevent “unreasonable” applications of law, not simple error correction. Fisher also refutes Greene’s reliance on Harrington, which also says that Section 2254(d) is meant to be a form of “re-litigation bar,” and that federal courts will only review serious problems in state decisions, not mere errors. .
Discussion
In this case, the Supreme Court will decide on a temporal deadline for determining what is “clearly established Federal law.” Petitioner Eric Greene believes that this means that Supreme Court decisions rendered before a conviction is final must be considered for federal habeas corpus purposes. Respondents Jon Fisher and other state officials (collectively “Fisher”) argue that the cutoff should be the date on which the last state court rendered a decision on the merits. This decision has the potential to impact prisoners’ access to federal habeas relief, the dockets of courts of last resort, and indigent prisoners who lack representation.
Unequal Habeas Rights for Petitioners
Greene argues that, if the Court affirms the Third Circuit’s interpretation of “clearly established Federal law,” defendants will suffer a “twilight zone” effect, where prisoners in similar situations have unequal access to federal habeas review. Specifically, Greene explains that this “twilight zone” would exist where a defendant loses the chance of federal relief because a state’s highest court used its discretion to deny review for any number of reasons; meanwhile, the Supreme Court could grant habeas relief to a similarly situated defendant. Greene argues that he currently exists in the “twilight zone” created by Gray v. Maryland.
Fisher counters that, even under Greene's interpretation, there will be a “twilight zone” of cases.For example, decisions became final for two of Greene's co-defendants prior to the Gray decision; these co-defendants would be unable to invoke Gray to their benefit, no matter what happens to Greene. Moreover, Fisher asserts that “state courts are not evil and ignorant”: state courts are equally bound to protect constitutional rights, so prisoners will not be left without protection, even if their access to federal habeas review is limited in certain situations.
Impact on the Discretionary Dockets of Courts of Last Resort
The National Association of Criminal Defense Lawyers (“NACDL”) and National Association of Federal Defenders (“NAFD”) (collectively “National Associations”) argue that a pre-finality cutoff date increases the burden on courts of last resort. The National Associations explain that the Third Circuit’s interpretation cuts off federal habeas review for defendants similarly situated to Greene. Therefore, only state courts of last resort and the Supreme Court can review state court decisions that do not consider intervening Supreme Court decisions. Forthese courts, the National Associations argue, it would be “constitutionally necessary” to hear more cases, increasing strain on their docket.
In response, Fisher argues that federal habeas relief exists to “guard against extreme malfunctions” in the criminal justice system, and that the bar is set high to avoid granting habeas review to correct ordinary error. Fisher notes that other options exist for prisoners, and that Greene chose not to utilize these options, electing instead to take his case back through the federal courts, and contributing to the burden on these courts. The State of Texas, joined by twelve other states, agrees, noting that Greene’s argument regarding the burden on court systems appears disingenuous, as he failed to petition for certiorari to the U.S. Supreme Court when the Pennsylvania Supreme Court dismissed his case; had he so petitioned, he could perhaps have avoided a longer, unnecessary path through the federal court system.
Unfair Burden on Indigent Petitioners
The National Associations also argue that the pre-finality cutoff would unfairly impact indigent petitioners because many defendants with state-funded representation lose this subsidy before conviction is final. Therefore, the earlier cutoff date means that such prisoners seeking review would need to interpret an intervening decision and draft a petition for certiorari without the aid of an attorney. To avoid this disparate impact, Greene argues that, with a pre-finality cutoff, equitable principles would require courts to provide representation beyond the first appellate review through to a court of last resort.
However, Fisher believes that this concern is unwarranted. Fisher argues that most prisoners whose cases merit federal habeas review have access through the current system. Moreover, Fisher points out that Greene’s proposal for appointed counsel will further increase the burden on courts.
Conclusion
In this case, the Supreme Court will clarify the cutoff date for what constitutes “clearly established Federal law” for the purposes of federal habeas review. Petitioner Eric Greene argues that the cutoff date should be the date on which the conviction becomes final; this will avoid foreclosing federal habeas review where an intervening Supreme Court ruling would provide relief. Respondent Jon Fisher argues that this interpretation upsets prior precedent establishing the cutoff date as the date of the last state court decision on the merits; he also argues that the rights of habeas petitioners are protected under the standards as they are now. This decision could have far-reaching implications with respect to prisoners’ access to federal habeas relief, and for the dockets of courts of last resort.
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Acknowledgments
Additional Resources
ABA Cert alert, Carol Garfiel Freeman: Supreme Court Cases of Interest (Summer 2011)
Habeas Corpus Blog: Habeas Corpus – New Cert. Grant (Apr. 4, 2011)