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Greene v. Fisher, USSC No. 10-637, cert granted 4/4/11


Decision below (3rd Cir No. 07-2163, 5/28/10)

Question Presented (by Scotusblog):

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?

Cert petition

Here’s the pitch Greene successfully made:

This case presents a fundamental question of federal habeas procedure in the post-AEDPA world: What is the temporal cutoff for when decisions from this Court count as “clearly established Federal law”? Specifically, is a decision that this Court handed down before a state prisoner’s conviction became final but after his last state-court adjudication on the merits “clearly established Federal law”?

At least as a general proposition,Wisconsin subscribes to the idea articulated by Griffith v. Kentucky, 479 U.S. 314, 328 (1987) that new procedural rules apply retroactively to all cases still on direct appeal pipeline. State v. Lagundoye, 2004 WI 4, ¶12, 268 Wis. 2d 77, 674 N.W.2d 526. Put otherwise, new rules of criminal procedure generally do not apply retroactively to cases that were final before issuance of the new rule, id., ¶13. What happens, though, if a new, controlling principle is enunciated while your case is on direct appeal in state court, but it isn’t applied to your case? Does the federal court, on AEDPA habeas review, apply the older authority that controlled at the time of your trial, or the newer authority that was handed down before your direct appeal became final? That’s what Greene’s appeal raises. More particularly, his issue turns on a Bruton problem: at the time of his trial, Bruton could be circumvented by the simple expedient of redacting the defendant’s name from a co-actor’s inculpatory statement. Subsequently, but before Greene’s direct appeal concluded, the Supreme Court decide Gray v. Maryland, which barred this practice. The 3rd Circuit ruled that, for purposes of AEDPA review, Gray didn’t apply:

This case presents a vexing conundrum that cannot, no matter how one views the facts or law, be avoided. While we cannot predict with absolute certainty what date the Supreme Court would use to determine “clearly established Federal law” for purposes of § 2254(d)(1), our decision today represents a careful consideration of the pertinent, conflicting authorities, and we believe that we have reached the best conclusion given the guidance we have to date. Ultimately, only the Supreme Court can resolve such uncertainty as exists. For now, we hold that “clearly established Federal law” for purposes of § 2254(d)(1) should be determined as of the date of the relevant state-court decision. In this case, because the Pennsylvania Superior Court’s December 16, 1997 decision did not unreasonably apply the “clearly established Federal law” that existed at that time, Bruton and Marsh, we will affirm the judgment of the District Court.

If the problem seems obscure, then just consider this observation from Greene’s cert petition:

Moreover, this issue will continue to arise. Over the past few Terms, this Court has announced several important new rules of criminal procedure that apply across a wide range of state criminal prosecutions. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010); Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Giles v. California, 128 S. Ct. 2678 (2008). And if past is prologue, this Court will announce other new rules in the future.

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