Precedential
Precedential
Precedential
No. 07-2163
ERIC GREENE
also known as
JARMAINE Q. TRICE
v.
JOHN A. PALAKOVICH; THE DISTRICT ATTORNEY OF
THE
PHILADELPHIA COUNTY; THE ATTORNEY GENERAL
OF THE
STATE OF PENNSYLVANIA
Eric Greene,
Appellant
OPINION
10
July 28, 1999, was the pertinent cutoff date, Gray, which was
issued more than a year earlier on March 9, 1998, would be
clearly established Federal law.
The Magistrate Judge ultimately determined that the
controlling date for ascertaining the clearly established Federal
law for Greenes habeas petition was the date of the relevant
state-court decision. Accordingly, the Magistrate Judge applied
the Supreme Court law existing at the time of the Pennsylvania
Superior Courts December 16, 1997 decision, Bruton and
Marsh, to determine whether Greenes 2254 petition merited
relief. He concluded that the Pennsylvania Superior Court did
not unreasonably apply Bruton and Marsh in concluding that the
redacted statements did not violate the Confrontation Clause and
rules under Teague has largely fallen by the wayside in postWilliams Supreme Court decisions, see infra Section III(C).
Moreover, the Foxworth Courts assertion that Justice OConnor
did not intend to modify or to undercut the bright-line rule of
Teague, 570 F.3d at 431, is not readily apparent from our
reading of Williams. Justice Stevenss claim that AEDPA
codified Teague did not garner the support of the majority. See
Williams, 529 U.S. at 374-90. Instead, the majority sided with
Justice OConnor, who rejected Justice Stevenss view that
2254(d)(1) had no effect on the [pre-AEDPA] law of habeas
corpus[.] Williams, 529 U.S. at 404. Justice OConnors
rejection of Justice Stevenss belief that AEDPA codified
Teague most certainly suggests a desire on her part to undercut
Teague and the significance of the date that a petitioners
conviction became final.
The Foxworth Court also suggested that using the date of
the last relevant state-court decision would subvert Griffith and
deny criminal defendants the benefit of new Supreme Court
precedent by the simple expedient of summarily affirming a
lower courts decision. Foxworth, 570 F.3d at 432. It would
also, according to the First Circuit, give state courts a perverse
incentive to avoid addressing constitutional claims in
contemporaneous terms while insulating their actions from
subsequent federal habeas review. Id. We disagree. The
suggestion that a state appellate court would summarily affirm
the judgment of a lower state court in an effort to undermine an
individuals potential federal habeas petition is baseless.
Moreover, the Teague rule itself, the rule that the First Circuit
endorses, is premised on comity and respect for state court
24
10
2004) (noting that the Pennsylvania Superior Court did not act
unreasonably in failing to predict the Supreme Courts decision
in Gray). The same is true for the contrary to prong of the
statute.
C.
Supreme Court decisions after Williams further bolster
our conclusion. In Lockyer v. Andrade, 538 U.S. 63 (2003), the
Supreme Court stated unequivocally that clearly established
Federal Law under 2254(d)(1) is the governing legal principle
or principles set forth by the Supreme Court at the time the state
court renders its decision. Id. at 71-72. The same test was
repeated in Wiggins v. Smith, 539 U.S. 510, 520 (2003),
Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004), and
Carey v. Musladin, 549 U.S. 70, 74 (2006). Accord 1-2 Randy
Hertz & James S. Liebman, Federal Habeas Corpus Practice
and Procedure, Fifth Edition 2.4 (stating that the date for
determining clearly established Federal law for 2254
petitions is the date of the state court decision); 2-32 id. 32.3
(Section 2254(d)(1) limits federal review to legal rules that
actually were in effect when the state court decided the case.).
The date the conviction became final, on the other hand,
has not gained much traction in the Supreme Court. Aside from
stating that Teague and 2254(d)(1) are distinct inquiries, Horn,
536 U.S. at 272, and that in certain circumstances both Teague
and 2254(d)(1) must be satisfied, id., the Supreme Court has
30
not suggested that the date the conviction became final has any
import in determining clearly established Federal law for the
purposes of 2254(d)(1). In fact, it appears that Justice
Stevenss majority opinion language from Williams stating that
the threshold question is whether the petitioner seeks to apply
a rule that was clearly established at the time his state-court
conviction became final, Williams, 529 U.S. at 390, has been
supplanted by Lockyer, where the Supreme Court agreed that the
threshold matter was to decide what constituted clearly
established Federal law, but then used the relevant state-court
decision date to determine that law, 538 U.S. at 71. The most
telling observation regarding the use of the date the conviction
became final is that the strongest authorities we have found for
that approach are the recent Supreme Court opinions expressing
uncertainty on which date is appropriate. See Spisak, 130 S. Ct.
at 681; see also Thaler, 130 S. Ct. at 1174 n.2. Mere uncertainty
cannot counterbalance the numerous Supreme Court decisions
that have unequivocally, albeit without analysis, taken the other
approach. As an inferior federal court, we are not free to ignore
the numerosity of these pronouncements.
Moreover, it appears that Justice Stevenss primary
concern with Justice OConnors formulation of the clearly
established Federal law inquiry is her view that the phrase
refers to the holdings, as opposed to the dicta, of [the Supreme
Courts] decisions[.] Williams, 529 U.S. at 412 (OConnor, J.,
for the Court). In Carey, Justice Stevens explained that he took
issue with Justice OConnors formulation because it
31
Gray was not clearly established Federal law for the purposes
of Greenes habeas petition.
D.
Before applying our holding to the facts in this case, a
brief segue is needed to address our dissenting colleagues
spirited defense of the use of the date the petitioners conviction
became final to determine clearly established Federal law.
While we recognize that the issue confronted today is one over
which reasonable jurists may disagree, there are some notable
deficiencies in the dissents proposed adjudication of this case.
The dissent (1) would sub silentio codify Teague, including its
retroactivity exceptions, as part of 2254 without any reasoned
justification for doing so, (2) erroneously asserts that Griffith v.
Kentucky, 479 U.S. 314 (1987), applies to cases on collateral
review, and (3) incorrectly asserts that our approach to
2254(d)(1) creates a twilight zone, preventing a petitioner
from relying on Supreme Court decisions issued after the date
of his last relevant state-court decision, but before his conviction
becomes final.
1.
As already explained in Section III(A), there is direct
Supreme Court precedent supporting the view that whatever
would qualify as an old rule under [the Supreme Courts]
Teague jurisprudence will constitute clearly established Federal
33
11
relies is far from explicit. See 549 U.S. at 416. The sole citation
of Griffith was for the proposition that under the Teague
framework, an old rule applies both on direct and collateral
review, but a new rule is generally applicable only to cases that
are still on direct review. Id. Before assuming that the
Supreme Court sought, without any additional discussion, to
extend Griffith to collateral review, as the dissent suggests, a
less novel understanding of the Whorton Courts reliance on
Griffith should be considered. Namely, that Griffith was
probably cited as general support for the propositions that an
old rule applies. . . on direct . . . review [and that] a new rule is
generally applicable only to cases that are still on direct review.
Whorton, 549 U.S. at 416. The sentence following the Griffith
citation in the Whorton decision further confirms this
understanding by explaining how new rules apply in collateral
proceedings through citation to Teague, not Griffith. Id.
Subsequent Supreme Court precedent also belies the
dissents view that Griffith applies on collateral review.
Approximately a year after Whorton, the Supreme Court, in
Danforth v. Minnesota, 552 U.S. 264 (2008), stated that Griffith
defined the scope of constitutional violations that would be
remedied on direct appeal. Id. at 275 n.11. It did so in the
context of determining whether Teague constrains the authority
of state courts to give broader effect to new rules of criminal
procedure than is required by that opinion. Id. at 266. Rather
than holding that Teague applied to the state courts, like Griffith,
479 U.S. at 328, the Supreme Court reached the opposite
37
3.
The dissent also asserts that our approach creates a
twilight zone for any petitioner who seeks to invoke Supreme
Court decisions that fall between the date of the last relevant
state-court decision and the date the petitioners conviction
became final. This assertion is incorrect. Our holding does not
create a categorical bar to a petitioners reliance on Supreme
Court decisions issued during any twilight zone period. Instead,
we set forth a simple rule: the universe of clearly established
Federal law that may be applied to a particular petitioners
2254 appeal is tied to the date of his last relevant state-court
decision.
In this case, it was Greenes decision not to raise the
Confrontation Clause claim in his PCRA petition that
established December 16, 1997, as the date of the last relevant
state-court decision on the merits.12 This, in turn, shrank the
12
the dissent persuasive given the facts of this case. The dissent
cites Commonwealth v. Small, 980 A.2d 549 (Pa. 2009), for the
proposition that reliance on a different case to support the
original theory, id. at 569, of relief would not change the fact
that [an] issue was previously litigated, id. But that proposition
was offered based on different factual circumstances. In Small,
the petitioner was seeking to rely on United States Supreme
Court authority that existed at the time of his direct appeal yet
was not raised in that appeal to effectively re-argue an issue that
was previously litigated on direct appeal. Id. The Small Court
had no reason to view the issue as novel because the underlying
United States Supreme Court authority existed at the time of the
direct appeal. Here, Gray did not exist at the time of the
Pennsylvania Superior Courts decision. As such, Greene would
not be simply raising a theory or allegation in support of a
discrete legal ground for relief that existed at the time of his
direct appeal. Instead, he would be asserting a new discrete
legal ground for relief based on previously unavailable United
States Supreme Court precedent.
The dissents reliance on Commonwealth v. Washington,
927 A.2d 586 (Pa. 2007), is similarly misplaced. There, the
petitioner argued that Gray, which had been decided after his
direct appeal to the Pennsylvania Supreme Court but before that
courts decision became final, entitled him to relief under the
PCRA. Id. at 608-09. The Pennsylvania Supreme Court found
that the petitioners Confrontation Clause claim had been
previously litigated on the merits, but its conclusion was not
based on the fact that it had already considered the petitioners
Bruton claim. Id. at 609. On direct review, the Court assumed
41
50
I.
Background
To set the stage here, Greene argued prior to his state trial
that proceeding jointly against him and his co-defendants would
prejudice his defense and his constitutional right to confront
witnesses when the Commonwealth offer[ed] into evidence
[out-of-court] statements made by the co-defendants. He cited
for support the Supreme Court cases then knownBruton v.
United States, 391 U.S. 123 (1968), and Richardson v. Marsh,
481 U.S. 200 (1987). The motions judge, recognizing the
prejudice of those statements fingering Greene, thought she
could cancel out that prejudice by simply redacting Greenes
name when the statements were read to the jury and giving a
limiting instruction to the jury.
Bruton (as clarified in Richardson) was not enough to
win the point for Greene. He remained short of the winning line
on his appeal when the Pennsylvania Superior Court ruled on
December 16, 1997, that Bruton was not violated.
But there was hope, as Greene filed timely a petition for
allowance of review to the Pennsylvania Supreme Court. That
hope received a big boost when the Supreme Court of the United
States decided Gray v. Maryland, 523 U.S. 185 (1998), while
his petition was pending. Gray held that redacting names from
confessions using obvious blanks falls within the class of claims
protected by Bruton. This was good news indeed for Greene.
The Pennsylvania Supreme Court would no doubt take note of
2
bar. Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004)
(citations omitted). There is no clear or express statement here.
Greenes frustrating failure with the Pennsylvania court
system was over, but all was not lost. He thought he could seek
habeas review of his Confrontation Clause rights in a federal
court. And he did.
This is where we come in after the District Court ruled
against Greene: were his Confrontation Clause rights clearly
established [as] Federal law when they were adjudicated on
the merits in State court proceedings? 28 U.S.C. 2254(d)(1).
The answer is yes if we look to all United States Supreme Court
decisions before his conviction became final,2 but no if we stop
with the decision of the Pennsylvania Superior Court less than
two and a half months before the Gray decision. Greene is in
the unwelcome twilight zone where, in the United States
Supreme Courts own words, uncertainty currently exists.
Smith v. Spisak, 558 U.S. ___, 130 S. Ct. 676, 681 (2010).
II.
Analysis
A.
One might think this is the paradigm for invoking the rule
of lenity. If even the Supreme Court is uncertain which time
trigger is in play as to when federal law is clearly established,
it seems fair that, while others may in the future lose in the
twilight zone, Greene should not. As that is not how the
6
466 U.S. 668 (1984), a case decided prior to both the 1985 crime
and the 1986 conviction in Williams, making the discussion of
cutoff dicta because under both cutoffs Strickland was
undoubtedly clearly established Federal law.
Our task is to reconcile the conflicting majorities in
Williams regarding the cutoff for clearly established Federal
law under AEDPA while maintaining consistency with the
Courts controlling decisions in Griffith and Teague. Recently,
the Supreme Court recognized the uncertainty in temporal
cutoff for clearly established Federal law, and declined to
resolve it at that time. See Spisak, 130 S. Ct. at 681.6
Recognizing the Courts statement in Spisak as the most
telling observation regarding the use of the date the conviction
became final, my colleagues dismiss it in a single sentence as
mere uncertainty [that] cannot counterbalance the cases that
Date of
Supreme
Court
Decision
(relative to
the criminal
conviction)
Old or New
for Teague?
Applicable
to criminal
case?
Majority
reading of
2254(d)(1)
clearly
established
Federal
law
Before the
last statecourt
decision on
the merits on
direct review
Old rule
under
Teague
because it is
pre-finality
Yes, because
it is/was
existing
precedent
(direct
appeal and
collateral
review)
Yes, because
it was
existing
precedent on
direct review
Old rule
under
Teague
because it is
pre-finality
Yes, because
Griffith
makes it
applicable
(direct
appeal and
collateral
review)
No, because
it post-dates
the statecourt
decision
12
Date of
Supreme
Court
Decision
(relative to
the criminal
conviction)
Old or New
for Teague?
Applicable
to criminal
case?
Majority
reading of
2254(d)(1)
clearly
established
Federal
law
Maybe
under
Teague; only
applicable if
a narrow
exception is
met, or was
dictated by
pre-finality
precedent
(collateral
review)
No, because
it post-dates
the statecourt
decision
C.
Griffith
2.
Teague
applied because it did not exist at the time of the last state-court
decision on the merits.
11
12
E.
13
16
17
32