Opinion analysis: The Court quickly disposes of “Twilight Zone” habeas arguments
On Tuesday in Greene v. Fisher, proponents of federal habeas review of state criminal convictions were firmly brought back to reality. In an unusually brief and unanimous seven-page opinion – the first one of the Term in an argued case – the Court briskly set forth an “obvious” plain reading of the AEDPA-amended federal habeas statute, and it rejected arguments that retroactivity rules for new Supreme Court decisions should govern application of 28 U.S.C. § 2254(d)(1). More generally, Justice Scalia’s opinion for the Court starts by repeating the Court’s increasingly impatient view of the deferential standard that must govern federal habeas review: the “standard of ‘contrary to, or involve[ing] an unreasonable application of, clearly established Federal law’ is ‘difficult to meet,’ because the purpose of AEDPA is to ensure that federal habeas relief functions as a ‘guard against extreme malfunctions in the state criminal justice systems,’ and not as a means of error correction” (quoting Harrington v. Richter (2011), which in turn was quoting Justice Stevens’s concurring opinion in Jackson v. Virginia (1979)). The citation to the now-absent Justice Stevens seems a bit unfair, as it seems quite likely that the Court would not have been unanimous in this case if Justice Stevens were still on the Court.
In prior posts (pre-argument here, post-argument here), I’ve summarized the “Twilight Zone” facts and arguments in this case. So here’s a briefer summary: Eric Greene was charged in a felony-murder grocery store robbery perpetrated by five men. Some statements by co-conspirators implicated Greene by name, so he sought a severance. But the Philadelphia trial court denied severance, ruling instead that redaction of the incriminating statements would avoid the Bruton (1968) problem. The statements were then admitted against Greene, after being redacted to eliminate identifying names by, in some cases, merely inserting the word “blank” or a blank space. Greene was convicted. On appeal the state court ruled that the redactions satisfied Bruton in light of Pennsylvania precedent, which was a not-unreasonable application of the case law at the time of that adjudication.
Greene then petitioned for review by the Pennsylvania Supreme Court, and while his petition for review was pending, the U.S. Supreme Court issued its decision in Gray v. Maryland (1998). Gray held that redactions consisting merely of blanks or symbols do not cure a Bruton problem. Perhaps unsurprisingly, the Pennsylvania Supreme Court then granted Greene’s petition for review on that question. However, after the parties filed merits briefs in which the state argued waiver and invited error, the Pennsylvania Supreme Court dismissed its review as “improvidently granted.” Greene (who no longer had counsel) did not file a petition for certiorari with the U.S. Supreme Court. He also did not present his Bruton (and now Gray) claim in a state habeas petition — although both the Pennsylvania court and the Third Circuit later said that this was excusable because Greene was barred from presenting on state habeas any claim he’d already presented in his direct appeal.
Thus the last state-court “merits adjudication” of Greene’s Bruton claim occurred at the intermediate appellate level in Pennsylvania, prior to the issuance of Gray. This is the “Twilight Zone,” the time period between when the last state merits adjudication occurs, and the later time when the state conviction becomes “final,” upon either the denial of certiorari or the expiration of the time to file for certiorari. Having exhausted his state court remedies, Greene then went to federal court for relief via habeas.
Section 2254(d)(1) of the federal habeas statute, as amended in 1996 by AEDPA, directs that a federal court may not grant habeas relief “with respect to any claim that was adjudicated on the merits in State Court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law…” (emphases added). Applying this statutory provision, the federal district court denied Greene’s petition, and the Third Circuit – by a vote of two to one – affirmed. These courts ruled that the “clearly established law” that can be considered by the habeas court is only the law that is in place at the time of the last state court adjudication on the merits. Because the last state court adjudication of the merits of Greene’s claim was prior to the issuance of Gray, Gray could not be considered. Thus, under Bruton alone, the state court’s adjudication of Greene’s redaction claim was not “contrary to” or “unreasonable.”
In Tuesday’s brief opinion, Justice Scalia wrote for a surprisingly (see below) unanimous Court to affirm the lower federal courts’ views.
First, says the Court, the text of Section 2254(d)(1) is clear: the second “adjudication” in the statute refers back to the first “adjudication on the merits,” and the “decision” in the unless-clause “obviously refers back to the decision produced by that same adjudication on the merits” (italics in the original; underlining added). Of course, this reading did not seem “obvious” to Greene or to the dissenting Third Circuit judge. They argued that the “decision” to be reviewed under Section 2254(d) is the ultimate disposition that “results” from whatever state merits adjudication is done. In other words, they argued that if a U.S. Supreme Court decision came out after the intermediate adjudication, but before the final state “decision” produced by the earlier merits adjudication, then the new decision could be applied to the federal habeas petitioner’s case, as retroactivity rules would in fact require. But the Court dismissed this reading in one sentence as “implausible.”
Second, the Court had ruled last Term in Cullen v. Pinholster (2011), that with regard to the factual record on federal habeas, the state court’s decision must be measured against the record “as of ‘the time the state court renders its decision.’” Despite a potential distinction that might be made between evidentiary determinations of fact versus applicable law – a difference argued by Greene and noted at oral argument of the case, but not mentioned in today’s opinion – the Court found Cullen dispositive: “The reasoning of Cullen determines the result here.”
Third, Greene had argued that the court’s reading of Section 2254(d)(1) would conflict with the Griffin-Teague rule of retroactivity, which say that new decisions of the Supreme Court apply to all cases that are not yet final on appeal, and “final” means either that a petition for certiorari to the U.S. Supreme Court has been denied, or the time to file for certiorari has expired. Under that rule, Gray would have applied to Greene’s case. But under today’s reading of Section 2254(d)(1), it does not. This is the “Twilight Zone” argument: the Court’s reading of Section 2254(d) means that some state convictions that are not yet final will still not get the benefit of new Supreme Court authority. (Interestingly, the day before Greene, the Court issued a summary reversal of the Sixth Circuit in another “Twilight Zone” case, Bobby v. Dixon – this one a capital case involving Miranda and application of the later Seibert (2004) opinion. An uninformed outsider might speculate whether the Court intentionally issued the Dixon case the day before Greene in order to avoid a GVR, rather than flat reversal, in Dixon.)
In any case, the Court made quick work of the conflict between retroactivity and Section 2254(d) conflict. The Court explained that it has previously held that “the AEDPA and Teague inquiries are distinct.” “AEDPA did not codify Teague,” and “we see no reason why Teague should alter AEDPA’s plain meaning.” (Tangentially, it is worth noting here that just because Gray might apply to Greene’s case, that does not necessarily mean he would have gotten relief under it. The state offered strong arguments that Greene had actually waived the claim or even invited the redactions he got, which might well explain why the Pennsylvania Supreme Court ultimately dismissed its review without commenting on the merits.)
It was at this point that the Court dropped its only footnote – perhaps added at the behest of one of the non-dissenting “liberal” Justices? Teague recognized two “exceptions” to its rule of finality-retroactivity, both premised on particularly strong equitable claims of injustice – such decisions can be applied even to cases that are “final.” In the footnote, the Court notes that it “need not address” whether a Teague-exception precedent might be applied on federal habeas, even if issued “after the last state-court adjudication on the merits,” presumably because Greene’s case does not involve a Teague-exception decision. This footnote did not further discuss, however, how or why the Court might find a different “plain reading” of Section 2254(d)(1) in such a circumstance. Although such cases will undoubtedly be rare, the theory that might underlie a different answer is murky at best. This unanimous Court clearly does not want to unravel more complicated theoretical issues, in a case where it feels (see the next paragraph) the petitioner is undeserving of much thought.
So, given the Court’s frequent ideological divides in habeas cases, why is the Court unanimous here? Indeed, in light of the fact that just a few months ago, the Court’s decision in Cullen generated a lengthy and vigorous dissent from Justices Sotomayor, Ginsburg, and Kagan, as well as a partial dissent from Justice Breyer, it is marginally surprising that the Court’s opinion today, finding Cullen dispositive, did not garner even a single dissenting vote. Instead, the Court’s opinion exhibits an unusual impatience as well as brevity with Greene’s arguments. The explanation for this is likely found in the opinion’s final paragraph: “We must observe that Greene’s predicament is an unusual one of his own creation,” for two reasons. First, Greene did not seek certiorari [possibly understandable in light of his having no lawyer at the time], and the Court today says that if Greene had filed for cert., the Court “would almost certainly have” ordered a GVR (“grant, vacate, and remand”) for his judgment to be reconsidered in light of Gray. Second, Greene never sought Gray relief in his state collateral petition (this appears to be carefully phrased by the Court, since the rulings below strongly suggest that he was barred from that under state law). “Having foregone two obvious means of asserting his claim,” “we decline” to “interpret AEDPA in a manner contrary to both its text and our precedents.”
However, while these foregone opportunities (both arguably excused, as the Third Circuit found) may make the result for Greene “feel” more equitable, there is no suggestion that the Court would actually have read the statute differently had Greene done both these things and still been denied Gray’s application – nor would there appear to be a principled reason for so reading it, if its meaning is “plain.” The same difficulty exists as with regard to the lone footnote: how and why can a statute’s “plain reading” change based simply on the equities of an individual case? But the Greene opinion plainly sends the message that federal habeas supporters should stop playing around with fantasies like the Twilight Zone, and come back to the reality of highly deferential federal review absent “extreme malfunctions” in state criminal justice systems. As for unanswered theoretical questions hidden beneath Greene’s brevity, about all we can say is, as the ancient cartoon-strip character Pogo liked to say, “the future lies ahead of us.”
Recommended Citation: Rory Little, Opinion analysis: The Court quickly disposes of “Twilight Zone” habeas arguments, SCOTUSblog (Nov. 11, 2011, 9:54 AM), http://www.scotusblog.com/2011/11/opinion-analysis-the-court-quickly-disposes-of-%e2%80%9ctwilight-zone%e2%80%9d-habeas-arguments/