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Timing of "Established Law," "Testimonial" Declarations, and Troy Davis

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SCOTUSblog's "Petitions to Watch" list for tomorrow's US Supreme Court conference is here.  Among the cases listed is the very interesting Stoval v. Miller, 10-851.

Under 28 U.S.C. ยง2254(d)(1), a federal court can overturn a state court decision on habeas corpus if it is "contrary to, or was an unreasonable application of, clearly established Federal law, as determined by the Supreme Court ...."

What happens if (1) an intermediate state appellate court correctly applies US Supreme Court precedent, then (2) the US Supreme Court overrules that precedent and substitutes an entirely different rule, and then (3) the state supreme court denies discretionary review?  Neither state court decision can be fairly said to be contrary to US Supreme Court precedent at the time of the decision.  Appellate courts are not expected to be clairvoyant, and state high courts are not required to grant discretionary review for error correction.  Still, the change occurred while the case was still in the state court system.  The pre-AEDPA Teague doctrine would have applied the new rule in this circumstance.

The underlying substantive question is what constitutes a "testimonial" statement for the purpose of Crawford v. Washington's revamped version of the Confrontation Clause.  How about the suicide note of the defendant's co-conspirator and triggerman?  I'll bet Justice Scalia will say yes, and Justice Thomas will say no.  Not sure about the others.

Also on the list are two petitions by cause celebre Troy Davis, whose "actual innocence" case is now significantly handicapped by a District Court finding of fact that "Mr. Davis is not innocent."

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