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Confusing 2254(d) with retroactivity

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At SCOTUSblog, Rory Little has this argument recap of Greene v. Fisher.  Similar to my assessment of the same argument, Little notes that "most of the hostile questioning of [defense counsel] ... came from Justices whom [he] likely hoped would be sympathetic," and that does not bode well for the defense.

However, Little is bothered by more than the likelihood his side will lose the case.  He thinks the Justices do not understand Greene's arguments.  I think that Little is the one who does not understand.  Specifically, I think he fundamentally misunderstands the nature of 28 U.S.C. §2254(d), the landmark limitation on federal-court challenges to state criminal judgments enacted in 1996.
In 1989 (with a little help from yours truly) the Supreme Court announced in Teague v. Lane a major change in the law of retroactivity of new constitutional rules of criminal procedure.  With two exceptions (one rare and the other essentially nonexistent), new rules announced by the Supreme Court would not apply on habeas corpus if the rule was announced after the case became final on direct review.  "Final" meant that the appeal was over and the Supreme Court had denied certiorari or the time to seek certiorari had expired.

The Teague rule has nothing to do with how the state court decided the issue or whether the state court decided it at all.  It is a rule limiting the grounds on which federal habeas relief can be granted to those dictated by precedent as of a particular point in time -- finality on direct review.  By doing so, it enables the Court to create new rules for cases to be tried in the future but limits the disruption of already tried cases to those then pending on appeal, not to every case ever tried under a previously accepted procedure. 

In the 1992 case of Wright v. West, the Court considered whether to morph the Teague rule into a rule of deference to the state court decision but decided it did not need to resolve that question in the case.  (The federal court of appeals decision was just flat wrong any way you sliced it, and the Supreme Court reversed on the merits.)   Justice Kennedy, noted in a concurring opinion:

In my view, it would be a misreading of Teague to interpret it as resting on the necessity to defer to state-court determinations. Teague did not establish a deferential standard of review of state-court decisions of federal law. It established instead a principle of retroactivity. See Teague v. Lane, supra, at 310 ("[W]e now adopt Justice Harlan's view of retroactivity for cases on collateral review"). To be sure, the fact that our standard for distinguishing old rules from new ones turns on the reasonableness of a state court's interpretation of then existing precedents suggests that federal courts do in one sense defer to state-court determinations. But we should not lose sight of the purpose of the reasonableness inquiry where a Teague issue is raised: The purpose is to determine whether application of a new rule would upset a conviction that was obtained in accordance with the constitutional interpretations existing at the time of the prisoner's conviction.

The deference question never needed to be resolved by the Court, because Congress acted four years later.  The rule that Congress enacted was not a rule of deference either, although that word was used a lot in the debate.  However, unlike Teague and like the rule of deference considered in Wright, §2254(d) is based on the state court's decision.  The clearest analysis of the section during the debate came, ironically, from Senator Biden, who was arguing against it.  See 141 Cong. Rec. 15,058.  While much attention has been focused on the exceptions to the rule of §2254(d) in clauses (1) and (2), the nature of the rule is found in the language above those clauses. As Senator Biden explained, "The general principle in this language in the Hatch bill is that Federal courts shall not grant a claim that was adjudicated in State court proceedings. That is what is at the top."

When a federal court decides a case under Teague, the petitioner's claim is before the court for decision, and the question is what precedents may be applied in deciding whether to grant the claim.  When an appellate court decides a case under a "deference" standard, such as whether the trial judge abused his discretion, the claim is again before the court for decision, but the court may uphold the trial judge's choice even if the appellate judges would have chosen the other way had the decision been theirs in the beginning.

The question under §2254(d) is a question of a fundamentally different character:

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless...."
This is a rule against granting a claim that has already been considered and rejected by another court.  The question is not what standard the federal court applies in deciding the claim; the question is whether the court should re-decide an already decided claim at all.

The nature of the rule is discussed more fully in my law review article, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888 (1998).

The Supreme Court finally recognized the true nature of §2254(d) last term in Harrington v. Richter. "By its terms §2254(d) bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§2254(d)(1) and (d)(2)."  (Slip op. at 8, emphasis added.)  As a bar to relitigation, it is a new species in the same genus as rules such as res judicata and collateral estoppel.  When a party comes to a court with a claim already resolved against him by another court, the general rule is that his claim is denied on that basis.  Reopening the underlying question is the exception.  That was once the usual rule for federal habeas petitions by state prisoners, see Darr v. Burford, 339 U.S. 200, 215 (1950), and it is the usual rule again under §2254(d).

Unlike the rules of res judicata and collateral estoppel, though, the exceptions to §2254(d) do relate to the quality of the prior decision.  Congress had far more trust in the state courts in 1996 than the Supreme Court had when it created de novo review as the norm in the 1950s and 1960s. (Both were correct in their respective times.)  Even so, Congress was not ready to abandon the federal backstop altogether.  Senator Kyl's amendment to do so was defeated, as was Senator Biden's amendment to keep de novo review.  The compromise which was enacted was a general rule of preclusion based on prior adjudication, with exceptions.

The basic principle of exceptions (1) and (2) is that the federal court can step in when the state courts completely botch the job.  You can't write that in a statute, of course, so it actually says,

"...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, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

The state court decision normally has the effect of barring relitigation, but we will deny it that effect and allow the federal court to proceed to the merits if the state court failed to follow precedent binding on it (the Supreme Court's, not any lower federal court's), unreasonably applied it, or unreasonably found the facts.  Decisions fitting any of these descriptions are unworthy of preclusive effect in a case involving someone's life or liberty.

Understanding the nature of §2254(d) as a bar to relitigation of claims already decided, we (finally) return to the timing question of Greene v. Fisher.  Rory Little repeatedly asks whether a Supreme Court precedent should "apply" if that precedent came down in the interval between the state court decision and expiration of the time to file a certiorari petition.  But it's not about what Supreme Court precedent the federal court should apply.  It's about whether the state court failed to apply (or unreasonably applied) a precedent binding on it, thereby rendering a decision unworthy of respect as a final judgment.

Given the nature of the rule, the relevant time is the time of the state court decision.  Judges are not expected to be clairvoyant.  One cannot render a decision contrary to a precedent not yet established.  A precedent, by definition, must precede.  For this reason, exception (1) uses past tense verbs.

The relevant point in time is different from the reference point of Teague v. Lane, but there is no reason they should be the same.  Section 2254(d) is a different rule.  It is a different type of rule.  Even though the two rules often lead to the same result, they are not the same in nature, and there is no reason that their time references should be the same.

The difference in timing can be clearly seen if we consider claims decided on state collateral review.  Effectiveness of trial counsel is usually adjudicated there, not on direct appeal.  Effectiveness and prejudice are generally mixed questions of law and fact, to which Teague does not apply.  Here the relevant state decision comes after the case is final on direct review.  In deciding whether the state court has unreasonably applied Supreme Court precedent, should the federal habeas court ignore any precedents (e.g., Wiggins v. Smith or Rompilla v. Beard) decided in the interval between finality on direct appeal and the state collateral decision?  Of course not.  If the state court fails to reasonably apply those precedents, it has botched the job.  The bar to relitigation is lifted, and the federal court proceeds to the merits.

The relevant date is the date of the state court decision on the merits.  The Teague date of finality on direct appeal is irrelevant to this completely different rule.

1 Comment

Professor Little sees a "plain language" argument in favor of the prisoner. That's remarkable. How can something be clearly established if it hasn't been decided yet?

Ultimately, Little's argument is one of sympathy--the perceived unfairness of a prisoner convicted under procedures later found to be unconstitutional. Of course, given the obvious sympathies of the Justices for a cold-blooded double murderer like Maples (e.g., the harsh questioning about why Alabama, as a litigant, didn't waive the default), one can hardly fault these "heartstrings" arguments.

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