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Greene v. Fisher

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The transcript of argument in Greene v. Fisher is here.  The involves a question of timing under AEDPA, 28 U.S.C. §2254(d).  A federal court cannot grant habeas relief on a claim rejected by a state court unless the state court's decision was contrary to or an unreasonable application of Supreme Court precedent.

But Supreme Court precedent as of what date?  The most natural way to read the statute is that the relevant date is the date of the state court decision.  What if the state court decides the case, the Supreme Court changes the law, and the time to petition the Supreme Court for review expires sometime later?

The Teague v. Lane rule on retroactivity is based on the date the conviction became final on direct appeal.  If Teague were the issue, the new rule would apply on federal habeas in a case with the above timeline.  But §2254(d) is not Teague, even though the two rules point to the same result in many cases.

Section 2254(d) is not a rule of retroactivity.  It is not a "standard of review" in the sense of a higher court reviewing the decision of a lower court.  It is, as the Court noted in Harrington v. Richter, a "bar to relitigation."  In the nature of res judicata and collateral estoppel, it is a bar to litigating an issue over again in another court that one has already litigated and lost elsewhere.  It is not an absolute bar; it has exceptions.  The exceptions involve the state court completely messing it up.  The relevant date, therefore, is the date of the state court decision.

Overall, it appears the argument went well for the State.  Defense counsel was pummeled with questions from the Justices who tend to lean to the defense side, and that is not a good sign for him.

1 Comment

I didn't like the concern that a defendant would never get to raise the new issue. So what? States have a perfect right to strictly enforce "raise it or waive it" in their criminal proceedings. That something isn't law at the time doesn't excuse defense counsel from bringing up the issue. And I don't see how the happenstance of a Supreme Court decision "in the twilight zone" should give a defendant a free pass.

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