<< Skinner Execution Stayed | Main | News Scan >>

Unconfusing 2254(d) with retroactivity

After the argument in Greene v. Fisher, I wrote this post on the confusion between (1) the nonretroactivity rule of Teague v. Lane and (2) the rule of generally not relitigating in federal court issues already decided by the state court (with 2 exceptions) in 28 U.S.C. §2254(d), part of the Antiterrorism and Effective Death Penalty Act of 1996.

In Greene, the petitioner's argument, in essence, was that whether the state court decision was clearly wrong (one of the exceptions to §2254(d)) should be judged as of the same date as the date for retroactivity of new rules under Teague.  As I explained in the prior post, these two rules are entirely different in nature, even though they often point to the same result, and there is no good reason for making them turn on the same date.

Back in 2000, in Williams v. Taylor, we came within one vote of having §2254(d) minimized to little more than a codification of Teague.  Today, I am pleased to report, all of the nine Justices of Supreme Court are clear on this point.  The unanimous opinion of the Court says,

We have explained that AEDPA did not codify Teague, and that "the AEDPA and Teague inquiries are distinct." Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam). The retroactivity rules that govern federal habeas review on the merits--which include Teague--are quite separate from the relitigation bar imposed by AEDPA; neither abrogates or qualifies the other.

Note well the characterization of §2254(d) as a relitigation bar, a term first used by the Supreme Court in Harrington v. Richter last term.  See also the previous post and my law review article, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888 (1998).  This is the key to understanding §2254(d).

Congrats to the Philadelphia DA's Office and Ron Eisenberg.


How many death sentences or convictions were wrongly tossed by federal courts due to the opposite interpretation of AEDPA? My guess is that the number is not insignificant.

I want to add my congratulations to Ron Eisenberg, a first class lawyer and a lifelong fighter for justice for crime victims.

Let's hope we're congratulating him on a victory in Wetzel v. Lambert soon.

Leave a comment

Monthly Archives