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Argument recap: Arguing in the Twilight Zone is no easy task

It’s a bad sign for the habeas petitioner, at oral argument in a habeas corpus case, when Justice Scalia asks almost no questions.  That’s what happened yesterday at the argument of Greene v. Fisher, which presents important issues on both statutory limitations on federal habeas actions and statutory interpretation in general.  (I previewed the case for the blog last week.)  Indeed, because most of the hostile questioning of Jeff Fisher, who argued on behalf of petitioner Eric Greene, came from Justices whom Fisher likely hoped would be sympathetic, it seems likely that Justice Scalia saw no need to speak – others were carrying his water.

As a matter of fact, the state’s attorney (Ronald Eisenberg) seemed so confident in his position – and intelligently not wanting to risk stirring up opposition – that he sat down early.  The entire argument lasted only forty-three minutes – a relatively rare event for this conversationally active Court.

However – if I may be permitted to be opinionated for a moment – the questioning Justices did not appear to understand two basic arguments that Greene has presented here: (1) that the plain language of Section 2254(d)(1) does not require the state’s reading (and has not been so read for over a decade after it was enacted), and (2) that because the state’s reading would alter a longstanding understanding of retroactivity law, the Court ought to require a “clear and specific” demonstration of Congressional intent to so change the law.  As seems often true in recent habeas cases, the Court seems to be “overthinking” the issues due to the complexity of the statutory structure and the general sense of hostility toward federal habeas demonstrated by the AEDPA Congress.  But while 1996 Congressional unhappiness with habeas doctrine is clear, there is no reason to subject the AEDPA amendments to abnormal statutory interpretation rules.

The issue presented

To quickly recap (the issue does not lend itself to a sound-bite):  Greene’s state criminal conviction was affirmed by Pennsylvania’s intermediate appellate court, which relied on a not-unreasonable interpretation of the Court’s decision in Bruton v. United States to allow a redaction that replaced Greene’s name with blanks in his non-testifying codefendants’ statements.  But while Greene’s petition for discretionary review to the Pennsylvania Supreme Court was pending, the U.S. Supreme Court decided Gray v. Maryland, holding that a replacement of a defendant’s name with blanks constitutes Bruton error.  The Pennsylvania Supreme Court then granted review, but after the state opposed it with various waiver arguments, the court dismissed its review without issuing an opinion.  Greene’s conviction later became “final” when the time to file for certiorari expired.  (Greene no longer had court-appointed counsel and did not seek certiorari.)

Griffith v. Kentucky (1987) requires that new Supreme Court decisions should be applied to all cases not yet final when the new decision is issued.  Under this long-accepted “retroactivity” doctrine (endorsed by the Court in Teague v. Lane in 1989), Gray should have been applied to Greene’s case, since his conviction was not final until after Gray was issued.  However, the Third Circuit found that Gray should not apply in Greene’s later federal habeas action, because it interpreted a 1996 AEDPA provision, Section 2254(d)(1), to preclude application of even an “old” decision.  Section 2254 directs that a federal court may not grant habeas relief in a state criminal case “unless the [state court’s] adjudication of the claim resulted in a decision that was contrary to … clearly established Federal law….”  Because Gray was issued after the Pennsylvania intermediate court’s disposition, the Third Circuit ruled that Gray did not apply as “clearly established” law, even though Griffith and Teague say it should.  (Other circuits have reached the opposite conclusion in applying Section 2254(d)(1).)   Under this reading, a “twilight zone” is created, where new decisions issued before a state conviction is final still do not apply, so long as some intermediate court affirms the conviction prior to the new decision and the higher state courts say nothing on the merits.

The oral argument.

Jeff  Fisher did a fine job in presenting Greene’s case before the Court.  But the Court seemed uninterested in testing its implications at any length.  One possible reason for the Justices’ disinterest was made clear by Chief Justice Roberts at the outset.  Isn’t it a “glaring factual” problem, asked the Chief, that Greene did not file a cert. petition in his direct appeal (and didn’t seek state collateral review on the issue)?  Both the Chief Justice and Justice Breyer indicated that the Court surely would have GVR’d (grant, vacate and remand) Greene’s petition for consideration in light of the Court’s decision in Gray.  Fisher gently questioned the confidence of that promise, and he also noted that Greene, like most indigent defendants, had no lawyer to advise him to seek certiorari.  (Moreover, the GVR option is not described in the Court’s rules or website.  As for state collateral review, the Pennsylvania Supreme Court later appeared to say that Greene could not raise the Gray issue there since it had already been resolved in his direct appeal; the Third Circuit appeared to find it both exhausted and preserved.)

One wonders if the Chief Justice’s line of questioning might have been a suggestion to his fellow Justices that Greene’s case be “DIGged” (dismissed as improvidently granted).  Fisher did provide the Court with three lower-court citations in which the same issue has arisen (and reading citations to the Justices is not common, a mark of their respect for Fisher).  No other Justice seemed to bite (although Justice Ginsburg did ask a brief follow-up), and this Friday’s Conference discussion will of course be held in confidence.  We may never know if the DIG option came up.  But given the procedural gaps that make the result here seem not so harsh, a DIG might be the best course.

It is significant that the three cases Fisher cited to the Court involved rulings more troublesome than Greene’s.  Teague recognizes an exception to retroactivity, for new decisions that go to the heart of a criminal conviction by declaring that the conduct cannot even be criminal (or punished — for example, no death penalty for juveniles or the mentally retarded).  Such decisions are supposed to be applied retroactively no matter when a conviction was “final.”  But the state’s argument here would say that even such fundamental decisions could not be the basis for relief under Section 2254(d)(1), if they are issued in a defendant’s “twilight zone” period.  Fisher urged the Court not to terminate the fundamental claims in these cases (and certainly not prematurely, by a decision in this case).

It isn’t clear from the transcript that a majority of Justices “got” this disturbing application of the state’s argument, and Eisenberg attempted to deflect it in his argument.  But Fisher returned to it in his rebuttal, and some observers say that Justices Breyer and Sotomayor, at least, began to fully appreciate its extreme implications as the argument ended.  Again, the fact that Greene’s case might not involve Teague’s fundamental exceptions might be a reason to DIG it, rather than rule against other more fundamental error cases in the pipeline.

Returning to the opening argument, Justice Kennedy also pointed out that the tradition, on Greene’s direct appeal, would be to seek a writ of certiorari directed not to the Pennsylvania Supreme Court, but to the intermediate court of appeals that was the last court to rule on the merits.  Doesn’t that “indicate[] that that is the ‘decision’ that’s involved here?,” he asked.  To me, this question exposes a failure to understand Greene’s “plain language” argument.  Under one plain reading of Section 2254(d)(1), the “decision” that must be contrary to established law is the ultimate one, the one that, at the end of the direct appeal process, “resulted” from the intermediate court’s “adjudication.”  Thus you would look to the final decision as ultimately affirmed in the direct appeal, and see if that decision is “contrary to” established law.

Under this reading, Section 2254 and Griffith/Teague are co-equal and there is no conflict between their timing requirements.  Under this reading, the state court “adjudication” and the ultimate “decision” are different, and the statute clearly says that the latter one is the one that controls.  Unfortunately, Justice Kennedy directed Fisher back to the Chief Justice’s questions, and the Court never returned squarely to this plain language debate.  (Later questions from Justices Kennedy, Alito, and Ginsburg also indicated the same confusion, implying that it is the intermediate “adjudication” that is at issue, which is not what the statute literally says.)

Justice Kagan then asked some pointedly opposed questions.  “[I]t seems to me that your argument just runs smack into th[e] holding” last Term in Cullen v. Pinholster, in which the Court ruled that federal habeas courts ordinarily are restricted to the evidentiary record before the state trial court.  Fisher gamely argued that there is a settled distinction between fact and law, an argument which Chief Justice Roberts later appeared to endorse.  But Greene likely cannot prevail without Justices Kagan and Ginsburg’s votes, and their questions did not indicate a favorable view.

Fisher then argued the point that the Court has often said that Congress will not be found to have significantly altered the law without a clear or expressly stated intention to do so.  So if there is a plain reading of Section 2254 that is consistent with the Griffith retroactivity rule, it should be adopted.  This is particularly true where it appears that no state ever advanced the present reading until over a decade after its enactment – a point that Justice Kagan raised again during the state’s argument.  Justice Sotomayor noted that the Court has said “that Teague and AEDPA are two different analyses,” but Fisher pointed out that in that very case, the Court rejected a reading of the statute that would have represented a silent change in the law.

Toward the end of Fisher’s argument, Justice Ginsburg commented, “Well, I don’t understand the problem ….  Why is that complicated?”  She also noted that “the purpose of ADEPA was to require the Federal courts to respect the State courts’ decisions.”   Other Justices seemed to lose interest, and if Greene’s position is not clear (let alone attractive) to Justice Ginsburg, then frankly he cannot win.

At the end of Fisher’s argument, Justice Breyer finally expressed interest in the extreme implications of an affirmance against Greene, and he and Fisher engaged in a relatively “thick” debate regarding the fundamental exceptions to Teague and the administration of retroactivity doctrine.  Then, in the final question to Fisher, Justice Kagan also indicated problems with Greene’s “you’ll need to give defendants attorneys for cert petitions” argument.  (By the way, that argument may well be affected by the Court’s impending decision in Martinez v. Ryan, argued the week before and previewed here.)  Fisher quickly reserved his time.

Seeming to perceive that he ought not snatch defeat from the jaws of victory, Eisenberg proceeded to respond to the Justices’ questions without unnecessarily stimulating their interest.  He directed them away from the parade of horribles that Greene had presented, saying that no fundamental injustices would result, to Greene or to the other “rare” defendants caught in his twilight zone.  Teague will still apply when there is no merits decision in the state courts.  And because “this case doesn’t concern a Teague exception,” harder cases “can be safely left for another day.”  “Actual innocence” cases will not be procedurally barred, and state courts can be trusted to exercise their obligation to apply “new” Supreme Court decisions fairly, when they are fairly presented – but Greene affirmatively waived or abandoned his.

Justice Kennedy did raise an interesting question whether the state’s reading of Section 2254 could constitute an unconstitutional limitation on habeas, but he then dropped it as “not argued, I agree.”  After some further discussion, Eisenberg noted that he would “rely on his brief” and sat down.  If the 1:43 p.m. end time in the transcript is correct, he appears to have used only thirteen of his allotted thirty minutes.  Given the apparent tenor of the argument, this was a highly intelligent, and rare, decision.  And given how many lifetime opportunities a deputy district attorney has to argue in the Supreme Court, an admirable one.

Fisher’s four minutes of rebuttal were well-used, but the Justices were restrained.  Only Justices Alito and Breyer asked questions, and they cannot be described as favorable.  My experience is that predicting results from oral argument is a dangerous and unprofitable exercise.  But one hopes that the Justices will at least come to understand Greene’s arguments – especially the plain language one — even if they reject them.  And it seems likely that the Court cannot predict precisely where a ruling against Greene will lead.

Ultimately it is Congress that has created a nightmarishly complex statutory structure for the review of state habeas petitions, and it seems much to ask pro se defendants to figure it out without counsel when experienced federal judges and Justices cannot.  If Section 2254 does create a Twilight Zone where new Supreme Court decisions do not apply even on direct review, one wonders whether extremely clear and early advice to defendants (for example, about the twilight zone possibility and the GVR option), as well as the appointment of counsel, are necessary to fill the gap.  To me, a “plain reading” that avoids this even more complicated structure seems the better course.  Such a reading is entirely comfortable within the statutory  language, does not alter retroactivity law, and is non-constitutional.  Congress can always amend the statute if it disagrees.

Recommended Citation: Rory Little, Argument recap: Arguing in the Twilight Zone is no easy task, SCOTUSblog (Oct. 14, 2011, 11:36 AM),