High Court Clarifies Thorny Habeas Concern

(CN) - A man serving life in prison cannot get habeas relief because he exhausted his state court appeals just before the Supreme Court issued a decision that would have had bearing on his case, the justices ruled unanimously Tuesday.

The decision resolves a much disputed element of habeas procedure: whether judges can consider Supreme Court decisions as "clearly established federal law" under the Antiterrorism and Effective Death Penalty Act of 1996 if the decision was published before a state prisoner's conviction becomes final but after his last state-court decision on the merits.

Under Kevin D. Gray v. Maryland, prosecutors cannot use redacted testimony to skirt a law forbidding them from using as evidence one defendant's confession if it implicates a co-conspirator.

The Supreme Court decided this case in March 1998, while Eric Greene (aka Jarmaine Q. Trice) was appealing his conviction of second-degree murder, robbery and conspiracy. Greene had been tried alongside four co-conspirators, one of whom was facing first-degree murder charges. At trial, prosecutors read the confessions of the co-conspirators who spoke with police when they were arrested but would not be testifying in the trial.

The jury was instructed not to consider the confessions as evidence against any of the other defendants.

Greene's conviction became final in 1999, but the last state-court decision on the merits of his case predated Gray.

In light of the new precedent, Greene argued that his trial had been prejudiced by the admission of his alleged co-conspirators' redacted statements. He pointed out that the Antiterrorism and Effective Death Penalty Act (AEDPA) allows federal courts to grant habeas relief if a state court's consideration of a federal constitutional claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court."

But a magistrate judge and federal judge decided that Gray was not "clearly established federal law" for Greene and dismissed his appeals. A divided 3rd Circuit panel affirmed in May 2010.

The unanimous Supreme Court closed the book on the case, and the issue, Tuesday. The nine-page decision cites the court's 1989 ruling in Teague v. Lane, which "held that, with two exceptions not pertinent here, a prisoner seeking federal habeas relief may rely on new constitu­tional rules of criminal procedure announced before the prisoner's conviction became final."

"Finality occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this Court has become time barred or has been disposed of," Justice Antonin Scalia wrote for the court. "Greene contends that, because finality marks the temporal cutoff for Teague purposes, it must mark the temporal cutoff for 'clearly established federal law' under AEDPA.

"The analogy has been rejected by our cases."

After confirming that the Pennsylvania Superior Court adjudicated the last state-court merits analysis of Greene's case three months before Gray, the justices noted that Greene missed another avenue for relief.

"We must observe that Greene's predicament is an unu­sual one of his own creation," Scalia wrote. "Before applying for federal habeas, he missed two opportunities to obtain relief under Gray: After the Pennsylvania Supreme Court dismissed his appeal, he did not file a petition for writ of certiorari from this court, which would almost certainly have pro­duced a remand in light of the intervening Gray decision. ... Nor did Greene assert his Gray claim in a petition for state postconviction relief. Having forgone two obvious means of asserting his claim, Greene asks us to provide him relief by interpreting AEDPA in a manner contrary to both its text and our precedents. We decline to do so, and affirm the judgment of the court of appeals."

Greene was represented by Jeffrey Fisher of the Stamford Law School Supreme Court Litigation Clinic, Isabel McGinty of Highstown, N.J., and Goldstein, Howe & Russell of Bethesda, Md.

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