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Thorny Habeas Rule Will Get High Court Road Map

(CN) - The Supreme Court agreed Monday to review the appeal of a man sentenced to life in prison for second-degree murder and other charges.

Its decision of the case is expected to shed light on a 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.

In March 1998, the Supreme Court decided in Kevin D. Gray v. Maryland that prosecutors cannot use redactions to skirt a law that forbids them from using one defendant's confession as evidence if it implicates a co-conspirator.

This case was decided 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.

When Gray was decided, Greene argued that his trial had been prejudiced by the admission of his alleged co-conspirators' redacted statements. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), federal courts may 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."

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

"As the Third Circuit itself strongly suggested in this very case, this Court should resolve this conflict of authority," Greene's attorneys in their brief to the Supreme Court. "This basic procedural issue has already confronted numerous federal courts, and it will continue to arise in the context of an array of substantive constitutional claims. The question is outcome determinative in this case. Finally, the Third Circuit's holding that AEDPA changed longstanding retroactivity law is incorrect."

Greene is 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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