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

Its a bad sign for the habeas petitioner, at oral argument in a habeas corpus case, when Justice Scalia asks almost no questions. Thats 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 states 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 states reading (and has not been so read for over a decade after it was enacted), and (2) that because the states 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): Greenes state criminal conviction was affirmed by Pennsylvanias intermediate appellate court, which relied on a not-unreasonable interpretation of the Courts decision in Bruton v. United States to allow a redaction that replaced Greenes name with blanks in his non-testifying codefendants statements. But while Greenes 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 defendants 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. Greenes 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 Greenes case, since his conviction was not final until after Gray was issued. However, the Third Circuit found that Gray should not apply in Greenes 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 courts] adjudication of the claim resulted in a decision that was contrary to clearly established Federal law. Because Gray was issued after the Pennsylvania intermediate courts 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 Greenes 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. Isnt it a glaring factual problem, asked the Chief, that Greene did not file a cert. petition in his direct appeal (and didnt seek state collateral review on the issue)? Both the Chief Justice and Justice Breyer indicated that the Court surely would have GVRd (grant, vacate and remand) Greenes petition for consideration in light of the Courts 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 Courts 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 Justices line of questioning might have been a suggestion to his fellow Justices that Greenes 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 Fridays 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 Greenes. 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 states 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 defendants 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 isnt clear from the transcript that a majority of Justices got this disturbing application of the states 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 Greenes case might not involve Teagues 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 Greenes 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. Doesnt that indicate[] that that is the decision thats involved here?, he asked. To me, this question exposes a failure to understand Greenes 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 courts 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 Justices 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 Ginsburgs 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 states 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 Fishers argument, Justice Ginsburg commented, Well, I dont 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 Greenes position is not clear (let alone attractive) to Justice Ginsburg, then frankly he cannot win.

At the end of Fishers 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 Greenes youll need to give defendants attorneys for cert petitions argument. (By the way, that argument may well be affected by the Courts 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 doesnt 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 states 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.

Fishers 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 Greenes 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.