On Tuesday, the Supreme Court will hear argument in the habeas case of Greene v. Fisher. The question: what is the temporal cut off for clearly established under 2254(d)(1).
I ranked this case pretty high on my list of interest for this term. It was number two. Here's what I said about it:
For such a simple issue, it does seem odd that I would rank it so high. But this case is going to have the biggest day-to-day impact on habeas cases. And it raises abstract questions about the interplay between the AEDPA and the retroactivity rules of Teague v. Lane (i.e., whether those latter rules still exist or will the Court's interpretation of 2254(d)(1) in Greene supersede them). Which makes me excited for this case. But I have larger feelings of dread about it as I expect a very anti-petitioner decision here. And you can read more about my feelings of dread about this case in this article that I wrote over the summer.
To get a little more into the weeds, I believe that this issue presents a conflict between long-standing equitable principles of habeas corpus -- exhaustion -- and the preclusion issues that came up last term. If the original intent of exhaustion wins out, then the date for clearly established law will be when the last state court reviews the case. If preclusion wins out, then it will be the date of the last reasoned state court decision up for review on habeas.
And, if it goes the latter way, then such a decision could potentially conflict with Teague retroactivity principles. Under Teague, a Supreme Court decision cannot be applied retroactively to a convicion after the conviction has become final. And that finality date was always looked at as the date that the direct appeal ended. From what I remember, there was a recent debate in a capital case in the Supreme Court over whether it ended at the conclusion of state court review or did you include the time to seek cert (a-ha, found it; it was Smith v. Spisak). But both of those dates is later than what the clearly established law date could end up being.
So, what happens if the clearly established law date is different from the retroactivity date? Not sure. I am still working through the potential logic and permutations. Will it mean that the retroactivity date is gonna change? It shouldn't really since it was originally set based on the equitable principles underlying habeas. But the retroactivity date would have to change in order to make everything work.
Or does it mean that the "clearly established law principle" is simply going to subsume all of the Teauge rules? But that could potentially mean that retroactivity would no longer even be available on habeas review as none of those rules are written into the statute. It's an extreme view, but that seems like something that could actually happen.
Or maybe I am just overthinking all of this.
Either way, I truly believe that Greene is a very important case this term. I am very eager to see the transcript of that argument.