The Supreme Court issued its opinion today in Greene v. Fisher. And as I expected (or is feared the better word?), the Court concluded that "clearly established law" is the law in place at the time of the relevant state court merits adjudication. It was unanimous. It's available here.
It's a short, pretty straightforward opinion. Basically, it comes down to the language of the statute. The Court believes that the language of the statute compels the result. While the Court makes it seem like this is such a no-brainer, it really isn't. If it was, then this would have been decided years ago. Not to overstate it, but I think it does alter a common understanding of habeas law.
And this decision will have ripple effects throughout habeas law. In particular on retroactivity and, in my mind, exhaustion.
As for retroactivity, the Court states that "clearly established law" and retroactivity are two different concepts. But they are completely intertwined. This decision is going to necessarily overrule parts of Teague. It is going to be interesting (and probably a little frustrating) to see how this plays out.
This decision reinforces the idea of preclusive effect of state court decisions that I wrote about. Once again, the Court uses the term "relitigation bar" as it did in Richter. The state courts now decides what the clearly established law is. Here's an example: Let's say that an intermediate appellate court issues its decision. While the defendant is seeking review from the State's highest court, the Supreme Court issues an opinion favorable to petitioner. The State's highest court then decides not to review the case. In that situation, even though the state courts had the opportunity to correct the problem, the courts decided (in kind of a retroactive fashion) that clearly established law should be the earlier date. They get to decide that the intermediate appellate court decision gets preclusive effect. That's problematic.*
*Certainly, a defendant in that situation could (and I emphasize could) seek review from the Supreme Court. But there is absolutely no guarantee that the Supreme Court would grant cert. to the defendant in that situation. The Court in Greene seems to believe it's a GVR is a certainty. But we saw after the decision in Melendez-Diaz that it's not a certainty. The Court held many petitions, but did not grant all of them. For example, it denied cert. in Rawlins but Rawlins was right on point with Melendez-Diaz. So seeking cert. is not a certainty. It also now has no effect on the clearly established law date. It also has no effect on exhaustion, as seeking cert. is not part of that process.
And, in my mind, Greene has an impact on exhaustion. First of all, this decision is inconsistent with the exhaustion requirement. The idea of exhaustion was to give state courts the first crack at a constitutional violation. Now a denial of discretionary review is absolutely meaningless to habeas review. Why force a petitioner to seek discretionary review if that step will in most cases have no impact on federal review? It shifts the equities. A petitioner may want to seek review from the higher state court, but it shouldn't be required to in order to obtain habeas relief.
So the Court has continued down the path of placing even greater restrictions on habeas review. Not unexpected, but very troubling.