Habeas Corpus - Greene v. Fisher Transcript and Quick Thoughts

The transcript for Greene v. Fisher is available here.

I read through it last night.  Wow.  This is really gonna happen.  The Court is going to make the temporal cutoff for "clearly established" law the date of the relevant state court decision.  If you think I am just being all doom and gloom here about the argument, just go read it.  Not a single judge was on petitioner's side.  The questions to the State's attorney were not very probing.  And the State's attorney did not even have to use up all of his time.   Indeed, the questioning made it seem as if this issue was not a difficult one at all, particularly in light of what happened last term in Pinholster.

This inevitable result is going to raise a lot of questions going forward.  The first, what is going to happen to the retroactivity rules?  The only way that this is going to work is for Greene to completely supplant Teague's "after conviction becomes final" retroactivity rule.   There's no way around that.  It's funny how petitioner had to ask to keep Teague, when the Teague rules were originally conceived as a way to make life harder for petitioners.  

But what about Teague's two exceptions to the retroactivity bar.  Do those still apply?  They are not in the statute.  And what about the situation where a Supreme Court case is decided after the relevant state court decision but does not state a new rule?  For example, in Portalatin, the Second Circuit decided that, in Apprendi and Blakely cases, Cunningham was such a decision.  Thus, Cunningham could be considered when reviewing a habeas petition where the conviction became final before it was decided.  Will this still be allowed?

Another impact will be exhaustion.  Why should the strict exhaustion rules remain in place?  In particular, the requirement that the defendant seek discretionary review where available.  Certainly, one policy underlying exhaustion would remain in place -- giving the State first shot at correcting the error.  But discretionary review is discretionary.  The overwhelming odds are that permission to appeal will be denied.  And that decision will soon be immune from federal review.  That's not equitable.  So why should a petitioner be required to seek discretionary review when the state has already issued the decision that will be up for habeas review and the almost certain denial of review will have no impact on the habeas proceeding?

These things and more will have to be sorted out in the future.  And just when I thought habeas law couldn't get any worse for petitioners . . .

Comments

[Al O'Connor]

I agree the argument transcript gives few indications for hope. But Jeff Fisher did a masterful job for Greene. A case study in how to do it.