Greene v. Palakovich

stated, there was no “rational without merit. deficient basis” For reasons judgment will concluding that evidence be affirmed. was what Mendel, government claimed. testimony government at 167. of F.2d The probabili-

witnesses created a “reasonable

ty” packages cocaine seized on February

November and March 10

were the same tested DEA materials at Mejia, chemists and trial. introduced Eric GREENE also known chain 597 F.3d 1336. Each could—and Q. as Jarmaine Trice stronger should—have been far than it v. any goes But to the weight was. weakness PALAKOVICH; John A. The District evidence, its admissibility.13 of the Attorney Philadelphia County; of The Clark, 425 F.2d at 833. Attorney of General of State The second pre- consideration is the Pennsylvania of sumption regularity handling of Greene, Appellant. Eric evidence law enforcement. “Absent ac- of a trial proof tampering, may tual court No. 07-2163.

presume regularity public officials’ han- United States Court of Appeals, Dent, dling contraband.” 149 F.3d at Third Circuit. King, 188. See also United States (7th Cir.2004) F.3d (applying Argued March 2010. “presumption of when regularity evidence May 28, Filed: 2010. is within official custody”); Mueller & July 22, As Amended cases). Kirkpatrick, supra, (citing 9:10 employ presumption We the same here.

See, Dent, e.g., 188; Jackson, 149 F.3d F.2d at allegation 973-74. No has made, offered, proof

been nor of tampering any of the evidence issue. There-

fore, presume placed that the evidence storage properly transmitted to

each testified.14 chemists who

District Court in admitting did not err it.

V. have

We considered the remainder of arguments

Rawlins’s find them to be adequacy against 13. The of the chain is weigh assessed in these factors the District article, light ruling. of the admissibility "nature of the Court’s circum- surrounding preservation stances and cus- it, tody of and the likelihood intermeddlers presumption 14. Our reliance on this should DeLarosa, tampering with it.” 450 F.2d at approval prosecutor's not be taken as explain slipshod handling 1068. Rawlins does not how this issue at trial.

Susan E. Affronti (Argued), Philadel- PA, phia, Appellees. Counsel AMBRO, SMITH, Before: MICHEL,* Judges. Circuit OPINION SMITH, Judge. Circuit petitioned Eric Greene for relief under 28 U.S.C. 2254 from his court state con- murder, degree victions for second rob- bery, conspiracy. and This re- quires thorny question us to resolve the what temporal cutoff determin- ing “clearly established Federal law” for purposes of the Antiterrorism and Effec- Penalty (“AEDPA”) tive Death Act of 1996 review, standard of set forth 28 U.S.C. 2254(d)(1). Based on the statute’s text precedent, we now hold that established Federal law” should be determined as of the date of the relevant state-court decision. Because the Court decision Greene rely upon petition, wishes to in his habeas Gray v. Maryland, 523 U.S. (1998), 140 L.Ed.2d 294 had yet

been decided the time relevant decision, he cannot show that his state court proceedings resulted in an unreasonable estab- law, Federal as determined lished United States[.]” 2254(d)(1). Thus, 28 U.S.C. we will af- firm the judgment of the District Court denying Greene’s habeas petition. I.

The Crime early December of three or four McGinty (Argued), Highstown, family Isabel K. men a small grocery robbed owned NJ, Appellant. owner, Counsel for store in its Philadelphia, North * Circuit, Michel, Judge sitting by designation. The Honorable Paul R. Chief Appeals United States Court of for the robbery. identified Jenkins Azcona, being after shot He died

Francisco shooter, the robber implicated Greene as the robbers range. When point-blank register carried the cash out register, who open unable to cash were store, that Womack had driven it out of indicated up and carried they picked that another parked wagon, the station stated store, wagon in a station escaping robbery. mur- Mr. individual was involved A after Azcona’s nearby. week Finney, Although Finney initially that five Greene, Jenkins, Atil stated der, Julius robbery, check were involved he people Gregory robbed Womack people noted that there were six They were later cashing facility. apprehended days later, A Jo- police the car. few Detective and the seized shortly thereafter De- the Police testing, seph Philadelphia Walsh of the Through ballistics firearm. questioned Womack partment the firearm Womack. determined that seized police police the in gave in With a statement to which he used Azcona’s murder. was Mr. evidence, to make he the driver of the station police the were able admitted was this killed wagon night the that Jenkins Mr. investigation. in the murder progress addition, implicated In he Fin- Azcona. Investigation Abdullah, robbery. ney, and Greene Rob- February late of Detective In Shortly were ob- after these statements Philadelphia Depart- of Police tained, ert Snell the charges first degree murder were questioned Demond Jackson about Greene, ment Finney, against filed Jenkins. murder. involvement in Mr. Azcona’s Womack, with, his charged and Abdullah were he in the sta- alia, murder, admitted that was Jackson degree three inter second wagon parked grocery outside the tion of robbery, conspiracy. counts of and murder, he night the of the but store simply that a ride The Trial getting

claimed he was when the others Philadelphia to West pretrial seeking Greene filed a motion He how stopped the store. described In grounds. on several severance of them inside committed several went and motion, alia, joint he a argued, inter murder. also the He identified Jenkins preju- trial with his codefendants would be shooter, Ab- indicated that Naree the incriminating state- dicial because of register of the dullah carried the cash out they ments had made authorities. As Jackson, Finney en- According store. motion, support his Greene cited Bru- Abdullah, Jenkins tered the store with States, ton v. United 391 U.S. Greene with the driver while remained (1968), and Richard- L.Ed.2d in the automobile. Jackson added Jackson Marsh, son split proceeds robbery that the of the were (1987). During pretrial L.Ed.2d a men, that he among five of court, hearing, urged Greene trial a proceeds. not take share of the did Philadelphia, of Common Pleas of statements of Armed with the information from Jack- sever trials because the son, Phila- non-testifying Michael some his codefendants Detective Gross Fin- him as questioned implicated Police him and identified delphia Department the cash out ney early Finney gave person register in of 1995. who carried March court, grocery recog- he ad- The trial police a statement to the which store. inad- participants nizing might one of the statements be mitted he was trial, joint noting he also grocery robbery and that missible but store any problem might time of that redaction resolve was inside the store prejudice, posed hypothetical prosecutor offered to redact the state- parties: specific ments so that “not person one carries out the cash register.” Greene’s this,

Judge: sup- unusual to do It’s but that, Bruton, agreed counsel such a say, pose the statement redacted any redaction would prejudice remove “I register.” didn’t take cash from the statements. Greene’s counsel words, each state- other defendant’s success, an pressed, also without additional ment would state— Jenkins, basis for severance: who I Counsel]: didn’t take it. [Greene’s Greene, tried alongside be was fac- I Judge: didn’t. Someone else took the ing capital murder charge. register. cash trial February held nu- [Greene’s Counsel]: There’s another trial, At Mr. wife Azcona’s and sis- I ance that want Your Honor to know ter-in-law identified Jenkins as the shoot- your suggestion because is brilliant. I er, they identify were unable to just thing. want to factor one more the other robbers in the store to state gave Of the three co-defendants who certainty with whether were there three or indeed, statements, Finney says Atil robbery. four men involved in the my register that took the client cash Jackson, who had charged not been Gregory and Mr. with Womack made the any crimes associated with the robbery, my statement that client was involved prosecution’s was the that, not, in star witness. but believe it or Julius His testimony significantly differed from says entirely Jenkins that someone his statement Detective Snell. Jackson says different —he that Naree tes- either all tified that of the occupants the sta- or another ... took the cash person wagon tion went into Naree, except the store register, either Womack or so him Contrary and Womack. to his earlier you saying specifi- have Mr. Jenkins picked up statement Abdullah cally that the people one two other took register, cash involved, add, I Jackson testified that people might but it— took Greene the cash from register the not [Greene]. store. Jackson was cross-examined exten- In response, that the the declared sively differences between his earli- in- interlocking statements were and er statement and testimony. his trial quired conflicting “pin how the statements addition, Greene attacked Jackson’s credi- point[ed]” since jury Greene bility by highlighting that Jackson was have peo- “information that three different in present wagon Womack’s station ple have having been named as taken the charged any had not been with crimes register.” replied cash Greene’s counsel robbery related and Jackson “excellent,” analysis that the Court’s outstanding had drug charges. but wondered how the Commonwealth would redact the statements. The Court The Commonwealth also called Detec- replied that “it seems to me that the fair testify tives Gross and Walsh to about the way to they redact these is to refer Finney [statements] statements from obtained and people.” to three different Greene’s coun- Womack. Neither Greene nor his codefen- responded: long objected sel “As I reading as would be dants those argue my closing speech allowed to in in statements redacted form. Detective you you you Finney’s statement, heard what heard and heard Gross read redacted there different then I people, proper were which substituted the nicknames or problem Finney’s would have no with [it].” names of codefendants pulled As we register. carrying cash and “two guys,” guy,” “other “this phrases I guy. he shot the said off the shooter used also redacted statement guys.” why did he him think asked someone “we” or “someone” pronouns the neutral him. answer He didn’t guy? Finney’s shoot example, For certain instances. neighborhood. up our Then drove we robbery in its of the description initial we and drove to someone’s Then we read: redacted form money got and register opened this, guy’s this riding around wereWe dumped it register and we took were car, guys three other me and a townhouse. dumpster in a trash one Philadelphia. We—when North okay Everyone said get paid. utilized said let’s statement Although the redacted me and two this store. So “guy,” and we saw “another such as neutral references got else,” “one,” “someone,” in the store. When guys went “someone guy,” I guys stayed up front “others,” inside two the names of replaced it guy had his the back. One stayed to the word codefendants with some cash and was at the guy on the trial gun occasions. The on three “blank” money, but register getting instruction give limiting court did I a shot and open. heard wouldn’t redact- reading of Womack’s following coming out of Blood was statement, looked over. nor neither Greene ed After someone guy’s mouth. an in- requested such his codefendants all ran out. register and we grabbed the struction. instance, Detective one when

In at least arguments, the trial court closing After of the statement portion reached a Gross the directing limiting a instruction issued identify to “these Finney was asked where either redacted jurors not to consider names, the redaction by their full guys” any defen- against as evidence statement redacted the names. The simply deleted jury The other than the declarant. dant is and the other is.” answer stated: “One degree mur- guilty of second found Greene statement, Finney when was Later in the der, robbery, and one three counts anyone in certain recognized if asked he trial court sen- conspiracy. count answer stated: the redacted photographs, imprisonment. him to life tenced Number six is. Num- “Number three is. History Subsequent Procedural also The redacted statement eight is.”

ber defendants the names of certain replaced the appeal filed a direct with Greene on.four occasions. the word “blank” Citing Bru- Pennsylvania Superior Court. the reading of During Detective Gross’s ton, that his trial should argued Greene statement, trial in- the court redacted from that of his code- have been severed Finney’s jury that statement structed implicat- the statements fendants because only considered as evidence could be for redaction.” ing him not suitable “were against him and not as evidence against Pennsylvania December On any other defendant. judgment Superior Court affirmed Walsh, testimony, during his Detective Greene, addressing his Bruton against state- a redacted version of Womack’s read observed claim on the merits. it, In declared: ment. Womack that were admitted that the statements remove redacted to into evidence “were guy. another We were It was me and defendants to the other car, went reference the other three trial court instructed the case” and “[t]he around the corner The car was store. that jury on more than one occasion the store they came out of and then States, (3d only could be considered v. United such statements F.3d 570-71 Cir.1999). the defendants who against as evidence light them.” In of these

made observa- early August In sought Greene tions, Superior Pennsylvania relief from his conviction based on Penn- that Bruton was not concluded violated sylvania’s Post Conviction Relief Act deprived of his Greene was (“PCRA”), §§ 42 Pa. Cons.Stat. 9541-9546. right to confrontation. In PCRA petition, argued his Greene court the trial abused its discretion in de- timely petition Greene filed a for allow- motion, cited, nying the severance in- appeal Pennsylvania ance of with the Su- alia, prosecutor’s summation, ter petition preme argued, Court. His inter allegedly which improperly informed the alia, deprived he had been his jury Finney’s statement corroborated rights under the Confrontation Clause that the others on trial implicated were Finney’s introduction Womack’s the commission of the crime. The PCRA support for position, statements. As his petition did not assert Confrontation again Greene cited Bruton. While Clause claim as it failed reference the petition for allowance of redacted statements or cite the Su- pending Pennsylvania with the Su- Bruton, preme Marsh, Court’s decisions Court, preme the United States Gray. or The trial court dismissed issued in Gray. Gray, its decision petition Greene’s PCRA frivolous. Court stated that “considered Greene, acting pro se, appealed the denial class, that replace redactions a proper petition of his PCRA Pennsylvania blank, name with an word obvious Court, Superior asserting the trial ‘delete,’ symbol, similarly notify court refusing grant erred a sever- jury that a has been name deleted are argument ance. His Pennsylva- cited enough similar to Bruton’s unredacted authority nia regarding motions to sever confessions warrant legal as to the same criminal multiple charges. He did not re- results.” 523 Clause, Bruton, fer Confrontation Thereafter, Pennsylvania Supreme the Gruy. 31, 2003, Marsh or On December granted petition alloca- Court Greene’s for Pennsylvania the Superior Court affirmed tur “limited to the issue of whether the petition, the dismissal of Greene’s PCRA pleas by denying common court erred the noting that the claim severance had been thereby motion for resulting severance in finally litigated and could afford him the violation of Sixth Amend- [Greene]’s collateral relief. filed pe- Greene another right ment upon confrontation the ad- tition appeal for allowance of with the given mission of by statements his nontes- Court, Pennsylvania Supreme which de- tifying codefendants.” Commonwealth v. nied allocatur. Trice, (1998). 201, 552 Pa. 713 A.2d 1144 allocatur, petition After granting timely § the for petition This followed. however, Pennsylvania Supreme asserted, alia, the Court petition, his Greene inter dismissed as improvident- Greene’s that trial been his should have severed Trice, granted. ly defenses, Commonwealth v. antagonistic “due to due to the 265, (1999). Pa. subjected A.2d Greene’s fact a codefendant was to the later, conviction final ninety days petitioner became death even penalty though was July not, on when the time for period particularly to the fact that due filing petition a certiorari for to the United redaction effective of the codefendant’s statements, expired. Kapral States though attempted, Court See [sic] was to this applicable Federal law” established by gross prosecutorial miscon- polluted if report, the But the date Greene’s comprehensive petition.1 In a habeas duct.” final, the petition July to whom Magistrate Judge convictions became date, recommended that Gray, referred cutoff which pertinent had been was the dismissed, but that petition be year Greene’s than earlier was issued more granted be appealability certificate “clearly would be estab- March arising claim out the Confrontation Clause lished law.” Federal Fin- introduction of Womack’s and of the Judge ultimately deter- Magistrate The at trial. ney’s redacted statements controlling for ascer- mined that the date struggled Magistrate Judge “clearly taining the established “clearly the estab- to determine whether petition law” for habeas Greene’s as Federal law” under lished of the relevant state-court decision. date relevant state-court deci- of the date Magistrate Judge applied Accordingly, the sion, in Justice O’Connor instructed law at the existing in majority portion her of the decision Pennsylvania Superior time of the Court’s 362, 403-412, Taylor, Williams decision, Bruton December (2000), 146 L.Ed.2d 389 Marsh, to determine whether Greene’s by the date conviction Greene’s became merited He con- petition relief. final, as instructed Justice Stevens Pennsylvania Superior cluded that majority decision portion his unreasonably apply Bruton Court did Williams, id. at 120 S.Ct. 1495. This concluding that the redacted Marsh significant issue was because determined not violate statements did the Confronta- Federal law” whether established tion Clause and recommended § 2254 petition for of Greene’s deny petition. District Court’s decision included objected Commonwealth Gray. If the date was date of the cutoff Magistrate Judge’s report, arguing decision, i.e., relevant his procedurally Greene had not exhausted Pennsylvania Superior Court’s December Confrontation Clause claim. The District affirming con- 1997 decision the Commonwealth’s ob- Court overruled appeal, preced- victions on direct date jections, noting presented Gray, decision in Greene ed Court’s con- Gray part general regarding claim the redacted would not be granted recognize Pennsylvania being improvidently the ex- We Su- has preme granted allocatur act effect as if denied the [it] Greene's same had (allocatur) appeal, petition appeal which raised the Confrontation for allowance Gray, claim cited place. Clause then dis- an in the first Where we dismiss having appeal improvi- missed that as been appeal improvidently granted, as the lower dently granted. That dismissal cannot be opinion a de- and order tribunal’s stand decision, as the state-court treated relevant that court and Court’s order cision of this however, precedential because it had no val- precedential has value. no ue: 578, Tilghman, v. 673 Commonwealth 543 Pa. 898, omitted). (emphasis Ac A.2d 904 Pennsylva- [the In the circumstance where though cordingly, may have been even there accepted nia an has] issue arguments [it], some of Greene’s consideration appeal, by granting allowance of Court, issue, Pennsylvania there was conducting after ... review of the Thus, adjudication no on the merits. dismissing appeal an enters order Superior di granted, Pennsylvania decision on having improvidently been the ef- deci granted appeal rect is the relevant though is as never allow- [it] fect words, appeal. sion. ance of In other a dismissal upon and relied relevant federal claim is being fessions asserted.” McCand- authority, (3d 255, Bruton and Marsh. The Vaughn, less v. 172 F.3d Cir.1999). adopted Magistrate words, District Court In other the claims Judge’s report and recommendation. The raised in the state courts must be substan- petition, granted but also Court denied tially equivalent to the claim pressed in the appealability a certificate of limited to Walters, federal court. Doctor v. 96 F.3d (3d Greene’s Confrontation Clause claim.2 675, Cir.1996), abrogated on other — Kindler, grounds by Beard v. U.S. II. — - -, 130 S.Ct. L.Ed.2d us, (2009). Before ar Commonwealth gues satisfy that Greene did not the fair fairly presented Greene the factual and

presentation requirement because he con legal substance his Confrontation trial sented to redactions court Pennsylvania Clause claim to the state fairly present and did not his Confronta appeal, courts. On direct present- Greene argument tion to the Pennsylvania Clause ed his Confrontation Clause claim and the Superior It submits that Court.3 Greene Pennsylvania Superior Court addressed argu raised the Confrontation Clause merits of claim on the “basis of its Pennsylva ment his direct substance, rather than a procedural, nia Supreme disagree. Court. We Horn, ground.” other Thomas v. 570 F.3d presentation requirement

The fair (3d Cir.2009) (citations omitted). arises from the per exhaustion doctrine Thus, Greene’s direct appeal satisfied the taining to federal habeas review of state Picard, presentation requirement. fair Picard, Connor, court decisions. v. atU.S. 92 S.Ct. 509. 270, 275, 30 L.Ed.2d 438 (1971). presentation Fair requires giving III. opportunity the state court the “first Having determined that sought hear the claim to be vindicated in Greene fairly presented his proceeding[.]” federal habeas Id. at Confrontation Clause [the] courts, opportuni Pennsylvania 92 S.Ct. 509. In this first claim the state has, ty, petitioner merely vexing the habeas need turn to a issue that for the “present federal claim’s most part, analytical [the] factual and evaded discussion legal substance to the state courts in a Court and the of App Courts is, puts manner that them on notice that a That whether estab- eals.4 jurisdiction Accordingly, question 2. The District Court exercised un- dies. whether §§ der 28 U.S.C. 2241 and and we have fairly presented Greene his claim to the state jurisdiction §§ under 28 U.S.C. 1291 and subject plenary courts is review. See Elli 2253. (3d Rogers, son 484 F.3d Cir. 2007). Connor, In Picard v. (1971), 30 L.Ed.2d 438 the Su- 4. "Since the District Court ruled preme Court declared that "once the federal petition [Greene's] habeas without an eviden fairly presented claim has been courts, to the state tiary hearing, our review of its decision is requirement the exhaustion is satis- Horn, 105, plenary.” Thomas v. 570 F.3d 113 follows, therefore, fied.” It that our review (3d Cir.2009). plenary We exercise review petitioner fairly pre- whether a habeas has statutory interpretation. over issues of United sented his federal claim to the state courts is Lnu, 298, (3d v. States 575 F.3d 300 Cir. subject to the same standard of review that 2009). employ determining whether a habeas petitioner has exhausted his state court reme- 94 conviction, but before petitioner’s 28 U.S.C. firmed law” under

lished Federal conviction became fi- 2254(d)(1) petitioner’s the date based on is determined nal, decision,” “clearly constituted Feder- established “time of the relevant state-court law”); 2, n. 676 al see id. 689 130 S.Ct. Williams, 412, 120 S.Ct. 1495 529 U.S. (Stevens, J., concurring) (supporting date Court), (O’Connor, J., for the the “time final); became see also Thaler v. final,” conviction became state-court conviction [the] — 1171, -, Haynes, 130 S.Ct. J., (Stevens, 390, 120 1495 id. S.Ct. - — (2010) 2, (per 1174 n. L.Ed.2d thereof, Court), or combination some curiam) (noting in dicta that a certain case Banks, 266, 272, 122 e.g., Horn v. 536 U.S. “clearly estab- could not have (2002) constituted 2147, (per L.Ed.2d 301 S.Ct. 153 the ease lished Federal law” because curiam) per “in addition to (holding that nearly years [peti- ... six after “decided AEDPA, any analysis required by forming final and more conviction became tioner’s] peti considering court a habeas federal years than six after the relevant state- [v. tion must conduct threshold Greiner, decision”); court see Brown v. 288, 1060, Lane, 109 S.Ct. 103 489 U.S. Cir.2005) (2d 523, (noting n. 409 F.3d 533 3 (1989),] analysis L.Ed.2d 334 when is uncertainty by guid- “inconsistent caused state”). by properly sue is raised Court); Supreme Newland ance” from the Court, recently, appeared until Supreme (11th Hall, 1162, 527 n. 62 v. F.3d 1198 settled on the date of the relevant have Cir.2008) (noting uncertainty); but see But the use of the state-court decision.5 Amand, 414, Foxworth v. St. 570 F.3d fi petitioner’s date the conviction became (1st Cir.2009) (declaring relevant 430-32 stage. quietly nal has refused to exit the approach state-court decision “untenable” months, recent Court has stating precedent “uncertainty” surrounding the noted the leads to the “inexorable conclusion” meaning established Federal the date the conviction became final is the 2254(d)(1). law” for the approach).6 correct — U.S. -, Spisak, Smith v. 130 S.Ct. — (assum L.Ed.2d-(2010) 676, 681, After careful consideration of the diver- ing gent approaches decision that was what determining con- supreme issued after the state court af- stitutes established Federal law” Musladin, 70, 74, Carey uncertainty v. 549 U.S. 127 6. The identified 649, (2006); S.Ct. 166 L.Ed.2d 482 Yarbor- present throughout Court is our own admit 652, Alvarado, 660-61, ough v. 541 U.S. 124 tedly contradictory jurispru 2140, (2004); Lockyer L.Ed.2d 938 We dence. have followed the "relevant state- Andrade, 63, 71-72, v. 538 U.S. 123 S.Ct. approach court decision” without much fan (2003); Wiggins 155 L.Ed.2d 144 v. E.g., fare in numerous cases. McMullen Smith, 510, 520, 539 U.S. 123 S.Ct. Tennis, (3d Cir.2009); War 562 F.3d (O’Connor, J., joined by L.Ed.2d 471 (3d Cir.2005); Kyler, ren v. 422 F.3d C.J., Stevens, Rehnquist, Kennedy, Sout- Frank, (3d Gibbs v. 387 F.3d Cir. er, JJ.) Ginsburg, Breyer, (stating 2004). peti We have the date the also used "require[s] analysis AEDPA us to limit our E.g., tioner’s conviction became final. Fis 'clearly the law as it was established' [Su- Johnson, (3d chetti v. 384 F.3d Cir. preme precedents Court] at the time of the 2004). Indeed, juris is not clear from our decision”); Carey, state court’s but see prudence recognized whether we these diver J., (Stevens, U.S. at 127 S.Ct. 649 concur- gent approaches because those cases did ring) (rejecting Justice O'Connor's formula- require date us to resolve whether the cutoff law”); "clearly tion of established Federal was the relevant state-court decision date or Banks, Horn v. date the final. conviction became (2002). 153 L.Ed.2d ’ 2254(d)(1), Federal law ... now hold that the lished under § under 2254(d)(1).” is state-court decision Id. date of the relevant surveying the controlling date. After These statements from Justice O’Connor arise from the that questions present the first area of confusion in decision, considering Court’s Williams logical The most meaning Williams. Su- statutory post-WiMmms text and rule,” any the term “old a term that lacks our view is that precedent, Court preme -Williams, meaningful post discussion is the relevant state-court using the date of any rule which is not Teague. “new” under “clearly to determine established decision 300-01, Teague, See 489 U.S. S.Ct. logical approach Federal law” is the most (plurality opinion). If that is the 2254(d)(1). applying case, any then an “old rule” is rule A. “dictated the governing precedent existing at the time when petitioner’s] [the sur- It is understandable confusion conviction became final[.]” Whorton v. “clearly estab- rounds what constitutes 406, 417, 127 Bockting, 549 U.S. S.Ct. discussing lished Federal law.” In rule). (defining 167 L.Ed.2d 1 new amendments, AEDPA meaning of the event, In that the inclusion of old rules that the Supreme Court has held “statuto- Teague under as established Fed [‘clearly Federal ry phrase established eral law” would include holdings, opposed to the law’] referred] decisions issued after the relevant state- dicta, decisions as the time [its] court decision but petitioner’s before the the relevant decision.” outcome, Williams, conviction became final. Such an 120 S.Ct. 1495 Court) view, (O’Connor, J., our contradicts Justice O’Connor’s (emphasis for the added). initial declaration that It has also held that all established Federal law” should be determined jurisprudence “qualify that would based Teague jurispru- an on the date of the relevant state-court old rule under [its] ‘clearly dence constitute estab- decision.7 w[ould]

7. At least one of our sister circuits sees no review to those rules announced before the final). contradiction in Justice O’Connor’s state- petitioner’s conviction became Amand, ments. In Foxworth v. St. 570 F.3d opposite true. Justice O’Connor’s (1st Cir.2009), Circuit First concluded opinion qualify stated that "whatever would require that Williams did not use Teague jurispru- as an old rule under our deter- "last reasoned state-court decision" to 'clearly dence will constitute established "clearly mine established Federal law” and law, as determined petitioner’s the use of the date the endorsed United States' became final. Id. at 120 S.Ct. conviction 2254(d)(1).” 529 U.S. at 1495. That Court believed Justice recognition 1495. That is a frank that the expressly approved Teag- O'Connor use of AEDPA has neither altered nor eroded the determining "clearly ue for established Feder- by Teague. recogni- marker laid down This al law”: fully tion is consistent with Part III of Jus- perscrutation Close Williams discloses opinion, joined by tice Stevens’s lead Jus- nothing opinions in the Court's constituent O’Connor; there, tice Justice Stevens stated intention Justice indicates question threshold under AEDPA "[t]he part modify either to or to un- O’Connor’s petitioner] [the is whether seeks Lane, bright-line dercut the rule of clearly law rule of that was established at 489 U.S. the time his state-court conviction became (1989) (effectively limiting L.Ed.2d 334 Williams, consideration of new constitutional rules of final." (emphasis supplied). procedure criminal on collateral S.Ct. 1495 cases Williams, established the time his complicate clearly the

To farther Su- conviction became “threshold Court also held the preme final.” Williams, peti- AEDPA is whether 529 U.S. at 120 S.Ct. 1495 question [a under Court) (Stevens, J., (emphasis to a rule of law that for the add- seeks tioner] Foxworth, subsequent on this tions from federal habeas review.” 570 F.3d 431. Based observation, disagree. suggestion Id. We the First Circuit concluded that a state “finality, appellate summarily the date of the last court would affirm the reasoned decision, judgment principal a in an is the determinant of lower state court effort to applied potential a 'new' rule can be to an undermine an individual’s federal whether Moreover, "Finality judg- petition Id. means that ‘a habeas baseless. the 'old' case.” is rendered, itself, Teague the of conviction has been rule the rule that the First Cir- ment exhausted, endorses, premised availability comity and the time cuit and re- is decisions, elapsed petition spect or a [has] for a certiorari for state court see v. Danforth Minnesota, petition finally de- [filed and] for certiorari 552 U.S. 128 S.Ct. ” (quoting Kentucky, (stating “Teague nied.’ Id. 169 L.Ed.2d 859 Griffith goals 321 n. 93 L.Ed.2d ... was fashioned to achieve the (1987)). minimizing federal habeas while federal in- proceedings”), It cannot be denied that Justice O’Connor's trusion into state criminal approach, light presumption by of her reference to old rules of malfeasance state courts. Teague, permit can be read to the use To assume the latter defeats one of the main rule, Teague of the respect date the conviction became final. That of the to the said, being portion finality of the Williams deci- of state-court convictions. If state referencing Teague properly sion old rules under adjudi- has courts cannot be trusted to claims, largely by wayside post-Williams fallen cate then we would have need no to decisions, respect resulting Court see Section decisions. infra Moreover, III(C). generally, unpersuaded Foxworth Court’s asser- More we are support tion Justice O’Connor did not intend to First Circuit’s robust for Justice Ste- view, "modify bright-line approach. to undercut the rule of vens's In our there is no Teague," readily ap- 570 F.3d at is not clear According answer to the issue we face. Court, parent reading though, from our of Williams. Justice interpreting to Foxworth 2254(d)(1) Teague require Stevens’s claim that AEDPA codified to use of the date of gamer support majority. did not of the simply relevant state-court decision is Williams, 374-90, “untenable,” See 529 U.S. at 570 F.3d at as in "not able Instead, defended,” majority sided with Jus- Collegiate to be Memam-Webster's O'Connor, (11th rejected ed.2003). Dictionary tice who Justice Stevens's We cannot agree view that had "no effect on the with that characterization. See infra [pre-AEDPA] III(B) (C). corpus[.]” truly law of habeas Sections If "re- Griffith Williams, doubt,” any vestige 120 S.Ct. 1495. move[d] 570 F.3d at added), rejection (emphasis Teague Justice O’Connor's of Justice Ste- and Grif- Teague together vens’s belief that AEDPAcodified most "le[d] to the inexorable conclu- fith sion,” certainly suggests part added), (emphasis a desire on her id. at 432 that the significance undercut and the petitioner’s date the conviction became final date, then, petitioner’s date that a why conviction became fi- is the correct has the Su- preme nal. expressed uncertainty in its re- 681; suggested The Foxworth Court also Spisak, that us- cent See decisions? 130 S.Ct. at Thaler, ing the date of the last relevant state-court see also 130 S.Ct. at 1174 n. 2. Per- deny haps decision would “subvert the resolution of this issue the Su- task, preme criminal simple defendants the benefit of new Su- Court would be a preme precedent by simple expedi- Ap- resolution issue in the Courts of summarily affirming peals existing Supreme ent of prece- lower court’s based on Foxworth, decision.” trying piece together 570 F.3d at 432. It dent akin also, Circuit, according jigsaw puzzle sprinkled to the First that has been "give perverse pieces puzzles. state courts a pieces, incentive from other All the no addressing they avoid constitutional arranged, simply claims in con- matter how are do not temporaneous insulating terms while ac- their fit. ed).8 Thus, presents this case us with majority opinions of S.Ct. faces, obligation in- to decide differing inescapable Court, their offered determining “clearly for estab- “clearly established cutoff date terpretations petition lished Federal law.” Greene’s language. law” Federal may Gray; on whether he turns invoke precedent after Supreme without that decision he cannot obtain re- questions. At has also raised Williams Gray lief. See Section IV. was de- infra authority sug- post-Williams some least Thus, using on March cided 1998. Teague test gests decision, date of the relevant state-court 2254(d)(1) inquiries. E.g., § are distinct Decem- Pennsylvania Superior Court’s 2147; Horn, 272, 122 see 536 U.S. at decision, Gray ber be Thaler, at 1174 n. 2. The instanc- 130 S.Ct. “clearly established Federal law.” But us- met, however, must be es where both tests ing the date Greene’s conviction became importantly, it is also are unclear.9 More final, July Gray would be nature of the unclear whether the distinct Indeed, established Federal law.” on how we inquiries any impact has two case is the storm of perfect facts “clearly estab- meaning approach resolving the issue of which date —the purposes law” for the lished Federal date of the relevant state-court decision or 2254(d)(1). § the date the state-court conviction became (1) sum, we have Justice O’Connor’s determining final—should be used for Williams, majority in which seems opinion “clearly established Federal law” for the by stating that the date to contradict itself 2254(d)(1). §of decision is the of the relevant state-court determining “clearly es- operative date for B. tablished Federal law” while simultaneous- 2254(d)(1) supports using The text of ly stating jurispru- the date of the relevant state-court deci- “old rules” qualify dence that would (which determining “clearly sion for established the date the Teague relies on 2254(d)(1) final) law.” is con- Section conviction became is also petitioner’s (2) cerned with that were “con- law,” “decision[s]” Jus- “clearly established Federal trary application^]” to” or “unreasonable majority opinion in tice Stevens’s established Federal law”: Williams, O’Con- which contradicts Justice that we should look to the nor’s directive application An for a writ of habeas cor- decision, date of relevant custody pus person behalf of (3) post Court au- -Williams judgment of a State pursuant thority suggesting Teague granted respect court shall not be 2254(d)(1) subject inquiries are distinct adjudicated claim that was on the independent analysis under certain cir- proceedings court merits State unless cumstances. adjudication of the claim'—(cid:127) in a that was con- many managed courts have resulted decision

While issues, to, e.g., Spisak, trary or involved an unreasonable confronting avoid these minimum, properly the date the 9. At a when the state rais- 8. Justice Stevens's reliance on appears Teague, petitioner’s final es the federal court must conduct the conviction became Horn, Teague analysis. position that 536 U.S. to be based on his Williams, Notably, did Teague. S.Ct. 2147. the Commonwealth codified See case. not raise in this of, clearly unreasonably failing established Feder- Court “did not act law, al determined predict Court’s decision States[.] Court of the United Gray”). The same is true for the “con- trary to” prong of the statute. that a Id. The statute indicates “decision” adjudication results from a state court’s

“on the merits” of a claim. Id. In other C. words, when the decision occurs the state Supreme Court decisions after Williams court has acted on the substance of a Lockyer further bolster our In conclusion. Thomas, claim. petitioner’s See 570 F.3d Andrade, 63, 1166, v. 538 U.S. 123 S.Ct. (concluding “adjudicated at 115 that on the (2003), 144 Supreme 155 L.Ed.2d ruling merits” means that the state re- “ unequivocally ‘clearly Court stated that solved the claim “on the basis of its sub- established Federal Law” stance, procedural, than rather or 2254(d)(1) § is the governing legal princi- Thus, ground”). other it is the state ple principles set forth petitioner’s court’s resolution of the claim at the time the state court renders “contrary that must be to” or an “unrea- 71-72, its decision.” Id. at 123 S.Ct. 1166. application” existing sonable Federal repeated Wiggins The same test was v. justify law to granting habeas relief. 28 Smith, 510, 520, 2527, 539 U.S. 123 S.Ct. 2254(d)(1); Newland, § U.S.C. see 527 (2003), 471 Yarborough L.Ed.2d v. Al- (holding F.3d at 1199 highest “the varado, 652, 660-61, 541 U.S. 124 S.Ct. court reaching state decision the merits of (2004), 158 L.Ed.2d Carey petitioner’s a habeas claim is the relevant Musladin, 127 S.Ct. decision”). state court (2006). 166 L.Ed.2d 482 1-2 Accord Ran- Given that AEDPA is concerned dy Liebman, Hertz & James S. with the review of the state court’s deci Procedure, Corpus Habeas Practice and petitioner’s sion on the merits of the § Fifth Edition 2.4 (stating that the date claim, statute, read the most determining “clearly established Fed- fashion, straightforward requires that the § petitions eral law” for is “the date relevant Federal law be estab decision”); of the state court 2-32 id. lished” at the time of that state-court deci (“Section 2254(d)(1) § 32.3 limits federal 2254(d)(1).10 § sion. Reading 28 U.S.C. legal review to rules that actually were in the language plainly, “clearly established” when the state court decided the effect contemplates that precedent the law or ex case.”). isted at the time of the state court’s sub petitioner’s stantive resolution of final, The date the conviction became hand, claim. Atiyeh, United States v. 402 the other has not gained much trac- Cf. (3d Cir.2005) F.3d (“Congress tion in the Supreme Court. Aside from tense.”). past 2254(d)(1) how to use the kn[o]w[s] A stating Teague and are unreasonably Horn, state court cannot apply inquiries, distinct Court decision that did not exist that in certain circum- at the time of its decision. See Priester v. stances both must (3d Cir.2004) id., Vaughn, satisfied, 382 F.3d be Court has (noting Pennsylvania Superior not suggested that the date the conviction Notably, phrase "clearly established and it bears no overt connection to lan- any special Federal law” did not have mean- guage Teague. used in ing prior for federal habeas review to AEDPA principle constitutional contains some any import in determin- final has became law” for language established Federal that is intended to ing explanatory 2254(d)(1). fact, provide guidance lawyers judges majority that Justice Stevens’s appears quite wrong cases. It is future stating language from Williams opinion judges court to discount the invite state whether question” “threshold guidance on the importance such a rule that seeks to petitioner may that it not have been strict- ground clearly at the time his established ly necessary explanation as an final, became conviction specific holding Court’s the case. The Williams, 529 U.S. at provides text of itself suffi- [AEDPA] supplanted by Lockyer, where has been obtaining cient obstacles to habeas relief agreed placing judicial without thumb on the what “threshold matter” was decide side of warden’s the scales. “clearly established Federal constituted (Ste- Carey, 549 U.S. S.Ct. 649 law,” then the relevant state- used (citations omitted). vens, J., concurring) law, court decision date to determine independent This concern exists of the 123 S.Ct. 1166. The most 538 U.S. upon “clearly date which established Fed- regarding the use of telling observation eral law” is not implicat- determined final is that date the conviction became today. in the issue we ed decide found for strongest authorities we have preceding Gray decisions —Bruton Supreme approach are the recent explicitly provide guid- refused to Marsh — uncertainty on opinions expressing Court teachings ance on whether the of Bruton Spisak, appropriate. which date is See applied to redactions like the ones made in Thaler, 681; also 130 S.Ct. at S.Ct. at see this case. See Section IV. infra uncertainty n. 2. cannot coun- Mere Supreme terbalance the numerous Court conclusion, In we hold that the cut unequivocally, that have albeit decisions “clearly determining off date for estab analysis, approach. without taken the other purposes law” for of lished court, an inferior federal we are not As 2254(d)(1) § is the of the relevant date numerosity of these ignore free to decision. Both the natural pronouncements. statutory reading post- text and Moreover, it Ste- appears Justice Supreme precedent sup Williams primary concern with Justice vens’s such, Gray conclusion. port this As “clearly formulation of the es- O’Connor’s established Federal law” for inquiry Federal law” is her view tablished purposes petition. of habeas phrase holdings, that the “refers to the dicta, Supreme of

opposed [the D. Williams, 529 U.S. Court’s] decisions[.]” applying holding Before our to the facts (O’Connor, J., for 120 S.Ct. 1495 Court). case, segue in this a brief is needed to Carey, In ex- Justice Stevens dissenting colleague’s spirited address our plained that he took issue with Justice the petition- formulation because it discour- defense of use of the date O’Connor’s seeking guidance aged state courts from er’s conviction became final to determine decision on the from Court’s established Federal law.” While guidance that such was dicta: grounds to- recognize we -that the issue confronted jurists day over which reasonable opin- is one Virtually every one of the Court’s defi- may disagree, of a there some notable announcing ions new are adjudica- Teague’s retroactivity exceptions new rule proposed ciencies in the dissent’s (1) would dicta even if we were to take the tion of this case. The dissent would be said, codify Teague, including approach. being its dissent’s That sub silentio § part Teague’s 2254 caution that the use of rule retroactivity exceptions, new justification retroactivity exceptions for do- without reasoned (2) § so, erroneously implausible, asserts while see 28 ing 2254(e)(2)(A)© § Kentucky, (contemplating U.S.C. (1987), applies applications to cases on rule[s] 93 L.Ed.2d retroactive “new 2244(d)(1)(C) review, law”), incorrectly as- collateral constitutional id. (same), yet approach gain support serts that our has from the zone,” fact, Horn, “twilight preventing pe- creates a Court. relying explained titioner from “AED- Teague inquiries decisions issued after the date his last PA and are distinct.” decision, but before relevant state-court 536 U.S. at S.Ct. 2147. As dis- inquiries, Teag- his conviction becomes final. tinct it is unclear whether retroactivity exceptions ue’s new rule incorporated should be into 2254 even if adopt we were to the use of the date the 111(A), already explained As in Section petitioner’s conviction became final for de- precedent there is direct termining established Federal that supporting the view “whatever would law.” an qualify [the old rule under Teague jurisprudence will consti- Court’s] Indeed, recognized the Horn decision ’ law, ... ‘clearly tute Federal established 2254(d) § that satisfaction is the mini- 2254(d)(1).” Williams, § under 529 U.S. required petitioner mum for a to receive (O’Connor, J., at for S.Ct. 1495 habeas relief: Court). appears go But the dissent necessary While it is of course a prereq- alludes, times, step one further. It at uisite to federal habeas relief that a application the retroactive of new rules prisoner satisfy the AEDPA standard of that fall Teague exceptions within the for 2254(d) § review set forth 28 U.S.C. retroactivity established Feder- (“an ... application granted shall not be ” purposes al law” for of 2254.11 ... unless the AEDPA standard of observation, preliminary added)), a (emphasis As this case review is satisfied a Teague post-AEDPA does raise new rules retroac- none of our eases have tivity Teague, Gray suggested issue. Under would that a writ of corpus habeas be an old automatically prisoner rule since was issued before should issue if a Thus, standard, Greene’s conviction became final. satisfies the AEDPA or that supposed comments on the benefits of AEDPA respon- relieves courts from the Teague, explained places private 11. "In beyond [the rule a class Court] conduct they exception power proscribe that unless fall within an to the of the State to ... or rule, general categorical guarantee new constitutional rules of crim- addresses a substantive (in- procedure applicable inal will not be to those accorded Id. n. 5 Constitution[.]” omitted). quotation have cases which become final before the new ternal marks "The sec- Horn, exception rules are announced.” at 536 U.S. ond is for watershed rules of crimi- (internal quotation procedure implicating 122 S.Ct. 2147 marks nal the fundamental omitted). exceptions accuracy pro- There are two fairness of the criminal (internal general exception permits ceeding.” quotation rule. "The first Id. omit- marks ted). retroactive of a new if the rule proposition citation of was for the properly raised sibility addressing Griffith framework, “Teague under the an old arguments. Teague both on direct and collateral applies rule Horn, Thus, play is in Teague if under Id. review, generally applica- a new rule is top all, an additional concern it is as only to that are still on direct ble cases codified in requirements AEDPA’s assuming review.” Id. Before 2254(d). such, As it seems See id. sought, without addi- Supreme Court rules that are that new leap to assume discussion, to col- tional to extend Griffith deemed retroactive review, suggests, as the dissent lateral automatically “clearly estab- deemed be understanding of the less novel Whorton law” lished con- Court’s reliance on should be Griffith 2254(d)(1). Namely, proba- sidered. Griffith bly general support propo- cited as for the ... applies sitions that “an old rule ap- The dissent’s assertion Griffith ... rule direct review a new [and that] cannot be recon- on collateral review plies generally applicable to cases are holding. with that decision’s ciled Grif- Whorton, still on direct review.” considered fith, 1173. The sentence fol- S.Ct. ret- “applie[d] decision whether a certain citation in the lowing the Whorton conviction then roactively to federal further confirms this understand- decision direct review.” 479 U.S. pending on added). ing by explaining how new rules It (emphasis proceedings through collateral citation to rule “for the newly that a declared held Teague, not Id. is to be prosecutions of criminal conduct Griffith. cases, all state or retroactively to applied Supreme precedent Subsequent Court federal, or not pending on direct review view that also belies the dissent’s Griffith 328, Id. at 107 S.Ct. 708 yet final[J” applies Approximate- on collateral review. added). principles The animat- (emphasis Whorton, ly year Supreme after the ideas that “failure to ing were Griffith Minnesota, Court, 552 U.S. Danforth rule newly declared constitutional apply 264, 1029, L.Ed.2d 859 128 S.Ct. 169 pending cases on direct review to criminal (2008), stated that “defined Griffith adju- norms of constitutional

violates basic constitutional that scope of violations 708, dication,” 322, id. at 107 S.Ct. appeal.” Id. would be remedied on direct alike, treat like cases that courts should 11, It so in the at 275 n. 128 S.Ct. 1029. did 323, at 107 S.Ct. 708. id. “Teague determining context of whether dissent, Whorton, to citing seeks authority of state courts to constrains animated con- Griffith, take a decision of criminal give broader effect to new rules treating to principles pertaining stitutional opin- required by than is procedure review, alike on like cases direct 266, at 1029. Rather ion.” Id. 128 S.Ct. It it to collateral review. sees Whorton holding Teague applied than recognizing ap- “explicitly” Griffith courts, Griffith, like 479 U.S. at state Neither Whor- plies to collateral review. Supreme Court reached 107 S.Ct. prece- subsequent Supreme nor ton It held that the opposite conclusion. support this view. dent control a state Teague decision did not retroactivity. Accord- decisions on upon which court’s language from Whorton Court, Teague ing to the explicit. relies is far from See the dissent Danforth kinds of constitutional “limits the 1173. The sole decision approach that will entitle an individual to in applying Teague. violations We also do habeas, relief on federal but does not dispute § that a petition may any way authority limit the of a state petitioner invoke where a was de- Griffith court, reviewing when its own state crimi- Supreme nied the of relevant convictions, provide remedy nal to for a precedent on direct review. But violation that is deemed ‘nonretroactive’ Griffith, independently, does not control Teague.” Danforth, retroactivity for cases on collateral review. 128 S.Ct. 1029. The em-

phasized Griffith, that Teague, unlike “power based on the Court’s to interpret The dissent also asserts our the federal habeas statute.” Id. at approach a twilight creates zone for “Teague 128 S.Ct. 1029. Because is based petitioner who seeks to invoke statutory authority that extends Court decisions that fall between the date statute, applying federal courts a federal it of the last relevant state-court decision imposing cannot be read as a binding obli- and the petitioner’s date the conviction gation 278-79, on state courts.” Id. became final. This assertion is incorrect. S.Ct. 1029. While is concerned Griffith holding Our categorical does not create a with affording individuals on direct review bar a petitioner’s reliance on right adjudication their in accord with Court decisions during any twilight issued Constitution, Teague is derived from Instead, period. zone we set forth a sim language in the permitting habeas statute ple rule: universe of estab disposal of petitions habeas “as law and lished Federal may law” that be applied to justice require!.]” Id. at a particular petitioner’s 2243). (citing 28 U.S.C. Because tied to the date of his last relevant state- authority their sources of are different— court decision. Griffith, Constitution, Teague, case, In U.S.C. 2243—and their this motivations are was Greene’s decision not different, imported cannot be raise the Confrontation Clause claim in Griffith wholesale into without his petition discussion. PCRA that established Decem- short, dispute we do not ber as the date of the last rele- may somehow inform Court’s vant state-court decision on the merits.12 12. The dissent asserts that Greene separate grounds would not relief that for was from the have been able to raise his Marsh, Confrontation set forth in Bruton and Marsh. See petition Clause claim in a PCRA 5, because the 481 1702(stating U.S. at 211 n. previously issue had litigated been on the that the "express[ed] opin- Court no by Pennsylvania Superior merits the Court. admissibility ion on the of a confession in 9543(a)(3); 9544(a). § § See Pa. Cons.Stat. id. which the defendant's name has been re- disagree. We 'previously litigated' ''[T]he placed symbol with a pronoun”). or neutral 9544(a) rule simply codified in relieves comparatively presen- Unlike the loose fair Pennsylvania courts of the burden of revisit- requirement petition, tation for a 2254 ing judicata.” Boyd issues which are res requires which Warden, petitioner that the 330, habeas (3d Cir.2009) (en 579 F.3d 369 merely "present need banc). [the] federal claim's fac- Pennsylvania Superior Court’s legal tual and substance to the state courts in decision on direct review held that puts a manner that them on notice a "right that Greene’s to confrontation as set forth " asserted,” McCandless, being federal claim is in Bruton was not violated. The Confronta- 261, requirement 172 presented tion Clause claim F.3d at the PCRA PCRA that petition Gray, previously an litigated have been based on issue not have been a legal ground,” "discrete legal ground Commonwealth v. “refers to the discrete raised and Collins, (2005), review,” Collins, 585 Pa. 888 A.2d decided on direct 888 A.2d what that would have been had he This, turn, the universe of universe shrank the Clause claim at pursued available Confrontation law” “clearly established later, post- a stage to the PCRA and obtained petition, relative to him for his appeal clusion was the fact that it had raising Bruton on not based on at While direct already petitioner’s Superior considered the Bruton Pennsylvania Court was suffi- review, Id. a claim. at 609. On direct the put courts on notice that cient the state to asserted, petitioner's being satisfying arguendo that the assumed claim was federal right by requirement, confrontation had been violated presentation the McCand- fair less, Pennsylvania in a Supe- the use of the word “blank” redacted 172 F.3d statement and then held that the error was was limited to whether rior decision Court's prejudice him. Id. In grant- harmless and did not required that Greene have been Bruton Thus, words, the rule purposes of other it assumed that later set ed at trial. for a severance that, PCRA, Gray despite did forth in existed and held that decision not bear on rule, petitioner Gray, legal ground” the violation of that could "a discrete that whether Collins, review, review,” not receive relief. In its PCRA on direct was "decided not Gray, supported provided Court took which would have Greene note of A.2d proposition already it had of law assumed on relief. addition, appeal, direct that it not consider the authori- and concluded had al- In do ready of that persuasive given the considered the substance claim ties the dissent cited such, Washington on direct review. Id. case. The dissent cites Common- As facts of this Small, support Gray not view that Pa. A.2d 549 does the dissent’s wealth v. (2009), proposition that and Bruton raise the same issue for for the reliance on support original of PCRA theo- review. "different case Finally, "change require- PCRA’s ry,” relief would not we note that the id. at previously litigated,” previously ment that not have been fact was an issue [an] issue litigated flexibly proposition applied Pennsylva- was id. offered based on But Small, injustice, nia courts circumstances. to avoid create it. different factual Pennsylvania seeking rely legislature, "by petitioner United its effort to was authority category post-convic- Supreme Court existed channel the broadest States appeal statutorily-prescribed pro- yet direct tion claims into the at the time of his was implemented effectively re-argue an cedures ... a scheme must raised in litigated necessarily previously be deemed to take into account on direct issue that corpus jurispru- appeal. had facets of traditional habeas The Small Court no reason to Id. ,view litigation underly- previous ... which as novel because the dence the issue never-yielding ing authority does not as a bar to function United States Here, possibility relief.” appeal. of the direct of collateral Common- existed at the time Cruz, Pennsyl- wealth v. Pa. 851 A.2d Gray exist at the time did not such, (2004) (citations omitted). ... instances Superior ”[I]n Court’s decision. As vania involving simply theory unique embodying raising not be circumstances Greene would irregularity in the allegation support legal of a manifest error or chain of discrete [Pennsylvania ground previous litigation, Su- th[e] that existed of his for relief time Instead, asserting preme] have found that the appeal. he would be others direct dispositive ground regarded legal doctrine need not be new discrete relief based Thus, Id. even we previously United States on collateral review.” if unavailable precedent. credit the dissent's view that Greene’s issue Court petition previously litigated, PCRA reliance on v. was his The dissent’s Commonwealth Washington, was not from its outset. Penn- 592 Pa. 927 A.2d 586 doomed There, (2007), misplaced. pe- sylvania Supreme similarly Court's dismissal of is granted Gray, petition improvidently argued Greene’s on titioner that which had been review, with the Pennsyl- to direct in combination United after his direct decided Supreme Gray States Court’s issuance of Supreme Court but before that court’s vania decision, final, "irregularity of entitled relief could be the kind became him to decision id., previous litigation,” Pennsyl- the chain that PCRA.Id. at 608-09. The of under the requirement petition- that relaxation of the Supreme Court found merit vania previously litigat- an have been er's Clause had been that issue not Confrontation claim merits, litigated ed. previously on but its con- Gray state-court decision on the prior seeking merits. claims in state court to fed- review”).13 eral collateral body It for that the is unfortunate Greene as of “clearly of established Federal law” IV. December did not include Gray Having concluded Gray he Yet this is an outcome decision. law,” “clearly was not Federal established raising the easily could have avoided Bruton only argue Greene is left to in his PCRA Confrontation Clause claim Marsh. Accordingly, we must determine Doing petition. pushed so would have Pennsylvania Superior whether Court relevant deci- last state-court date of the unreasonably applied those cases when it forward, thereby merits ex- sion on the Finney’s decided redactions universe panding the estab- Womack’s statements did not violate Gray. law” to lished Federal include rights under the Confrontation state- Using the date the last relevant Bruton, Clause.14 the defendant chal court to determine estab- decision lenged his conviction the basis that his gives lished law” in- defendants right against to confront the him witnesses all pursue centive to colorable claims based was violated because the confession his law” as far possible “Federal non-testifying codefendant, which directly give state will doing courts because so him, implicated was introduced into evi them chance of the best success in federal dence. U.S. at 88 S.Ct. 1620. proceedings, habeas not to mention the The of Appeals Court had affirmed the underlying proceedings. This is a state jury defendant’s conviction because the salutary Congress’s serves a limiting effect had received instruction that the See goals passing competent AEDPA. 28 U.S.C. codefendant’s confession was 2254(b) (c) against only evidence (requiring & exhaustion of codefendant. reversed, Walker, remedies); Supreme holding Court Duncan v. state court because of the risk substantial that the L.Ed.2d 251 (referencing pur- jury, despite “clear contrary, instruction to the pose encourage litigants pursue incriminating extrajudicial looked 13. Notably, approach precedent 'objec- our does not create a tion of ” procedural bar Greene's claim. As ex- tively Kyler, unreasonable.' Fountain II, plained in Section Greene satisfied the (3d Cir.2005). “[A] F.3d federal requirement by with, fairly presenting exhaustion disagreement mere court's the state his Confrontation Clause the Penn- claim to prece- court's sylvania Superior Court. Satisfaction sufficient; rather, dent not state court however, requirement, exhaustion does not adjudication applica- fails the 'unreasonable open the door to Court decisions tion’ test if the state identified the court issued after the last relevant deci- governing legal unreasonably correct rule but sion. The determination of what constitutes applied particular it to the case or if the state "clearly pur- established Federal law” unreasonably either legal court extended a poses §of is a merits-based determina- principle precedent from to a petitioner present- tion. fairly Whether has new context in which it should courts, ed and his claim exhausted in the state unreasonably where it refused extend such contrast, procedural is a issue principle to a new context which it peti- decide independent of the merits of apply.” Id. should We do address the tioner’s claim. 2254(d)(1) "contrary prong to” the as Superior Pennsylvania correctly identi- application' prong "[T]he 'unreasonable 14. controlling legal authority. requires peti- 28 U.S.C. fied Bruton the a habeas Williams, 406, applica- tioner to that the show state court's See 529 U.S. at 120 S.Ct. 1495. Bruton, which it to fall cause[d] the case and determining [defen- statements exception,” codefen- the narrow as Marsh’s guilt, admission of outside [the dant’s] joint expressly trial vio- confession did not confession in this codefendant’s dant’s] incriminating of cross- her and became right implicate defendant’s] lated [the “only when linked with evidence intro by the Confronta- secured examination ([MarsbJ’s at trial own testi Amendment. duced later Sixth tion Clause 208, 107 at 1702. mony).” Id. S.Ct. ac- S.Ct. 1620. The Court Id. at the that instructions knowledged The Marsh Court observed that clear, id. at 88 S.Ct. jury were link- requiring evidence a[in statement] that but reasoned age incriminating differs from evidence the are some contexts which there practical in the effects which on its face cannot, not, jury risk that will Bruton exception great, and the follow instructions is so facially If produce. limited to so vital to consequences failure Bruton can be confessions, incriminating defendant, that the and human practical complied by possibili- with redactions —a cannot be jury system limitations of the in that ty suggested opinion itself. present- a context is ignored.....Such 208-09, Id. at 107 S.Ct. 1702. After con- here, incrimina- powerfully where the ed if sidering the that would arise difficulties a code- extrajudicial statements of ting Bruton was “extended to confessions in- fendant, side-by-side who stands accused connection,” criminating by the Court re- defendant, deliberately are with jected outright prohibit a rule that would jury joint in a trial. spread before Id. of a the use codefendant’s confession. (citations 135-36, omit- Id. at 88 S.Ct. 1620 209, 107 1702. with its at S.Ct. Consistent ted). Accordingly, refused to the Court recognition that that do not “confessions limiting as an ade- accept instruction than name the defendant” are different right substitute the constitutional quate Bruton, facially incrimi- which involved a Id. at 88 S.Ct. of cross-examination. confession, the that nating held 1620. the Confrontation Clause is violated later, Supreme Court Two decades nontestifying the admission code- case, Bruton Marsh. revisited confession limit- proper fendant’s nontestifying “confession codefendant’s when, here, con- ing instruction reference to was redacted omit all fession is redacted to eliminate [Marsh]indeed, to omit all indication name, any reference the defendant’s anyone other than other [two individuals] her to his or existence. U.S. at participated crime.” 481 footnote, Id. In a 107 S.Ct. 1702. Nonetheless, 1702. Marsh 107 S.Ct. the Marsh Court made clear however, alia, inter petition, alleging, § 2254 filed a expressing “opinion it was not an on the that the introduction of her codefendant’s admissibility of a confession which violated under the rights confession her replaced name has with a defendant’s been Confrontation Clause. Id. pronoun.” n. 5. symbol or neutral out began analysis by pointing its (1) that Bruton was Bruton Marsh instruct that: exception” “narrow pre- are confessions codefendants accepted principle jurors unredacted Id. generally are implicate to follow their instructions. defendant sumed Bruton, inadmissible, that there It noted 1620; this confessions that important “an distinction between redacted Bruton, completely sanitize codefendant’s state- not unreasonable. Unlike which Marsh, individuals, involved two removing any ment reference to a de- and which three, robbery involved in this case generally fendant’s name and existence are involved five or six individuals. As a re- admissible, Marsh, 481 U.S. at sult, Finney’s and Womack’s redacted 1702; when a redaction is statements did not directly implicate utilized to avoid violation of the Confron- Moreover, Greene. the substitutions that tation limiting Clause there must be a were used for the names of the codefen- Neither Bruton jury. instruction to the yielded confusing dants statements that nor Marsh clarified the middle ground re- failed to establish either the number of garding satisfactorily the method for re- or, persons shooter, except involved for the dacting nontestifying codefendant’s con- person played the role that each in com- Indeed, Marsh declared that fession. it mitting the offense. In the absence of a was not addressing admissibility redaction expressly implicated redacted statements that utilize neutral Greene, it was not unreasonable for the pronouns, such as the of Fin- redactions Pennsylvania Superior Court to conclude ney’s and Womack’s statements that were jury would follow the limiting Id. at 211 n. admitted Greene’s trial. instructions had received. 107 S.Ct. 1702. V. light pre-Gray principles, of these “courts generally followed the practice of presents This case a vexing conundrum redacting co-defendants’ statements in or- cannot, no matter how one views the der to explicit eliminate all law, reference to facts or be avoided. While we cannot Priester, other predict defendants on trial.” with certainty absolute what date F.3d 398. Consistent with Court would use practice, to deter- mine established Federal Pennsylvania law” for Superior recog- 2254(d)(1), purposes of our decision to- nized that the redaction of a codefendant’s day represents a careful consideration of statement was a permissible mechanism pertinent, conflicting authorities, and for avoiding a Bruton violation. It re- we believe that we have reached the best viewed the redacted statements that were given conclusion guidance we have to that, admitted and noted consistent with Ultimately, only date. Marsh, Bruton all references to the can resolve uncertainty such as exists. other defendants proper name or nick- now, For we hold that “clearly established name had been removed. The Pennsylva- law” nia Superior Court also noted that jury should be determined as of the date of the had been properly instructed that it could relevant case, state-court decision. In this only consider each redacted statement as Pennsylvania because the Superior Court’s against evidence the individual who made December 1997 decision did not unrea- the statement and that these statements sonably apply established Fed- could not be considered deciding any time, eral law” that existed at that Bruton other defendant’s culpability for the crimes Marsh, we will affirm judgment such, charged. Pennsylvania As Supe- the District Court. rior Court concluded that rights under the Confrontation Clause had not AMBRO, Judge, Circuit concurring in been violated. part and dissenting part. Marsh,

In light of Bruton the Penn- I Although agree my colleagues sylvania Superior Court’s conclusion was that Greene’s claim procedurally is not.

107 majority jury giving read to the a join limiting Part II of the were and defaulted and full, respectfully disagree I opinion jury. in instruction controlling date their the determination Richardson) (as Bruton clarified was law” under “clearly established Federal for win for enough point the Greene. 2254(d)(1). my colleagues As 28 U.S.C. winning line He remained short of the on authority question the on this recognize, Pennsylvania Superior appeal his when and, save for a First Circuit conflicting on ruled December choosing But opinion, unreasoned. Bruton was not violated. deci- of the relevant state-court date hope, But there was as Greene filed sion, a today, our Court does leaves timely petition a for allowance of review to by cutoff set twilight zone between the Pennsylvania Court. That retroactivity analy- majority here and the hope big received boost when Su- Court’s decisions sis of the 314, Court of the States Kentucky, preme 107 United decided v. 479 U.S. Griffith (1987), 185, 708, Teag- Gray Maryland, v. 118 L.Ed.2d 523 U.S. S.Ct. S.Ct. 93 649 1060, Lane, 1151, (1998), 109 S.Ct. 140 L.Ed.2d while ue v. 489 U.S. 294 his (1989) (plurality).1 Gray 103 L.Ed.2d 334 was held that petition pending. re- to- majority’s opinion consequence dacting using names from confessions obvi- day a criminal who is is that defendant falls within the class of ous blanks claims light by good denied protected Bruton. This news case rule to his or her new constitutional Pennsylvania for indeed Greene. The Su- later re- appeal is left without direct would take note preme Court no doubt habeas to correct to federal review course Gray grant review.

that error. did, it did so on the very Indeed for reasons Gray. issue decided Yet Background I. know, it abruptly do not dismissed its here, stage argued To set Greene “having improvi- been grant prior proceeding his state trial dently granted,” leaving place effect him jointly against and his co-defendants Superior pre-Grow/ post-Gray Court’s his and his consti- prejudice defense decision Greene’s Confrontation Clause right tutional to confront witnesses “when rights. into evidence offer[ed] Commonwealth petition seeking Greene filed collateral made the co- [out-of-court] statements Pennsylvania’s relief under Post-Convic- cited support defendants.” He Su- (“PCRA”), Act 42 Pa. tion Relief Cons. v. preme cases then known—Bruton §§ Ann. He did not States, allege Stat. 9541-46. United rights that his (1968), Confrontation Clause were Richardson v. L.Ed.2d (and thus violated did not cite Bruton or Marsh, 481 U.S. S.Ct. (1987). Gray), ostensibly pro- the PCRA because judge, motions L.Ed.2d 176 already relitigating matters dealt prejudice those state- scribes recognizing the Greene, 42 Pa. appeal. with on direct Cons.Stat. thought she could fingering ments 9543(a)(3). Nonetheless, my simply redact- Ann. col- prejudice by cancel out that that, so, state he done ing leagues name the statements had Greene when Minnesota, Teague opinion "Although plurality was a thereafter.” Danforth support that drew from four members 266 n. 169 L.Ed.2d Court, affirmed and rule was (citation omitted). majority shortly applied by a of the Court later, post-Gray have States Court decisions before his “obtained final,2 Maj. stop the merits.” conviction but no if state-court decision on became I They -incorrectly, 103-04. with Op. Pennsylvania the decision Su claim— believe, fully for the stated more perior reasons than half less two and a failure in note 13 below—that to raise Gray months decision. before Greene Gray in “shrank petition his PCRA where, in twilight is the unwelcome zone ‘clearly universe of Federal established own United States Court’s him his 2254 peti- law’ available to for words, “uncertainty” currently exists. They say tion.” Id. 103. this while U.S. --, Spisak, Smith v. S.Ct. fairly conceding presented that “Greene 676, 681, - L.Ed.2d - (2010). legal factual and of his Con- substance Pennsylva- to the

frontation Clause claim Analysis II. state at 93. nia courts.” Id. We do not procedurally federal claims de- consider This is not a situation where is Greene faulted, procedural “even if the rule is seeking advantage to take belated of a rule facts,” theoretically applicable [the] un- to which asking he is not entitled. He is rendering the last state a judg- less court apply us to a case should have been “clearly expressly ment case applied on review. direct Under the Su- judgment states that its rests on a state preme jurisprudence, Court’s he Griffith Horn, Holloway bar.” procedural 355 was entitled to the benefit It Gray. is Cir.2004) (citations (3d F.3d omit- only Pennsylvania because the state courts ted). express There is no or clear state- failed to it to his case that arewe ment here. evaluating it in the first instance on habeas review. frustrating

Greene’s failure with the Pennsylvania over, system court was My analysis differs from that thought all was not lost. He he could seek nutshell, majority. In a subsection review habeas of his Confrontation Clause 2254(d)(1) any does not choose cutoff date. in a rights federal court. And he did. Thus, retroactivity we are with the left jurisprudence Teague. Be

This is where we come after the Dis- Griffith Gray prior cause date against trict Court ruled Greene: decided were his final, rights became I Confrontation Clause conviction believe estab- they requires application lished Federal when its this [as] law” were “adjudicated I judg on the merits State court case. would therefore reverse the 2254(d)(1). proceedings”? ment of the U.S.C. District and remand for yes answer look Gray.3 is if we to all United consideration of of, Finality judgment 2. means that "a of convic- tion. rule constitutional announced in rendered, availability tion has been Gray Gray though yet even did not exist. exhausted, petition time and the for a corpus AEDPAdoes a writ not allow of habeas elapsed petition for certiorari or for certio- law; granted simple to be for errors of a writ finally Griffith, rari denied.” 479 U.S. at 321 granted only is there an when is unreasonable 6,n. 107 S.Ct. 708. Taylor, error of law. See Williams v. U.S. 120 146 L.Ed.2d 389 Directing the District Court to consider J., (2000) (O’Connor, ("[A]n Court) for the Gray get does not mean that Greene would unreasonable of federal law dif- Pennsylvania habeas relief. The state courts may applied Pennsylvania’s have ferent existing applica- own from an incorrect eironeous jurisprudence Confrontation Clause that was (emphasis original)). tion of federal law.” to, contrary applica- or an unreasonable vens, writing for six members of the Court noted, question of whether A. As opinion, in Part III of his stated date is sets a cutoff of determin- date applicable unresolved. law is established is ing whether federal majority I agree petitioner’s] habeas state- [the “the time have law” did not established final.” 529 conviction became court AEDPA and the to meaning prior special (Stevens, J., for the 120 S.Ct. 1495 2254(d)(1). Maj. § See text of 28 U.S.C. Court). O’Connor, five writing Justice for the text of 28 n. 10. Nor does Op. at 98 II of the in Part of her members Court 2254(d)(1) “ express an time have U.S.C. ‘clearly established opinion, stated Federal “clearly established cutoff for holdings, ... to the Federal lavd refers statute im- colleagues read the My law.” dicta, Supreme] [the opposed any Supreme require plicitly of the decisions as of the time Court’s relevant down after the handed decision state-court decision.” Id. relevant is to be on the merits decision (O’Connor, J., for S.Ct. relief. I of habeas for ignored Court). nor Jus- Neither Justice Stevens language “[rjeading disagree that chosen a appears tice O’Connor have way, as “straightforward” in a or plainly,” statute, cutoff based on the text of that the requires my colleagues suggest, they acknowledge discrepancy did time exist decision Supreme Court Indeed, in respective opinions. in their resolution. court’s substantive of the state the choice of cutoff would Williams 2254(d)(1) plain straight- so were If mattered because the case focused on have say forward, Supreme Court why does the Washington, 466 U.S. Strickland v. why my are col- uncertain? And it is (1984), a 80 L.Ed.2d no clear view that “there is leagues of the crime prior to both the 1985 case decided Maj. atOp. we face”? to the issue answer Williams, in mak- 1986 conviction and the uncertainty, I face of such n. 7. In the discussion of cutoff dicta because ing the that there is a to conclude find it difficult un- under both cutoffs Strickland 2254(d)(1) dictating reading” “natural doubtedly “clearly established Federal a cutoff date.4 law.” conflicting to reconcile the Our task is reason for primary A the cut- majorities regarding in the text Williams uncertainty as to whether Court’s law” “clearly established Federal off for a clear cutoff date provides §of consis- maintaining AEDPA while Taylor, is its own decision Williams controlling decisions tency with the Court’s 146 L.Ed.2d (no Recently, the (2000). doubt), Teague. Su- Inadvertently “uncertainty” recognized the majorities preme Court identi- had two different cutoff for established temporal cutoffs.5 Justice Ste- fying two different decision had Justice Stevens paradigm for 5. The fractured might think this is the 4. One announcing judgment the Court and lenity. invoking If even the Su- the rule of (6 votes) delivering opinion trigger which time preme Court is uncertain I, III, respect IV of his "clearly to Parts law is with play as to when federal is in (4 votes) that, minority opinion established," opinion, with while others it seems fair zone, O'Connor respect Parts II and V. Justice twilight may in the future lose (5 votes) opinion of the Court delivered As that is not how Greene should not. (save opinion rules, respect Part II of her Gray's claim to bene- majority footnote). sisyphean. simply fits becomes law,” decision, and declined to resolve it at court Spisak Court would not Spisak, that time. See S.Ct. at 681.6 have uncertainty, noted the nor would it have finality. assumed the date of Recognizing the Court’s statement Court is not in the offering business of Spisak telling as the “most observation advisory opinions, and if it were clear that regarding the use of the date the convic- prior its cases had selected the date of the final,” my colleagues tion became dismiss decision, relevant state-court it would not it in single sentence as “mere uncertain- opinion have issued the in Spisak. It ty cannot [that] counterbalance” the cases that, would have held instead because that select the date of the relevant state- Mills was decided after the final state- Maj. Moreover, court decision. Op. at 99. merits, they court decision on the though agree do so even AEDPA did permit Court has never a not conducted consideration of the case. It thorough analysis “clearly estab- would stopped analysis have its in- there lished” cutoff for AEDPA. Id. at 96-97. of going great length stead on at to evalu- Though Supreme the Court has used the ate the Thus, Mills claim on the merits. relevant state-court tempo- decision as the post Supreme -Williams precedent Court Williams, ral cutoff in cases after I do not offers clarify little to the temporal cutoff dispositive. find this Like our own check- for established Federal law” under jurisprudence, ered it is not clear from the AEDPA. Supreme Court’s cases recog- whether it divergent nized these approaches inas- Supreme B. The Court has not aban-

much as it was not required in those cases retroactivity doned jurispru- its to resolve whether the cutoff date was the post-AEDPA. dence relevant state-court decision date or the date the conviction became final.7 AEDPA’s concern over whether a state

If, majority as the suggests, ruling court in a clear criminal case was con- answer is to, the date of the relevant trary state- of, or an unreasonable case, 6. Like Spisak this the timeline of a majority has cases cited adopting as falling "new twilight rule” in the zone be- date of the relevant state-court decision was tween the last state-court decision on the mer- Supreme required to determine the There, finality. its and the date date, the last cutoff and in the case where it had state-court decision on the merits issue, was issued Spisak, to confront sidestepped. it April Spisak, 1988. State v. 36 Ohio We ignore are not free to that the Court itself (1988); St.3d 521 N.E.2d 800 see also has told us the law is "uncertain.” I caution Mitchell, Spisak (6th v. 465 F.3d that I do uncertainty” not take "mere alone to Cir.2006). The conviction became final on Supreme "counterbalance the numerous 6, 1989, Supreme March when the decisions,” Court of but instead take the Su- the United States denied Spisak certiorari. preme express Court’s reservation of the Ohio, 489 U.S. question Spisak telling us that the issue (1989). Maryland L.Ed.2d 822 Mills v. remains unresolved and that there is little to decided period on June be- that, gleaned be from other cases ma- tween the last state-court decision on the mer- notes, jority approach take one "without anal- finality. its and the date of ysis.” Maj. Op. respect, at 99. In that (1988). 100 L.Ed.2d 384 Supreme precedent Court's is precedent: goes like ways our it both and is majority 7. The unhelpful makes resolving inquiry this observation with an that the de- respect precedent, yet Moreover, to our own squarely does not cisions did not address. reach the same respect conclusion with selection of a cutoff date in rulings. Court's In none of the Court cases is no more than dicta. understanding the Paramount Su- law” stems established final disturbing to avoid from desire retroactivity preme jurisprudence Court’s through collateral re- judgments criminal its decisions discerning is Griffith past the use of the particular, view. Teague. They provide a distinction be- (“established”) AEDPA means that tense rules,” tween “old and “new rules” terms the law that should have is concerned with meaning only have a when clear used time of the state court at the applied been in relation criminal conviction. given diverge my I from proceedings. Where Unhelpfully, Court has used we determine what that colleagues is how things rule” “new to mean different body of is. law and Teague context. Griffith conceptu- first it seems though Even that a court unreason- ally say difficult one A “new rule” for is that is ably precedent applied ruling announced a state court after exist, analysis yet retroactivity that did not A for merits. “new rule” is one deciding. the tool When becomes is announced after a conviction be- holding retroactively ap- Supreme Court final. that in the appli- comes This means if it plied prior proceeding, is as conviction, Gray cation of to Greene’s prior proceed- time of that existed at the Gray is a “new rule” for Griffith ignores ing. majority’s view control- Teague purposes. is an “old rule” for allows, precedent that ling are concerned with principally We circumstances, for the retroac- certain “old rules” distinction between constitutional application tive rules following “new rules.” table may aid though they an- criminal cases even are discussion understanding the that fol- court ruling a state on the nounced after lows. merits.

C. Court has a devel- review violates basic norms of constitution- oped jurisprudence governing adjudication.” al 479 U.S. at application to cases on collateral It very “integrity S.Ct. 708. was the pre- review judicial of its cases decided review” that required application finality post- and those decided of a new constitutional rule “to all similar finality. pending cases on direct review.” Id. 323, 107 principles guided S.Ct. 708. Two newly The retroactive an- First, this decision. recognized the Court nounced constitutional rules criminal long cases has troubled matter, course, a practical [a]s noted, Court. As retroactivity takes that cannot hear each pending case on direct transports rule and back time to a review and apply the new rule. But we proceeding pre-dated the announce- fulfill judicial our responsibility by in- rule, ment of the treating the rule as if it structing the lower courts to apply the existed at prior the time of the proceeding. retroactively new rule yet cases Because this fiction potential has the Thus, final. judicial it is the nature of upset proceedings, especially settled precludes review that “[sjimply us from context, criminal years over the the Court fishing one case from the stream ap- adopt came to a bright splits line that review, pellate using it as a vehicle for application of these rules into two domains pronouncing new constitutional stan- of review. dards, and permitting then a stream of Whether a new applies rule retroactively similar subsequently cases to flow depends on whether a criminal conviction by that new rule.” unaffected direct review or collateral review at (citation omitted). Second, Id. the Court the time of the Supreme Court decision recognized that announcing the new If rule. the conviction is on direct review when the new rule is application selective of new rules vio announced, allows the retroactive Griffith lates the principle treating of similarly application of the new rule to all criminal situated defendants the same. As we pending cases on direct review aas “basic pointed Johnson, out in United States v. adjudication.” norm[ ] constitutional 537, 102 [457 U.S. S.Ct. 73 L.Ed.2d 479 U.S. at 107 S.Ct. 708. If the (1982) problem ] the apply with not conviction is collateral review when the ing new rules to pending cases on direct (ie., new rule is announced convictions review is inequity “the actual that re that became final before the new rule is sults when the Court chooses which of announced), Teague restricts applica- many similarly situated defendants tion of that new rule exceptions to narrow should be the chance beneficiary” aof discussed below. bright-line This distinc- new rule. Although the Court had to tion was made due to the differing consid- lerated this inequity for a time erations between the two domains of re- applying new retroactively rules to cases view. review, on direct we noted: “The time

for toleration has come to an end.” 1. Griffith (citations omitted) Id. (emphasis in origi- nal). The Court held that the “failure The Court therefore held “that a Griffith to apply newly declared constitutional new rule for the conduct prose- of criminal rule to criminal pending cases on direct applied cutions is to be retroactively to all federal, tions, generally apply prevailing on direct to the law cases, pending state final, time a final yet exception no at the conviction became than with review or not dispose it is to seek to cases on [habeas ] constitutes for in which new rule cases in intervening changes the basis of consti- Id. at past.” ‘clear break’ ” interpretation.’ (quoting Id. tutional “pending I note that 708. S.Ct. Mackey, U.S. at 91 S.Ct. 1171 from slightly is different review” direct (alteration J.) (Harlan, original)). already A case that has yet “not final.” exceptions identified two right direct as of appeal exhausted the general prohibition against the retroactive on the resulting in a state-court decision of new application post-finality rules final, merits, yet within is not is still but (1) collateral new cases on review: rules Finality purview Griffith. certain place primary, private kinds of key date. beyond power individual conduct the low- “instructed] Griffith law-making authority pro- criminal federal, courts,” and er state “to scribe, 1060; id. retroactively yet rule to cases not new “watershed proce- new rules of criminal 323, 107 It Id. at 708. did final.” ... ‘alter understanding [that] dure our merely advise those courts to consider procedural the bedrock elements that must subject the rule to their discre- applying to vitiate a partic- be found the fairness of tion, mandated new ” conviction,’ id. ular 91 S.Ct. 1171 only through It was this mandate rule. (citation omitted). original) (emphasis inequity” “many that “actual between deciding Teague, In Su- similarly would be situated defendants” preme carefully Court has set out the dif- avoided.8 (direct pre-finality ferent concerns (collateral attack) post-finality appeal) application of new rules. In the context of Court dealt Teague, review, retroactivity for federal habeas retroactivity side of the with the other Teague Court focused on the distinction question. attacks such as habe- Collateral subject judgments between intermediate cotpus are not meant to be substitute subject only final judgments review, recog- and the has direct collateral attack: leaving concluded liti- nized an interest gation in a state of 489 U.S. at of constitutional rules not in repose. Application 306, Mackey 1060 v. at the be- (quoting 109 S.Ct. existence time conviction States, 667, 682-83, 91 final seriously 401 U.S. came undermines United (1971) (Harlan, 1160, finality principle 28 L.Ed.2d 404 which is essential to S.Ct. J., sys- concurring judgments part operation justice in in and of our criminal in second criminal dissenting part)). Quoting finality, tem. Without law Harlan, deprived the Court that it was of much its deterrent ef- Justice noted “ ‘sounder, peti- liberty in The fact adjudicating habeas fect. that life and are rule, instance, integ- leaving 8. it would to benefit from a new For undermine mitted similarly by that rity judicial among review if ten nine to "flow unaffected new other 323, duly Griffith, con- 479 107 S.Ct. situated criminal defendants —all rule.” U.S. 708 court, (citation omitted). having only peti- all It is to avoid victed state n. 6 this in inequality lucky defendant and certiorari to the Court of the between an tion for (but situated) unlucky similarly remaining their recourse on defendant that United States as requires raising ques- bright and appeal, and all the same draws its line direct Griffith application only per- the new one were rule. tion of constitutional law— 114 criminal prosecutions

at stake in D. Section does “shows not dis- Teague. Griffith card and only that notions of finali- ‘conventional should not have as much ty’ place in In a post-AEDPA post- unanimous litigation, criminal in civil not Williams Whorton v. Bockting, decision, none.” they 406, 127 1173, should have 549 U.S. 167 1 S.Ct. L.Ed.2d (2007), the Supreme Court held that Grif 309, Id. (emphases in S.Ct. Teague fith (citation omitted). original) With this view laid out the framework be used in finality, held that “[u]nless determining whether a rule announced they exception fall within an general opinions one of [the Court’s] should rule, new constitutional rules of criminal retroactively applied judgments be procedure be applicable will not to those criminal already cases that are final on cases which have become final before the direct review. Under the frame- announced,” using finality, new rules are work, applies an old rule both on direct the date of the relevant review, and collateral but a new rule is decision, point as the inflection between generally applicable to cases that Teague. Id. 310, 109 S.Ct. Griffith, See are still on direct review. Griffith 1060. 479 U.S. S.Ct. A new [107 708].9 here meant "old rule” established all Court decisions (pre-finality) pre-date finality: (post-finality) and "new rule” a conviction’s Penry’s Teague purposes. disagree January I conviction became final on my with col- peti- when this Court denied leagues his they when state that "[t]he sentence tion for certiorari on direct review of his following the citation in Whorton Griffith conviction and sentence. This Court’s deci- decision further confirms [their] understand- sions in Lockett Ohio [438 v. U.S. ing by explaining how new rules (1978)] S.Ct. 57 L.Ed.2d 973 proceedings through collateral citation to Eddings v. [455 Oklahoma U.S. Teague, Maj. Op. at 101. This Griffith.” (1982)] S.Ct. 71 L.Ed.2d 1 were ren- "extending” case is not about to col- Griffith dered before conviction his became final. "import[ing]” lateral review or into Griffith retroactivity principles Under the adopted Teague. is not This case even about "new Kentucky, Penry v. is entitled to rules,” meaning rules”—it "old is about all the benefit of those decisions. pre-finality Supreme precedent. 302, 314-15, Penry Lynaugh, v. majority applying takes issue "old rules” (1989) (citations 106 L.Ed.2d 256 review, to collateral but if "old rules” do not omitted), abrogated grounds by other Atkins review, apply on collateral which rules do? Virginia, body defines the of law that should be Griffith applied (2002). L.Ed.2d 335 review, is, precedent on direct all We have likewise done so in our own habe- prior finality. is decided to conviction’s cases, applying pre-finality decisions on This relates to review collateral because habe- authority habeas review of Griffith. body as is concerned with what of law should See, Horn, e.g. Lewis v. 581 F.3d 102 n. 5 applied have been direct review. The rela- (3d Cir.2009) Abu-Jamal, ("Although like tion of collateral review nothing is Griffith Lewis, prior Supreme was convicted profound. novel or Batson, Court’s decision in his direct concede, 100, my colleagues Maj. Op. As at pending Supreme was still the when Court a pre-finality rule that is handed down Batson, is an applied decided therefore and Batson pass old Teague rule and need not the test. retroactively (citing Griffith, case.” his 479 Instead, governed by appli- 328, it is 708)); and is U.S. at 107 S.Ct. Simmons v. Griffith cable "both and 1160, (3d on direct collateral Beyer, Cir.1995) review.” 44 F.3d 1164-65 Whorton, ("Had review, 549 U.S. at 127 S.Ct. 1173. timely Simmons received a his Furthermore, Supreme applied the Court has conviction would been final have before 1986. sense, retroactivity principle in the a beneficiary’ habeas In he ais 'chance of the Griffith’s context, petitioners [, giving rights habeas but] the Batson rule ... we see no reason to

115 reading in a collateral lished Federal law.” This applies retroactively contra- rule the require- holding if dicts unanimous proceeding only Teague [the Williams met], all “old rules” Teague purposes that for are ments “clearly law.”12 are established Federal Though 127 at S.Ct. 1173.10 549 U.S. My colleagues recognize contradiction, this Teag- an application with Whorton dealt they choose to ignore but and Griffith ue, -recognized that explicitly Griffith Teague adopt Justice O’Connor’s ini- requires applied “old rules” both be (that tial unreasoned declaration chose the To me on direct and collateral review.11 of the date relevant state-court decision unani- this that the Whorton Court means case) cited no and not her later rea- and the idea mously endorsed Griffith (that one soned referred to “old rules” Court decision handed down Supreme Teague Supreme under cited Court ruling after last state court on the See 529 120 precedent). merits, finality, before is an old rule Black, (citing Stringer v. 503 U.S. even under AEDPA and applicable 112 S.Ct. L.Ed.2d ruling not a “watershed” or even if it is (1992)). why It is unclear to me we would beyond power conduct place does not (a dictum, choose her statement of the law proscribe. of the state to less) in no conflict with the concerns, retroactivity Given the Court’s Teague decisions in Court’s Griffith 2254(d)(1) I reading believe the better of her the law instead statement of not set a cutoff is that it does definitive harmony those Supreme Court hold- “clearly law.” date for established Federal (and actually ings and Whorton in- retroactivity ju- It is the Court’s controlling prec- Court vokes risprudence that de- Griffith Teague). edent of review, applicability termines collateral not AEDPA. majority’s E. The cutoff creates twilight zone

My colleagues’ reading of They conflicts with Whorton. refuse If relevant cutoff date is the date of merits, all “old rules” as estab- the last state-court on the include decision deny governing precedent the time of bend the rule Simmons finali- ty- protection afforded in Batson.” constitutional (citing Griffith, 479 U.S. at 107 S.Ct. 708 6)). n. Notwithstanding apparent 12. conflict Williams, time cutoff in Justice O’Connor and Whorton, analyzed whether agree Stevens Justice did “whatever Washington, 541 U.S. Crawford S.Ct. qualify as [the an old rule under (2004), L.Ed.2d case Teague jurisprudence will Court’s] constitute petitioner’s that was decided after the habeas law, 'clearly established Federal as deter- final, applicable was to his conviction mined United analysis Implicit a “new rule.” case as 2254(d)(1).” States’ recognition that is the cases decided after (O’Connor, J., 120 S.Ct. may decision last state-court on the merits Thomas, by Rehnquist, (joined Kennedy, & applicable nonetheless be to cases under Scalia, 379-81, JJ.)); see also id. at they long appropriate AEDPA so meet the J., (Stevens, (joined portion 4-vote retroactivity test. there would be Otherwise Souter, JJ.)) Ginsburg, (distinguish- Breyer, & applied no need to consider whether Crawford ing “new rules” from established” it did not exist at time of the last because rules). words, In other was the court unani- decision on the merits. holding in rules” mous that all "old under above, any Teague an constitute 11. As noted "old” rule is rule established Federal by prior finality AEDPA. that existed or was dictated law” under crimi- twilight placed beyond power create a zone for certain conduct the we would However, possible proscribe. nal the of the state to if it defendants. Consider (the period a court decided in the times relative to state conviction were second twilight 'Supreme decision the is zone between the last state-court when a (1) finality), to the on merits prior announced: last state-court decision the and before (2) merits; majority’s on the between the time cutoff would nonethe- decision on the and consider it not to be last state-court decision merits less estab- after the conviction is law” and bar finality; lished habeas period final. If it were decided the first relief because the rule did not exist at the on time of the (prior to the last state-court decision last state-court decision on the merits), court majority a state would have to merits. The reaches this conclu- above, If though, it to be consistent with sion even discussed Griffith. (after period it were decided in the third announced an “old pre-finality rule is rule” finality), Teague purposes requires habeas relief would be available for and Griffith as a rule” if deci- “new its on direct and collateral re- sion rule or announced “watershed” view.13 above, majority litigated

13. As noted states that that he his Bruton claim Penn- sylvania Superior Greene could have raised a agree Bruton Confronta- Court. We that the review, thereby claim Superior tion Clause on PCRA Court ruled on the merits this receiving post-Gray stale-court on decision agree claim. We that he it in raised his Maj. Op. at the merits. 102-03 & n. 12. I petition appeal for allowance of with the this is not believe correct. PCRA entitles Pennsylvania Supreme Court. In other prisoners only they plead words, state to relief if dispute there can be no that the Bru- prove allegation an of error that "has not "previously litigated” pur- ton claim was previously litigated or been waived.” Pa. poses my colleagues sug- of the PCRA. While 9543(a)(3). Ann. Cons.Stat. Greene had gest Gray legal ground was a discrete previously litigated his Clause Confrontation question open because it answered the left appeal on direct claim and thus could not regarding pronoun symbol Marsh tions, or substitu- bring a PCRA action. Pennsylvania fact remains that the litigated previously Superior directly issue has been "[A]n if addressed issue of highest appellate ... pronoun court in ap- which substitutions in direct petitioner peal. App. could have had review (Pa.Super.Ct.Op.) as a matter (citing Miles, right has ruled on the merits of the issue.” Commonwealth v. 545 Pa. 9544(a)(2). (1996)). pre- §Id. "Whether an Though Gray issue was A.2d was later, litigated viously turns whether legal ground” '[the issue] decided the "discrete was legal ground merely a discrete Superior constitutes before Court and it decided that event, theory support an alternative my of the same issue. to the extent that underlying colleagues issue was Pennsylvania raised on direct believe that ” Small, appeal.’ might v. 602 Pa. Commonwealth courts have relaxed their PCRA stan- (2009) (alteration claim, A.2d dards to allow Greene to make the Collins, original); pure speculation. see also Commonwealth v. (2005). 585 Pa. 888 A.2d Fur- similar A situation arose in another Penn- thermore, citing authority sylvania to different for the case cited the Commonwealth. change Washington, same issue "does not [that] fact Commonwealth 592 Pa. There, previously (2007). litigated. issue was th[e] To hold 927 A.2d 608-09 Wash- petitioner ington unsuccessfully otherwise would mean a PCRA raised a Bruton claim appeal, very could an issue on direct raise similar to Greene's trial and direct again petition merely by Pennsylvania raise in a PCRA Court. citing support original Subsequent Washington's a different case to conviction be- Small, final, theory.” coming 980 A.2d at Gray was On decided. PCRA review, My colleagues agree Gray, and I that Greene has he invoked reasserted his Bru- claim, claim, procedurally defaulted his argued previ- Bruton ton that it having appeal. agree ously litigated. raised it Pennsylvania Supreme on direct We granted.14 and no relief could be Such “plain reading” the is the inflexible So 2254(d)(1) § “new rules” adopts reading that even of effective majority Catch-22 appli- retroactive Teague test for pass Teague ly disregards and even as to petitioner not entitle cation would maintained that Supreme Court has Teague “New rules” for relief. habeas remain viable.15 both decisions after the date always are decided above, though As discussed at first even decision, they relevant state-court say to that a conceptually it seems difficult Yet being finality. after come into unreasonably applied Supreme state court the “new rule” majority would not consider exist, yet precedent that did not Court law” “clearly established Federal to be exist, retroactivity analysis yet Supreme Court’s “new rule” did not because the Teague made retroac- argument held the rule that satisfies and is rejected this Court tively applicable “previously litigated [it] because to cases on collateral review claim Bruton by § claim and ruled on the merits of but a reviewed the would not be time-barred appeal. Id. at 609. Like- powerless grant on direct the issue” federal court would still be wise, Thus, raise the claim in his Greene could not § under 2254. if a watershed relief majority suggests he petition as the PCRA Wainwright, decision such as Gideon v. pursued color- (1963), have done. He had his should 9 L.Ed.2d 799 law "as claim based on federal able Bruton were to come down tomorrow as a “new Maj. possible in the state courts.” See far as rule,” holding majority's under the one would Op. at 104. corpus, entitled but would be for habeas file course, the issue is not whether Wash- Of majori- be entitled to habeas relief. factually point with ington on is 2254(d)(1) ty’s reading § need obviates the case, theoretically possible whether it is or 2244(d)(1)(C). §for a claim based that Greene could have raised review, Gray PCRA but whether on fact, Supreme Court reversed our 15. meaning "clearly Federal law” established question the con Court when called into 2254(d)(1) things § means different Banks, tinuing Teague. v. relevance of Horn availability depending on the different cases my What col- collateral review. of state Horn, (2002), rev’g L.Ed.2d 301 Banks essentially leagues hold is that when a defen- (3d Cir.2001). Supreme F.3d 527 litigated" “previously a novel con- dant has inquiries Teague instead held the AEDPA and appeal, claim on direct stitutional required courts to to be distinct and federal recognizes the constitutional Teague properly raised. Id. address when in a different case before his conviction rule confusion in appears There to be additional final, re- he has no federal habeas becomes suggests majority opinion that I when do not course if the state courts Teague." Maj. Op. codify “would sub silentio on direct re- constitutional rule to his case Teague agree at 100. But I that AEDPA process prohib- collateral view and the state inquiries concerned are distinct —AEDPA re-raising him from the claim. its the state court with the unreasonableness of decision, Teague with the while is concerned AEDPA, Although portion another yardstick unreasonable we use to measure 2244(d)(1)(C), one-year pe- U.S.C. resets the may Satisfying Teague make a ness. riod of limitation when estab Court decision retroactive recognizes right newly a constitutional law,” not necessari lished Federal but it does retroactively applicable makes it to cases ly was unrea mean that a state court decision review, 2254(d)(1) gov- it is collateral Likewise, the relevant state-court sonable. if power the federal the substantive erns (in post-finality the case is rendered decision grant remedy defen- a federal courts during rendered col 2254(d)(1) of a state-court decision custody. dants in state Section review), may operate Teague still as a lateral corpus that the writ of habeas “shall states to, federal habeas relief if the relevant bar to contrary granted” unless it was be of, post-finality. is also Court decision an unreasonable involved my reading, AEDPA and Even under The ma- Federal law.” established inquiries. reading a new are distinct jority’s means innocently neglect apply if it at the could to precedent treats the existed Griffith merits, final prior court-proceeding. of that state after its decision on the but time before the conviction becomes final. If a Chiffith, Supreme Under Court decisions ignore state court were to the mandate to retroactively applied to convic are those apply pending the new rule to all cases still yet final at the time of deci tions not final, yet on direct or not Furthermore, would sion. if the state court ne similarly judi- integrity undermine the glects apply retroactively to the rule to cial That final, review. would leave collateral yet convictions not this can be still corpus review habeas as the reme- finality corrected after on collateral re dy Surely to correct the mistake. a crimi- Whorton, view. See nal defendant if (“[O]ld is entitled to recourse appl[y] S.Ct. 1173 both on rule[s] simply forget state courts to check for direct (emphasis and collateral review.” new, Supreme precedent relevant Court added)). Teague, Supreme Under prior finality.16 to helps This to avoid the retroactively applicable decisions are even similarly situation where situated defen- already convictions that were final at disparate dants receive treatment based on the time of the decision if it announces a happenstance of state court attention places “watershed” rule or certain conduct (or inattention).17 beyond the power proscribe. state to We know from Yet, Whorton majority’s under the selection of does not overrule Teague, cutoff, but temporal remedy even that Griffith by deeming irrelevant that post case be foreclosed whenever the state courts decision, dates the relevant state-court explana- declined to the rule without majority implicitly disregards both tion. This would leave affected habeas Griffith and Teague. petitioners unfairly treated relative to similarly othér situated individuals who While another reject Circuit Court has lucky enough were to have the state courts majority’s ed the cutoff on fears of the apply the new rule. potential for ... “state court subversion] ‡ ‡ ‡ ‡ ... by simple expedient summarily decision,” affirming a lower court’s Fox place It is not our to second-guess the Amand, (1st worth v. St. 570 F.3d (1) Supreme Court when it has held that: Cir.2009), reasoning depend its does not on Supreme Court decisions pri- handed down judicial a distrust of integrity of state finality or to applied must be on both courts. A well-meaning system state court Griffith; direct and collateral review under 16. To the extent that a defendant "clearly is not con- decision as established” stitutionally entitled to counsel on discretion- impugn does not the state court that fails to ary appeals, expect it seems unreasonable predict ruling. a later After defendant, incarcerated, likely who is all, a state court is not faulted when Griffith fully be rulings abreast of directs of a "new rule” to person bring intervening Supreme first final, yet already adju- cases that are not Court decisions to the attention of the state instance, dicated on the merits. In that discretionary courts within the window for only apply pend- state court need the rule to independent review. The state courts have an ing cases. Nor does it demonstrate a mistrust obligation appli- to ensure the appli- state courts when directs the intervening cation of Court deci- cation of a “new rule” to cases that are al- yet sions to all cases that are not final. ready Again, judicial final. to fulfill their obligations, only apply state courts need important retroactively It is to note that (under retroactive rule to the affected cases. applying Griffith/Teague) Court decisions announced after the last continuing have Teague and Griffith JONES; Jones, Douglas A. Andrea M. (3) AEDPA; nine all Justices vitality after individually and on behalf of all those rule” un- agreed that an “old in Williams similarly situated, Appellants estab- Teague qualifies der law”; and its decisions Federal lished definitively set have since Williams GROUP, ABN AMRO MORTGAGE an In the absence of cutoff. temporal INC.; Finance, LLC; Chase Home Ci- contrary by the statement to the express timortgage, Inc.; Citicorp Home (and none), we are there is Supreme Court Services, Inc.; Countrywide Mortgage (and clearly expressed bound Loans, Inc.; Home Fifth Third Mort- controlling) jurisprudence still Griffith Bank, gage Company; Capital Florida wish, may Teague. The Court N.A.; Mortgage Corporation; GMAC context, AEDPA to cut back (USA); Mortgage Corporation HSBC us, it, possesses Teague, * Deposit Corpora- Federal Insurance precedent. its power overrule tion, IndyMac Bank, Receiver for F.S.B; Inc.; City Morequity the cutoff date for National I would hold Inc.; Mortgage Covenant, law” is not First “clearly established Federal f/k/a 2254(d)(1). nBank, NA; Funding Provident by 28 prescribed U.S.C. Group, Inc.; Bank; application of constitutional The Provident retroactive Mortgage Services, Inc.; governed cases is Saxon Sover- rules to criminal Grif- Bank; Inc; eign Mortgage, I would look first to Suntrust Teague, fith N.A.; Mortgage or after Bank Gmy was decided before Wachovia whether * * Deposit Corporation; In- applies. which rule finality determine Corporation, finality, surance as Receiver for Gray prior here was decided As Washington Bank; Mutual Far- Pennsylvania Supreme should Wells go Mortgage, Inc.; fulfilling John Doe it in the course of Home have considered Mortgage Companies. When responsibilities its Griffith. so, on habeas not do the District Court did *(Amended per Clerk’s Order failure to needed to correct this

review 9/9/08). dated Accordingly, I would vacate Gray. consider judgment and remand for its **(Amended per Clerk’s Order Clause Grray to Greene’s Confrontation 12/22/08). dated reasons, respectfully I claim. For these No. 08-2353. majority from all but Part II of the dissent opinion. Appeals, United States Court of

Third Circuit. 12, 2010. Argued Feb. May Filed

Case Details

Case Name: Greene v. Palakovich

Court Name: Court of Appeals for the Third Circuit

Date Published: May 28, 2010

Citation: 606 F.3d 85

Docket Number: 07-2163

Court Abbreviation: 3rd Cir.