PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 07-2163

 

ERIC GREENE

also known as

JARMAINE Q. TRICE

v.

JOHN A. PALAKOVICH; THE DISTRICT ATTORNEY OF

THE

PHILADELPHIA COUNTY; THE ATTORNEY GENERAL

OF THE

STATE OF PENNSYLVANIA

 Eric Greene,

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 2-04-cv-05200)

District Judge: The Honorable Clifford Scott Green

 

Argued March 8, 2010
*

 The Honorable Paul R. Michel, Chief Judge of the

United States Court of Appeals for the Federal Circuit, sitting by

designation.

2

Before: AMBRO, SMITH, and MICHEL,* Circuit Judges

(Filed: May 28, 2010)

Isabel K. McGinty (Argued)

152 Broad Street

Highstown, NJ 08520

Counsel for Appellant

Susan E. Affronti (Argued)

Three South Penn Square

Philadelphia, PA 19107

Counsel for Appellees

 

OPINION

 

SMITH, Circuit Judge.

Eric Greene petitioned for relief under 28 U.S.C. § 2254

from his state court convictions for second degree murder,

robbery, and conspiracy. This appeal requires us to resolve the

thorny question of what the temporal cutoff is for determining

“clearly established Federal law” for purposes of the
3

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) standard of review, set forth in 28 U.S.C. §

2254(d)(1). Based on the statute’s text and Supreme Court

precedent, we now hold that “clearly established Federal law”

should be determined as of the date of the relevant state-court

decision. Because the Supreme Court decision that Greene

wishes to rely upon in his habeas petition, Gray v. Maryland,

523 U.S. 185 (1998), had not yet been decided at the time of the

relevant state-court decision, he cannot show that his state court

proceedings resulted in an unreasonable application of “clearly

established Federal law, as determined by the Supreme Court of

the United States[.]” 28 U.S.C. § 2254(d)(1). Thus, we will

affirm the judgment of the District Court denying Greene’s

habeas petition.

I.

The Crime

In early December of 1993, three or four men robbed a

small family owned grocery store in North Philadelphia, and its

owner, Francisco Azcona, died after being shot at point-blank

range. When the robbers were unable to open the cash register,

they picked it up and carried it out of the store, escaping in a

station wagon parked nearby. A week after Mr. Azcona’s

murder, Greene, Julius Jenkins, Atil Finney, and Gregory

Womack robbed a check cashing facility. They were

apprehended shortly thereafter and the police seized a firearm.
4

Through ballistics testing, the police determined that the seized

firearm was used in Mr. Azcona’s murder. With this evidence,

the police were able to make progress in the murder

investigation.

The Investigation

In late February of 1995, Detective Robert Snell of the

Philadelphia Police Department questioned Demond Jackson

about his involvement in Mr. Azcona’s murder. Jackson

admitted that he was in the station wagon parked outside of the

grocery store the night of the murder, but he claimed that he was

simply getting a ride to West Philadelphia when the others

stopped at the store. He described how several of them went

inside and committed the murder. He also identified Jenkins as

the shooter, and indicated that Naree Abdullah carried the cash

register out of the store. According to Jackson, Finney entered

the store with Jenkins and Abdullah, while Greene remained

with the driver and Jackson in the automobile. Jackson added

that the proceeds of the robbery were split among only five of

the men, and that he did not take a share of the proceeds.

Armed with the information from Jackson, Detective

Michael Gross of the Philadelphia Police Department questioned

Finney in early March of 1995. Finney gave a statement to the

police in which he admitted that he was one of the participants

in the grocery store robbery and that he was inside the store at

the time of the robbery. He identified Jenkins as the shooter,
5

implicated Greene as the robber who carried the cash register

out of the store, indicated that Womack had driven the station

wagon, and stated that another individual was involved in the

robbery. Although Finney initially stated that five people were

involved in the robbery, he later noted that there were six people

in the car. A few days later, Detective Joseph Walsh of the

Philadelphia Police Department questioned Womack. Womack

gave a statement to the police in which he admitted he was the

driver of the station wagon the night that Jenkins killed Mr.

Azcona. In addition, he implicated Finney, Abdullah, and

Greene in the robbery.

Shortly after these statements were obtained, first degree

murder charges were filed against Jenkins. Greene, Finney,

Womack, and Abdullah were charged with, inter alia, second

degree murder, three counts of robbery, and conspiracy.

The Trial

Greene filed a pretrial motion seeking severance on

several grounds. In that motion, he argued, inter alia, that a

joint trial with his codefendants would be prejudicial because of

the incriminating statements they had made to authorities. As

support for his motion, Greene cited Bruton v. United States,

391 U.S. 123 (1968), and Richardson v. Marsh, 481 U.S. 200

(1987). During a pretrial hearing, Greene urged the trial court,

the Court of Common Pleas of Philadelphia, to sever the trials

because the statements of some of his non-testifying
6

codefendants implicated him and identified him as the person

who carried the cash register out of the grocery store. The trial

court, recognizing that the statements might be inadmissible at

a joint trial, but also noting that redaction might resolve any

problem of prejudice, posed a hypothetical to the parties:

Judge: It’s unusual to do this, but suppose

the statement is redacted to say, “I

didn’t take the cash register.” In

other words, each defendant’s

statement would state --

[Greene’s Counsel]: I didn’t take it.

Judge: I didn’t. Someone else took the

cash register.

[Greene’s Counsel]: There’s another

nuance that I want Your Honor to

know because your suggestion is

brilliant. I just want to factor in

one more thing. Of the three

co-defendants who gave

statements, indeed, Atil Finney

says that my client took the cash

register and Mr. Gregory Womack

made the statement that my client

was involved in that, but believe it

or not, Julius Jenkins says that

someone entirely different – he

says that either Naree or another
7

person . . . took the cash register,

either Womack or Naree, so you

have Mr. Jenkins saying

specifically that one of two other

people took it – people involved, I

might add, but not [Greene].

In response, the Court declared that the statements were not

interlocking and inquired how the conflicting statements “pin

point[ed]” Greene since the jury would have “information that

three different people have been named as having taken the cash

register.” Greene’s counsel replied that the Court’s analysis was

“excellent,” but wondered how the Commonwealth would

redact the statements. The Court replied that “it seems to me

that the fair way to redact these [statements] is to refer to three

different people.” Greene’s counsel responded: “As long as I

would be allowed to argue in my closing speech that you heard

what you heard and you heard that there were different people,

then I would have no problem with [it].” The prosecutor offered

to redact the statements so that “not one specific person carries

out the cash register.” Greene’s counsel agreed that, under

Bruton, such a redaction would remove any prejudice from the

statements. Greene’s counsel also pressed, without success, an

additional basis for severance: that Jenkins, who would be tried

alongside Greene, was facing a capital murder charge.

Greene’s trial was held in February of 1996. At trial, Mr.

Azcona’s wife and sister-in-law identified Jenkins as the

shooter, but they were unable to identify any of the other
8

robbers in the store or to state with certainty whether there were

three or four men involved in the robbery.

Jackson, who had not been charged with any crimes

associated with the robbery, was the prosecution’s star witness.

His testimony differed significantly from his statement to

Detective Snell. Jackson testified that all of the occupants of the

station wagon went into the store except for him and Womack.

Contrary to his earlier statement that Abdullah picked up the

cash register, Jackson testified that Greene took the cash register

from the store. Jackson was cross-examined extensively on the

differences between his earlier statement and his trial testimony.

In addition, Greene attacked Jackson’s credibility by

highlighting that Jackson was present in Womack’s station

wagon but had not been charged with any crimes related to the

robbery and that Jackson had outstanding drug charges.

The Commonwealth also called Detectives Gross and

Walsh to testify about the statements they obtained from Finney

and Womack. Neither Greene nor his codefendants objected to

the reading of those statements in redacted form. Detective

Gross read Finney’s redacted statement, which substituted the

nicknames or proper names of Finney’s codefendants with the

phrases “this guy,” “other guys,” and “two guys.” The redacted

statement also used the neutral pronouns “we” or “someone” in

certain instances. For example, Finney’s initial description of

the robbery in its redacted form read:
9

We were riding around in this, this guy’s car, me

and three other guys were in the North

Philadelphia. We -- when one said let’s get paid.

Everyone said okay and we saw this store. So me

and two guys went in the store. When we got

inside two guys stayed up front and I stayed to the

back. One guy had his gun on the guy and was at

the cash register getting the money, but it

wouldn’t open. I heard a shot and looked over.

Blood was coming out of the guy’s mouth. After

that someone grabbed the register and we all ran

out.

In at least one instance, when Detective Gross reached a portion

of the statement where Finney was asked to identify “these

guys” by their full names, the redaction simply deleted the

names. The redacted answer stated: “One is and the other is.”

Later in the statement, when Finney was asked if he recognized

anyone in certain photographs, the redacted answer stated:

“Number three is. Number six is. Number eight is.” The

redacted statement also replaced the names of certain defendants

with the word “blank” on four occasions. During Detective

Gross’s reading of the redacted statement, the trial court

instructed the jury that Finney’s statement could only be

considered as evidence against him and not as evidence against

any other defendant.

Detective Walsh, during his testimony, read a redacted

version of Womack’s statement. In it, Womack declared:
10

It was me and another guy. We were in the car,

the other three went in the store. The car was

around the corner and then they came out of the

store carrying a cash register. As we pulled off

the shooter said he shot the guy. I think someone

asked him why did he shoot the guy? He didn’t

answer him. Then we drove up our

neighborhood. Then we drove to someone’s and

we opened the register and got the money and we

took the register and dumped it in a trash

dumpster in a townhouse.

Although the redacted statement utilized neutral references such

as “guy,” “another guy,” “someone,” “someone else,” “one,”

and “others,” it replaced the names of some of the codefendants

with the word “blank” on three occasions. The trial court did

not give a limiting instruction following the reading of

Womack’s redacted statement, and neither Greene nor any of his

codefendants requested such an instruction.

After closing arguments, the trial court issued a limiting

instruction directing the jurors not to consider either redacted

statement as evidence against any defendant other than the

declarant. The jury found Greene guilty of second degree

murder, three counts of robbery, and one count of conspiracy.

The trial court sentenced him to life imprisonment.

Subsequent Procedural History
11

Greene filed a direct appeal with the Pennsylvania

Superior Court. Citing Bruton, Greene argued that his trial

should have been severed from that of his codefendants because

the statements implicating him “were not suitable for redaction.”

On December 16, 1997, the Pennsylvania Superior Court

affirmed the judgment against Greene, addressing his Bruton

claim on the merits. The Court observed that the statements that

were admitted into evidence “were redacted to remove any

reference to the other defendants in the case” and “[t]he trial

court instructed the jury on more than one occasion that such

statements could only be considered as evidence against the

defendants who made them.” In light of these observations, the

Pennsylvania Superior Court concluded that Bruton was not

violated and that Greene was not deprived of his right to

confrontation. 

Greene filed a timely petition for allowance of appeal

with the Pennsylvania Supreme Court. His petition argued, inter

alia, that he had been deprived of his rights under the

Confrontation Clause by the introduction of Womack’s and

Finney’s statements. As support for his position, Greene again

cited Bruton. While Greene’s petition for allowance of appeal

was pending with the Pennsylvania Supreme Court, the United

States Supreme Court issued its decision in Gray. In Gray, the

Supreme Court stated that “considered as a class, redactions that

replace a proper name with an obvious blank, the word ‘delete,’

a symbol, or similarly notify the jury that a name has been

deleted are similar enough to Bruton’s unredacted confessions
12

as to warrant the same legal results.” 523 U.S. at 195.

Thereafter, the Pennsylvania Supreme Court granted Greene’s

petition for allocatur “limited to the issue of whether the

common pleas court erred by denying the motion for severance

thereby resulting in the violation of [Greene]’s Sixth

Amendment right of confrontation upon the admission of

statements given by his nontestifying codefendants.”

Commonwealth v. Trice, 713 A.2d 1144 (Pa. 1998). After

granting the petition for allocatur, however, the Pennsylvania

Supreme Court dismissed Greene’s appeal as improvidently

granted. Commonwealth v. Trice, 727 A.2d 1113 (Pa. 1999).

Greene’s conviction became final ninety days later, on July 28,

1999, when the time period for filing a petition for certiorari to

the United States Supreme Court expired. See Kapral v. United

States, 166 F.3d 565, 570-71 (3d Cir. 1999).

In early August of 1999, Greene sought relief from his

conviction based on Pennsylvania’s Post Conviction Relief Act

(“PCRA”), 42 Pa. Cons. Stat. §§ 9541-9546. In his PCRA

petition, Greene argued that the trial court abused its discretion

in denying the severance motion, and cited, inter alia, the

prosecutor’s summation, which allegedly improperly informed

the jury that Finney’s statement corroborated that the others on

trial were implicated in the commission of the crime. The

PCRA petition did not assert a Confrontation Clause claim as it

failed to reference the redacted statements or to cite the Supreme

Court’s decisions in Bruton, Marsh, or Gray. The trial court

dismissed Greene’s PCRA petition as frivolous. Greene, acting
13

pro se, appealed the denial of his PCRA petition to the

Pennsylvania Superior Court, asserting that the trial court erred

by refusing to grant a severance. His argument cited only

Pennsylvania authority regarding motions to sever multiple

criminal charges. He did not refer to the Confrontation Clause,

Bruton, Marsh or Gray. On December 31, 2003, the

Pennsylvania Superior Court affirmed the dismissal of Greene’s

PCRA petition, noting that the severance claim had been finally

litigated and could not afford him collateral relief. Greene filed

another petition for allowance of appeal with the Pennsylvania

Supreme Court, which denied allocatur.

This timely § 2254 petition followed. In his petition,

Greene asserted, inter alia, that his trial should have been

severed “due to antagonistic defenses, due to the fact a

codefendant was subjected to the death penalty even though

petitioner was not, and particularly due to the fact that effective

redaction of the codefendant’s [sic] statements, though

attempted, was polluted by gross prosecutorial misconduct.” In

a comprehensive report, the Magistrate Judge to whom the

petition had been referred recommended that Greene’s petition

be dismissed, but that a certificate of appealability be granted on

the Confrontation Clause claim arising out of the introduction of

Womack’s and Finney’s redacted statements at trial.

The Magistrate Judge struggled with whether to

determine the “clearly established Federal law” under §

2254(d)(1) as of the date of the relevant state-court decision, as
1

 We recognize that the Pennsylvania Supreme Court

granted allocatur for Greene’s appeal, which raised the

Confrontation Clause claim and cited Gray, but then dismissed

that appeal as having been improvidently granted. That

dismissal cannot be treated as the relevant state-court decision,

however, because it had no precedential value:

In the circumstance where [the Pennsylvania

Supreme Court has] accepted an issue by granting

allowance of appeal, and [it], after conducting . .

. review of the issue, enters an order dismissing

the appeal as having been improvidently granted,

the effect is as though [it] never granted

allowance of appeal. In other words, a dismissal

14

instructed by Justice O’Connor in her portion of the majority

decision in Williams v. Taylor, 529 U.S. 362, 403-412 (2000),

or by the date Greene’s conviction became final, as instructed by

Justice Stevens in his portion of the majority decision in

Williams, id. at 390. This issue was significant because it

determined whether “clearly established Federal law” for

purposes of Greene’s § 2254 petition included the Supreme

Court’s decision in Gray. If the cutoff date was the date of the

relevant state-court decision, i.e., the Pennsylvania Superior

Court’s December 16, 1997 decision affirming Greene’s

convictions on direct appeal, that date preceded the Supreme

Court’s decision in Gray, and Gray would not be part of the

“clearly established Federal law” applicable to this habeas

petition.1

 But if the date Greene’s convictions became final,
as being improvidently granted has the exact same

effect as if [it] had denied the petition for

allowance of appeal (allocatur) in the first place.

Where we dismiss an appeal as improvidently

granted, the lower tribunal’s opinion and order

stand as a decision of that court and this Court’s

order has no precedential value.

Commonwealth v. Tilghman, 673 A.2d 898, 904 (Pa. 1996)

(emphasis omitted). Accordingly, even though there may have

been some consideration of Greene’s arguments by the

Pennsylvania Supreme Court, there was no adjudication on the

merits. Thus, the Pennsylvania Superior Court decision on

direct appeal is the relevant state-court decision.

15

July 28, 1999, was the pertinent cutoff date, Gray, which was

issued more than a year earlier on March 9, 1998, would be

“clearly established Federal law.”

The Magistrate Judge ultimately determined that the

controlling date for ascertaining the “clearly established Federal

law” for Greene’s habeas petition was the date of the relevant

state-court decision. Accordingly, the Magistrate Judge applied

the Supreme Court law existing at the time of the Pennsylvania

Superior Court’s December 16, 1997 decision, Bruton and

Marsh, to determine whether Greene’s § 2254 petition merited

relief. He concluded that the Pennsylvania Superior Court did

not unreasonably apply Bruton and Marsh in concluding that the

redacted statements did not violate the Confrontation Clause and
2

 The District Court exercised jurisdiction under 28

U.S.C. §§ 2241 and 2254, and we have jurisdiction under 28

U.S.C. §§ 1291 and 2253. 

3

 In Picard v. Connor, 404 U.S. 270, 275 (1971), the

Supreme Court declared that “once the federal claim has been

fairly presented to the state courts, the exhaustion requirement

is satisfied.” It follows, therefore, that our review of whether a

16

recommended that the District Court deny the § 2254 petition.

The Commonwealth objected to the Magistrate Judge’s

report, arguing that Greene had not procedurally exhausted his

Confrontation Clause claim. The District Court overruled the

Commonwealth’s objections, noting that Greene presented a

general claim regarding the redacted confessions and relied

upon relevant Supreme Court authority, Bruton and Marsh. The

District Court adopted the Magistrate Judge’s report and

recommendation. The Court denied the petition, but also

granted a certificate of appealability limited to Greene’s

Confrontation Clause claim.2

II.

Before us, the Commonwealth argues that Greene did not

satisfy the fair presentation requirement because he consented

to the redactions in the trial court and did not fairly present his

Confrontation Clause argument to the Pennsylvania Superior

Court.3

 It submits that Greene only raised the Confrontation
habeas petitioner has fairly presented his federal claim to the

state courts is subject to the same standard of review that we

employ in determining whether a habeas petitioner has

exhausted his state court remedies. Accordingly, the question

of whether Greene fairly presented his claim to the state courts

is subject to plenary review. See Ellison v. Rogers, 484 F.3d

658, 660 (3d Cir. 2007).

17

Clause argument in his direct appeal to the Pennsylvania

Supreme Court. We disagree.

The fair presentation requirement arises from the

exhaustion doctrine pertaining to federal habeas review of state

court decisions. Picard v. Connor, 404 U.S. 270, 275 (1971).

Fair presentation requires giving the state court the “first

opportunity to hear the claim sought to be vindicated in [the]

federal habeas proceeding[.]” Id. at 276. In this first

opportunity, the habeas petitioner need merely “present [the]

federal claim’s factual and legal substance to the state courts in

a manner that puts them on notice that a federal claim is being

asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.

1999). In other words, the claims raised in the state courts must

be substantially equivalent to the claim pressed in the federal

court. Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996),

abrogated on other grounds by Beard v. Kindler, __ U.S. __,

130 S. Ct. 612 (2009). 

Greene fairly presented the factual and legal substance of

his Confrontation Clause claim to the Pennsylvania state courts.
4

 “Since the District Court ruled on [Greene’s] habeas

petition without an evidentiary hearing, our review of its

decision is plenary.” Thomas v. Horn, 570 F.3d 105, 113 (3d

Cir. 2009). We exercise plenary review over issues of statutory

interpretation. United States v. Lnu, 575 F.3d 298, 300 (3d Cir.

2009).

18

On direct appeal, Greene presented his Confrontation Clause

claim and the Pennsylvania Superior Court addressed the merits

of that claim on the “basis of its substance, rather than on a

procedural, or other ground.” Thomas v. Horn, 570 F.3d 105,

115 (3d Cir. 2009) (citations omitted). Thus, Greene’s direct

appeal satisfied the fair presentation requirement. Picard, 404

U.S. at 275.

III.

Having determined that Greene fairly presented his

Confrontation Clause claim in the Pennsylvania state courts, we

turn to a vexing issue that has, for the most part, evaded

analytical discussion by the Supreme Court and the Courts of

Appeals.4

 That is, whether “clearly established Federal law”

under 28 U.S.C. § 2254(d)(1) is determined based on the “time

of the relevant state-court decision,” Williams, 529 U.S. at 412

(O’Connor, J., for the Court), the “time [the] state-court

conviction became final,” id. at 390 (Stevens, J., for the Court),

or some combination thereof, e.g., Horn v. Banks, 536 U.S. 266,

272 (2002) (per curiam) (holding that “in addition to performing

any analysis required by AEDPA, a federal court considering a
5

 Carey v. Musladin, 549 U.S. 70, 74 (2006);

Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004); Lockyer

v. Andrade, 538 U.S. 63, 71-72 (2003); Wiggins v. Smith, 539

U.S. 510, 520 (2003) (O’Connor, J., joined by Rehnquist, C.J.,

and Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ.)

(stating that AEDPA“require[s] us to limit our analysis to the

law as it was ‘clearly established’ by [Supreme Court]

precedents at the time of the state court’s decision”); but see

Carey, 549 U.S. at 78 (Stevens, J., concurring) (rejecting Justice

O’Connor’s formulation of “clearly established Federal law”);

Horn v. Banks, 536 U.S. 266, 272 (2002).

19

habeas petition must conduct a threshold Teague [v. Lane, 489

U.S. 288 (1989),] analysis when the issue is properly raised by

the state”). The Supreme Court, until recently, appeared to have

settled on the date of the relevant state-court decision.5

 But the

use of the date the petitioner’s conviction became final has

refused to quietly exit the stage. In recent months, the Supreme

Court has noted the “uncertainty” surrounding the meaning of

“clearly established Federal law” for the purposes of §

2254(d)(1). Smith v. Spisak, __ U.S. __, 130 S. Ct. 676, 681

(2010) (assuming that Supreme Court decision that was issued

after the state supreme court affirmed petitioner’s conviction,

but before the date petitioner’s conviction became final,

constituted “clearly established Federal law”); see id. at 689 n.2

(Stevens, J., concurring) (supporting date conviction became

final); see also Thaler v. Haynes, __ U.S. __, 130 S. Ct. 1171,

1174 n.2 (2010) (per curiam) (noting in dicta that a certain case

could not have constituted “clearly established Federal law”
6

 The uncertainty identified by the Supreme Court is

present throughout our own admittedly contradictory §

2254(d)(1) jurisprudence. We have followed the “relevant statecourt decision” approach without much fanfare in numerous

cases. E.g., McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir.

2009); Warren v. Kyler, 422 F.3d 132, 138 (3d Cir. 2005);

Gibbs v. Frank, 387 F.3d 268, 272 (3d Cir. 2004). We have also

used the date the petitioner’s conviction became final. E.g.,

Fischetti v. Johnson, 384 F.3d 140, 148 (3d Cir. 2004). Indeed,

it is not clear from our jurisprudence whether we recognized

these divergent approaches because those cases did not require

us to resolve whether the cutoff date was the relevant state-court

decision date or the date the conviction became final.

20

because the case was “decided . . . nearly six years after

[petitioner’s] conviction became final and more than six years

after the relevant state-court decision”); see Brown v. Greiner,

409 F.3d 523, 533 n.3 (2d Cir. 2005) (noting uncertainty caused

by “inconsistent guidance” from the Supreme Court); Newland

v. Hall, 527 F.3d 1162, 1198 n.62 (11th Cir. 2008) (noting

uncertainty); but see Foxworth v. St. Amand, 570 F.3d 414, 430-

32 (1st Cir. 2009) (declaring relevant state-court decision

approach “untenable” and stating that Supreme Court precedent

leads to the “inexorable conclusion” that the date the conviction

became final is the correct approach).6

After careful consideration of the divergent approaches

to determining what constitutes “clearly established Federal

law” under § 2254(d)(1), we now hold that the date of the
21

relevant state-court decision is the controlling date. After

surveying the questions that arise from the Supreme Court’s

Williams decision, and considering the statutory text and postWilliams Supreme Court precedent, our view is that using the

date of the relevant state-court decision to determine “clearly

established Federal law” is the most logical approach to

applying § 2254(d)(1).

A.

It is understandable that confusion surrounds what

constitutes “clearly established Federal law.” In discussing the

meaning of the AEDPA amendments, the Supreme Court has

held that the “statutory phrase [‘clearly established Federal law’]

refer[red] to the holdings, as opposed to the dicta, of [its]

decisions as of the time of the relevant state-court decision.”

Williams, 529 U.S. at 412 (O’Connor, J., for the Court)

(emphasis added). It has also held that all Supreme Court

jurisprudence that would “qualify as an old rule under [its]

Teague jurisprudence w[ould] constitute ‘clearly established

Federal law . . . ’ under § 2254(d)(1).” Id.

These statements from Justice O’Connor present the first

area of confusion in Williams. The most logical meaning for the

term “old rule,” a term that lacks any meaningful discussion

post-Williams, is any rule which is not “new” under Teague.

See Teague, 489 U.S. at 300-01 (plurality opinion). If that is the

case, then an “old rule” is any rule that was “dictated by the
7

 At least one of our sister circuits sees no contradiction

in Justice O’Connor’s statements. In Foxworth v. St. Amand,

570 F.3d 414 (1st Cir. 2009), the First Circuit concluded that

Williams did not require the use of the “last reasoned state-court

decision” to determine “clearly established Federal law” and

endorsed the use of the date the petitioner’s conviction became

final. Id. at 431. That Court believed that Justice O’Connor

expressly approved the use of Teague for determining “clearly

established Federal law”:

Close perscrutation of Williams discloses nothing

in the Court’s constituent opinions that indicates

any intention on Justice O’Connor’s part either to

modify or to undercut the bright-line rule of

Teague v. Lane, 489 U.S. 288, 310 . . . (1989)

(effectively limiting the consideration of new

constitutional rules of criminal procedure in cases

on collateral review to those rules announced

before the petitioner’s conviction became final).

22

governing precedent existing at the time when [the petitioner’s]

conviction became final[.]” Whorton v. Bockting, 549 U.S. 406,

417 (2007) (defining new rule). In that event, the inclusion of

old rules under Teague as “clearly established Federal law”

would include Supreme Court decisions issued after the relevant

state-court decision but before the petitioner’s conviction

became final. Such an outcome, in our view, contradicts Justice

O’Connor’s initial declaration that “clearly established Federal

law” should be determined based on the date of the relevant

state-court decision.7
The opposite is true. Justice O’Connor’s opinion

stated that “whatever would qualify as an old rule

under our Teague jurisprudence will constitute

‘clearly established Federal law, as determined by

the Supreme Court of the United States’ under §

2254(d)(1).” 529 U.S. at 412. That is a frank

recognition that the AEDPA has neither altered

nor eroded the marker laid down by Teague. This

recognition is fully consistent with Part III of

Justice Stevens’s lead opinion, joined by Justice

O’Connor; there, Justice Stevens stated that “[t]he

threshold question under AEDPA is whether [the

petitioner] seeks to apply a rule of law that was

clearly established at the time his state-court

conviction became final.” Williams, 529 U.S. at

390 (emphasis supplied).

Foxworth, 570 F.3d at 431. Based on this observation, the First

Circuit concluded that “finality, not the date of the last reasoned

decision, is the principal determinant of whether a ‘new’ rule

can be applied to an ‘old’ case.” Id. “Finality means that ‘a

judgment of conviction has been rendered, the availability of

appeal exhausted, and the time for a petition for certiorari [has]

elapsed or a petition for certiorari [filed and] finally denied.’”

Id. (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987)).

It cannot be denied that Justice O’Connor’s approach, in

light of her reference to old rules under Teague, can be read to

permit the use of the date the conviction became final. That

being said, the portion of the Williams decision referencing old

23
rules under Teague has largely fallen by the wayside in postWilliams Supreme Court decisions, see infra Section III(C).

Moreover, the Foxworth Court’s assertion that Justice O’Connor

did not intend to “modify or to undercut the bright-line rule of

Teague,” 570 F.3d at 431, is not readily apparent from our

reading of Williams. Justice Stevens’s claim that AEDPA

codified Teague did not garner the support of the majority. See

Williams, 529 U.S. at 374-90. Instead, the majority sided with

Justice O’Connor, who rejected Justice Stevens’s view that §

2254(d)(1) had “no effect on the [pre-AEDPA] law of habeas

corpus[.]” Williams, 529 U.S. at 404. Justice O’Connor’s

rejection of Justice Stevens’s belief that AEDPA codified

Teague most certainly suggests a desire on her part to undercut

Teague and the significance of the date that a petitioner’s

conviction became final.

The Foxworth Court also suggested that using the date of

the last relevant state-court decision would “subvert Griffith and

deny criminal defendants the benefit of new Supreme Court

precedent by the simple expedient of summarily affirming a

lower court’s decision.” Foxworth, 570 F.3d at 432. It would

also, according to the First Circuit, “give state courts a perverse

incentive to avoid addressing constitutional claims in

contemporaneous terms while insulating their actions from

subsequent federal habeas review.” Id. We disagree. The

suggestion that a state appellate court would summarily affirm

the judgment of a lower state court in an effort to undermine an

individual’s potential federal habeas petition is baseless.

Moreover, the Teague rule itself, the rule that the First Circuit

endorses, is premised on comity and respect for state court

24
decisions, see Danforth v. Minnesota, 552 U.S. 264, 280 (2008)

(stating that “Teague . . . was fashioned to achieve the goals of

federal habeas while minimizing federal intrusion into state

criminal proceedings”), not a presumption of malfeasance by

state courts. To assume the latter defeats one of the main

purposes of the Teague rule, to respect the finality of state-court

convictions. If state courts cannot be trusted to properly

adjudicate claims, then we would have no need to respect the

resulting decisions.

More generally, we are unpersuaded by the First Circuit’s

robust support for Justice Stevens’s approach. In our view,

there is no clear answer to the issue we face. According to the

Foxworth Court, though, interpreting § 2254(d)(1) to require the

use of the date of the relevant state-court decision is simply

“untenable,” 570 F.3d at 431, as in “not able to be defended,”

Merriam-Webster’s Collegiate Dictionary 1373 (11th ed. 2003).

We cannot agree with that characterization. See infra Sections

III(B) and (C). If Griffith truly “remove[d] any vestige of

doubt,” 570 F.3d at 431 (emphasis added), and Teague and

Griffith together “le[d] to the inexorable conclusion,” id. at 432

(emphasis added), that the date the petitioner’s conviction

became final is the correct date, why then, has the Supreme

Court expressed uncertainty in its recent decisions? See Spisak,

130 S. Ct. at 681; see also Thaler, 130 S. Ct. at 1174 n.2.

Perhaps the resolution of this issue by the Supreme Court would

be a simple task, but resolution of the issue in the Courts of

Appeals based on existing Supreme Court precedent is akin to

trying to piece together a jigsaw puzzle that has been sprinkled

with pieces from other puzzles. All the pieces, no matter how

25
they are arranged, simply do not fit.

8

 Justice Stevens’s reliance on the date the petitioner’s

conviction became final appears to be based on his position that

§ 2254(d)(1) codified Teague. See Williams, 529 U.S. at 380.

9

 At a minimum, when the state properly raises Teague,

the federal court must conduct the Teague analysis. Horn, 536

U.S. at 272. Notably, the Commonwealth did not raise Teague

in this case.

26

To further complicate Williams, the Supreme Court also

held that the “threshold question under AEDPA is whether [a

petitioner] seeks to apply a rule of law that was clearly

established at the time his state-court conviction became final.”

Williams, 529 U.S. at 390 (Stevens, J., for the Court) (emphasis

added).8

 Thus, the majority opinions of the Court, on their

faces, offered differing interpretations of the “clearly established

Federal law” language.

Supreme Court precedent after Williams has also raised

questions. At least some post-Williams authority suggests that

the Teague test and § 2254(d)(1) are distinct inquiries. E.g.,

Horn, 536 U.S. at 272; see Thaler, 130 S. Ct. at 1174 n.2. The

instances where both tests must be met, however, are unclear.9

More importantly, it is also unclear whether the distinct nature

of the two inquiries has any impact on how we approach the
27

meaning of “clearly established Federal law” for the purposes of

§ 2254(d)(1).

In sum, we have (1) Justice O’Connor’s majority opinion

in Williams, which seems to contradict itself by stating that the

date of the relevant state-court decision is the operative date for

determining “clearly established Federal law” while

simultaneously stating that Supreme Court jurisprudence that

would qualify as “old rules” under Teague (which relies on the

date the petitioner’s conviction became final) is also “clearly

established Federal law,” (2) Justice Stevens’s majority opinion

in Williams, which contradicts Justice O’Connor’s directive that

we should look to the date of the relevant state-court decision,

and (3) post-Williams Supreme Court authority suggesting that

Teague and § 2254(d)(1) are distinct inquiries subject to

independent analysis under certain circumstances.

While many courts have managed to avoid confronting

these issues, e.g., Spisak, 130 S. Ct. at 681, this case presents us

with the inescapable obligation to decide the cutoff date for

determining “clearly established Federal law.” Greene’s

petition turns on whether he may invoke Gray; without that

decision he cannot obtain relief. See infra Section IV. Gray

was decided on March 9, 1998. Thus, using the date of the

relevant state-court decision, the Pennsylvania Superior Court’s

December 16, 1997 decision, Gray would not be “clearly

established Federal law.” But using the date Greene’s

conviction became final, July 28, 1999, Gray would be “clearly
28

established Federal law.” Indeed, Greene’s case is the perfect

storm of facts for resolving the issue of which date—the date of

the relevant state-court decision or the date the state-court

conviction became final—should be used for determining

“clearly established Federal law” for the purposes of §

2254(d)(1).

B.

The text of § 2254(d)(1) supports using the date of the

relevant state-court decision for determining “clearly established

Federal law.” Section 2254(d)(1) is concerned with

“decision[s]” that were “contrary to” or “unreasonable

application[s]” of “clearly established Federal law”:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated on

the merits in State court proceedings unless the

adjudication of the claim– 

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States[.]

Id. The statute indicates that a “decision” results from a state

court’s adjudication “on the merits” of a claim. Id. In other

words, the decision occurs when the state court has acted on the
10 Notably, the phrase “clearly established Federal law”

did not have any special meaning for federal habeas review prior

to AEDPA and it bears no overt connection to any language

used in Teague.

29

substance of a petitioner’s claim. See Thomas, 570 F.3d at 115

(concluding that “adjudicated on the merits” means that the state

ruling resolved the claim “on the basis of its substance, rather

than on a procedural, or other ground”). Thus, it is the state

court’s resolution of the petitioner’s claim that must be

“contrary to” or an “unreasonable application” of existing

Federal law to justify granting habeas relief. 28 U.S.C. §

2254(d)(1); see Newland, 527 F.3d at 1199 (holding that “the

highest state court decision reaching the merits of a habeas

petitioner’s claim is the relevant state court decision”).

Given that AEDPA is concerned with the review of the

state court’s decision on the merits of the petitioner’s claim, the

statute, read in the most straightforward fashion, requires that

the relevant Federal law be “clearly established” at the time of

that state-court decision. 28 U.S.C. § 2254(d)(1).10 Reading the

language plainly, “clearly established” contemplates that the law

or precedent existed at the time of the state court’s substantive

resolution of the petitioner’s claim. Cf. United States v. Atiyeh,

402 F.3d 354, 364 (3d Cir. 2005) (“Congress kn[o]w[s] how to

use the past tense.”). A state court cannot unreasonably apply

a Supreme Court decision that did not exist at the time of its

decision. See Priester v. Vaughn, 382 F.3d 394, 400 (3d Cir.
30

2004) (noting that the Pennsylvania Superior Court “did not act

unreasonably in failing to predict the Supreme Court’s decision

in Gray”). The same is true for the “contrary to” prong of the

statute.

C.

Supreme Court decisions after Williams further bolster

our conclusion. In Lockyer v. Andrade, 538 U.S. 63 (2003), the

Supreme Court stated unequivocally that “‘clearly established

Federal Law’ under § 2254(d)(1) is the governing legal principle

or principles set forth by the Supreme Court at the time the state

court renders its decision.” Id. at 71-72. The same test was

repeated in Wiggins v. Smith, 539 U.S. 510, 520 (2003),

Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004), and

Carey v. Musladin, 549 U.S. 70, 74 (2006). Accord 1-2 Randy

Hertz & James S. Liebman, Federal Habeas Corpus Practice

and Procedure, Fifth Edition § 2.4 (stating that the date for

determining “clearly established Federal law” for § 2254

petitions is “the date of the state court decision”); 2-32 id. § 32.3

(“Section 2254(d)(1) limits federal review to legal rules that

actually were in effect when the state court decided the case.”).

The date the conviction became final, on the other hand,

has not gained much traction in the Supreme Court. Aside from

stating that Teague and § 2254(d)(1) are distinct inquiries, Horn,

536 U.S. at 272, and that in certain circumstances both Teague

and § 2254(d)(1) must be satisfied, id., the Supreme Court has
31

not suggested that the date the conviction became final has any

import in determining “clearly established Federal law” for the

purposes of § 2254(d)(1). In fact, it appears that Justice

Stevens’s majority opinion language from Williams stating that

the “threshold question” is whether the petitioner seeks to apply

a rule that was clearly established at the time his state-court

conviction became final, Williams, 529 U.S. at 390, has been

supplanted by Lockyer, where the Supreme Court agreed that the

“threshold matter” was to decide what constituted “clearly

established Federal law,” but then used the relevant state-court

decision date to determine that law, 538 U.S. at 71. The most

telling observation regarding the use of the date the conviction

became final is that the strongest authorities we have found for

that approach are the recent Supreme Court opinions expressing

uncertainty on which date is appropriate. See Spisak, 130 S. Ct.

at 681; see also Thaler, 130 S. Ct. at 1174 n.2. Mere uncertainty

cannot counterbalance the numerous Supreme Court decisions

that have unequivocally, albeit without analysis, taken the other

approach. As an inferior federal court, we are not free to ignore

the numerosity of these pronouncements.

Moreover, it appears that Justice Stevens’s primary

concern with Justice O’Connor’s formulation of the “clearly

established Federal law” inquiry is her view that the phrase

“refers to the holdings, as opposed to the dicta, of [the Supreme

Court’s] decisions[.]” Williams, 529 U.S. at 412 (O’Connor, J.,

for the Court). In Carey, Justice Stevens explained that he took

issue with Justice O’Connor’s formulation because it
32

discouraged state courts from seeking guidance from the

Supreme Court’s decision on the grounds that such guidance

was dicta:

Virtually every one of the Court’s opinions

announcing a new application of a constitutional

principle contains some explanatory language that

is intended to provide guidance to lawyers and

judges in future cases. It is quite wrong to invite

state court judges to discount the importance of

such guidance on the ground that it may not have

been strictly necessary as an explanation of the

Court’s specific holding in the case. The text of

[AEDPA] itself provides sufficient obstacles to

obtaining habeas relief without placing a judicial

thumb on the warden’s side of the scales. 

Carey, 549 U.S. at 79 (Stevens, J., concurring) (citations

omitted). This concern exists independent of the date upon

which “clearly established Federal law” is determined and is not

implicated in the issue we decide today. The decisions

preceding Gray—Bruton and Marsh—explicitly refused to

provide guidance on whether the teachings of Bruton applied to

redactions like the ones made in this case. See infra Section IV.

In conclusion, we hold that the cutoff date for

determining “clearly established Federal law” for purposes of §

2254(d)(1) is the date of the relevant state-court decision. Both

the natural reading of the statutory text and post-Williams

Supreme Court precedent support this conclusion. As such,
33

Gray was not “clearly established Federal law” for the purposes

of Greene’s habeas petition.

D.

Before applying our holding to the facts in this case, a

brief segue is needed to address our dissenting colleague’s

spirited defense of the use of the date the petitioner’s conviction

became final to determine “clearly established Federal law.”

While we recognize that the issue confronted today is one over

which reasonable jurists may disagree, there are some notable

deficiencies in the dissent’s proposed adjudication of this case.

The dissent (1) would sub silentio codify Teague, including its

retroactivity exceptions, as part of § 2254 without any reasoned

justification for doing so, (2) erroneously asserts that Griffith v.

Kentucky, 479 U.S. 314 (1987), applies to cases on collateral

review, and (3) incorrectly asserts that our approach to §

2254(d)(1) creates a “twilight zone,” preventing a petitioner

from relying on Supreme Court decisions issued after the date

of his last relevant state-court decision, but before his conviction

becomes final.

1.

As already explained in Section III(A), there is direct

Supreme Court precedent supporting the view that “whatever

would qualify as an old rule under [the Supreme Court’s]

Teague jurisprudence will constitute ‘clearly established Federal
11 “In Teague, [the Supreme Court] explained that unless

they fall within an exception to the general rule, new

constitutional rules of criminal procedure will not be applicable

to those cases which have become final before the new rules are

announced.” Horn, 536 U.S. at 271 (internal quotation marks

omitted). There are two exceptions to the general rule. “The

first exception permits the retroactive application of a new rule

if the rule places a class of private conduct beyond the power of

the State to proscribe . . . or addresses a substantive categorical

guarantee accorded by the Constitution[.]” Id. n.5 (internal

quotation marks omitted). “The second exception is for

watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding.”

Id. (internal quotation marks omitted).

34

law, . . . ’ under § 2254(d)(1).” Williams, 529 U.S. at 412

(O’Connor, J., for the Court). But the dissent appears to go one

step further. It alludes, at times, to the retroactive application of

new rules that fall within the Teague exceptions for retroactivity

as “clearly established Federal law” for purposes of § 2254.11

As a preliminary observation, this case does not raise a

Teague new rules retroactivity issue. Under Teague, Gray

would be an old rule since it was issued before Greene’s

conviction became final. Thus, comments on the supposed

benefits of Teague’s new rule retroactivity exceptions would be

dicta even if we were to take the dissent’s approach. That being

said, we caution that the use of Teague’s new rule retroactivity

exceptions for purposes of § 2254, while not implausible, see 28
35

U.S.C. § 2254(e)(2)(A)(i) (contemplating retroactive

applications of “new rule[s] of constitutional law”), id. §

2244(d)(1)(C) (same), has yet to gain support from the Supreme

Court. In fact, in Horn, the Supreme Court explained that the

“AEDPA and Teague inquiries are distinct.” 536 U.S. at 272.

As distinct inquiries, it is unclear whether Teague’s new rule

retroactivity exceptions should be incorporated into § 2254 even

if we were to adopt the use of the date the petitioner’s

conviction became final for determining “clearly established

Federal law.”

Indeed, the Horn decision recognized that satisfaction of

§ 2254(d) is the minimum required for a petitioner to receive

habeas relief: 

While it is of course a necessary prerequisite to

federal habeas relief that a prisoner satisfy the

AEDPA standard of review set forth in 28 U.S.C.

§ 2254(d) (“an application . . . shall not be granted

. . . unless” the AEDPA standard of review is

satisfied (emphasis added)), none of our

post-AEDPA cases have suggested that a writ of

habeas corpus should automatically issue if a

prisoner satisfies the AEDPA standard, or that

AEDPA relieves courts from the responsibility of

addressing properly raised Teague arguments.

Id. Thus, under Horn, if Teague is in play at all, it is as an

additional concern on top of AEDPA’s requirements codified in

§ 2254(d). See id. As such, it seems a leap to assume that new
36

rules that are deemed retroactive under Teague would be

automatically deemed “clearly established Federal law” for

purposes of § 2254(d)(1).

2.

The dissent’s assertion that Griffith applies on collateral

review cannot be reconciled with that decision’s holding. In

Griffith, the Supreme Court considered whether a certain

decision “applie[d] retroactively to a federal conviction then

pending on direct review.” 479 U.S. at 320 (emphasis added).

It held that a newly declared rule “for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final[.]” Id. at 328

(emphasis added). The principles animating Griffith were the

ideas that “failure to apply a newly declared constitutional rule

to criminal cases pending on direct review violates basic norms

of constitutional adjudication,” id. at 322, and that courts should

treat like cases alike, id. at 323.

The dissent, citing Whorton, seeks to take Griffith, a

decision animated by constitutional principles pertaining to

treating like cases alike on direct review, and apply it to

collateral review. It sees Whorton as “explicitly” recognizing

that Griffith applies to collateral review. Neither Whorton nor

subsequent Supreme Court precedent support this view. 

The language from Whorton upon which the dissent
37

relies is far from explicit. See 549 U.S. at 416. The sole citation

of Griffith was for the proposition that under the “Teague

framework, an old rule applies both on direct and collateral

review, but a new rule is generally applicable only to cases that

are still on direct review.” Id. Before assuming that the

Supreme Court sought, without any additional discussion, to

extend Griffith to collateral review, as the dissent suggests, a

less novel understanding of the Whorton Court’s reliance on

Griffith should be considered. Namely, that Griffith was

probably cited as general support for the propositions that “an

old rule applies. . . on direct . . . review [and that] a new rule is

generally applicable only to cases that are still on direct review.”

Whorton, 549 U.S. at 416. The sentence following the Griffith

citation in the Whorton decision further confirms this

understanding by explaining how new rules apply in collateral

proceedings through citation to Teague, not Griffith. Id.

Subsequent Supreme Court precedent also belies the

dissent’s view that Griffith applies on collateral review.

Approximately a year after Whorton, the Supreme Court, in

Danforth v. Minnesota, 552 U.S. 264 (2008), stated that Griffith

“defined the scope of constitutional violations that would be

remedied on direct appeal.” Id. at 275 n.11. It did so in the

context of determining whether “Teague constrains the authority

of state courts to give broader effect to new rules of criminal

procedure than is required by that opinion.” Id. at 266. Rather

than holding that Teague applied to the state courts, like Griffith,

479 U.S. at 328, the Supreme Court reached the opposite
38

conclusion. It held that the Teague decision did not control a

state court’s decisions on retroactivity. According to the

Danforth Court, the Teague decision “limits the kinds of

constitutional violations that will entitle an individual to relief

on federal habeas, but does not in any way limit the authority of

a state court, when reviewing its own state criminal convictions,

to provide a remedy for a violation that is deemed

‘nonretroactive’ under Teague.” Danforth, 552 U.S. at 282.

The Supreme Court emphasized that Teague, unlike Griffith,

was based on the Court’s “power to interpret the federal habeas

statute.” Id. at 278. Because “Teague is based on statutory

authority that extends only to federal courts applying a federal

statute, it cannot be read as imposing a binding obligation on

state courts.” Id. at 278-79. While Griffith is concerned with

affording individuals on direct review their right to adjudication

in accord with the Constitution, Teague is derived from

language in the habeas statute permitting disposal of habeas

petitions “as law and justice require[.]” Id. at 278 (citing 28

U.S.C. § 2243). Because their sources of authority are

different—Griffith, the Constitution, and Teague, 28 U.S.C. §

2243—and their motivations are different, Griffith cannot be

imported wholesale into Teague without discussion. In short,

we do not dispute that Griffith may somehow inform the

Supreme Court’s approach in applying Teague. We also do not

dispute that a § 2254 petition may invoke Griffith where a

petitioner was denied the application of relevant Supreme Court

precedent on direct review. But Griffith, independently, does

not control retroactivity for cases on collateral review.
12 The dissent asserts that Greene would not have been

able to raise his Confrontation Clause claim in a PCRA petition

because the issue had been previously litigated on the merits by

the Pennsylvania Superior Court. See Pa. Cons. Stat. §

9543(a)(3); id. § 9544(a). We disagree. “[T]he ‘previously

litigated’ rule codified in § 9544(a) simply relieves

Pennsylvania courts of the burden of revisiting issues which are

res judicata.” Boyd v. Warden, 579 F.3d 330, 369 (3d Cir. 2009)

(en banc). The Pennsylvania Superior Court’s decision on direct

review held only that Greene’s “right to confrontation as set

39

3.

The dissent also asserts that our approach creates a

twilight zone for any petitioner who seeks to invoke Supreme

Court decisions that fall between the date of the last relevant

state-court decision and the date the petitioner’s conviction

became final. This assertion is incorrect. Our holding does not

create a categorical bar to a petitioner’s reliance on Supreme

Court decisions issued during any twilight zone period. Instead,

we set forth a simple rule: the universe of “clearly established

Federal law” that may be applied to a particular petitioner’s §

2254 appeal is tied to the date of his last relevant state-court

decision.

In this case, it was Greene’s decision not to raise the

Confrontation Clause claim in his PCRA petition that

established December 16, 1997, as the date of the last relevant

state-court decision on the merits.12 This, in turn, shrank the
forth in Bruton” was not violated. The Confrontation Clause

claim presented in Greene’s PCRA petition would have been

based on Gray, a “discrete legal ground,” Commonwealth v.

Collins, 888 A.2d 564, 570 (Pa. 2005), for relief that was

separate from the grounds set forth in Bruton and Marsh. See

Marsh, 481 U.S. at 211 n.5 (stating that the Supreme Court

“express[ed] no opinion on the admissibility of a confession in

which the defendant’s name has been replaced with a symbol or

neutral pronoun”).

Unlike the comparatively loose fair presentation

requirement for a § 2254 petition, which requires that the habeas

petitioner need merely “present [the] federal claim’s factual and

legal substance to the state courts in a manner that puts them on

notice that a federal claim is being asserted,” McCandless, 172

F.3d at 261, the PCRA requirement that an issue not have been

previously litigated “refers to the discrete legal ground raised

and decided on direct review,” Collins, 888 A.2d at 570. While

raising Bruton on direct appeal to the Pennsylvania Superior

Court was sufficient to put the state courts on notice that a

federal claim was being asserted, satisfying the fair presentation

requirement, McCandless, 172 F.3d at 261, the Pennsylvania

Superior Court’s decision was limited to whether Bruton

required that Greene have been granted a severance at trial.

Thus, for purposes of the PCRA, that decision did not bear on

whether Gray, “a discrete legal ground” that was not “decided

on direct review,” Collins, 888 A.2d at 570, would have

provided Greene relief. 

In addition, we do not consider the authorities cited by

40
the dissent persuasive given the facts of this case. The dissent

cites Commonwealth v. Small, 980 A.2d 549 (Pa. 2009), for the

proposition that reliance on a “different case to support the

original theory,” id. at 569, of relief would not “change the fact

that [an] issue was previously litigated,” id. But that proposition

was offered based on different factual circumstances. In Small,

the petitioner was seeking to rely on United States Supreme

Court authority that existed at the time of his direct appeal yet

was not raised in that appeal to effectively re-argue an issue that

was previously litigated on direct appeal. Id. The Small Court

had no reason to view the issue as novel because the underlying

United States Supreme Court authority existed at the time of the

direct appeal. Here, Gray did not exist at the time of the

Pennsylvania Superior Court’s decision. As such, Greene would

not be simply raising a theory or allegation in support of a

discrete legal ground for relief that existed at the time of his

direct appeal. Instead, he would be asserting a new discrete

legal ground for relief based on previously unavailable United

States Supreme Court precedent. 

The dissent’s reliance on Commonwealth v. Washington,

927 A.2d 586 (Pa. 2007), is similarly misplaced. There, the

petitioner argued that Gray, which had been decided after his

direct appeal to the Pennsylvania Supreme Court but before that

court’s decision became final, entitled him to relief under the

PCRA. Id. at 608-09. The Pennsylvania Supreme Court found

that the petitioner’s Confrontation Clause claim had been

previously litigated on the merits, but its conclusion was not

based on the fact that it had already considered the petitioner’s

Bruton claim. Id. at 609. On direct review, the Court assumed

41
arguendo that the petitioner’s right to confrontation had been

violated by the use of the word “blank” in a redacted statement

and then held that the error was harmless and did not prejudice

him. Id. In other words, it assumed that the rule later set forth

in Gray existed and held that, despite the violation of that rule,

the petitioner could not receive relief. In its PCRA review, the

Court took note of Gray, which supported the proposition of law

it had already assumed on direct appeal, and concluded that it

had already considered the substance of that claim on direct

review. Id. As such, Washington does not support the dissent’s

view that Gray and Bruton raise the same issue for purposes of

PCRA review.

Finally, we note that the PCRA’s requirement that an

issue not have been previously litigated is flexibly applied by

the Pennsylvania courts to avoid injustice, not create it. The

Pennsylvania legislature, “by its effort to channel the broadest

category of post-conviction claims into the statutorily-prescribed

procedures . . . implemented a scheme that must necessarily be

deemed to take into account facets of traditional habeas corpus

jurisprudence . . . under which previous litigation does not

function as a never-yielding bar to the possibility of collateral

relief.” Commonwealth v. Cruz, 851 A.2d 870, 877 (Pa. 2004)

(citations omitted). “[I]n . . . instances involving unique

circumstances embodying manifest error or irregularity in the

chain of previous litigation, th[e] [Pennsylvania Supreme] Court

and others have found that the doctrine need not be regarded as

dispositive on collateral review.” Id. Thus, even if we credit the

dissent’s view that Greene’s issue was previously litigated, his

PCRA petition was not doomed from its outset. The

42
Pennsylvania Supreme Court’s dismissal of Greene’s petition as

improvidently granted on direct review, in combination with the

United States Supreme Court’s issuance of the Gray decision,

could be the kind of “irregularity in the chain of previous

litigation,” id., that would merit relaxation of the requirement

that an issue not have been previously litigated.

43

universe of “clearly established Federal law” available to him

for his § 2254 petition, relative to what that universe would have

been had he pursued the Confrontation Clause claim at the

PCRA stage and obtained a later, post-Gray state-court decision

on the merits. It is unfortunate for Greene that the body of

“clearly established Federal law” as of December 16, 1997, did

not include the Gray decision. Yet this is an outcome he could

easily have avoided by raising the Confrontation Clause claim

in his PCRA petition. Doing so would have pushed the date of

the last relevant state-court decision on the merits forward,

thereby expanding the universe of “clearly established Federal

law” to include Gray.

Using the date of the last relevant state-court decision to

determine “clearly established Federal law” gives defendants

incentive to pursue all colorable claims based on “Federal law”

as far as possible in the state courts because doing so will give

them the best chance of success in federal habeas proceedings,

not to mention the underlying state proceedings. This is a

salutary effect that serves Congress’s goals in passing AEDPA.

See 28 U.S.C. § 2254(b) & (c) (requiring exhaustion of state

court remedies); Duncan v. Walker, 533 U.S. 167, 181 (2001)
13 Notably, our approach does not create a procedural

bar to Greene’s claim. As explained in Section II, Greene

satisfied the exhaustion requirement by fairly presenting his

Confrontation Clause claim to the Pennsylvania Superior Court.

Satisfaction of the exhaustion requirement, however, does not

open the door to Supreme Court decisions issued after the last

relevant state-court decision. The determination of what

constitutes “clearly established Federal law” for purposes of §

2254 is a merits-based determination. Whether a petitioner has

fairly presented and exhausted his claim in the state courts, in

contrast, is a procedural issue that we decide independent of the

merits of the petitioner’s claim.

14 “[T]he ‘unreasonable application’ prong of 28 U.S.C.

§ 2254(d)(1) requires a habeas petitioner to show that the state

court’s application of Supreme Court precedent was ‘objectively

44

(referencing “clear purpose to encourage litigants to pursue

claims in state court prior to seeking federal collateral

review”).13

IV.

Having concluded that Gray was not “clearly established

Federal law,” Greene is left to argue only Bruton and Marsh.

Accordingly, we must determine whether the Pennsylvania

Superior Court unreasonably applied those cases when it

decided that the redactions of Finney’s and Womack’s

statements did not violate Greene’s rights under the

Confrontation Clause.14 In Bruton, the defendant challenged his
unreasonable.’” Fountain v. Kyler, 420 F.3d 267, 273 (3d Cir.

2005). “[A] federal court’s mere disagreement with the state

court’s application of Supreme Court precedent is not sufficient;

rather, a state court adjudication fails the ‘unreasonable

application’ test only if the state court identified the correct

governing legal rule but unreasonably applied it to the particular

case or if the state court either unreasonably extended a legal

principle from Supreme Court precedent to a new context in

which it should not apply or where it unreasonably refused to

extend such a principle to a new context in which it should

apply.” Id. We do not address the “contrary to” prong of §

2254(d)(1) as the Pennsylvania Superior Court correctly

identified Bruton as the controlling legal authority. See

Williams, 529 U.S. at 406. 

45

conviction on the basis that his right to confront the witnesses

against him was violated because the confession of his nontestifying codefendant, which directly implicated him, was

introduced into evidence. 391 U.S. at 123. The Court of

Appeals had affirmed the defendant’s conviction because the

jury had received a limiting instruction that the codefendant’s

confession was competent evidence against only the

codefendant. The Supreme Court reversed, holding that

because of the substantial risk that the jury,

despite instruction to the contrary, looked to the

incriminating extrajudicial statements in

determining the [defendant’s] guilt, admission of

[the codefendant’s] confession in this joint trial

violated [the defendant’s] right of cross-
46

examination secured by the Confrontation Clause

of the Sixth Amendment. 

Id. at 126. The Court acknowledged that the instructions to the

jury were clear, id. at 137, but reasoned that 

there are some contexts in which the risk that the

jury will not, or cannot, follow instructions is so

great, and the consequences of failure so vital to

the defendant, that the practical and human

limitations of the jury system cannot be ignored.

. . . . Such a context is presented here, where the

powerfully incriminating extrajudicial statements

of a codefendant, who stands accused side-by-side

with the defendant, are deliberately spread before

the jury in a joint trial. 

Id. at 135-36 (citations omitted). Accordingly, the Court refused

to accept the limiting instruction as an adequate substitute for

the constitutional right of cross-examination. Id. at 137. 

Two decades later, the Supreme Court revisited Bruton

in Marsh. In that case, the nontestifying codefendant’s

“confession was redacted to omit all reference to [Marsh]-

indeed, to omit all indication that anyone other than [two other

individuals] participated in the crime.” 481 U.S. at 203.

Nonetheless, Marsh filed a § 2254 petition, alleging, inter alia,

that the introduction of her codefendant’s confession violated

her rights under the Confrontation Clause. The Supreme Court

began its analysis by pointing out that Bruton was a “narrow
47

exception” to the accepted principle that jurors are presumed to

follow their instructions. Id. at 207. It noted that there was “an

important distinction between this case and Bruton, which

cause[d] it to fall outside the narrow exception,” as Marsh’s

codefendant’s confession did not expressly implicate her and

became incriminating “only when linked with evidence

introduced later at trial ([Marsh]’s own testimony).” Id. at 208.

The Marsh Court observed that 

evidence [in a statement] requiring linkage differs

from evidence incriminating on its face in the

practical effects which application of the Bruton

exception would produce. If limited to facially

incriminating confessions, Bruton can be

complied with by redactions—a possibility

suggested in that opinion itself. 

Id. at 208-09. After considering the difficulties that would arise

if Bruton was “extended to confessions incriminating by

connection,” the Court rejected a rule that would outright

prohibit the use of a codefendant’s confession. Id. at 209.

Consistent with its recognition that “confessions that do not

name the defendant” are different than Bruton, which involved

a facially incriminating confession, the Court held that

the Confrontation Clause is not violated by the

admission of a nontestifying codefendant’s

confession with a proper limiting instruction

when, as here, the confession is redacted to
48

eliminate not only the defendant’s name, but any

reference to his or her existence.

Id. at 211. In a footnote, however, the Marsh Court made clear

that it was not expressing an “opinion on the admissibility of a

confession in which the defendant’s name has been replaced

with a symbol or neutral pronoun.” Id. n.5. 

Bruton and Marsh instruct that: (1) unredacted

confessions by codefendants that implicate the defendant are

generally inadmissible, Bruton, 391 U.S. at 126; (2) redacted

confessions that completely sanitize a codefendant’s statement

by removing any reference to a defendant’s name and existence

are generally admissible, Marsh, 481 U.S. at 211; and (3) when

a redaction is utilized to avoid a violation of the Confrontation

Clause there must be a limiting instruction to the jury. Neither

Bruton nor Marsh clarified the middle ground regarding the

method for satisfactorily redacting a nontestifying codefendant’s

confession. Indeed, Marsh declared that it was not addressing

the admissibility of redacted statements that utilize neutral

pronouns, such as the redactions of Finney’s and Womack’s

statements that were admitted in Greene’s trial. Id. at 211 n.5.

In light of these principles, pre-Gray “courts generally

followed the practice of redacting co-defendants’ statements in

order to eliminate all explicit reference to other defendants on

trial.” Priester, 382 F.3d at 398. Consistent with that practice,

the Pennsylvania Superior Court recognized that the redaction

of a codefendant’s statement was a permissible mechanism for
49

avoiding a Bruton violation. It reviewed the redacted statements

that were admitted and noted that, consistent with Bruton and

Marsh, all references to the other defendants by proper name or

nickname had been removed. The Pennsylvania Superior Court

also noted that the jury had been properly instructed that it could

only consider each redacted statement as evidence against the

individual who made the statement and that these statements

could not be considered in deciding any other defendant’s

culpability for the crimes charged. As such, the Pennsylvania

Superior Court concluded that Greene’s rights under the

Confrontation Clause had not been violated. 

In light of Bruton and Marsh, the Pennsylvania Superior

Court’s conclusion was not unreasonable. Unlike Bruton, which

involved two individuals, and Marsh, which involved three, the

robbery in this case involved five or six individuals. As a result,

Finney’s and Womack’s redacted statements did not directly

implicate Greene. Moreover, the substitutions that were used

for the names of the codefendants yielded confusing statements

that failed to establish either the number of persons involved or,

except for the shooter, the role that each person played in

committing the offense. In the absence of a redaction that

expressly implicated Greene, it was not unreasonable for the

Pennsylvania Superior Court to conclude that the jury would

follow the limiting instructions it had received.

V.

This case presents a vexing conundrum that cannot, no

matter how one views the facts or law, be avoided. While we

cannot predict with absolute certainty what date the Supreme
50

Court would use to determine “clearly established Federal law”

for purposes of § 2254(d)(1), our decision today represents a

careful consideration of the pertinent, conflicting authorities,

and we believe that we have reached the best conclusion given

the guidance we have to date. Ultimately, only the Supreme

Court can resolve such uncertainty as exists. For now, we hold

that “clearly established Federal law” for purposes of §

2254(d)(1) should be determined as of the date of the relevant

state-court decision. In this case, because the Pennsylvania

Superior Court’s December 16, 1997 decision did not

unreasonably apply the “clearly established Federal law” that

existed at that time, Bruton and Marsh, we will affirm the

judgment of the District Court.
 1

 “Although Teague was a plurality opinion that drew support

from only four members of the Court, the Teague rule was

affirmed and applied by a majority of the Court shortly

thereafter.” Danforth v. Minnesota, 552 U.S. 264, 266 n.1

(2008) (citation omitted).

Eric Greene v. John A. Palakovich, et al.

No. 07-2163

 

AMBRO, Circuit Judge, concurring in part and dissenting in

part

Although I agree with my colleagues that Greene’s claim

is not procedurally defaulted and join Part II of the majority

opinion in full, I respectfully disagree with their determination

of the controlling date for “clearly established Federal law”

under 28 U.S.C. § 2254(d)(1). As my colleagues recognize, the

authority on this question is conflicting and, save for a First

Circuit Court opinion, unreasoned. But choosing the date of the

relevant state-court decision, as our Court does today, leaves a

twilight zone between the cutoff set by the majority here and the

retroactivity analysis of the Supreme Court’s decisions in

Griffith v. Kentucky, 479 U.S. 314 (1987), and Teague v. Lane,

489 U.S. 288 (1989) (plurality).1

 The consequence of the

majority’s opinion today is that a criminal defendant who is

denied the right under Griffith to apply a new constitutional rule

to his or her case on direct appeal is left without later recourse

to federal habeas review to correct that error.
2

I. Background

To set the stage here, Greene argued prior to his state trial

that proceeding jointly against him and his co-defendants would

prejudice his defense and his constitutional right to confront

witnesses “when the Commonwealth offer[ed] into evidence

[out-of-court] statements made by the co-defendants.” He cited

for support the Supreme Court cases then known—Bruton v.

United States, 391 U.S. 123 (1968), and Richardson v. Marsh,

481 U.S. 200 (1987). The motions judge, recognizing the

prejudice of those statements fingering Greene, thought she

could cancel out that prejudice by simply redacting Greene’s

name when the statements were read to the jury and giving a

limiting instruction to the jury.

Bruton (as clarified in Richardson) was not enough to

win the point for Greene. He remained short of the winning line

on his appeal when the Pennsylvania Superior Court ruled on

December 16, 1997, that Bruton was not violated.

But there was hope, as Greene filed timely a petition for

allowance of review to the Pennsylvania Supreme Court. That

hope received a big boost when the Supreme Court of the United

States decided Gray v. Maryland, 523 U.S. 185 (1998), while

his petition was pending. Gray held that redacting names from

confessions using obvious blanks falls within the class of claims

protected by Bruton. This was good news indeed for Greene.

The Pennsylvania Supreme Court would no doubt take note of
3

Gray and grant review.

Indeed it did, and it did so on the very issue decided by

Gray. Yet for reasons we do not know, it abruptly dismissed its

grant of appeal as “having been improvidently granted,” in

effect leaving in place post-Gray the Superior Court’s pre-Gray

decision on Greene’s Confrontation Clause rights.

Greene filed a petition seeking collateral relief under

Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa.

Cons. Stat. Ann. §§ 9541–46. He did not allege that his

Confrontation Clause rights were violated (and thus did not cite

Bruton or Gray), ostensibly because the PCRA proscribes

relitigating matters already dealt with on direct appeal. 42 Pa.

Cons. Stat. Ann. § 9543(a)(3). Nonetheless, my colleagues state

that, had he done so, Greene would have “obtained a later, postGray state-court decision on the merits.” Maj. Op. at 43. They

claim—incorrectly, I believe, for the reasons stated more fully

in note 13 below—that failure to raise Gray in his PCRA

petition “shrank the universe of ‘clearly established Federal law’

available to him for his § 2254 petition.” Id. at 39–43. They say

this while conceding that “Greene fairly presented the factual

and legal substance of his Confrontation Clause claim to the

Pennsylvania state courts.” Id. at 17. We do not consider

federal claims procedurally defaulted, “even if the procedural

rule is theoretically applicable to [the] facts,” unless the last

state court rendering a judgment in the case “clearly and

expressly states that its judgment rests on a state procedural
 2

 Finality means that “a judgment of conviction has been

rendered, the availability of appeal exhausted, and the time for

a petition for certiorari elapsed or a petition for certiorari finally

denied.” Griffith, 479 U.S. at 321 n.6.

4

bar.” Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004)

(citations omitted). There is no clear or express statement here.

Greene’s frustrating failure with the Pennsylvania court

system was over, but all was not lost. He thought he could seek

habeas review of his Confrontation Clause rights in a federal

court. And he did.

This is where we come in after the District Court ruled

against Greene: were his Confrontation Clause rights “clearly

established [as] Federal law” when they were “adjudicated on

the merits in State court proceedings”? 28 U.S.C. § 2254(d)(1).

The answer is yes if we look to all United States Supreme Court

decisions before his conviction became final,2

 but no if we stop

with the decision of the Pennsylvania Superior Court less than

two and a half months before the Gray decision. Greene is in

the unwelcome twilight zone where, in the United States

Supreme Court’s own words, “uncertainty” currently exists.

Smith v. Spisak, 558 U.S. ___, 130 S. Ct. 676, 681 (2010). 
 3

 Directing the District Court to consider Gray does not mean

that Greene would get habeas relief. The Pennsylvania state

courts may have applied Pennsylvania’s own existing

Confrontation Clause jurisprudence that was not contrary to, or

an unreasonable application of, the constitutional rule

announced in Gray even though Gray did not yet exist. AEDPA

does not allow a writ of habeas corpus to be granted for simple

errors of law; a writ is granted only when there is an

unreasonable error of law. See Williams v. Taylor, 529 U.S.

362, 412 (2000) (O’Connor, J., for the Court) (“[A]n

unreasonable application of federal law is different from an

5

II. Analysis

This is not a situation where Greene is seeking to take

belated advantage of a rule to which he is not entitled. He is

asking us to apply a case that should have been applied on direct

review. Under the Supreme Court’s Griffith jurisprudence, he

was entitled to the benefit of Gray. It is only because the

Pennsylvania state courts failed to apply it to his case that we

are evaluating it in the first instance on habeas review.

My analysis differs from that of the majority. In a

nutshell, subsection 2254(d)(1) does not choose any cutoff date.

Thus, we are left with the retroactivity jurisprudence of Griffith

and Teague. Because Gray was decided prior to the date

Greene’s conviction became final, I believe Griffith requires its

application to this case. I would therefore reverse the judgment

of the District Court and remand for consideration of Gray.

3
incorrect or erroneous application of federal law.” (emphasis in

original)).

 4

 One might think this is the paradigm for invoking the rule

of lenity. If even the Supreme Court is uncertain which time

trigger is in play as to when federal law is “clearly established,”

it seems fair that, while others may in the future lose in the

twilight zone, Greene should not. As that is not how the

6

A. As noted, the question of whether § 2254(d)(1)

sets a cutoff date is unresolved.

I agree with the majority that “clearly established Federal

law” did not have any special meaning prior to AEDPA and the

text of 28 U.S.C. § 2254(d)(1). See Maj. Op. at 29 n.10. Nor

does the text of 28 U.S.C. § 2254(d)(1) have an express time

cutoff for “clearly established Federal law.” My colleagues read

the statute implicitly to require that any Supreme Court decision

handed down after the relevant state-court decision on the merits

is to be ignored for purposes of habeas relief. I disagree that

“[r]eading the language plainly,” or in a “straightforward” way,

as my colleagues suggest, requires that the Supreme Court

decision exist at the time of the state court’s substantive

resolution. If § 2254(d)(1) were so plain or straightforward,

why does the Supreme Court say it is uncertain? And why are

my colleagues of the view that “there is no clear answer to the

issue we face”? Maj. Op. at 25 n.7. In the face of such

uncertainty, I find it difficult to conclude that there is a “natural

reading” of § 2254(d)(1) dictating a cutoff date.4
majority rules, Greene’s claim to Gray’s benefits becomes

simply sisyphean.

 5

 The fractured decision had Justice Stevens announcing the

judgment of the Court and delivering the opinion of the Court (6

votes) with respect to Parts I, III, and IV of his opinion, and a

minority opinion (4 votes) with respect to Parts II and V. Justice

O’Connor delivered the opinion of the Court (5 votes) with

respect to Part II of her opinion (save for a footnote).

7

A primary reason for the Supreme Court’s uncertainty as

to whether the text of § 2254(d)(1) provides a clear cutoff date

is its own decision in Williams v. Taylor, 529 U.S. 362 (2000).

Inadvertently (no doubt), the Court had two different majorities

identifying two different cutoffs.5

 Justice Stevens, writing for

six members of the Court in Part III of his opinion, stated that

the applicable date for purposes of determining whether federal

law is established is “the time [the habeas petitioner’s] statecourt conviction became final.” 529 U.S. at 390 (Stevens, J., for

the Court). Justice O’Connor, writing for five members of the

Court in Part II of her opinion, stated that “‘clearly established

Federal law’ . . . refers to the holdings, as opposed to the dicta,

of [the Supreme] Court’s decisions as of the time of the relevant

state-court decision.” Id. at 412 (O’Connor, J., for the Court).

Neither Justice Stevens nor Justice O’Connor appears to have

chosen a cutoff based on the text of the statute, and they did not

acknowledge the discrepancy in their respective opinions.

Indeed, in Williams the choice of cutoff would not have

mattered because the case focused on Strickland v. Washington,
 6

 Like this case, the timeline of Spisak has a “new rule”

falling in the twilight zone between the last state-court decision

on the merits and the date of finality. There, the last state-court

decision on the merits was issued on April 13, 1988. State v.

Spisak, 521 N.E.2d 800 (Ohio 1988); see also Spisak v. Mitchell,

465 F.3d 684, 688 (6th Cir. 2006). The conviction became final

on March 6, 1989, when the Supreme Court of the United States

denied certiorari. Spisak v. Ohio, 489 U.S. 1071 (1989). Mills

v. Maryland was decided on June 6, 1988, in the period between

the last state-court decision on the merits and the date of finality.

486 U.S. 367 (1988).

8

466 U.S. 668 (1984), a case decided prior to both the 1985 crime

and the 1986 conviction in Williams, making the discussion of

cutoff dicta because under both cutoffs Strickland was

undoubtedly “clearly established Federal law.”

Our task is to reconcile the conflicting majorities in

Williams regarding the cutoff for “clearly established Federal

law” under AEDPA while maintaining consistency with the

Court’s controlling decisions in Griffith and Teague. Recently,

the Supreme Court recognized the “uncertainty” in temporal

cutoff for “clearly established Federal law,” and declined to

resolve it at that time. See Spisak, 130 S. Ct. at 681.6

Recognizing the Court’s statement in Spisak as the “most

telling observation regarding the use of the date the conviction

became final,” my colleagues dismiss it in a single sentence as

“mere uncertainty [that] cannot counterbalance” the cases that
 7

 The majority makes this observation with respect to our

own precedent, yet does not reach the same conclusion with

respect to the Supreme Court’s rulings. In none of the cases

cited by the majority as adopting the date of the relevant statecourt decision was the Supreme Court required to determine the

cutoff date, and in the only case where it had to confront the

issue, Spisak, it sidestepped. We are not free to ignore that the

Court itself has told us the law is “uncertain.” I caution that I do

not take “mere uncertainty” alone to “counterbalance the

numerous Supreme Court decisions,” but instead take the

Supreme Court’s express reservation of the question in Spisak

as telling us that the issue remains unresolved and that there is

little to be gleaned from other cases that, as the majority notes,

take one approach “without analysis.” Maj. Op. at 31. In that

respect, the Supreme Court’s § 2254(d)(1) precedent is like our

precedent: it goes both ways and is unhelpful in resolving an

inquiry that the decisions did not squarely address. Moreover,

9

select the date of the relevant state-court decision. Maj. Op. at

31. Moreover, they do so even though we agree that Supreme

Court has never conducted a thorough analysis of the “clearly

established” cutoff for AEDPA. Id. at 26–27. Though the

Supreme Court has used the relevant state-court decision as the

temporal cutoff in cases after Williams, I do not find this

dispositive. Like our own checkered jurisprudence, it is not

clear from the Supreme Court’s cases whether it recognized

these divergent approaches inasmuch as it was not required in

those cases to resolve whether the cutoff date was the relevant

state-court decision date or the date the conviction became

final.7
the selection of a cutoff date in Supreme Court cases is no more

than dicta.

10

If, as the majority suggests, the clear answer is the date

of the relevant state-court decision, the Spisak Court would not

have noted the uncertainty, nor would it have assumed the date

of finality. The Court is not in the business of offering advisory

opinions, and if it were clear that its prior cases had selected the

date of the relevant state-court decision, it would not have issued

the opinion in Spisak. It would have held instead that, because

Mills was decided after the final state-court decision on the

merits, AEDPA did not permit consideration of the case. It

would have stopped its analysis there instead of going on at

great length to evaluate the Mills claim on the merits. Thus,

post-Williams Supreme Court precedent offers little to clarify

the temporal cutoff for “clearly established Federal law” under

AEDPA.

B. The Supreme Court has not abandoned its

retroactivity jurisprudence post-AEDPA.

AEDPA’s concern over whether a state court ruling in a

criminal case was contrary to, or an unreasonable application of,

“clearly established Federal law” stems from the desire to avoid

disturbing final criminal judgments through collateral review.

In particular, the use of the past tense (“established”) means that

AEDPA is concerned with the law that should have been applied

at the time of the state court proceedings. Where I diverge from
11

my colleagues is how we determine what that body of law is.

Even though at first it seems conceptually difficult to say

that a court unreasonably applied Supreme Court precedent that

did not yet exist, retroactivity analysis becomes the tool for

deciding. When a Supreme Court holding is retroactively

applied to a prior proceeding, it is as if it existed at the time of

that prior proceeding. The majority’s view ignores controlling

Supreme Court precedent that allows, in certain circumstances,

for the retroactive application of constitutional rules to criminal

cases even though they are announced after a state court ruling

on the merits.

Paramount to understanding the Supreme Court’s

retroactivity jurisprudence is discerning its decisions in Griffith

and Teague. They provide a distinction between “old rules” and

“new rules,” terms that have a clear meaning only when used in

relation to a given criminal conviction. Unhelpfully, the

Supreme Court has used “new rule” to mean different things in

the Griffith and Teague context.

A “new rule” for Griffith is one that is announced after a

state court ruling on the merits. A “new rule” for Teague is one

that is announced after a conviction becomes final. This means

that in the application of Gray to Greene’s conviction, Gray is

a “new rule” for Griffith purposes but is an “old rule” for

Teague purposes. We are principally concerned with the

Teague distinction between “old rules” and “new rules.” The
12

following table may aid in understanding the discussion that

follows.

Date of

Supreme

Court

Decision

(relative to

the criminal

conviction)

Old or New

for Teague?

Applicable

to criminal

case?

Majority

reading of

§ 2254(d)(1)

“clearly

established

Federal

law”

Before the

last statecourt

decision on

the merits on

direct review

Old rule

under

Teague

because it is

pre-finality 

Yes, because

it is/was

existing

precedent

(direct

appeal and

collateral

review)

Yes, because

it was

existing

precedent on

direct review

After the last

state-court

decision on

the merits on

direct

review, but

before

finality

Old rule

under

Teague

because it is

pre-finality

Yes, because

Griffith

makes it

applicable

(direct

appeal and

collateral

review)

No, because

it post-dates

the statecourt

decision
Date of

Supreme

Court

Decision

(relative to

the criminal

conviction)

Old or New

for Teague?

Applicable

to criminal

case?

Majority

reading of

§ 2254(d)(1)

“clearly

established

Federal

law”

13

After finality If dictated

by prefinality

precedent,

old rule

under

Teague.

Otherwise,

new rule

under

Teague.

Maybe

under

Teague; only

applicable if

a narrow

exception is

met, or was

dictated by

pre-finality

precedent

(collateral

review)

No, because

it post-dates

the statecourt

decision

C. The Supreme Court has a developed

jurisprudence governing the application to

cases on collateral review of its cases decided

pre-finality and those decided post-finality.

The retroactive application of newly announced

constitutional rules in criminal cases has long troubled the
14

Supreme Court. As noted, retroactivity takes that rule and

transports it back in time to a proceeding that pre-dated the

announcement of the rule, treating the rule as if it existed at the

time of the prior proceeding. Because this fiction has the

potential to upset settled proceedings, especially in the criminal

context, over the years the Court came to adopt a bright-line that

splits the application of these rules into two domains of review.

Whether a new rule applies retroactively depends on

whether a criminal conviction is on direct review or collateral

review at the time of the Supreme Court decision announcing

the new rule. If the conviction is on direct review when the new

rule is announced, Griffith allows the retroactive application of

the new rule to all criminal cases pending on direct review as a

“basic norm[] of constitutional adjudication.” 479 U.S. at 322.

If the conviction is on collateral review when the new rule is

announced (i.e., convictions that became final before the new

rule is announced), Teague restricts the application of that new

rule to narrow exceptions discussed below. This bright-line

distinction was made due to the differing considerations

between the two domains of review.

1. Griffith

The Griffith Court held that the “failure to apply a newly

declared constitutional rule to criminal cases pending on direct

review violates basic norms of constitutional adjudication.” 479

U.S. at 322. It was the very “integrity of judicial review” that
15

required application of a new constitutional rule “to all similar

cases pending on direct review.” Id. at 323. Two principles

guided this decision. First, the Court recognized that

[a]s a practical matter, of course, we cannot hear

each case pending on direct review and apply the

new rule. But we fulfill our judicial responsibility

by instructing the lower courts to apply the new

rule retroactively to cases not yet final. Thus, it is

the nature of judicial review that precludes us

from “[s]imply fishing one case from the stream

of appellate review, using it as a vehicle for

pronouncing new constitutional standards, and

then permitting a stream of similar cases

subsequently to flow by unaffected by that new

rule.”

Id. (citation omitted). Second, the Court recognized that

selective application of new rules violates the

principle of treating similarly situated defendants

the same. As we pointed out in United States v.

Johnson, the problem with not applying new rules

to cases pending on direct review is “the actual

inequity that results when the Court chooses

which of many similarly situated defendants

should be the chance beneficiary” of a new rule.

Although the Court had tolerated this inequity for
 8

 For instance, it would undermine the integrity of judicial

review if among ten similarly situated criminal defendants—all

duly convicted in state court, all having only the petition for

certiorari to the Supreme Court of the United States as their

remaining recourse on direct appeal, and all raising the same

question of constitutional law—only one were permitted to

16

a time by not applying new rules retroactively to

cases on direct review, we noted: “The time for

toleration has come to an end.”

Id. (citations omitted) (emphasis in original). The Court

therefore held “that a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final, with no

exception for cases in which the new rule constitutes a ‘clear

break’ with the past.” Id. at 328. I note that “pending on direct

review” is slightly different from “not yet final.” A case that has

already exhausted the direct appeal as of right resulting in a

state-court decision on the merits, but is not yet final, is still

within the purview of Griffith. Finality is the key date.

The Griffith Court “instruct[ed] the lower courts,” state

and federal, “to apply the new rule retroactively to cases not yet

final.” Id. at 323. It did not merely advise those courts to

consider applying the rule subject to their discretion, but

mandated application of the new rule. It was only through this

mandate that “actual inequity” between “many similarly situated

defendants” would be avoided.8
benefit from a new rule, leaving the other nine to “flow by

unaffected by that new rule.” Griffith, 479 U.S. at 323 (citation

omitted). It is to avoid this inequality between a lucky

defendant and an unlucky (but similarly situated) defendant that

Griffith draws its bright line and requires application of the new

rule.

17

2. Teague

In Teague, the Supreme Court dealt with the other side of

the retroactivity question. Collateral attacks such as habeas

corpus are not meant to be a substitute for direct review, and the

Court has recognized an interest in leaving concluded litigation

in a state of repose. 489 U.S. at 306 (quoting Mackey v. United

States, 401 U.S. 667, 682–83 (1971) (Harlan, J., concurring in

judgments in part and dissenting in part)). Quoting the second

Justice Harlan, the Court noted that it was “‘sounder, in

adjudicating habeas petitions, generally to apply the law

prevailing at the time a conviction became final than it is to seek

to dispose of [habeas] cases on the basis of intervening changes

in constitutional interpretation.’” Id. (quoting Mackey, 401 U.S.

at 689 (Harlan, J.) (alteration in original)). The Court identified

only two exceptions to the general prohibition against the

retroactive application of new post-finality rules to cases on

collateral review: (1) new rules that place certain kinds of

primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe, id. at 307; and (2)

new “watershed rules of criminal procedure . . . [that] ‘alter our

understanding of the bedrock procedural elements that must be
18

found to vitiate the fairness of a particular conviction,’” id. at

311 (emphasis in original) (citation omitted).

In deciding Griffith and Teague, the Supreme Court has

carefully set out the different concerns in the pre-finality (direct

appeal) and post-finality (collateral attack) application of new

rules. In the context of retroactivity for federal habeas review,

the Teague Court focused on the distinction between

intermediate judgments subject to appeal and final judgments

subject only to collateral attack:

Application of constitutional rules not in

existence at the time a conviction became final

seriously undermines the principle of finality

which is essential to the operation of our criminal

justice system. Without finality, the criminal law

is deprived of much of its deterrent effect. The

fact that life and liberty are at stake in criminal

prosecutions “shows only that ‘conventional

notions of finality’ should not have as much place

in criminal as in civil litigation, not that they

should have none.”

Id. at 309 (emphases in original) (citation omitted). With this

view of finality, the Court held that “[u]nless they fall within an

exception to the general rule, new constitutional rules of

criminal procedure will not be applicable to those cases which

have become final before the new rules are announced,” using
 9

 The Supreme Court here meant “old rule” (pre-finality) and

“new rule” (post-finality) for Teague purposes. I disagree with

my colleagues when they state that “[t]he sentence following the

Griffith citation in the Whorton decision further confirms [its]

understanding by explaining how new rules apply in collateral

proceedings through citation to Teague, not Griffith.” Maj. Op.

at 37. This case is not about “extending” Griffith to collateral

review or “import[ing]” Griffith into Teague. This case is not

even about “new rules”—it is about “old rules,” meaning all pre19

finality, not the date of the relevant state-court decision, as the

inflection point between Griffith and Teague. Id. at 310.

D. Section 2254(d)(1) does not discard Griffith

and Teague.

In a unanimous post-AEDPA and post-Williams decision,

Whorton v. Bockting, 549 U.S. 406 (2007), the Supreme Court

held that Griffith and Teague

laid out the framework to be used in determining

whether a rule announced in one of [the Court’s]

opinions should be applied retroactively to

judgments in criminal cases that are already final

on direct review. Under the Teague framework,

an old rule applies both on direct and collateral

review, but a new rule is generally applicable only

to cases that are still on direct review. See

Griffith, 479 U.S. 314.9

 A new rule applies
finality Supreme Court precedent. The majority takes issue with

applying “old rules” to collateral review, but if “old rules” do

not apply on collateral review, which rules do? Griffith defines

the body of law that should be applied on direct review, that is,

all precedent that is decided prior to a conviction’s finality. This

relates to collateral review because habeas is concerned with

what body of law should have been applied on direct review.

The relation of Griffith to collateral review is nothing novel or

profound.

As my colleagues concede, Maj. Op. at 34, a rule that is

handed down pre-finality is an old rule and need not pass the

Teague test. Instead, it is governed by Griffith and is applicable

“both on direct and collateral review.” Whorton, 549 U.S. at

416. Furthermore, the Supreme Court has applied Griffith’s

retroactivity principle in the habeas context, giving

habeas petitioners the rights established by all Supreme Court

decisions that pre-date a conviction’s finality:

Penry’s conviction became final on January 13,

1986, when this Court denied his petition for

certiorari on direct review of his conviction and

sentence. This Court’s decisions in Lockett v.

Ohio and Eddings v. Oklahoma were rendered

before his conviction became final. Under the

retroactivity principles adopted in Griffith v.

Kentucky, Penry is entitled to the benefit of those

decisions.

Penry v. Lynaugh, 492 U.S. 302, 314–15 (1989) (citations

20
omitted), abrogated on other grounds by Atkins v. Virginia, 536

U.S. 304 (2002).

We have likewise done so in our own habeas cases,

applying pre-finality decisions on habeas review under the

authority of Griffith. See, e.g. Lewis v. Horn, 581 F.3d 92, 102

n.5 (3d Cir. 2009) (“Although Abu-Jamal, like Lewis, was

convicted prior to the Supreme Court’s decision in Batson, his

direct appeal was still pending when the Supreme Court decided

Batson, and therefore Batson applied retroactively to his case.”

(citing Griffith, 479 U.S. at 328)); Simmons v. Beyer, 44 F.3d

1160, 1164–65 (3d Cir. 1995) (“Had Simmons received a timely

review, his conviction would have been final before 1986. In a

sense, he is a ‘chance beneficiary’ of the Batson rule . . . [, but]

we see no reason to bend the rule in Griffith to deny Simmons

the constitutional protection afforded in Batson.” (citing Griffith,

479 U.S. at 323)).

 10 In Whorton, the Court analyzed whether Crawford v.

Washington, 541 U.S. 36 (2004), a case that was decided after

the habeas petitioner’s conviction was final, was applicable to

his case as a “new rule.” Implicit in the analysis is the

recognition that cases decided after the last state-court decision

on the merits may nonetheless be applicable to cases under

AEDPA so long as they meet the appropriate retroactivity test.

Otherwise there would be no need to consider whether Crawford

21

retroactively in a collateral proceeding only if [the

Teague requirements are met].

549 U.S. at 416.10 Though Whorton dealt with an application of
applied because it did not exist at the time of the last state-court

decision on the merits.

 11 As noted above, an “old” rule is any rule that existed prior

to finality or was dictated by the governing precedent at the time

of finality.

22

Teague, it explicitly recognized that Griffith requires that “old

rules” be applied both on direct and collateral review.11 To me

this means that the Whorton Court unanimously endorsed

Griffith and the idea that a Supreme Court decision handed

down after the last state court ruling on the merits, but before

finality, is an old rule that is applicable even under AEDPA and

even if it is not a “watershed” ruling or places conduct beyond

the power of the state to proscribe.

Given the Court’s retroactivity concerns, I believe the

better reading of § 2254(d)(1) is that it does not set a definitive

cutoff date for “clearly established Federal law.” It is the

Supreme Court’s retroactivity jurisprudence of Griffith or

Teague that determines applicability on collateral review, not

AEDPA.

My colleagues’ reading of § 2254(d)(1) conflicts with

Whorton. They refuse to include all “old rules” as “clearly

established Federal law.” This reading contradicts the

unanimous holding in Williams that all “old rules” for Teague
 12 Notwithstanding the apparent conflict in time cutoff in

Williams, Justice O’Connor and Justice Stevens did agree that

“whatever would qualify as an old rule under [the Court’s]

Teague jurisprudence will constitute ‘clearly established Federal

law, as determined by the Supreme Court of the United States’

under § 2254(d)(1).” 529 U.S. at 412 (O’Connor, J., for the

Court (joined by Rehnquist, Kennedy, Thomas, & Scalia, JJ.));

see also id. at 379–81 (Stevens, J., 4-vote portion (joined by

Souter, Ginsburg, & Breyer, JJ.)) (distinguishing “new rules”

from “clearly established” rules). In other words, the court was

unanimous in holding that all “old rules” under Teague

constitute “clearly established Federal law” under AEDPA.

23

purposes are “clearly established Federal law.”12 My colleagues

recognize this contradiction, but they choose to ignore Griffith

and Teague and adopt Justice O’Connor’s initial unreasoned

declaration (that chose the date of the relevant state-court

decision and cited no case) and not her later reasoned one (that

referred to “old rules” under Teague and cited Supreme Court

precedent). See 529 U.S. at 412 (citing Stringer v. Black, 503

U.S. 222, 228 (1992)). It is unclear to me why we would choose

her statement of the law (a dictum, no less) in conflict with the

Supreme Court’s decisions in Griffith and Teague instead of her

statement of the law in harmony with those Supreme Court

holdings and Whorton (and that actually invokes the controlling

Supreme Court precedent of Teague).
 13 As noted above, the majority states that Greene could have

raised a Bruton Confrontation Clause claim on PCRA review,

24

E. The majority’s cutoff creates a twilight zone

If the relevant cutoff date is the date of the last state-court

decision on the merits, we would create a twilight zone for

criminal defendants. Consider the possible times relative to a

state court conviction when a decision by the Supreme Court is

announced: (1) prior to the last state-court decision on the

merits; (2) between the last state-court decision on the merits

and finality; and (3) after the conviction is final. If it were

decided in the first period (prior to the last state-court decision

on the merits), a state court would have to apply it to be

consistent with Griffith. If it were decided in the third period

(after finality), habeas relief would be available as a “new rule”

under Teague if the decision announced a “watershed” rule or

placed certain conduct beyond the power of the state to

proscribe. However, if it were decided in the second period (the

twilight zone between the last state-court decision on the merits

and before finality), the majority’s time cutoff would

nonetheless consider it not to be “clearly established Federal

law” and would bar habeas relief because the rule did not exist

at the time of the last state-court decision on the merits. The

majority reaches this conclusion even though, as discussed

above, a rule announced pre-finality is an “old rule” for Teague

purposes and Griffith requires its application on direct and

collateral review.13
thereby receiving a post-Gray state-court decision on the merits.

Maj. Op. at 39 & n.12. I believe this is not correct. The PRCA

entitles state prisoners to relief only if they plead and prove an

allegation of error that “has not been previously litigated or

waived.” 42 Pa. Cons. Stat. Ann. § 9543(a)(3). Greene had

previously litigated his Confrontation Clause claim on direct

appeal and thus could not bring a PCRA action.

“[A]n issue has been previously litigated if . . . the

highest appellate court in which the petitioner could have had

review as a matter of right has ruled on the merits of the issue.”

Id. § 9544(a)(2). “Whether an issue was previously litigated

turns on whether ‘[the issue] constitutes a discrete legal ground

or merely an alternative theory in support of the same

underlying issue that was raised on direct appeal.’”

Commonwealth v. Small, 980 A.2d 549, 569 (Pa. 2009)

(alteration in original); see also Commonwealth v. Collins, 888

A.2d 564, 570 (Pa. 2005). Furthermore, citing to different

authority for the same issue “does not change the fact [that]

th[e] issue was previously litigated. To hold otherwise would

mean a PCRA petitioner could raise an issue on direct appeal,

and raise it again in a PCRA petition merely by citing a

different case to support the original theory.” Small, 980 A.2d

at 569.

My colleagues and I agree that Greene has not

procedurally defaulted his Bruton claim, having raised it on

direct appeal. We agree that he litigated his Bruton claim in the

Pennsylvania Superior Court. We agree that the Superior Court

ruled on the merits of this claim. We agree that he raised it in

25
his petition for allowance of appeal with the Pennsylvania

Supreme Court. In other words, there can be no dispute that the

Bruton claim was “previously litigated” for purposes of the

PCRA. While my colleagues suggest that Gray was a discrete

legal ground because it answered the question left open in

Marsh regarding pronoun or symbol substitutions, the fact

remains that the Pennsylvania Superior Court directly addressed

the issue of pronoun substitutions in Greene’s direct appeal.

App. 990 (Pa. Super. Ct. Op.) (citing Commonwealth v. Miles,

681 A.2d 1295, 1300 (Pa. 1996)). Though Gray was decided

later, the “discrete legal ground” was before the Superior Court

and it decided that issue. In any event, to the extent that my

colleagues believe that the Pennsylvania courts might have

relaxed their PCRA standards to allow Greene to make the

claim, that is pure speculation.

A similar situation arose in another Pennsylvania case

cited by the Commonwealth. Commonwealth v. Washington,

927 A.2d 586, 608–09 (Pa. 2007). There, Washington

unsuccessfully raised a Bruton claim very similar to Greene’s at

trial and on direct appeal to the Pennsylvania Supreme Court.

Subsequent to Washington’s conviction becoming final, Gray

was decided. On PCRA review, he invoked Gray, reasserted his

Bruton claim, and argued that it was not previously litigated.

The Pennsylvania Supreme Court rejected this argument and

held the Bruton claim “previously litigated because [it] reviewed

the claim and ruled on the merits of the issue” on direct appeal.

Id. at 609. Likewise, Greene could not raise the claim in his

PCRA petition as the majority suggests he should have done.

He had pursued his colorable Bruton claim based on federal law

26
“as far as possible in the state courts.” See Maj. Op. at 43.

Of course, the issue is not whether Washington is

factually on point with Greene’s case, or whether it is

theoretically possible that Greene could have raised a claim

based on Gray on PCRA review, but whether the meaning of

“clearly established Federal law” under § 2254(d)(1) means

different things in different cases depending on the availability

of state collateral review. What my colleagues essentially hold

is that when a defendant has “previously litigated” a novel

constitutional claim on direct appeal, but the Supreme Court

recognizes the constitutional rule in a different case before his

conviction becomes final, he has no federal habeas recourse if

the state courts do not apply the constitutional rule to his case on

direct review and the state collateral process prohibits him from

re-raising the claim.

 14 Although another portion of AEDPA, 28 U.S.C.

§ 2244(d)(1)(C), resets the one-year period of limitation when

the Supreme Court newly recognizes a constitutional right and

makes it retroactively applicable to cases on collateral review,

27

So inflexible is the “plain reading” the majority adopts

that even “new rules” that pass the Teague test for retroactive

application would not entitle a petitioner to habeas relief. “New

rules” for Teague purposes are always decided after the date of

the relevant state-court decision, as they come into being after

finality. Yet the majority would not consider the “new rule” to

be “clearly established Federal law” because the “new rule” did

not yet exist, and no relief could be granted.14 Such a Catch-22
it is § 2254(d)(1) that governs the substantive power of the

federal courts to grant a federal remedy to defendants in state

custody. Section 2254(d)(1) states that the writ of habeas

corpus “shall not be granted” unless it was contrary to, or

involved an unreasonable application of, “clearly established

Federal law.” The majority’s reading of § 2254(d)(1) means a

new rule that satisfies Teague and is made retroactively

applicable to cases on collateral review would not be timebarred by § 2244, but a federal court would still be powerless to

grant relief under § 2254. Thus, if a watershed decision such as

Gideon v. Wainwright, 372 U.S. 335 (1963), were to come down

tomorrow as a “new rule,” under the majority’s holding one

would be entitled to file for habeas corpus, but would not be

entitled to habeasrelief. The majority’s reading of § 2254(d)(1)

obviates the need for § 2244(d)(1)(C).

 15 In fact, the Supreme Court reversed our Court when we

called into question the continuing relevance of Teague. Horn

v. Banks, 536 U.S. 266, 272 (2002), rev’g Banks v. Horn, 271

F.3d 527 (3d Cir. 2001). The Supreme Court instead held the

AEDPA and Teague inquiries to be distinct and required federal

courts to address Teague when properly raised. Id. There

appears to be additional confusion in the majority opinion when

it suggests that I “would sub silentio codify Teague.” Maj. Op.

at 33. But I agree that AEDPA and Teague are distinct

inquiries—AEDPA is concerned with the unreasonableness of

the state court decision, while Teague is concerned with the

28

reading of § 2254(d)(1) effectively disregards Griffith and

Teague even as the Supreme Court has maintained that both

decisions remain viable.15
yardstick we use to measure unreasonableness. Satisfying

Teague may make a Supreme Court decision retroactive and

“clearly established Federal law,” but it does not necessarily

mean that a state court decision was unreasonable. Likewise, if

the relevant state-court decision is rendered post-finality (in the

case of a state-court decision rendered during collateral review),

Teague may still operate as a bar to federal habeas relief if the

relevant Supreme Court decision is also post-finality. Even

under my reading, AEDPA and Teague are distinct inquiries.

29

As discussed above, even though at first it seems

conceptually difficult to say that a state court unreasonably

applied Supreme Court precedent that did not yet exist, the

Supreme Court’s retroactivity analysis treats the precedent as if

it existed at the time of that prior state court proceeding. Under

Griffith, Supreme Court decisions are retroactively applied to

those convictions not yet final at the time of the decision.

Furthermore, if the state court neglects to apply the rule

retroactively to convictions not yet final, this can be still

corrected after finality on collateral review. See Whorton, 549

U.S. at 416 (“[O]ld rule[s] appl[y] both on direct and collateral

review.” (emphasis added)). Under Teague, Supreme Court

decisions are retroactively applicable even to convictions that

were already final at the time of the decision if it announces a

“watershed” rule or places certain conduct beyond the power of

the state to proscribe. We know from Whorton that § 2254(d)(1)

does not overrule Griffith and Teague, but by deeming irrelevant

any case that post-dates the relevant state-court decision, the

majority implicitly disregards both Griffith and Teague.
 16 To the extent that a defendant is not constitutionally

entitled to counsel on discretionary appeals, it seems

unreasonable to expect that defendant, who is likely

incarcerated, to be fully abreast of Supreme Court rulings and

the first person to bring intervening Supreme Court decisions to

the attention of the state courts within the window for

discretionary review. The state courts have an independent

obligation under Griffith to ensure the application of intervening

Supreme Court decisions to all cases that are not yet final.

30

While another Circuit Court has rejected the majority’s

cutoff on fears of the potential for “state court . . . subver[sion]

. . . by the simple expedient of summarily affirming a lower

court’s decision,” Foxworth v. St. Amand, 570 F.3d 414, 432

(1st Cir. 2009), its reasoning does not depend on a distrust of the

judicial integrity of state courts. A well-meaning state court

system could innocently neglect to apply Griffith after its final

decision on the merits, but before the conviction becomes final.

If a state court were to ignore the mandate to apply the new rule

to all cases still pending on direct appeal or not yet final, it

would similarly undermine the integrity of judicial review. That

would leave collateral review by habeas corpus as the only

remedy to correct the mistake. Surely a criminal defendant is

entitled to recourse if the state courts simply forget to check for

new, relevant Supreme Court precedent prior to finality.16 This

helps to avoid the situation where similarly situated defendants

receive disparate treatment based on the happenstance of state
 17 It is important to note that retroactively applying (under

Griffith/Teague) Supreme Court decisions announced after the

last state-court decision as “clearly established” does not

impugn the state court that fails to predict a later Supreme Court

ruling. After all, a state court is not faulted when Griffith directs

the application of a “new rule” to cases that are not yet final, but

already adjudicated on the merits. In that instance, the state

court need only apply the rule to pending cases. Nor does it

demonstrate a mistrust of state courts when Teague directs the

application of a “new rule” to cases that are already final.

Again, to fulfill their judicial obligations, state courts need only

apply the retroactive rule to the affected cases.

31

court attention (or inattention).17

Yet, under the majority’s selection of temporal cutoff,

even that remedy would be foreclosed whenever the state courts

declined to apply the rule without explanation. This would

leave affected habeas petitioners as unfairly treated relative to

other similarly situated individuals who were lucky enough to

have the state courts apply the new rule.

* * * * *

It is not our place to second-guess the Supreme Court

when it has held that: (1) Supreme Court decisions handed down

prior to finality must be applied on both direct and collateral

review under Griffith; (2) Teague and Griffith have continuing

vitality after AEDPA; (3) all nine Justices in Williams agreed
32

that an “old rule” under Teague qualifies as “clearly established

Federal law”; and (4) its decisions since Williams have not

definitively set a temporal cutoff. In the absence of an express

statement to the contrary by the Supreme Court (and there is

none), we are bound to apply the clearly expressed (and still

controlling) jurisprudence of Griffith and Teague. The Court

may wish, in the AEDPA context, to cut back on Griffith and

Teague, but it, not us, possesses the power to overrule its

precedent.

I would hold that the cutoff date for “clearly established

Federal law” is not prescribed by 28 U.S.C. § 2254(d)(1). The

retroactive application of constitutional rules to criminal cases

is governed by Griffith and Teague, and I would look first to

whether Gray was decided before or after finality to determine

which rule applies. As here Gray was decided prior to finality,

the Pennsylvania Supreme Court should have considered it in

the course of fulfilling its responsibilities under Griffith. When

it did not do so, the District Court on habeas review needed to

correct this failure to consider Gray. Accordingly, I would

vacate its judgment and remand for application of Gray to

Greene’s Confrontation Clause claim. For these reasons, I

respectfully dissent from all but Part II of the majority opinion.