Greene v. Palakovich

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
 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

*
The Honorable Paul R. Michel, Chief Judge of the
United States Court of Appeals for the Federal Circuit, sitting by
designation.

2
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.

3
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,

4
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

5
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

6
 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

7
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:

8
 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:

9
 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

10
 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

11
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

12
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

13
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,

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
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

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
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

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
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.

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
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

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
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”

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
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

6
The uncertainty identified by the Supreme Court is
present throughout our own admittedly contradictory §
2254(d)(1) jurisprudence. We have followed the “relevant state-
court 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
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 post-
Williams 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

21
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

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
 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 post-
Williams 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
 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

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
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

27
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

28
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.

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
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

30
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

31
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,

32
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

33
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

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
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

35
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

36
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

37
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.

38
 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

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
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
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)

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
(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

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
conviction on the basis that his right to confront the witnesses
against him was violated because the confession of his non-
testifying 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-

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
 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

46
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

47
 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

48
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

49
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.

50
 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.

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).
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

2
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, post-
Gray 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

3
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).

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
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

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
 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

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 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] state-
court 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,

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
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

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
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

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 state-
court 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
 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

the selection of a cutoff date in Supreme Court cases is no more
than dicta.

10
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

11
following table may aid in understanding the discussion that
follows.

Date of Old or New Applicable Majority
Supreme for Teague? to criminal reading of
Court case? § 2254(d)(1)
Decision “clearly
(relative to established
the criminal Federal
conviction) law”
Before the Old rule Yes, because Yes, because
last state- under it is/was it was
court Teague existing existing
decision on because it is precedent precedent on
the merits on pre-finality (direct direct review
direct review appeal and
collateral
review)
After the last Old rule Yes, because No, because
state-court under Griffith it post-dates
decision on Teague makes it the state-
the merits on because it is applicable court
direct pre-finality (direct decision
review, but appeal and
before collateral
finality review)

12
 Date of Old or New Applicable Majority
Supreme for Teague? to criminal reading of
Court case? § 2254(d)(1)
Decision “clearly
(relative to established
the criminal Federal
conviction) law”
After finality If dictated Maybe No, because
by pre- under it post-dates
finality Teague; only the state-
precedent, applicable if court
old rule a narrow decision
under exception is
Teague. met, or was
Otherwise, dictated by
new rule pre-finality
under precedent
Teague. (collateral
review)

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

13
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

14
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

15
 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

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
 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

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
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

18
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

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 pre-

19
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
 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

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
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

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
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).

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
 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

13
As noted above, the majority states that Greene could have
raised a Bruton Confrontation Clause claim on PCRA review,

24
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
 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

“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
reading of § 2254(d)(1) effectively disregards Griffith and
Teague even as the Supreme Court has maintained that both
decisions remain viable.15

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 time-
barred 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 habeas relief. 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
 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.

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
 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

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
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

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
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.

32