Supreme Court Habeas Order Highlights Legal Ambiguity?

On Monday, the Supreme Court ordered the United States District Court for the Southern District of Georgia to review death row inmate Troy Davis’ conviction by “mak[ing] findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [his] innocence.” In re Davis, No. 08-1443, slip op. at 1 (U.S. Aug. 17, 2009). The order, as the New York Times reports, “set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.” The Times’ discussion provides a good summary of the legal squabble, but what I find most interesting is the subtext concerning the import of Teague v. Lane, 489 U.S. 288 (1989) with respect to the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Indeed, while Justice Scalia’s most scathing objection to the Court’s order is that habeas relief would be categorically unavailable under 2254(d)(1), see Davis, slip op. at 2 (Scalia, J., dissenting), there is some--albeit largely academic--support for the exact opposite proposition.

In Teague, the Court crafted two exceptions to the then-exclusive rule against retroactive application of the law for habeas petitioners: a new legal rule should be applied retroactively for the petitioner's benefit only if (1) “it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe’” or (2) “requires the observance of ‘those procedures that . . . are ‘implicit in the concept of ordered liberty.’” Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692, 693 (1971)). In 1996, Congress passed AEDPA which, by its terms, bars habeas relief “with respect to any claim that was adjudicated on the merits unless the adjudication . . . resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

Some, however, including contributing editors of this blog, have opined that the exceptions from Teague would be imputed into AEDPA. See, e.g., Sharad Sushil Khandelwal, Note, The Path to Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(d)(1), 96 Mich. L. Rev. 434, 440 n.45 (1997) (“[W]hen Congress used the phrase ‘clearly established,’ it meant to codify the entire Teague doctrine, including the exceptions.”). And many lower court cases addressing the issue hedge in a manner that implies tacit acceptance of Teague’s possible applicability to 2254(d)(1). See, e.g., Mungo v. Duncan, 393 F.3d 327, 334-35 (2d Cir. 2004) (“In any case, whether § 2254(d)(1) was intended, or out of prudence should be read, to adopt the Teague exceptions is a question we need not answer because we conclude that the . . . rule does not qualify as . . . coming within the exception to Teague.”).

But while relief for Davis could very well be permissible under at least one of the Teague exceptions given that the question is whether an “actually innocent” individual could be punished with death, any such discussion is conspicuously absent from both Justices’ opinions. Justice Scalia treats the issue as a simple application of a bright line statutory rule: “A state court cannot possibly have contravened, or even unreasonably applied ‘clearly established Federal law as determined by the Supreme Court of the United States’ by rejecting a type of claim that the Supreme Court has not once accepted as valid.” Davis, slip op. at 2 (Scalia, J., dissenting). Justice Stevens, on the other hand, takes the perspective that the lower court could find Davis entitled to relief based on clearly established principles that it is unconstitutional to execute an innocent individual or because any contrary interpretation would be unconstitutional. See id. (Stevens, J., concurring).

Notwithstanding the fact the opinions are cursory and only filed alongside an order, the lack of discussion of a plausible statutory basis for being able to grant relief strikes me as curious in light of the issues raised.