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Greene v. Palakovich

May 28, 2010


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.

The opinion of the court was delivered by: Smith, Circuit Judge.


Argued March 8, 2010

Before: AMBRO, SMITH, and MICHEL,*fn1 Circuit Judges


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 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.


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.

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, 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 co-defendants 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 co-defendants 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 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 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 co-defendants 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 co-defendants 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:

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:

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 co-defendants 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 co-defendants 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

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 co-defendants 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 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 non-testifying co-defendants." 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 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 co-defendant was subjected to the death penalty even though petitioner was not, and particularly due to the fact that effective redaction of the co-defendant'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 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.*fn2 But if the date Greene's convictions became final, 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 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.*fn3


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.*fn4 It submits that Greene only raised the Confrontation 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.

On direct appeal, Greene presented his Confrontation Clause claim and the Pennsylvania Superior Court addressed the merits of thatclaim 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.


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.*fn5 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 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.*fn6 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" 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).*fn7

After careful consideration of the divergent approaches to determining what constitutes "clearly established Federal law" under ยง 2254(d)(1), we now hold that the date of the 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 ...

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