Fiore v. White - Oral Argument

Argument of James B. Lieber

Chief Justice Rehnquist: We'll hear argument first this morning in No. 98-942, William Fiore v. Gregory White.

Mr. Lieber.

Mr. Lieber: Mr. Chief Justice, and may it please the Court:

For 24 years I have practiced in the Pennsylvania courts.

In case after case, our judges follow the law and apply the Constitution.

When there is a mistake or a miscarriage, there is a necessary corrective, as there was in the case of Mr. Scarpone, my client's co-defendant.

Like his co-defendant, Mr. Fiore was and is factually and legally innocent of a crime which has only two elements and is plainly understood from the reading of the statute.

Those elements are operating a waste disposal facility and doing it without first having a license.

Justice O'Connor: Well, Mr. Lieber, I suppose that the highest court of Pennsylvania has determined that at the time he committed the offense, it was an offense and that they later interpreted the statute, but didn't give it retroactive effect.

Is that what they've done?

Mr. Lieber: Respectfully, I'd have to disagree, Justice O'Connor.

What the Supreme Court of Pennsylvania did was deny a writ for allowance of appeal on the same basis that this Court denies a writ for certiorari.

No...

Justice O'Connor: Well, the court had three different opportunities to take up Mr. Fiore's case presumably.

Mr. Lieber: Presumably that's correct.

However, no inference can be drawn from their failure to take jurisdiction under king's bench powers, which is an emergency writ, or from not hearing the case in a certiorari-like situation that mirrors your very rules.

Justice Scalia: Well, but the case became final if they took... did not take it on certiorari.

The fact is your client has been convicted, finally convicted, by the Pennsylvania State courts of being guilty of this crime.

Isn't that... isn't that correct?

Mr. Lieber: My client's conviction is, in fact, final.

However, Mr. Justice Scalia, the problem with that is that the Pennsylvania courts did not apply the law of the Pennsylvania statute which, as this Court held in Rivers v. Roadway Express and recently in the Bousley case, is... is from the time of an action what the highest court of... of the State says it is.

That's been the...

Justice Ginsburg: Mr. Lieber, in light of what you've just said and in Justice... in light of Justice O'Connor's question, would your position be different if the Pennsylvania Supreme Court had, indeed, held that the law was as the lower courts thought it was; that is, even if you had a permit, if you flagrantly violated it, it was as though you had none?

Suppose that was the Pennsylvania Supreme Court's precedent and then in Scarpone's case, the Supreme Court overruled that precedent.

Would your position be different than it is today?

Mr. Lieber: Only in one situation, Justice Ginsburg, and that would be in the situation, as in Wainwright v. Stone, where the judicial application to the statute over a long period gave consistent notice to our citizens that their conduct would violate... would be violative of the statute in keeping with judicial construction.

Now, in Wainwright, there were 50 years of judicial construction to alert those individuals that their conduct was in fact proscribed.

This was the... the Fiore ruling was, in fact, a first ruling under the statute and it was a... a judicial misconstruction of the first order.

Justice O'Connor: Well, if you... if... if Mr. Fiore had been convicted like, say, 5 years ago under the statute and 5 years later a new case arose with the same kind of facts and was decided as Scarpone's case was decided, would you be here making the same argument?

Mr. Lieber: Your Honor, if there had been no intervening law by our State supreme court, I would be making precisely this argument.

Justice Souter: But, of course...

Chief Justice Rehnquist: You're asking for... you're asking for a very broad rule then, that no matter how much time has gone by and in the... your client's conviction had become final on direct appeal and presumably many years later, the Supreme Court of Pennsylvania were to decide that there is an... an element of the offense missing, your client still would be entitled to relief.

Mr. Lieber: No, Mr. Chief Justice, not necessarily.

As I said, if there had been intervening decisions, again... and habeas lies to see whether the State would be taxed by the change, which I submit to you is not really a change.

It's just a new decision.

Justice Scalia: Excuse me.

Habeas lies to see whether the State would be what by the change?

Mr. Lieber: Taxed.

Justice Scalia: Taxed?

Mr. Lieber: Yes, Your Honor.

If the State would be taxed by retrials and a floodgate problem and so forth.

There was none of that in...

Justice Scalia: Inconvenienced, you mean.

Mr. Lieber: Yes.

There is none of that in this case, Your Honor.

None whatsoever.

Justice Kennedy: Two things about that.

First, isn't there a good argument that he could have been charged and indicted under a related section, that he was violating the terms of the permit?

Mr. Lieber: Your Honor, there's a good argument I believe for Mr.... for Mr. Fiore because he is presumed innocent under that other section.

He is cloaked with the presumption of innocence.

Justice Kennedy: No, no, no.

Let's assume that... that he altered the pipe and that pollution was coming out of the pipe, et cetera.

Assume that.

Wouldn't the State have had a good argument... wouldn't the State have had a good argument that he could be tried under that other provision?

Mr. Lieber: They should have tried him under that other provision, and they did not, Your Honor.

Justice Kennedy: All right.

Then... then this is not a case of innocent conduct.

Mr. Lieber: It is a case, in fact, of innocent conduct of the charge that was charged.

Justice Kennedy: Well, I recognize that.

You mentioned the Wainwright case.

Can you tell me what that case is?

Mr. Lieber: Yes, Your Honor.

That's Wainwright v. Stone, which is the case that the respondent principally uses to defend.

It's a case which this Court decided I believe in 1972.

Justice Breyer: All right.

Justice Kennedy: It's not a Commonwealth case.

Justice O'Connor: Okay, thank you.

Justice Souter: May I just go back to Justice Ginsburg's question and modify it slightly?

If the Supreme Court of Pennsylvania had held in your client's case that, in fact, he was properly charged and then, as odd as it might be, let's say a month later it went the other way in the co-defendant's case, then your position here would be different, wouldn't it?

Mr. Lieber: I'm not exactly sure that... that it would be, Your Honor, because I believe it would be then the same position as in... in Wright v. West, where we would still test.

If there was a sufficiency claim, we would still test the finding of the supreme court.

Justice Souter: No, but your sufficiency claim, as I understand it, is essentially a claim that the evidence was insufficient simply because it was, under Pennsylvania law, evidence that could not, as a matter of logic, as a matter of law, prove the... the offense that he was charged with, i.e., operating without a permit, as opposed to operating in violation of a permit.

So, the point that I'm getting at is this.

If in his case, in your client's case, the Supreme Court of Pennsylvania said, yes, properly charged, the evidence in fact is relevant and sufficient to convict, and then a month later in the co-defendant's case, they said, no, the... the charge to which this... this evidence was relevant could only have been the charge of operating in violation of a permit, it seems to me your position would have to be different because you would be... in order for your client to get relief, you would have to argue that there... that we should adopt a Federal rule requiring the States to apply a decision, as in the co-defendant's case, retroactively.

And as I understand it, that's not the argument you're making here.

Mr. Lieber: No, that's not the argument we're making here.

Justice Stevens: Okay.

Justice Souter: And you'd run... you would... I assume you admit you would run into a Teague problem if... if you were in the situation of my hypo in which you were asking for a Federal rule requiring State retroactivity.

Mr. Lieber: Your Honor, I... I can't admit that because Teague only applies to procedural matters.

This is clearly a substantive matter which decriminalized behavior.

Justice Ginsburg: But why would the situation be any different than if we had a legislature saying the permit is not an essential element, and then the legislature changed that to say it is?

If... if you have a permit, you have to show that you don't have a permit.

Why isn't the highest court of the State declaring the law the same as the legislature declaring the law, and then when the high court changes it, it's like a legislative change that doesn't have to be retroactive.

I thought that you had to make that concession and that you were relying on the Pennsylvania Supreme Court never having addressed this question, never having settled what the State law was.

Mr. Lieber: Your Honor, that... that is not my position.

My position is that if the Pennsylvania Supreme Court had not spoken, we would be here under Jackson and Wright v. West and Sullivan v. Louisiana and that ilk of case.

However, our case is not worse in any sense.

I submit to you respectfully, it's better because the Pennsylvania Supreme Court has spoken.

It's their duty, it seems to me, if the case comes before them, whenever, to define the elements, and when they do that, as... as a concurrence said in Bousley, that's not really retroactivity.

That's explanatory behavior.

Chief Justice Rehnquist: Bousley, however, was a Federal... construing a Federal statute where the... perhaps the case law may be somewhat different than just stepping into a State situation.

Mr. Lieber: Your Honor, but our case law in Pennsylvania is identical under recently decided Pennsylvania Supreme Court authority in Commonwealth v. Shaffer.

But you can look back to see how Judge Aldisert in the Third Circuit, in the Ettinger case, for example, which is cited in one of the briefs, took this same route and said the statute is what it was from the time the highest court in the State construes it.

And that's what we have here.

Chief Justice Rehnquist: Well, if... if the Pennsylvania law supported you, you should have gotten relief in Pennsylvania.

The fact you didn't suggests that it does not support you.

Mr. Lieber: No.

Your Honor, we didn't get relief in Pennsylvania because of a malfunction in the law.

Chief Justice Rehnquist: That's... that's a somewhat pejorative description.

Mr. Lieber: I apologize.

Justice Stevens: Mr. Lieber, I think you misstated the holding in Shaffer.

They didn't say it was the law from the date of the supreme court decision.

As I understood it, they said it was the date... it was the law from the date of the enactment of the statute.

Mr. Lieber: I stand corrected, Mr. Justice Stevens.

Justice Stevens: Which makes a world of difference.

Mr. Lieber: It does.

I misspoke.

Justice Scalia: Mr. Lieber, most of the cases that we take in this Court are cases that involve circuit conflicts, disagreements in the law, in final decisions in most cases, some of them years ago.

Now, is it your position that every time we resolve such a circuit conflict, the Constitution requires that all of those who have been finally convicted, under the side of the conflict that has lost here, are entitled to... to be released?

Mr. Lieber: No, Your Honor.

Only in the... the extreme situation where you have actual innocence as the gateway, coupled with a fundamental constitutional error which went to...

Justice Scalia: Well, take that kind of a situation, limited to those cases where we have interpreted a substantive statute in a certain way, and one set of courts in cases, some of them decided years ago, have interpreted that same statute a different way, which would... which would make a conduct that we have held to be innocent in fact guilty.

Now, are all of those who were... who were convicted under that interpretation entitled to be released?

Mr. Lieber: I would say no, Your Honor, because if you had made a decision on this Court, that would be a decision that... that those convictions earlier were within the scope of the Constitution, whereas later they were not.

And I... there have been so few...

Justice Scalia: Excuse me.

I don't understand that.

We didn't make any such decision, as you know.

Mr. Lieber: Well...

Justice Scalia: There are two sets of cases.

One of them say, for conviction of this... of this offense, you need X.

The other set says for conviction of this offense, you don't need X.

And... and the lower courts are in conflict.

Some of these cases are very old.

We... we take a recent case and we say in fact you need X.

What happens to all... for the substantive offense.

What happens to all of the cases that said you don't need X?

Mr. Lieber: I would say, Your Honor, that... that a habeas writ would lie if you decriminalized behavior.

Justice Stevens: Mr.... Justice Scalia is asking you whether you think Bousley was correctly decided, I think.

Mr. Lieber: Absolutely, yes.

I believe this... this case derives at least from one... derives from at least one Bousley principle, which is the state of the statute.

Chief Justice Rehnquist: But Bousley... the... you can... our cases say you can get relief from a Federal conviction on habeas because of an error in statutory law, and the... the same is not nearly as clear when you're talking about a claimed error in State law.

Mr. Lieber: Mr. Chief Justice, I... I agree except when the error in State law is also an error of Federal constitutional dimension.

Chief Justice Rehnquist: But we don't have any evidence from any statement of a Pennsylvania court that there has been an error in Pennsylvania law.

Mr. Lieber: We have... we have a statement, Your Honor, from the Pennsylvania Supreme Court both... excuse me... from the Pennsylvania Supreme Court in the Scarpone case that there was an error of State law, a misconstruction of the statute which in fact was also a Jackson error, although the State admittedly did not say Jackson.

But what they said was that the Commonwealth did not make out the crime.

It was a pure sufficiency problem.

Justice Souter: Well, the State court didn't have to get into Federal constitutional law.

All it had to do was construe its own statute.

And it seems to me that you win on a rule as narrow as this.

Mr. Lieber: I agree, Your Honor.

Justice Souter: If the State court holds that the statute, as they construed it, clearly, inarguably, always meant that, that there was no room for reasonable disagreement, that somebody had just made an inexcusable error in construing it otherwise in prior cases, when that happens, which you are claiming happened here, then you win because you can take advantage of the settled Federal rule to the effect that every element has got to be proved.

You don't have to have any broader holding from this Court than that, as I understand it, for you to win here.

Mr. Lieber: And that is precisely the narrow holding in this case that would only release one person, as far as I know, that we're asking for...

Justice Scalia: Why is that any worse than the situation where you have a lower State court that... that clearly, unarguably, whatever... whatever other adverbs Justice Souter used...

Unidentified Justice: [Laughter]

Justice Scalia: got the statute wrong?

It... it reads red in the statute to mean blue.

It's just absolutely, clearly wrong on its face, and that person, you know, is finally convicted.

The supreme court of the State denies certiorari.

We deny certiorari.

Is he constitutionally entitled to... to release... to be released because the statute has simply been construed flatly, clearly, inarguably wrong?

Mr. Lieber: No, Your Honor, of course not.

Unless we're in the very limited zone of... of insufficiency of evidence at a criminal trial.

Justice Souter: No, but you... when you say insufficiency of evidence, you're talking about evidence that, as a matter of law, cannot prove an element of an offense.

Justice O'Connor: Right?

Mr. Lieber: Correct.

Justice Souter: So... so, your real argument is they... that you take advantage, in effect, of the Winship rule or you... you refer to it by... by citing Jackson.

That's the rule that you're... you're... you're resting your case on.

So, in your answer to Justice Scalia, if the red/ blue distinction made the difference between an element and a non-element, you would take advantage of it, and you would make your Winship argument.

If it didn't go to an element, you or whoever was arguing would lose.

Justice Breyer: Right?

Mr. Lieber: Correct.

Justice Stevens: It seems to me the issue in this case is whether when the supreme court decided your client's... or rather decided the other... your co-defendant's case, whether it was stating what the law was at the time the statute was enacted or whether it was changing the law from an intermediate court view that prevailed in the interim.

Mr. Lieber: It was stating the law from the time it was enacted.

Justice Stevens: And you say Pennsylvania's supreme court has said that's what... what the view is on the first construction of a statute.

Mr. Lieber: Correct, Your Honor.

Justice Kennedy: Suppose it were the other way around.

Suppose, first, a State intermediate court said, this decision is prospective only.

What... what would the posture of the case be then?

Mr. Lieber: At that time, Your Honor, I would say that... that a Federal court could... could look to that intermediate ruling as datum for a... a construction of what the Pennsylvania Supreme Court might or might not say later.

Justice Kennedy: All right.

Suppose then the State supreme court said, our decision is prospective only.

Mr. Lieber: If the Pennsylvania Supreme Court said the decision was prospective only, I think that... that a Federal court would have to defer to it, but would have to have the final say on the constitutional meaning of the decision.

Now, in this case, we have...

Justice Kennedy: You mean the final say on whether or not there's a due process violation...

Mr. Lieber: Correct.

Chief Justice Rehnquist: for...

Mr. Lieber: Yes, Your Honor.

Justice Stevens: Of course, if they said it was prospective only, then your co-defendant would remain in jail.

It wouldn't apply even to him if they had said that in this case.

Mr. Lieber: Yes.

Justice Stevens: And would have both been treated alike.

Mr. Lieber: Correct.

Justice Ginsburg: Yes.

Or they could apply it to this... the case before it and all future cases but no past cases, which is something this Court once did.

Justice Kennedy: Has any State supreme court ever said that other... that you've found other than the Georgia court in Wainwright and Stone?

Mr. Lieber: That's the only case.

Justice Kennedy: And even Wainwright and Stone was a notice vagueness case.

Mr. Lieber: Yes.

Yes, it's sort of a different issue.

Justice O'Connor: Mr. Lieber, there's no equal protection claim being made here...

Mr. Lieber: Not at this time, Your Honor.

Justice Scalia: Bousley was... was decided under current habeas law.

I guess you can argue whether it was constitutional or not.

It doesn't... it doesn't on its face... it isn't clear that it's constitutional anyway.

But I suppose it is your position that if Congress said a writ of habeas corpus shall not issue to overturn a... a prior conviction simply because the law under which that conviction was obtained is later... is later amended, either by the legislature or by the courts of the State, you would say that would be invalid at least insofar as it applies to the courts.

Mr. Lieber: That's correct.

Justice Souter: But you would also say that it would be irrelevant to this case.

Mr. Lieber: That's also correct, Your Honor.

I think that the present... we're... we're squarely within the... the goals of Congress in the recent legislation because what Congress has said is that there's deference, but not to the extent that a State court decision runs afoul of clearly stated Federal constitutional law, which we have in a whole train of cases, such as Jackson, such as Winship, and/ or the... there is a case to be made that the State court... that the State... and I'm paraphrasing... that the State court's decision is unreasonable on the facts, which it is fundamentally unreasonable on the facts here.

There's nothing that arises from the record in this case that would suggest that Mr. Fiore or Mr. Scarpone did not have a permit.

Justice Breyer: I understand that.

Mr. Lieber: Quite the opposite.

Justice Scalia: Every... every State court decision that is unreasonable on the facts is unconstitutional?

And... and you can get habeas relief...

Mr. Lieber: No, Your Honor.

Justice Scalia: many years later?

Mr. Lieber: No, no.

Justice Scalia: Well, what does that have to do with it then?

Mr. Lieber: Well, I would say if... if we're in an actual innocence situation with a fundamental defect going to the truth-finding function of the trial, then I would say every case.

Justice Souter: You keep broadening...

Justice Scalia: Excuse me.

Justice Breyer: Your answer is yes, then.

Mr. Lieber: Not... no, Your Honor, not if it were simply a procedural matter.

Justice Scalia: Oh, but if it's a substantive matter, you say every case where the defendant says the factual finding was simply unreasonable, you can bring a Federal habeas action, a successful one, on the basis of the Federal Constitution.

Mr. Lieber: No, Your Honor.

I'm not saying that.

I'm saying that under the law, as I understand it, as Congress has passed it, if there is a clearly stated constitutional decision of this case in the background which would be controlling, then my answer would be yes.

In other words, Jackson is there.

So, in... in this case specifically, my answer would be yes.

But if someone is coming up with a... a new substantive right or a substantive right that doesn't go to guilt or innocence, then perhaps I would say no.

Justice Souter: The thing that I don't understand about your argument is... and it goes back to my earlier question.

As I understand it, the only thing you need to win this case is a determination by us that what the Pennsylvania courts did, in the case of the co-defendant, was to make a decision, a ruling about an element of the offense.

Number two, for us to determine that that ruling about the element of the offense was not in any sense new law or the clarification of any legitimate or reasonable confusion that existed beforehand, that what it was declaring was what any... any reasonable and careful reader would always have said.

And number three, the rule in Winship or Jackson, to the effect that the State, as a matter of Federal constitutional law, has got to prove every element of the offense stated.

As I understand it, that's all your argument need consist of.

But you broaden it, and you just broadened it in your response to Justice Scalia when you say that you would be entitled to relief if the error went to the... I think you put it the truth-finding function.

And I don't understand.

I'm missing something I guess because I don't understand why you're broadening your... your argument and, in effect, requiring a broader rule than I thought you were requiring.

Mr. Lieber: Allow me to clarify.

What I was... what I was saying in response to Justice Scalia was my view of a certain hypothetical situation.

It was not my view of this case.

This case can be decided narrowly on the basis that you have stated, and I submit to you that is the basis...

Justice Ginsburg: Mr. Lieber, do I understand correctly that what the Pennsylvania Supreme Court did was lay down the law?

It wasn't a question of reasonable or unreasonable.

They called it a bald fiction to say that when you had a permit, you could be treated as not having a permit.

And that doesn't seem to be anything matter-of-fact.

They were resolving for the first time a question of what the elements of these events were.

And I didn't know that lower court decisions, one way or another, count as the law of the State.

Mr. Lieber: I think that's a correct statement, and I think it's... it's emphatically a correct statement with regard to the lower court decision in Commonwealth v. Fiore.

The superior court decision is a memorandum decision in our State, and if any lawyer looks it up, which... it appears at 563 Atlantic 2nd 189, he or she will be instructed that these memorandum opinions cannot be considered as precedent, nor can they be cited for any purpose.

Your Honor, this is perhaps the only case... the only court where I... where a lawyer could even speak about that decision.

It is not a rule.

It is not authoritative.

It is not anything that any other Pennsylvania practitioner or, if you will, defendant or prosecutor could make anything of.

Justice Kennedy: And you want us to assume that under Pennsylvania law this decision, the Scarpone decision, is retroactive...

Mr. Lieber: I want you...

Justice Kennedy: under Pennsylvania law?

Mr. Lieber: Under Pennsylvania law, it is a... retroactive is the best word we have.

I would say yes.

But... but there is another view which I believe Justice Stevens has... has espoused that it's not... it's explanatory.

It's... it's a very limited, specialized type of retroactivity, which merely explains the statute.

Justice Scalia: What was your client sent to jail for if it was not for a violation of Pennsylvania law?

Mr. Lieber: My client, Your Honor...

Justice Scalia: You're... you're telling me the... the Fiore decision doesn't mean anything simply because it can't be cited in future cases.

He was surely sent to prison for violating Pennsylvania law.

Mr. Lieber: Your Honor, he was justly convicted on some other counts, and we haven't challenged those.

Justice Scalia: No, no.

I'm talking about this count.

This count.

Mr. Lieber: This... this count...

Justice Scalia: He was sent to prison for violating... why was he sent to prison here?

You're telling me that this thing has no effect in Pennsylvania?

It... it is not law in Pennsylvania?

You can be sent to prison when you haven't violated any law?

Mr. Lieber: Your Honor, this... this was...

Justice Stevens: That's the issue.

Unidentified Justice: [Laughter]

Justice Kennedy: Well...

Mr. Lieber: I don't think...

Justice O'Connor: No, no.

Justice Scalia: The issue... the issue is... the issue is whether Pennsylvania deemed him to have been in violation of Pennsylvania law.

Counsel is telling us Pennsylvania didn't deem the law to have been violated.

This case is not citable.

Mr. Lieber: Your Honor...

Justice Scalia: Why was Pennsylvania sending him to jail then?

Mr. Lieber: Because Pennsylvania was in grave error at that time, Your Honor, in one... one case.

Justice Souter: One court was.

Isn't it... once again, instead of saying that... instead of arguing or conceding that you're asking for a limited retroactivity, it seems to me all you have to say is you are asking this Court to recognize that the Supreme Court of Pennsylvania in the companion case was not making any change in the law.

Mr. Lieber: No.

It was applying settled Pennsylvania as well as constitutional principles.

Chief Justice Rehnquist: But what if the Supreme Court of Pennsylvania in that... in the Scarpone case had said this decision is not retroactive?

Mr. Lieber: I... I believe you... that a Federal court would have to defer and look to that, but in that case, which is not this case, it would still have to apply Jackson and Winship standards in a sufficiency claim.

May I reserve any time that I have remaining?

Chief Justice Rehnquist: Very well.

Mr. Lieber: Thank you.

Justice Breyer: Very well, Mr. Lieber.

Mr. Lieber: Thank you, Mr. Chief Justice.

Argument of Robert A. Graci

Chief Justice Rehnquist: Mr. Graci, we'll hear from you.

Mr. Graci: Mr. Chief Justice, and may it please the Court:

While this case is procedurally complex, the principles involved are not.

Like Coleman v. Thompson, it's a case about federalism.

At its core, the case presents one very basic question: Should habeas relief be extended to grant relief to a State prisoner by requiring State courts to apply a new State appellate decision interpreting State law to the petitioner's case which was final before the new decision was announced

Justice Stevens: Now is... don't you, in making that statement of the question, assume that it was... that the law changed when the Supreme Court of Pennsylvania made its decision in the other case?

Mr. Graci: Yes, Justice Stevens.

I assume that under the decisional law of Pennsylvania as to what constitutes a new decision, the decision in Scarpone was new.

Justice Stevens: Supposing in that opinion they had said, this is our understanding of what the statute means and they had added a sentence, and we think it has meant this ever since it was enacted, then you would lose, I take it.

Mr. Graci: No, we would not, Your Honor, because, while I agree with what my opponent said with respect to the Ettinger case, which was a Third Circuit case interpreting Pennsylvania law with respect to the retroactive application of new decisions interpreting State statutes, it didn't go far enough.

Ettinger relied on a case called Kuchinic.

Justice Stevens: But he also cites the Shaffer case.

Mr. Graci: And Shaffer.

Shaffer was a case decided while it was on direct appeal.

So, the court had no reason to say one way or the other about whether or not it would apply retroactively.

Quite frankly, in the Shaffer context, we have very serious concerns because a lot of cases had been... there had been convictions and guilty pleas based on the case that the Shaffer case specifically overruled.

But all the court said in Shaffer was, as Your Honor recognized, Justice Stevens, in Bousley, that the law is what we say it was from the beginning, but then they say in Kuchinic, which is cited in Ettinger... and the Kuchinic cite is 222 Atlantic 2nd 897, a Pennsylvania Supreme Court case from 1966.

It says that the latest decision is applicable to a case... and this applies even if they changed, as one of the hypotheticals was, where they said the statute meant one thing in one opinion and then changed their mind years later.

They said in such circumstances, the latest interpretation is applicable to a case whose appeal has not yet been decided.

Justice Stevens: There's no question that if this was a law-changing decision, if there had been a prior decision going the other way, then you would win.

There's no doubt about that.

If it was retroactive... if the State court could say, this is a new rule that does... the old rule was to the contrary and we don't effect the old rule.

But my question is supposing they say... and I think if you read this against Shaffer, they in effect have said... this is what the statute meant ever since it was enacted.

Then it really isn't retroactive.

It's just stating what the law was and this fellow was improperly convicted under... under the statute as enacted.

Mr. Graci: Your Honor, based on your interpretation and your statement relying on Rivers and the Bousley case...

Justice Breyer: Right.

Mr. Graci: that would be correct, as I understand the decisions of this Court.

But Pennsylvania, as I've explained, in the... in the Kuchinic case said... and they didn't have to say it in Shaffer, I'll reiterate, because in Shaffer he was there on direct appeal.

In Kuchinic, they said it does not reach back to final cases.

It only applies to cases where the direct appeal is pending.

Justice Stevens: They specifically said it would not be... it would not be retroactive... because it was a law-changing decision.

Mr. Graci: Well, what they were interpreting... I don't think they... they announced or said what the rule was in Kuchinic, but in Shaffer they wouldn't have had any reason to say it because Shaffer was there while on direct appeal.

Chief Justice Rehnquist: Am... am I right, Mr. Graci, in thinking that the Supreme Court of Pennsylvania granted review in Scarpone's case because there was a split between the Commonwealth court and the superior court as to the meaning of the statute?

Mr. Graci: You're absolutely correct, Mr. Chief Justice, and they said that at least twice.

They said there was a conflict between the... what the superior court did in petitioner's case and what Commonwealth court did in Scarpone's case, and they were concerned that my office, the office of Attorney General of the Commonwealth, which brings these prosecutions, wouldn't know how to work, wouldn't know what to do.

And that gets to a point that was made earlier, Your Honor, as to the precedential effect of the memorandum opinion.

It doesn't have broad precedential effect, but the... the IOP is cited... the internal operating procedure of the superior court to which counsel references, and it specifically says that there's an exception as far as the precedential value in a criminal case where the case is important as to issues of res judicata.

In this particular case, that was critically important because it went to the first issue that the superior court and the trial court in the post-conviction proceedings discussed, and that was that this statutory construction, sufficiency of the evidence, Jackson claim, if you will, had been decided against Fiore in his original appeal and that they would not under State procedural law, under our post-conviction relief act... would not allow the re-litigation of a claim that had already been litigated on direct appeal.

That was one of the bases for the State court's ruling.

And I submit to the Court that that's an adequate and independent State ground as to why the Federal court doesn't get to determine that this... the constitutionality, if you will, of the proceedings.

Justice Souter: Well, Mr. Graci, I quite agree with you that Pennsylvania, as a matter of... of State procedure, will... will not apply the decision, we'll say, retroactively, in quotes, to... to this case.

The thing I want to be clear on, I guess, is whether you agree with a premise of Justice Stevens' hypothetical a moment ago.

His premise, of course, was that this was not a law-changing decision.

And do you agree that the Supreme Court of Pennsylvania did not treat the ruling in Scarpone as a law-changing decision?

And let me... the reason I ask the question is this.

I don't have the... the Pennsylvania opinion in front of me, but I think they used the phrase in describing the... the view that was taken in the Fiore case as resting on a bald fiction.

I read that to mean that they say, no one could reasonably read the statute to mean this.

And do you... and that's why it seems to me they made it clear that this was not a law-changing decision.

Do you agree that it was not a law-changing decision in Scarpone?

Mr. Graci: In... not entirely, Justice Souter.

You are correct... and Justice Ginsburg had indicated earlier... that they used that phrase, bald fiction.

The reason this is a new decision, however, for Pennsylvania law isn't because it overruled a prior decision, which would be a law-changing under your hypothetical or under your set of facts.

That's one way that a new decision is announced, by overruling prior precedent.

If this Court, even if it reaches the limited holding that Your Honor suggested earlier, that would be overruling a part of what Sunburst said because Sunburst didn't draw any distinction between the kinds of claims and what the States had to do with their own new decisions.

But Pennsylvania, when it adopted its own rule of retroactivity and it cited the cases of this Court which said that the Constitution has no voice on this subject, starting with... with Sunburst, and they adopted, however, this Court's test set forth in Chevron Oil v. Huson that said that you can have a new decision not only by overruling clear past precedent, but by deciding an issue of first impression, the answer to which was not clearly foreshadowed.

And even though the...

Justice Souter: Right, and the hypothetical that... or I guess the question that I'm asking you is, is this in a third category in which it was a new decision in the sense that the Supreme Court of Pennsylvania had never ruled on it before?

And two, there couldn't have been any reasonable disagreement before because it seems to me that that's what the Supreme Court of Pennsylvania said when it referred to the alternative view as a bald fiction.

Mr. Graci: I guess, as I...

Justice Souter: Is... is it... is it a law-changing decision when it is, A, the first one and, B, the court in making the first decision says, anything else would be a bald fiction?

Is that a law-changing decision?

Mr. Graci: I believe the answer, Justice Souter, is no.

I'm sorry.

Is yes.

That's the way...

Justice Souter: I think the shorter answer was the better one in that case, but...

Unidentified Justice: [Laughter]

Justice Souter: Why... why is it... why is it a changing decision when... when the court says what it said?

Mr. Graci: Well, I guess if we have to use your words, it's a changing decision because you say it is, but it's a new decision under Pennsylvania's law.

Justice Souter: It's... it's new simply because they had never taken up the question before.

Justice Kennedy: Right?

Justice Souter: That's what you mean by that.

Mr. Graci: Well, it's new because it was a... a... in the State supreme court, an issue of first impression, the answer to which was not clearly foreseeable.

Justice Souter: Yes, but every issue... you're assuming that every... I think, every issue of first impression presents a new decision... or rather, announces new law for the purposes of a Federal court in applying the Winship rule.

I think that's what you're assuming.

Mr. Graci: Not...

Justice Souter: Any... any first decision of the State's highest court is announcing new law for purposes of Winship.

I think that's your assumption.

Mr. Graci: No, Your Honor, that's not the assumption.

Justice Scalia: Okay.

Mr. Graci: If there was nothing that had gone before, so that by announcing that whoever made a decision, it could be questioned, but in this case... then I could agree with your premise.

Justice Souter: Yes, but it cannot always be questioned.

Sometimes the statutory law in these cases is so clear that no one can reasonably question what it means.

And I think... I think the Supreme Court of Pennsylvania was saying, with its bald fiction remark, that that's what we had here.

Sure, people... you know, people make mistakes, but the fact is you couldn't reasonably make this mistake.

I think that's what they were saying.

And if that's what they were saying, it seems to me it's fair to say that they were not making a law-changing decision.

They were saying there's nothing new in what we're saying.

It was right there on the statute books.

Isn't... isn't that a fair reading?

Mr. Graci: I... I submit to Your Honor that it may be a fair reading, but not necessarily the only reading.

Chief Justice Rehnquist: Is... is there anything in our cases that defines the term law-changing decisions?

Mr. Graci: Not of which I'm aware, Your Honor.

Justice Scalia: I didn't think so.

What do you think it... it would be if, indeed, it... it was obvious it couldn't be interpreted any other way, but the Supreme Court of Pennsylvania chooses to embrace the fiction and does interpret it the other way, says that blue means red?

Now, do you think that would be a law-changing decision?

I guess, we've got to figure this out case by case as to how obvious a statute was and how wrong the supreme court of the State is.

Mr. Graci: Well... I'm sorry.

I didn't mean to cut Your Honor off.

Justice Scalia: No.

Chief Justice Rehnquist: That's all right.

Justice Scalia: I... I'd like to know your calculation of... of what happens if the Pennsylvania Supreme Court had... had agreed with the Fiore interpretation when the case finally came to it.

Mr. Graci: I...

Justice Scalia: Do you think that would have been a law-changing decision or not a law-changing decision?

Mr. Graci: I think it would have been a decision establishing the law by the highest jurisdiction of the Commonwealth in that instance.

I would... as I stand before the Court, I wish perhaps...

Justice Scalia: Do you think Justice Souter would consider it a law-changing decision?

Unidentified Justice: [Laughter]

Mr. Graci: No.

And it would depend on what the context is.

This question only gets asked when you have somebody in petitioner's circumstance and somebody who got relief.

The... as to whether or not it's a law-changing, again we have to look to the determination of the State courts as to what constitutes a new rule for its...

Justice Breyer: So, what...

Mr. Graci: own retroactivity purposes.

I'm sorry.

Justice Breyer: My... my one question is what Pennsylvania case... this is a matter of Pennsylvania law, pure and simple.

We have nothing to do with it.

What Pennsylvania case do you want me to read on the question that Justices Souter and Stevens have asked?

As I've read them so far, I get out of Shaffer the notion that ordinarily under Pennsylvania law, ordinarily when the supreme court interprets a statute, a substantive, not a procedural one, they're making law for all time.

They're saying, this is what the law has always been.

That's the ordinary case.

Then you have a couple of cases like Schreiber and Tedarro which say, now, we'll tell you what a new law is.

A new law is a break with past precedent or deciding something that isn't clearly foreshadowed, just exactly what you said.

So... and I'm trying to figure out whether the Pennsylvania Supreme Court in this case, which happened to say nothing about it, didn't say a word... we could ask them I guess, but they didn't say a word... didn't say a word.

What did they have in mind?

They used the word, well, my goodness, this statute is sort of like saying horse theft and you convict somebody for stealing a cow.

I mean, bald fiction suggests that, but they didn't say it.

So, what Pennsylvania case do you want me to read that will be most favorable to you on what counts as a new rule as opposed to interpretation law for all time?

Mr. Graci: Well, I think the... the case that I mentioned earlier...

Justice Breyer: Kuchinic seemed to be a case in which they simply assumed... and it was a new rule.

It was a break with past precedent.

So, that won't help.

Mr. Graci: The Kuchinic, which I've given the cite, Blackwell, where they...

Justice Kennedy: Blackwell.

Mr. Graci: which is cited in...

Justice Scalia: Blackwell was the second one?

Mr. Graci: Blackwell, which is cited...

Justice Breyer: No.

Chief Justice Rehnquist: What was the first one?

Mr. Graci: Kuchinic, K-u-c-h...

Chief Justice Rehnquist: That's the one...

Mr. Graci: i-n-i-c.

Justice Scalia: Okay.

Mr. Graci: 222 Atlantic 2nd 897.

Blackwell is cited in the respondent's brief.

Excuse me.

The language that the court chose in using bald fiction I don't think should be a troublesome matter, any more than when this Court has said in a number of its Teague cases that, well, such and such is controlling or such and such is controlled by.

But then when you have to truly analyze it as to whether or not the rule that is being sought in that particular case...

Justice Scalia: But, counsel...

Mr. Graci: you say controlling...

Justice O'Connor: Counsel...

Mr. Graci: I'm sorry.

Justice Ginsburg: If you... if you took it in the context of what the Pennsylvania Supreme Court said in this case, first, they said, no doubt these people have engaged in execrable conduct, but the one thing that they clearly have not done is operate without a permit.

To say otherwise would be a bald fiction.

And then the Pennsylvania Supreme Court went on and said, we think that the Attorney General would have had a nice case under this other section which is even a stronger offense than the one that they were prosecuted for.

So, if you followed what the Pennsylvania Supreme Court said, you would still be free to prosecute Fiore, would you not, for a violation of that provision that says if you intentionally dispose of a hazardous waste in violation of any provision of the act and cause a public nuisance, public nuisance specifically defined to include violation of any term of a permit, the Pennsylvania Supreme Court in effect said, you picked the wrong crime.

There's another crime in there that you could have indicted him for, and the penalty would have been at least as strong.

Is that not so?

Mr. Graci: That is what the Pennsylvania Supreme Court said, Justice Ginsburg.

I don't know, however... and the record doesn't support... that we could have sustained a conviction on that charge because, as I understand it, it requires a proof of pollution which requires not simply discharge of hazardous waste... and there were these organic chemicals that were being thrown into the tributary of the Youghiogheny River... but it also requires some particular level.

And while we had proof that it was being done, we didn't have proof of the level.

So, I don't know that we could have proven pollution.

And, therefore, I don't think we could have proven the first degree felony.

Justice Scalia: Mr. Graci, so much of this seems to turn upon what the Pennsylvania Supreme Court thought it was doing.

Does Pennsylvania have a certification procedure whereby it can answer a certified question from... from Federal courts concerning Pennsylvania law?

Mr. Graci: It's my recollection, Justice Scalia, that they've recently adopted one.

I don't believe it was in effect at the time that this case was going through either the State or the Federal courts.

Justice Kennedy: What is your position, as a State... representing the State Attorney General, as to what the State should do if you have a case like this and the supreme court says it is retroactive, but the judgment of somebody in Fiore's position is final?

As a matter of policy, what should happen?

Mr. Graci: The Pennsylvania Supreme Court said...

Justice Kennedy: The Pennsylvania court says this is retroactive.

Mr. Graci: But we don't apply our rules back to final cases.

Justice Kennedy: It doesn't say anything about that.

Mr. Graci: Okay, that's not Pennsylvania's rule, as I understand it.

But I think that should be...

Justice Kennedy: Suppose it said... suppose it said this was always the interpretation of the statute.

We are not changing the law.

Mr. Graci: As a matter of Federal constitutional jurisprudence...

Justice Kennedy: No.

As a matter of what should happen under Pennsylvania law at that point.

Mr. Graci: What should happen under Pennsylvania law, I submit to Your Honor, is what happened in this case.

Justice Kennedy: Because the judgment is final?

Mr. Graci: Yes, Your Honor.

Justice Kennedy: Suppose there is a decision of this court, some other factual situation, in which the conduct for which the defendant has been convicted and he has a final conviction is declared constitutionally protected and he's picketing or something like that.

Same rule?

Mr. Graci: No, Your Honor.

That would be within Teague's first exception.

It would be a rule of substance where you say the Constitution just prohibits getting into that conduct the way that this Court has said with respect to interracial marriage or...

Justice Kennedy: Well, Teague is a question of the extent of our remedies.

I'm talking about whether it's permissible under State law to hold the person.

Suppose we have said the conduct is constitutionally protected and this is a new decision in the sense that we'd never addressed it before, but we...

Mr. Graci: Well...

Justice Kennedy: Then what would you do with a prisoner who has been convicted and whose conviction is final?

Mr. Graci: If the conviction... if the Court's ruling, Justice Kennedy, was that that type of private primary conduct is removed from the criminal law making authority to proscribe, which is the first exception to Teague, then the State courts under Harper v. Virginia Department of Taxation would be required to follow this Court's rule and would be required, since it would be within Teague's first exception, to apply that constitutional decision.

Justice Kennedy: Why should this case be any different?

Mr. Graci: Because this... the rule in Scarpone is not a rule that removes private primary conduct from the criminal law making authority of the States to proscribe.

It is not of the ilk that you just described, Your Honor, where there is certain activity that can never be punished.

It's clear that the activity that Fiore engaged in could have been punished.

The... the... what happened here is the supreme court, after his conviction was final, said they shouldn't have punished him under this statute.

Justice Kennedy: From the standpoint of the prisoner, what's the difference between prisoner A, whose conduct was constitutionally protected, and prisoner B, whom we'll assume by... by hypothesis committed an act which was never criminal under the laws of the State of Pennsylvania?

What's the real difference?

Mr. Graci: As to him, the only difference is the rules of finality that this Court has embraced in adopting its... its habeas jurisprudence.

Justice Kennedy: I'm talking about what... what your position is and what the law of the State of Pennsylvania is in these two cases.

Mr. Graci: I believe the law of the State of Pennsylvania is that, as to the conviction that was final on appeal... when you say it was never criminal, in Fiore's case... and this is where I have to beg to differ with the Court, it was criminal because...

Justice Kennedy: I want you to assume that it was... that the State supreme court said the statute has always meant that you must have a permit.

It's not a... we're not changing law.

It has meant this from the day it was enacted.

What's the difference in releasing, as I take it your courts would, the prisoner in the first hypothetical, whose conduct constitutionally protected, and the second case where he was convicted for an act that was never criminal?

Mr. Graci: The difference is the first case is conduct that the Constitution has always prohibited from being made criminal.

In the second case, it's nothing more than a matter of statutory interpretation.

This Court has drawn the line in applying the Teague exception, the first Teague exception, to those cases where the Constitution prohibits the criminalization of certain conduct.

I have to concede that in Bousley this Court, in interpreting a 2255 case, a petition brought by a Federal prisoner, said that when you interpret a Federal law that says that the law means this and that it has always meant that, that the Court said that that was like Teague's first exception.

I submit to the Court that that wasn't necessary to the Court's resolution of the case, but it didn't say that it was Teague's first exception.

And that gets back to a question that the Chief Justice asked...

Justice Kennedy: I just... I recognize we're here under Teague.

What I really want to know is what ought to be the policy of the State, because Teague may well allow people to remain in jail even though they had a... a valid defense at one time because of the passage of time.

I want to know what ought to be the difference in these two cases under State law.

And I don't see the difference.

Mr. Graci: Well, it would only be a difference under State law if this Court, as the final arbiter of what the Constitution says, says that in the one instance it could never be... it could never be prosecuted.

It could never be made criminal.

That's the line that this Court has drawn in expositing the Teague's first exception.

To extend that... and I submit that it would be... and that's the... the language that... that Fiore uses in his... in his petition, to extend habeas to include something that's like the Teague first exception but is not really the Teague first exception as a matter of policy shouldn't be the case.

Habeas is designed, as this Court has regularly said, to overcome fundamental miscarriages of justice.

Well, let's look at what happened to Fiore and see what was fundamentally flawed with his conviction.

He was tried.

A charge was brought.

He lodged an objection to it and said it doesn't apply to me.

The State court... and there's always going to be a first case.

The State court said, yes, it does apply to you.

This is how I construe it.

You are a person in a heavily regulated industry.

You had... you went through the permitting process.

You should know that what you weren't permitted to do wasn't permitted.

And that's how he interpreted the statute.

And the State superior court, a court of equal jurisdiction with the Commonwealth court, a court of statewide jurisdiction, said, I agree.

Justice Stevens: Might I just interrupt?

Because I'm still concerned about the difference between Justice Kennedy's two hypotheticals.

Has it not always been the law that one may not be validly convicted of a crime unless every element proscribed in the statute prohibiting the conduct, unless every element of the offense has been proved?

And is it not the law of Pennsylvania that this crime required the person not have a permit?

Mr. Graci: Your question, Justice Stevens, is in two parts.

Justice Breyer: Yes.

Mr. Graci: Obviously, the answer to the first question is yes, and the Pennsylvania Supreme Court has now said, as the final arbiter of Pennsylvania's law, that this statute is in two parts, and if you have a permit, you can't be convicted of it.

We submit to Your Honor that that was a change in the law for State new law principles...

Justice Stevens: And your... your submission is that there was a period of time under this statute where it was a violation of the statute even though the person had a permit.

Mr. Graci: Yes, if, as in this case, he significantly departed from the specific terms.

And our brief sets forth in some detail, and purposely so, what he did to demonstrate how he violated the terms of the permit which were so significant that it constituted acting without a permit.

Justice Scalia: Do you think that the Pennsylvania Supreme Court can simply prescribe whether things will be retroactive or not and thereby affect Federal constitutional proscriptions?

I mean, suppose we... suppose we disagree with your contention and... and we say that since this was retroactive, the law was always such, this individual has to be released.

Do you think the Pennsylvania Supreme Court could change all that by simply announcing, this will... this particular decision will not be retroactive?

Mr. Graci: No, Justice Scalia.

I think that was the situation faced by this Court in Harper v. Virginia Department of Taxation, and the Court said, when we announce a rule... and that case is particularly important, because you said, when we announce a rule and give a remedy to the party before the Court, every lower court, State or Federal, has to follow our rule.

But the Court was clear to say that whatever Sunburst Oil says, we're not interfering with.

The States are free, when they're interpreting questions of State law, to continue to determine for themselves whether or not to apply a law or a change in the law retroactively or prospectively or partially retroactively.

Justice Scalia: It seems a very fragile, indeed useless constitutional protection if it can be avoided by the State supreme court by simply the supreme court saying, ah, Fiore... since we want Fiore held in jail and other people in Fiore's position, we're just going to announce that this one is not retroactive.

I mean, what kind of constitutional protection is that?

Mr. Graci: It would be a fragile constitutional protection if the State courts could do that.

Under... I'm sorry.

Under Harper, they can't and the cases that precede Harper where the issue is one of State law and interpretation of State law, this Court has regularly said that the Constitution has no voice on the subject of retroactivity.

The Pennsylvania courts have cited to this Court's opinions in that regard and... and clearly believe that they are talking about State law when they decide whether or not to apply a new decision retroactively or prospectively.

In this particular case, it's clear that the trial judge on the post-conviction proceeding thought that he was following settled Pennsylvania law that he could not apply the new rule announced in Scarpone to Mr. Fiore.

The superior court said the same thing.

That's the best indicator I can find...

Justice Breyer: Well, as an indicator.

I take it your view is a bread and butter issue in the Pennsylvania Supreme Court interpreting a statute, a bread and butter, fairly tough, not too tough, medium, that automatically those things are all considered new rules in Pennsylvania and they're not considered to have always been the law.

Now, if that's the way Pennsylvania works, I guess you could find some cases, which I haven't found, where on collateral State review, even after the Pennsylvania Supreme Court decision, the habeas court, State, applies a different rule.

Found an example of that?

I mean, that would be true if that's the Pennsylvania rule, that bread and butter issues don't apply retroactively.

If that's so, then in the thousands of instances where they've interpreted State criminal law... you see... do I need to repeat it?

Do you see my question?

Mr. Graci: I think I understand it, Your Honor.

I'm not sure that I can point to a specific case other than...

Justice Breyer: I couldn't find any, which suggested to me that it was really the unusual case that's non-retroactive.

Mr. Graci: The... well, Shaffer, or Shaffer...

Justice Breyer: Yes, there are some, but normally if it's not going to apply as the law forever, the State supreme court will say it.

Mr. Graci: Well, but...

Justice Breyer: Normally they'd say it.

Mr. Graci: What I have found...

Justice Breyer: It's an unusual thing.

Mr. Graci: I'm sorry.

I didn't mean to cut Your Honor off.

What I have found in Pennsylvania's cases, similar to the cases in this Court both before and after Teague, is they don't really say whether a new rule will be prospective or retroactive until somebody asks the court to say so.

And I submit to Your Honor in Shaffer, that Shaffer was on direct review.

We have a problem with Shaffer and that's one of the reasons that... I don't mean a problem before this Court, but it's one of the reasons why this case is so important, because if this Court announces a new rule and overrules Sunburst, then the situation in Shaffer where our court, after 12 years of following an interpretation of the superior court where a lot of people went to jail both on guilty pleas and jury trials for having violated our racketeering statute...

Justice Stevens: I think I should make one thing... I don't think anybody is considering overruling Sunburst which was a civil case and which... which specifically said it was a new rule.

That's not before us.

So, we're not overruling Sunburst no matter what we do.

Mr. Graci: I see my red light is on.

May I respond?

Justice Scalia: Yes.

Chief Justice Rehnquist: Mr.... thank you, Mr. Graci.

Mr. Graci: Thank you, Your Honor.

Rebuttal of James B. Lieber

Chief Justice Rehnquist: Mr. Lieber, you have 2 minutes remaining.

Mr. Lieber: In that time, Your Honor, I'd just like to make a couple of points.

First of all, this Court has consistently said that the distortion of the meaning of a statute is not a rule, and for purposes of retroactive... retroactivity analysis, if that's what we're in, you need a new rule and an old rule.

There was no old rule here under Pennsylvania law.

There was no foreshadowing.

The foreshadowing quite clearly was to Scarpone.

The regulations taught everyone in Pennsylvania in this industry what it meant to have a license and what it meant to have one revoked.

Justice Ginsburg: Mr. Lieber, does it cut in either direction that Fiore did try to get the Pennsylvania Supreme Court to focus on his case, what, four times and every time they just denied... they denied review.

Does that count one way or another?

Mr. Lieber: Your Honor, I would submit that... that if it counts at all, it counts very slightly and only to the extent that there... it shows the necessity for habeas review in a Federal court.

But it shows nothing about the merits or the judgment of the merits by the Pennsylvania Supreme Court because they are a certiorari-like court.

Justice Ginsburg: Well, if he hadn't even tried to put it to the Pennsylvania Supreme Court, perhaps there would have been some question about exhaustion or waiver, but he did try a number of times.

Mr. Lieber: Yes.

He cannot be... this is... this is not the case where someone has procedurally defaulted.

This... this individual...

Justice O'Connor: But it does suggest a view of the Pennsylvania court that it doesn't apply its new decisions to cases that have become final.

It won't apply them on collateral review at the State level.

I mean, that's what it suggests anyway.

Mr. Lieber: I would respectfully disagree.

Proof beyond a reasonable doubt is a part of our constitution in Pennsylvania, Your Honor.

We have that in all of our trials.

This is very much of an unusual situation.

I've never seen one quite like it where two individuals at the same trial on the same facts get two...

Chief Justice Rehnquist: Well, presumably that... that idea must have occurred to the Supreme Court of Pennsylvania in the petition for certiorari, and they nonetheless denied it.

Mr. Lieber: Your Honor, my time is up.

Chief Justice Rehnquist: It is.

The case is submitted.

Mr. Lieber: Thank you, Your Honor.