In first opinion of the Term, Scalia for unanimous court blames Prisoner for not raising his valid claim on direct appeal, and on state collateral review

November 8th, 2011

It’s your fault, Nino says in Greene v. Fisher:

We must observe that Greene’s predicament is an unusual one of his own creation. Before applying for federal  habeas, he missed two opportunities to obtain relief under Gray: After the Pennsylvania Supreme Court dismissed his appeal, he did not file a petition for writ of certiorarifrom this Court, which would almost certainly have produced a remand in light of the intervening Gray decision. “Where intervening developments . . . reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunityfor further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation, [an order granting the petition, vacating the judgment below, and remanding the case (GVR)] is, webelieve, potentially appropriate.” Lawrence v. Chater, 516 U. S. 163, 167 (1996) (per curiam). See, e.g., Stanbridge v. New York, 395 U. S. 709 (1969) (per curiam) (GVR in lightof Bruton). Nor did Greene assert his Gray claim in a petition for state postconviction relief. Having forgone twoobvious means of asserting his claim, Greene asks us to provide him relief by interpreting AEDPA in a mannercontrary to both its text and our precedents. We decline to do so, and affirm the judgment of the Court of Appeals.