Monday, January 09, 2006

Alito and Habeas: Fiore v. White

I've just finished readings the American Constitution Society's white paper titled, "Judge Alito and the Death Penalty." A very interesting take. But I must say that I think the picture of Judge Alito's habeas jurisprudence is incomplete without considering the non-capital case, Fiore v. White, 149 F.3d 221 (1998). Fiore reveals the importance that Judge Alito attaches to finality in criminal cases. It represented an expansion of nonretroactivity principles that was unanimously rejected by the Supreme Court.

Fiore involved a defendant convicted in Pennsylvania state court of operating a hazardous waste facility without a permit. Uncontested evidence revealed that the defendant Fiore did have a permit. The state's theory, however, was that Fiore's decision to disobey the terms of the permit meant that, he was, constructively operating without a permit. After his conviction on this theory, Fiore appealed. His conviction became final after the state supreme court denied discretionary review.

Later, the state supreme court granted direct review of an identical issue in the case of Fiore's codefendant. It reversed for insufficient evidence, holding that the statute means what it says: without a permit means that you don't have a permit. The state supreme court called the state's "constructive no permit" theory a "bald fiction which we cannot endorse."

Fiore's various applications for state post-conviction were denied. He then petitioned for habeas relief, arguing that he was convicted on the basis of facts which did not establish each element of the crime charged. After the district court granted the petition, the Third Circuit reversed. Judge Alito wrote that neither the Due Process Clause nor the Equal Protection Clause require a state to retroactively apply its legal rules. The opinion concludes:

When a decision providing a new interpretation of a state criminal statute is not made fully retroactive, some defendants convicted prior to the new interpretation will almost always continue to suffer the consequences of a conviction based on conduct that would not constitute a crime under the new interpretation, and that is the fate that has befallen Fiore. His situation is particularly striking because the new interpretation was handed down by the state courts in his co-defendant's appeal, which happened to follow a different procedural track. However, any relaxation of the Pennsylvania rules regarding retroactivity due to the particular circumstances present in this case must come from the Pennsylvania courts or the governor. Although we might be inclined to grant relief if it were within our power, the limitations of our authority under the habeas corpus statute prevent us from doing so. (Emphasis added.)

Judge Alito's opinion repeatedly asserts that the Pennsylvania supreme court's decision in the codefendant's case was a "new interpretation" of the statute at issue. But it contained no explanation for why this was so. It simply skips this analytical step. The US Supreme Court recognized the error and unanimously reversed in a per curiam opinion.

The US Supreme Court certified the "new interpretation" question to the Pennsylvania Supreme Court. The state court responded flatly that the "no permits means no permit" rule was "not . . . a new rule of law" but "merely clarified the plain language of the statute" and, thus, "furnishes the proper statement of law at the date Fiore's conviction became final." Given this, Fiore presented "no issue of retroactivity." The Supreme Court thus explained the "simple, inevitable conclusion" that Fiore's conviction was unconstitutional. The state presented "no evidence whatsoever" on a "basic element of the crime," i.e., that Fiore had no permit.

Judge Alito's willingness to read broadly what constitutes a "new interpretation" has obvious relevance to the Teague doctrine and its AEDPA cousins. His opinion in Fiore suggests that he would vote to expand these nonretroactivity principles.


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