Read the SCOTUS blog article on Brown v. Davenport – upon which we have opined before – and see if you can figure out just what the issue is here.
The best thing to say about it, at this point, is that the case should never have been a cert grant and the SCOTUS should probably DIG it. What need is there to have a rule about an issue that will almost never occur? The SCOTUS does not exist to answer absurdly technical and practically hypothetical questions. In the exceedingly rare event where a non-death penalty habeas grant occurs by some District Court or Court of Appeals, SCOTUS should just leave it alone.