The opinion
STAPLETON, Senior Circuit Judge,
concurring.
In my view, the constitutional principle applied by the Maryland Court of Appeals in this matter imposes far too great a burden on the interests protected by the Double Jeopardy Clause and would not be endorsed by the Supreme Court of the United States if presented to it. I nevertheless join the judgment of the Court.
A state’s highest court is entitled to interpret the United States Constitution so long as it does so in a manner consistent with the holdings of the Supreme Court. For that reason, the AEDPA allows an inferior federal court to overturn a state judgment of conviction only if it is “contrary to” or “involve[s] 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), and “clearly established” in this context refers to “holdings, as opposed to the dicta, of [Supreme Court] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).
This is a situation in which the Supreme Court has not addressed the issue presented to the Maryland Court of Appeals. Nor has it endorsed a principle that can fairly be said to provide a rational basis for resolving that issue. In such circumstances, I believe the Maryland Court of *220 Appeals was entitled to fashion its own constitutional rule relying, if it chose, on the footnote dicta in Justice Brennan’s concurrence in Ashe v. Swenson 397 U.S. 436 , 453 n. 7, 90 S.Ct. 1189 , 25 L.Ed.2d 469 (1970) (suggesting an exception to double jeopardy preclusion “where a crime is not completed or not discovered, despite diligence on the part of the police”) and on the ensuing footnotes in Vitale and Brown noting that such an exception “may exist.” Vitale, 447 U.S. at 420 n. 8, 100 S.Ct. 2260 ; Brown, 432 U.S. at 167 n. 7, 97 S.Ct. 2221 .
Because I find no relevant “clearly established” Supreme Court case law, I agree with my colleagues that Whittlesey’s judgment of conviction is not “contrary to,” and does not “involve an unreasonable application of,” such law.