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April 5, 2021

SCOTUS grants cert to address circuit split over "harmlessness" in federal habeas review

The US Supreme Court's order list this morning includes one cert grant, and it is a habeas case out of the Sixth Circuit: Brown v. Davenport, No. 20-826.  Here is how Michigan's cert petition frames the issue to be considered in this case (which will likely get argued in the fall during the next SCOTUS term):

In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Court held that the test for determining whether a constitutional error was harmless on habeas review is whether the defendant suffered “actual prejudice.”  Congress later enacted 28 U.S.C. § 2254(d)(1), which prohibits habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.”  Although the Court has held that the Brecht test “subsumes” § 2254(d)(1)’s requirements, the Court declared in Davis v. Ayala, 576 U.S. 257, 267 (2015), that those requirements are still a “precondition” for relief and that a state-court harmlessness determination under Chapman v. California, 386 U.S. 18 (1967), still retains “significance” under the Brecht test.  The question presented is:

May a federal habeas court grant relief based solely on its conclusion that the Brecht test is satisfied, as the Sixth Circuit held, or must the court also find that the state court’s Chapman application was unreasonable under § 2254(d)(1), as the Second, Third, Seventh, Ninth, and Tenth Circuits have held?

April 5, 2021 at 09:55 AM | Permalink


Trying to determine what "would have happened" in the absence of this error or that is a hopeless exercise.

This is one reason that evidence of actual innocence would be a better standard. Now instead of trying to decide what would have happened, the court is trying to decide what did happen. That's a more answerable question. I'd suggest that more-likely-than-not evidence of actual innocence should be a reason to overturn a conviction.

Posted by: William C Jockusch | Apr 5, 2021 1:55:11 PM

This cert grant is another reminder to prioritize effective representation in state court, especially too often overlooked state post-conviction proceedings.

Posted by: John | Apr 5, 2021 11:22:37 PM

How is this cert grant a reminder to prioritize effective representation in state court? The claim was preserved at trial and argued on appeal. The state courts simply weighed the evidence differently than the federal judges did in finding harmless error.

I see this case as another example of the AEDPA debate. On the one side, AEDPA proponents will note that the state courts got the error analysis correct and the issue is weighing the strength of the evidence for the prejudice analysis. Under the AEDPA proponent side of the argument, why should the defendant be the only one who gets a second bite at the apple when different judges could reach different conclusions based on how they read the transcript. On the other side, AEDPA opponents will claim that you need de novo review by federal judges to make sure that state judges aren't pure partisans whitewashing everything by finding harmless error.

Posted by: tmm | Apr 6, 2021 10:09:34 AM

Private lawyer here. Some criminal defense.

I have a case right now, pretty much on all fours with Miller v. Pate, 386 US 1 (1967) and I'm hoping to make a run at the SCOTUS via state post-conviction proceedings in time to get grouped together with this Brown v. Davenport case, though that will be difficult. And it's a long, uncertain trip no matter how you slice it.

The idea is that if they're looking at harmless error and Chapman they might want to consider whether that can apply, and if prejudice must be conclusively presumed, where police or prosecutors have acted in bad faith or maliciously (suborning perjury, fabricating or falsifying evidence and the like).

Posted by: John Regan | Apr 9, 2021 10:42:54 AM

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