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April 21, 2022

Ruling 6-3, SCOTUS sets out added requirements for federal habeas petitioners

The Supreme Court this morning handed down an opinion in Brown v. Davenport, No. 20–826 (S. Ct. April 21, 2022) (available here), that perhaps only a fed courts junkie could love. The opinion produced a familiar ideological split and here is how Justice Gorsuch's opinion for the Court starts:

After a state court determines that an error at trial did not prejudice a criminal defendant, may a federal court grant habeas relief based solely on its independent assessment of the error’s prejudicial effect under Brecht v. Abrahamson, 507 U.S. 619 (1993)?  Or must a federal court also evaluate the state court’s decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)? The Sixth Circuit ruled that an individual who satisfies Brecht alone is entitled to habeas relief.  This was mistaken.  When a state court has ruled on the merits of a state prisoner’s claim, a federal court cannot grant relief without first applying both the test this Court outlined in Brecht and the one Congress prescribed in AEDPA.

Justice Kagan authored the dissent, which starts this way:

Twice in recent years, this Court has addressed how a federal habeas court is to evaluate whether a state trial error was harmless.  See Fry v. Pliler, 551 U.S. 112, 119–120 (2007); Davis v. Ayala, 576 U.S. 257, 267–270 (2015).  And twice, we have made clear that the habeas court need apply only the standard prescribed in Brecht v. Abrahamson, 507 U.S. 619 (1993); it need not also run through the test set out in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That is because, we have both times explained, the Brecht standard “obviously subsumes” the “more liberal” AEDPA one: If a defendant meets the former, he will “necessarily” meet the latter too.  Fry, 551 U.S., at 120; Ayala, 576 U.S., at 270.

Today, the Court discards those crystal-clear statements, subscribed to on each occasion by every Justice.  The majority reverses the Court of Appeals for following our prior guidance, allowing the use of the Brecht test alone.  And in declaring Brecht insufficient, the majority consigns future habeas courts to a regimen of make-work.  Now those courts will have to jump through AEDPA’s hoops as well, even though that extra analysis will never lead to a different result.  I respectfully dissent from that pointless demand.

April 21, 2022 at 10:29 AM | Permalink


Was interesting to see the discussion of history in the opinions. With all due respect to both justices, my own review of the history (done when I was drafting articles that never got to a coherent final position) is that they both got it partially right and partially wrong. Most pre-twentieth century habeas cases only looked at the surface validity of a final judgment. If the conviction was for an unconstitutional offense or something like the double jeopardy clause barred the conviction, habeas relief would be given. If the claim asserted some type of trial court error, habeas relief would usually not be given. Of course, at that time, most of the Bill of Rights had not been incorporated against the states so it was hard to get a state conviction that was in violation of federal law.

The real tea leaves, however, is the probably correct conclusion of the majority that Section 2254 habeas is a creature of statute and that, to get federal habeas relief, a person has to meet the requirements of the statute. Since AEDPA assumes that state courts try to get things right and does not allow federal judges to grant relief solely because the federal judge interprets the facts or the precedents differently than the state courts did, strictly applying AEDPA will make it much harder for inmates to get federal habeas relief.

Posted by: tmm | Apr 21, 2022 11:05:06 AM

tmm --

This blog is much improved by your presence, but not as much as some law school would be by your signing up as an adjunct. The fair-mindedness and the world of experience you would bring are much needed in legal academia. Do the legal profession a favor and get thee hence to the classroom.

Posted by: Bill Otis | Apr 21, 2022 7:24:25 PM

The Supremes have to raise the bar to federal habeas because so many folks are winning relief?! Doug or Bill, do you have the latest stats on folks who win even partial relief on federal habeas? I'm guessing no more than 2 percent, if that.

Posted by: Michael R. Levine | Apr 22, 2022 8:23:44 PM

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