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SCOTUS may clarify standard for AEDPA habeas review of state-court harmlessness determination

Brown v. Davenport, No. 20-826, cert. granted 4/5/21; Scotusblog page

Question presented: 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?

That QP is subject to debate: Davenport, the prisoner who won in the Sixth Circuit, maintains there’s really no split and that all the circuits apply the same test. But at any rate, the question the high Court will now decide arises from the interaction of three¬† sources of law.

First, we have Chapman v. California, 386 U.S. 18 (1967), which announced the harmlessness standard for most (non-structural) federal constitutional errors: whether they are harmless “beyond a reasonable doubt.” That case also applied the standard to the state courts: that is, they, too, are obligated to apply Chapman in deciding whether a federal constitutional error is harmless.

Next, there’s Brecht v. Abrahamson, 507 U.S. 619 (1993). That case held that on federal habeas review of a state-court conviction, the federal courts don’t generally apply Chapman in deciding whether a given constitutional error prejudiced the defendant: rather they apply the “actual prejudice” standard, which is more favorable to the state and to the conviction. That standard asks whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.”

Finally we have AEDPA, enacted in 1996 (after both Chapman and Brecht), which in federal habeas cases mandates deference to state court decisions: generally they can be disturbed only where they are “unreasonable.”

So what if a habeas petitioner attacks a state-court decision that held a federal constitutional error harmless under Chapman? AEDPA would seem to mandate that the state-court harmlessness holding can’t be overturned unless the state court unreasonably applied the harmless-beyond-a-reasonable-doubt standard. But Brecht also suggests that relief should be afforded only when the error had “substantial and injurious effect or influence.” So which standard applies? Chapman (applied with AEDPA deference) or Brecht?

Well, both. The Supreme Court tried to clear things up in Davis v. Ayala, 135 S. Ct. 2187 (2015), where it said that the habeas petitioner had to

meet the¬†Brecht standard, but that does not mean… that a state court’s harmlessness determination has no significance….¬†In¬†Fry v. Pliler,¬†551 U.S. 112, 120, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007),¬†we held that the¬†Brecht¬†standard “subsumes” the requirements that ¬ß 2254(d) imposes when a federal habeas petitioner contests a state court’s determination that a constitutional error was harmless under¬†Chapman.¬†The¬†Fry¬†Court did not hold‚ÄĒand would have had no possible basis for holding‚ÄĒthat¬†Brecht¬†somehow abrogates the limitation on federal habeas relief that ¬ß 2254(d) plainly sets out. While a federal habeas court need not “formal[ly]” apply both¬†Brecht¬†and “AEDPA/Chapman,”¬†AEDPA nevertheless “sets forth a precondition to the grant of habeas relief.”

So, the habeas petitioner must satisfy both AEDPA/Chapman (by showing the state court unreasonably found an error harmless beyond a reasonable doubt) and Brecht (by showing the error had substantial and injurious effect). But also, the Brecht test “subsumes” the AEDPA/Chapman test, meaning that the habeas court need not “formally apply” the latter. So yeah, some clarification may be in order.

The petitioner in this case (the state) claims the Sixth Circuit erred in not applying AEDPA/Chapman at all, formally or no. We’ll have to wait until next term to find out what it means to informally apply AEDPA/Chapman–or whether these standards need to be reconciled in some other way.

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