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Kevin Chappell, Warden, v. Hector Ayala, USSC No. 13-1428, cert. granted 10/20/14

Questions presented:

(1) Whether a state court’s rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision; and

(2) Whether the court of appeals properly applied the standard articulated in Brecht v. Abrahamson, 507 U.S. 619 (1993).

Lower court opinion: Ayala v. Wong, 730 F.3d 831 (9th Cir. 2013), opinion amended on denial of rehearing en banc, 756 F.3d 656 (9th Cir. 2014)


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This decision will be of interest to anyone handling federal habeas cases, as it will resolve two questions about the standard governing a federal habeas court’s review of state court decisions under AEDPA, and in particular 28 U.S.C. § 2254(d). The questions involve competing interpretations of some complex lines of federal habeas case law, so the following summary is necessarily simplified.

The first question involves the deference the habeas court must give to a state court’s decision. Under § 2254(d) a state court’s adjudication of a federal constitutional claim on the merits is given great deference, and can only be set aside if it is contrary to, or an unreasonably application of, clearly established Supreme Court precedent. If the state court didn’t address the claim, § 2254(d) doesn’t apply. So what happens when a state court concludes any federal constitutional error was harmless? Is that an adjudication on the merits?

To illustrate using Ayala’s case, his direct appeal in state court raised a Batson issue—in a nutshell, whether the trial court erred in permitting the prosecutor to give his reasons for striking minority juries in an ex parte and in camera proffer which the defendant and defense counsel were not permitted to hear. The state supreme court found this was error, but deemed it harmless because the prosecutor struck the jurors for proper, race-neutral reasons. On habeas review, the Ninth Circuit concluded the state court’s decision either: 1) made a finding of federal constitutional error (the state court explicitly held there was error under state law, but it did so relying on Ninth Circuit precedent holding that ex parte Batson hearings violate federal constitutional law, United States v. Thompson, 827 F.2d 1254 (9th Cir. 1987)); or 2) made no determination of error, as there was no point in doing so because the error was harmless. Either way, the Ninth Circuit concluded, the state court was not an adjudication against Ayala on the merits of his claim of federal constitutional error, and therefore § 2254(d) does not require deference to the state court’s decision, 756 F.3d at 663-70. Applying de novo review, the Ninth Circuit held the error wasn’t harmless and granted relief.

The state’s petition for certiorari (at 8-9, 15-18) insists the Ninth Circuit contravened Harrison v. Richter, 131 S. Ct. 770 (2011), and Johnson v. Williams, 133 S. Ct. 1088 (2013), which applied a rebuttable presumption that, even if the state court is silent with respect to a fairly presented federal claim, the claim was adjudicated on the merits. The state claims this presumption should apply when the state court denies relief on a federal claim based on harmless error, and other federal circuits concur in that approach, e.g., Littlejohn v. Trammell, 704 F.3d 817, 850 n.17 (10th Cir. 2013). (The Seventh Circuit hasn’t apparently addressed this question head on.) The Supreme Court will resolve this split, and in the course of doing so will likely say more about how to apply the presumption adopted by Richter and Williams. (For a recent Seventh Circuit case analyzing whether the state court decided an issue on federal versus state grounds, see Harris v. Thompson, 698 F.3d 609, 623-26 (7th Cir. 2012).)

As to the second question: Under Brecht, which was decided three years before AEDPA, the determination of harmless error turned on whether the error “had substantial and injurious effect or influence in determining the jury’s verdict,” 507 U.S. at 637. The applicability of Brecht was in question after AEDPA was adopted, but in Fry v. Pliler, 551 U.S. 112 (2007), the Supreme Court reaffirmed its standard and construed it as including or “subsuming” the AEDPA standard, which asks whether the state court’s harmless-beyond-a-reasonable-doubt determination was unreasonable. The state’s petition (at 24-25) complains that courts have “struggled” as to how to apply Brecht when reviewing harmless error decisions under AEDPA, though Ayala’s response (at 26-27) disputes this. But at least one commentator agrees with the state, Jeffrey S. Jacobi, Mostly Harmless: An Analysis of Post-AEDPA Federal Habeas Review of State Harmless Error Determinations, 105 Mich. L. Rev. 805, 818-23 (2007) (describing how inconsistencies between, and even within, circuits), and the Court itself must have some concerns, for the second question was added by the Court itself. The decision will be important to habeas practitioners if it clarifies how Brecht and AEDPA operate together.

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