Justin Branch | “Harmlessly” Unconstitutional? When Can Federal Courts Grant Habeas Relief?

BACKGROUND

If a state court admits to unconstitutional conduct during an arrest or trial, is that grounds for federal habeas relief? Maybe not, if the state court themselves find that the unconstitutionality was harmless. How should federal courts act in situations like this? 

In 1993, the U.S. Supreme Court addressed this topic in Brecht v. Abrahamson, settling a prior circuit split and defining the standard of review to be whether the unconstitutional act had a substantial and injurious effect on the jury's verdict.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA). The relevant provision of this act affecting standard of review is 28 U.S.C. § 2254(d)(1), which states that federal courts should only grant a writ of habeas corpus after a state court judgement if the state court’s decision was based on an unreasonable interpretation of the law or and unreasonable determination of the facts in light of the evidence presented.

The question of how these standards interact formed the basis for the split in federal habeas relief standard of review. The split was created by how the 6th Circuit decided Davenport v. MacLaren (2020).

In 2008, Ervine Lee Davenport was convicted of first-degree murder in Michigan. He challenged his conviction in a habeas corpus petition because at trial he had been shackled at the waist, wrists, and ankles. The Michigan Supreme Court held that while his shackling was unconstitutional, it did not have a substantial and injurious effect on the jury’s verdict.

Davenport appealed, and the 6th Circuit heard the case. The 6th Circuit granted habeas relief on the grounds that the Michigan State Court did not show that the shackling did not have a substantial and injurious effect on the jury’s verdict. In doing so, they applied the Brecht test, but not the AEDPA examination of whether the state court’s decision was based on an unreasonable determination of the facts. 

ISSUE

What is the appropriate standard of review for a federal court deciding whether to grant habeas relief? 

THE SPLIT

The 6th Circuit uses Brecht as the only test necessary to set the standard of review to grant federal habeas relief when the state court admitted unconstitutional conduct, but found the unconstitutionality harmless. 

The 2nd, 3rd, 7th, 9th and 10th Circuits apply a two-part test. First, they apply AEDPA, which requires they give deference to State court determinations regarding whether an individual was truly prejudiced unless that decision was based on an unreasonable interpretation of the law or an unreasonable interpretation of fact. Only after that do they apply Brecht. 

The 6th Circuit – Brecht

The 6th circuit maintained in Davenport v. McLaren (2020) that the only standard that applies for habeas review is the Brecht test: “substantial and injurious effect or influence in determining the jury's verdict.” They reconcile this with the AEDPA statutory requirements by citing a U.S. Supreme Court decision in Fry v. Pliler (2007) that “it certainly makes no sense to require formal application of both tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former.” 

The 6th Circuit takes “subsume” to mean that Brecht is more restrictive than AEDPA and thus fully encompasses it. Any fact pattern that satisfies Brecht would also necessarily satisfy AEDPA. In their Davenport analysis, the 6th circuit clarifies their position, claiming “not that two tests must be performed, but that the proper test contains a choice of prompts; in which one option—a shortcut of sorts—is to leapfrog AEDPA and jump directly to Brecht.”

The 6th Circuit is not blind to their apparent nonconformity. In a dissenting opinion, Judge Readler points out that “we stand alone as the only Circuit to award habeas relief without expressly applying the requirements of both Brecht and AEDPA.”

The 6th Circuit does differentiate their case, saying “the state here concedes constitutional error. That is what makes this case unusual and is the reason that we can go straight to Brecht.” 

The 2nd, 3rd, 7th, 9th and 10th Circuits – Brecht + AEDPA

The 2nd, 3rd, 7th, 9th, and 10th circuits have all applied a two-part test of Brecht and AEDPA to set their standard of review. Despite this apparent unity, they still have disagreements about the exact nature of how Brecht and AEDPA coexist.

The 2nd Circuit applied this test in Orlando v. Nassau County Dist. Attorney’s Office (2019), stating “when a state court makes a harmless error determination on direct appeal, we owe the “harmlessness determination itself” deference under the Antiterrorism and Effective Death Penalty Act of 1996.”

The 3rd Circuit, in Johnson v. Lamas (2017) held that “the Antiterrorism and Effective Death Penalty Act requires that we afford considerable deference to state courts’ legal and factual determinations.” They go to say that unless they can show the state court unreasonably applied facts or law, “where a state court has concluded that the error was harmless on direct review, the Supreme Court clarified that we must defer to that determination under AEDPA.” 

The 7th Circuit, in Johnson v. Acevedo (2009) cites the U.S. Supreme Court from Mitchell v. Esparza to determine that when a state court has found a constitutional error harmless beyond a reasonable doubt, the federal court's initial question is whether that decision represents an “unreasonable application of clearly established Federal law.” The 7th Circuit goes on to specify their opinion of when Brecht is to be applied: “The Court held that Brecht supplies the standard for a federal court to use in all collateral attacks, when making an independent evaluation of a trial error's effects.”

The 9th Circuit, in Ford v. Peery (2021) reconfirmed that they first find the State court decision involved an unreasonable application of law or was based on an unreasonable determination of facts before they can then apply the Brecht test of whether the individual was actually prejudiced.

The 10th Circuit very explicitly addresses this very question. In Malone v. Carpenter (2018) they pose and answer the question: “which standard prevails—Brecht or § 2254(d)(1)? The U.S. Supreme Court has answered the question by saying that both apply.” They go on to cite Davis v. Ayala (2015) as a case where a state court (here, the California Supreme Court) had decided a constitutional error was harmless beyond a reasonable doubt. Applying AEDPA, the California Supreme Court’s decision could then not be overturned unless that decision had been reached in an unreasonable manner.  

LOOKING FORWARD

For now, it looks like it might be easier for individuals to be granted habeas relief in the 6th circuit than in most other circuits. This could be short lived, however, as certiorari was granted for Brown v. Davenport.

Oral arguments for this case were held October 5th, 2021. The Justices expressed their own frustrations with the confusing nature of the tests and the ambiguity that many have found in the language of Brecht having “subsumed” AEDPA. The importance of settling this split was well articulated by Justice Breyer, who during oral arguments said, “I have a terrible time understanding where all these different standards are and how they fit together.” You and me both, Justice Breyer.