Fry v. Pliler

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FRY v. PLILER, WARDEN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 06–5247. Argued March 20, 2007—Decided June 11, 2007

The trial judge presiding over petitioner’s criminal trial excluded the

testimony of defense-witness Pamela Maples. After his conviction,

petitioner argued on appeal, inter alia, that the exclusion of Maples’

testimony violated Chambers v. Mississippi, 410 U. S. 284, which

held that a combination of erroneous evidentiary rulings rose to the

level of a due-process violation. The California Court of Appeal did

not explicitly address that argument in affirming, but stated, without

specifying which harmless-error standard it was applying, that “no

possible prejudice” could have resulted in light of the cumulative na

ture of Maples’ testimony. The State Supreme Court denied discre

tionary review. Petitioner then filed a federal habeas petition raising

the due-process and other claims. The Magistrate Judge found the

state appellate court’s failure to recognize Chambers error an unrea

sonable application of clearly established law as set forth by this

Court, and disagreed with the finding of “no possible prejudice,” but

concluded there was an insufficient showing that the improper exclu

sion of Maples’ testimony had a “substantial and injurious effect” on

the jury’s verdict under Brecht v. Abrahamson, 507 U. S. 619, 631.

Agreeing, the District Court denied relief, and the Ninth Circuit af

firmed.

Held: In 28 U. S. C. §2254 proceedings, a federal court must assess the

prejudicial impact of constitutional error in a state-court criminal

trial under Brecht’s “substantial and injurious effect” standard,

whether or not the state appellate court recognized the error and re

viewed it for harmlessness under the “harmless beyond a reasonable

doubt” standard set forth in Chapman v. California, 386 U. S. 18, 24.

Pp. 3–8.

2 FRY v. PLILER

Syllabus

(a) That Brecht applies in §2254 cases even if the state appellate

court has not found, as did the state appellate court in Brecht, that

the error was harmless under Chapman, is indicated by this Court’s

Brecht opinion, which did not turn on whether the state court itself

conducted Chapman review, but instead cited concerns about finality,

comity, and federalism as the primary reasons for adopting a less on

erous standard on collateral review. 507 U. S., at 637. Since each of

these concerns applies with equal force whether or not the state court

reaches the Chapman question, it would be illogical to make the

standard of review turn upon that contingency. Brecht, supra, at

636, distinguished. Petitioner presents a false analogy in arguing

that, if Brecht applies whether or not the state appellate court con

ducted Chapman review, then Brecht would apply even if a State

eliminated appellate review altogether. The Court also rejects peti

tioner’s contention that, even if Brecht adopted a categorical rule,

post-Brecht developments—the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), as interpreted in Mitchell v. Esparza,

540 U. S. 12—require a different review standard. That result is not

suggested by Esparza, which had no reason to decide the point, nor

by AEDPA, which sets forth a precondition, not an entitlement, to the

grant of habeas relief. Pp. 3–7.

(b) Petitioner’s argument that the judgment below must still be re

versed because excluding Maples’ testimony substantially and injuri

ously affected the jury’s verdict is rejected as not fairly encompassed

by the question presented. Pp. 7–8.

Affirmed.

SCALIA, J., delivered the opinion for a unanimous Court with respect

to all but footnote 1 and Part II–B. ROBERTS, C. J., and KENNEDY, THO

MAS, and ALITO, JJ., joined that opinion in full; STEVENS, SOUTER, and

GINSBURG, JJ., joined it as to all but Part II–B; and BREYER, J., joined

as to all but footnote 1 and Part II–B. STEVENS, J., filed an opinion con

curring in part and dissenting in part, in which SOUTER and GINSBURG,

JJ., joined, and in which BREYER, J., joined in part. BREYER, J., filed an

opinion concurring in part and dissenting in part.

Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–5247

_________________

JOHN FRANCIS FRY, PETITIONER v. CHERYL

K. PLILER, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 11, 2007]

JUSTICE SCALIA delivered the opinion of the Court.

We decide whether a federal habeas court must assess

the prejudicial impact of constitutional error in a state-

court criminal trial under the “substantial and injurious

effect” standard set forth in Brecht v. Abrahamson, 507

U. S. 619 (1993), when the state appellate court failed to

recognize the error and did not review it for harmlessness

under the “harmless beyond a reasonable doubt” standard

set forth in Chapman v. California, 386 U. S. 18 (1967).

I

After two mistrials on account of hung juries, a third

jury convicted petitioner of the 1992 murders of James

and Cynthia Bell. At trial, petitioner sought to attribute

the murders to one or more other persons. To that end, he

offered testimony of several witnesses who linked one

Anthony Hurtz to the killings. But the trial court ex

cluded the testimony of one additional witness, Pamela

Maples, who was prepared to testify that she had heard

Hurtz discussing homicides bearing some resemblance to

the murder of the Bells. In the trial court’s view, the

defense had provided insufficient evidence to link the

2 FRY v. PLILER

Opinion of the Court

incidents described by Hurtz to the murders for which

petitioner was charged.

Following his conviction, petitioner appealed to the

California Court of Appeal, arguing (among other things)

that the trial court’s exclusion of Maples’ testimony de

prived him of a fair opportunity to defend himself, in

violation of Chambers v. Mississippi, 410 U. S. 284 (1973)

(holding that a combination of erroneous evidentiary

rulings rose to the level of a due process violation). With

out explicitly addressing petitioner’s Chambers argument,

the state appellate court held that the trial court had not

abused its discretion in excluding Maples’ testimony under

California’s evidentiary rules, adding that “no possible

prejudice” could have resulted in light of the “merely

cumulative” nature of the testimony. People v. Fry, No.

A072396 (Ct. App. Cal., 1st App. Dist., Mar. 30, 2000),

App. 97, n. 17. The court did not specify which harmless-

error standard it was applying in concluding that peti

tioner suffered “no possible prejudice.” The Supreme

Court of California denied discretionary review, and peti

tioner did not then seek a writ of certiorari from this

Court.

Petitioner next filed a petition for writ of habeas corpus

in the United States District Court for the Eastern Dis

trict of California, raising the aforementioned due-process

claim (among others). The case was initially assigned to a

Magistrate Judge, who ultimately recommended denying

relief. He found the state appellate court’s failure to

recognize error under Chambers to be “an unreasonable

application of clearly established law as set forth by the

Supreme Court,” App. 180, and disagreed with the state

appellate court’s finding of “no possible prejudice.” But he

nevertheless concluded that “there ha[d] been an insuffi

cient showing that the improper exclusion of the testimony

of Ms. Maples had a substantial and injurious effect on the

jury’s verdict” under the standard set forth in Brecht.

Cite as: 551 U. S. ____ (2007) 3

Opinion of the Court

App. 181–182. The District Court adopted the Magistrate

Judge’s findings and recommendations in full, and a di

vided panel of the United States Court of Appeals for the

Ninth Circuit affirmed. We granted certiorari. 549 U. S.

___ (2006).

II

A

In Chapman, supra, a case that reached this Court on

direct review of a state-court criminal judgment, we held

that a federal constitutional error can be considered harm

less only if a court is “able to declare a belief that it was

harmless beyond a reasonable doubt.” Id., at 24. In

Brecht, supra, we considered whether the Chapman stan

dard of review applies on collateral review of a state-court

criminal judgment under 28 U. S. C. §2254. Citing con

cerns about finality, comity, and federalism, we rejected

the Chapman standard in favor of the more forgiving

standard of review applied to nonconstitutional errors on

direct appeal from federal convictions. See Kotteakos v.

United States, 328 U. S. 750 (1946). Under that standard,

an error is harmless unless it “ ‘had substantial and injuri

ous effect or influence in determining the jury’s verdict.’ ”

Brecht, supra, at 631 (quoting Kotteakos, supra, at 776).

The question in this case is whether a federal court must

assess the prejudicial impact of the unconstitutional ex

clusion of evidence during a state-court criminal trial

under Brecht even if the state appellate court has not

found, as the state appellate court in Brecht had found,

that the error was harmless beyond a reasonable doubt

under Chapman.1

——————

1 As this case comes to the Court, we assume (without deciding) that

the state appellate court’s decision affirming the exclusion of Maples’

testimony was an unreasonable application of Chambers v. Mississippi,

410 U. S. 284, 302 (1973). We also assume that the state appellate

court did not determine the harmlessness of the error under the Chap

4 FRY v. PLILER

Opinion of the Court

We begin with the Court’s opinion in Brecht. The pri

mary reasons it gave for adopting a less onerous standard

on collateral review of state-court criminal judgments did

not turn on whether the state court itself conducted

Chapman review. The opinion explained that application

of Chapman would “undermin[e] the States’ interest in

finality,” 507 U. S., at 637; would “infring[e] upon [the

States’] sovereignty over criminal matters,” ibid.; would

undercut the historic limitation of habeas relief to those

“ ‘grievously wronged,’ ” ibid.; and would “impos[e] signifi

cant ‘societal costs,’ ” ibid. (quoting United States

v. Mechanik, 475 U. S. 66, 72 (1986)). Since each of

these concerns applies with equal force whether or not the

state court reaches the Chapman question, it would be

illogical to make the standard of review turn upon that

contingency.

The opinion in Brecht clearly assumed that the Kot

teakos standard would apply in virtually all §2254 cases.

It suggested an exception only for the “unusual case” in

which “a deliberate and especially egregious error of the

trial type, or one that is combined with a pattern of prose

cutorial misconduct . . . infect[s] the integrity of the pro

ceeding.” 507 U. S., at 638, n. 9. This, of course, has

nothing to do with whether the state court conducted

harmless-error review. The concurring and dissenting

opinions shared the assumption that Kotteakos would

almost always be the standard on collateral review. The

former stated in categorical terms that the “Kotteakos

standard” “will now apply on collateral review” of state

convictions, 507 U. S., at 643 (STEVENS, J., concurring).

Justice White’s dissent complained that under the Court’s

opinion Kotteakos would apply even where (as in this case)

the state court found that “no violation had occurred,” 507

——————

man standard, notwithstanding its ambiguous conclusion that the

exclusion of Maples’ testimony resulted in “no possible prejudice.”

Cite as: 551 U. S. ____ (2007) 5

Opinion of the Court

U. S., at 644; and Justice O’Connor’s dissent stated that

Chapman would “no longer appl[y] to any trial error as

serted on habeas,” 507 U. S., at 651. Later cases also

assumed that Brecht’s applicability does not turn on

whether the state appellate court recognized the constitu

tional error and reached the Chapman question. See

Penry v. Johnson, 532 U. S. 782, 795 (2001); Calderon v.

Coleman, 525 U. S. 141, 145 (1998) (per curiam).

Petitioner’s contrary position misreads (or at least exag

gerates the significance of) a lone passage from our Brecht

opinion. In that passage, the Court explained:

“State courts are fully qualified to identify constitu

tional error and evaluate its prejudicial effect on the

trial process under Chapman, and state courts often

occupy a superior vantage point from which to evalu

ate the effect of trial error. For these reasons, it

scarcely seems logical to require federal habeas courts

to engage in the identical approach to harmless-error

review that Chapman requires state courts to engage

in on direct review.” 507 U. S., at 636 (citation

omitted).

But the quoted passage does little to advance petitioner’s

position. To say (a) that since state courts are required to

evaluate constitutional error under Chapman it makes no

sense to establish Chapman as the standard for federal

habeas review is not at all to say (b) that whenever a state

court fails in its responsibility to apply Chapman the

federal habeas standard must change. It would be foolish

to equate the two, in view of the other weighty reasons

given in Brecht for applying a less onerous standard on

collateral review—reasons having nothing to do with

whether the state court actually applied Chapman.

Petitioner argues that, if Brecht applies whether or not

the state appellate court conducted Chapman review, then

Brecht would apply even if a State eliminated appellate

6 FRY v. PLILER

Opinion of the Court

review altogether. That is not necessarily so. The federal

habeas review rule applied to the class of case in which

state appellate review is available does not have to be the

same rule applied to the class of case where it is not. We

have no occasion to resolve that hypothetical (and highly

unrealistic) question now. In the case before us petitioner

did obtain appellate review of his constitutional claim; the

state court simply found the underlying claim weak and

therefore did not measure its prejudicial impact under

Chapman. The attempted analogy—between (1) eliminat

ing appellate review altogether and (2) providing appellate

review but rejecting a constitutional claim without assess

ing its prejudicial impact under Chapman—is a false one.

Petitioner contends that, even if Brecht adopted a cate

gorical rule, post-Brecht developments require a different

standard of review. Three years after we decided Brecht,

Congress passed, and the President signed, the Antiterror

ism and Effective Death Penalty Act of 1996 (AEDPA),

under which a habeas petition may not be granted unless

the state court’s adjudication “resulted in a decision that

was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the

Supreme Court of the United States . . . .” 28 U. S. C.

§2254(d)(1). In Mitchell v. Esparza, 540 U. S. 12 (2003)

(per curiam), we held that, when a state court determines

that a constitutional violation is harmless, a federal court

may not award habeas relief under §2254 unless the harm

lessness determination itself was unreasonable. Petitioner

contends that §2254(d)(1), as interpreted in Esparza,

eliminates the requirement that a petitioner also satisfy

Brecht’s standard. We think not. That conclusion is not

suggested by Esparza, which had no reason to decide the

point. Nor is it suggested by the text of AEDPA, which

sets forth a precondition to the grant of habeas relief (“a

writ of habeas corpus . . . shall not be granted” unless the

conditions of §2254(d) are met), not an entitlement to it.

Cite as: 551 U. S. ____ (2007) 7

Opinion of the Court

Given our frequent recognition that AEDPA limited rather

than expanded the availability of habeas relief, see, e.g.,

Williams v. Taylor, 529 U. S. 362, 412 (2000), it is implau

sible that, without saying so, AEDPA replaced the Brecht

standard of “ ‘actual prejudice,’ ” 507 U. S., at 637 (quoting

United States v. Lane, 474 U. S. 438, 449 (1986)), with the

more liberal AEDPA/Chapman standard which requires

only that the state court’s harmless-beyond-a-reasonable

doubt determination be unreasonable. That said, it cer

tainly makes no sense to require formal application of both

tests (AEDPA/Chapman and Brecht) when the latter

obviously subsumes the former. Accordingly, the Ninth

Circuit was correct to apply the Brecht standard of review

in assessing the prejudicial impact of federal constitu

tional error in a state-court criminal trial.2

B

Petitioner argues that, even if Brecht provides the stan

dard of review, we must still reverse the judgment below

because the exclusion of Maples’ testimony substantially

and injuriously affected the jury’s verdict in this case.

That argument, however, is not fairly encompassed within

the question presented. We granted certiorari to decide a

question that has divided the Courts of Appeals—whether

Brecht or Chapman provides the appropriate standard of

review when constitutional error in a state-court trial is

first recognized by a federal court. Compare, e.g., Bains v.

Cambra, 204 F. 3d 964, 976–977 (CA9 2000), with Orn

dorff v. Lockhart, 998 F. 2d 1426, 1429–1430 (CA8 1993).

——————

2 We do not agree with petitioner’s amicus that Brecht’s concerns

regarding the finality of state-court criminal judgments and the diffi

culty of retrying a defendant years after the crime “have been largely

alleviated by [AEDPA],” which “sets strict time limitations on habeas

petitions and limits second or successive petitions as well.” Brief for

Innocence Network 7. Even cases governed by AEDPA can span a

decade, as the nearly 12-year gap between petitioner’s conviction and

the issuance of this decision illustrates.

8 FRY v. PLILER

Opinion of the Court

It is true that the second sentence of the question pre

sented asks: “Does it matter which harmless error stan

dard is employed?” Pet. for Cert. I. But to ask whether

Brecht makes any real difference is not to ask whether the

Ninth Circuit misapplied Brecht in this particular case.

Petitioner seems to have understood this. Only in a brief

footnote of his petition did he hint that the Ninth Circuit

erred in its application of the Brecht standard. Pet. for

Cert. 23, n. 19.3 Indeed, if application of the Brecht stan

dard to the facts of this case were encompassed within the

question presented, so too would be the question of

whether there was constitutional error in the first place.

After all, it would not “matter which harmless error stan

dard is employed” if there were no underlying constitu

tional error. Unlike the dissenting JUSTICES, some of

whom would reverse the decision below on the ground that

the error was harmful under Brecht, and one of whom

would vacate the decision below on the ground that it is

unclear whether there was constitutional error in the first

instance, we read the question presented to avoid these

tangential and factbound questions, and limit our review

to the question of whether Chapman or Brecht provides

the governing standard.

——————

3 Thequestion presented included one additional issue: “[I]f the

Brecht standard applies, does the petitioner or the State bear the

burden of persuasion on the question of prejudice?” Pet. for Cert. I. We

have previously held that, when a court is “in virtual equipoise as to

the harmlessness of the error” under the Brecht standard, the court

should “treat the error . . . as if it affected the verdict . . . .” O’Neal v.

McAninch, 513 U. S. 432, 435 (1995). The majority opinion below did

not refer to O’Neal, presumably because the majority harbored no grave

doubt as to the harmlessness of the error. Neither did the dissenting

judge refer to O’Neal, presumably because she did not think the major

ity harbored grave doubt as to the harmlessness of the error. Moreover,

the State has conceded throughout this §2254 proceeding that it bears

the burden of persuasion. Thus, there is no basis on which to conclude

that the court below ignored O’Neal.

Cite as: 551 U. S. ____ (2007) 9

Opinion of the Court

* * *

We hold that in §2254 proceedings a court must assess

the prejudicial impact of constitutional error in a state-

court criminal trial under the “substantial and injurious

effect” standard set forth in Brecht, 507 U. S. 619, whether

or not the state appellate court recognized the error and

reviewed it for harmlessness under the “harmless beyond

a reasonable doubt” standard set forth in Chapman, 386

U. S. 18. Since the Ninth Circuit correctly applied the

Brecht standard rather than the Chapman standard, we

affirm the judgment below.

It is so ordered.

Cite as: 551 U. S. ____ (2007) 1

Opinion of STEVENS, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–5247

_________________

JOHN FRANCIS FRY, PETITIONER v. CHERYL

K. PLILER, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 11, 2007]

JUSTICE STEVENS, with whom JUSTICE SOUTER and

JUSTICE GINSBURG join, and with whom JUSTICE BREYER

joins in part, concurring in part and dissenting in part.

While I join all of the Court’s opinion except Part II–B, I

am persuaded that we should also answer the question

whether the constitutional error was harmless under the

standard announced in Brecht v. Abrahamson, 507 U. S.

619 (1993). The parties and the Solicitor General as

amicus curiae fully briefed and argued the question, pre

sumably because it appears to fit within the awkwardly

drafted question that we agreed to review.1 Moreover, our

answer to the question whether the error was harmless

would emphasize the important point that the Brecht

standard, as more fully explained in our opinion in Kot

teakos v. United States, 328 U. S. 750 (1946), imposes a

significant burden of persuasion on the State.

Both the history of this litigation and the nature of the

constitutional error involved provide powerful support for

the conclusion that if the jurors had heard the testimony

——————

1 In Brecht itself the application of the standard of Kotteakos v.

United States, 328 U. S. 750 (1946), to the facts of the case was not even

arguably encompassed within the question presented. We nonetheless

found it appropriate to rule on whether the error was harmless under

that standard. See Brecht, 507 U. S., at 638 (“All that remains to be

decided is whether petitioner is entitled to relief”).

2 FRY v. PLILER

Opinion of STEVENS, J.

of Pamela Maples, they would at least have had a reason

able doubt concerning petitioner’s guilt. Petitioner was

not found guilty until after he had been tried three times.

The first trial ended in a mistrial with the jury deadlocked

6 to 6. App. 121. The second trial also resulted in a mis

trial due to a deadlocked jury, this time 7 to 5 in favor of

conviction. Ibid. In the third trial, after the jurors had

been deliberating for 11 days, the foreperson advised the

judge that they were split 7 to 5 and “ ‘hopelessly dead

locked.’ ” Id., at 74–75. When the judge instructed the

jury to continue its deliberations, the foreperson requested

clarification on the definition of “reasonable doubt.” Id., at

75. The jury deliberated for an additional 23 days after

that exchange—a total of five weeks—before finally return

ing a guilty verdict.2

It is not surprising that some jurors harbored a reason

able doubt as to petitioner’s guilt weeks into their delib

erations. The only person to offer eyewitness testimony, a

disinterested truckdriver, described the killer as a man

who was 5’7” to 5’8” tall, weighed about 140 pounds, and

had a full head of hair. Tr. 4574 (Apr. 26, 1995). Peti

tioner is 6’2” tall, weighed 300 pounds at the time of the

murder, and is bald. Record, Doc. No. 13, Exh. L (arrest

report); Ibid., Exh. M (petitioner’s driver’s license). Seven

different witnesses linked the killings to a man named

Anthony Hurtz, some testifying that Hurtz had admitted

to them that he was in fact the killer. App. 60–64, 179.

——————

2 According to data compiled by the National Center for State Courts,

the average length of jury deliberations for a capital murder trial

in California is 12 hours. See Judge and Attorney Survey (California),

State of the States—Survey of Jury Improvement Efforts (2007), online

at http://www.ncsconline.org/D_research/cjs/xls/SOSJAData/CA_JA_

State.xls (as visited June 8, 2007, and available in Clerk of Court’s case

file). Three days before the jury reached a verdict in this noncapital

case, the trial judge speculated that it was perhaps the longest delib

eration in the history of Solano County. Tr. 5315 (June 5, 1995).

Cite as: 551 U. S. ____ (2007) 3

Opinion of STEVENS, J.

Each of those witnesses, unlike the truckdriver, was im

peached by evidence of bias, either against Hurtz or for

petitioner. Id., at 61–64, 73, 179–180.

However, Pamela Maples, a cousin of Hurtz’s who was

in all other respects a disinterested witness, did not testify

at either of petitioner’s first two trials. During the third

trial, she testified out of the presence of the jury that she

had overheard statements by Hurtz that he had commit

ted a double murder strikingly similar to that witnessed

by the truckdriver. As the Magistrate Judge found, the

exclusion of Maples’ testimony for lack of foundation was

clear constitutional error under Chambers v. Mississippi,

410 U. S. 284 (1973), and the State does not argue other

wise.3 Cf. Skipper v. South Carolina, 476 U. S. 1, 8 (1986)

(“The testimony of more disinterested witnesses . . . would

quite naturally be given much greater weight by the

jury”).

Chambers error is by nature prejudicial. We have said

that Chambers “does not stand for the proposition that the

defendant is denied a fair opportunity to defend himself

whenever a state or federal rule excludes favorable evi

dence.” United States v. Scheffer, 523 U. S. 303, 316

(1998). Rather, due process considerations hold sway over

state evidentiary rules only when the exclusion of evidence

“undermine[s] fundamental elements of the defendant’s

defense.” Id., at 315. Hence, as a matter of law and logi

cal inference, it is well-nigh impossible for a reviewing

court to conclude that such error “did not influence the

jury, or had but very slight effect” on its verdict. Kot

teakos, 328 U. S., at 764; see also O’Neal v. McAninch, 513

U. S. 432, 445 (1995) (“[W]hen a habeas court is in grave

——————

3 As the Magistrate Judge remarked, “[j]ust how many double execu

tion style homicides involving a female driver shot in the head and a

male passenger also shot in a parked car could there be in a community

proximate to the victims’ murder herein?” App. 179.

4 FRY v. PLILER

Opinion of STEVENS, J.

doubt as to the harmlessness of an error that affects sub

stantial rights, it should grant relief”).

It is difficult to imagine a less appropriate case for an

exception to that commonsense proposition. We found in

Parker v. Gladden, 385 U. S. 363 (1966) (per curiam), that

26 hours of juror deliberations in a murder trial “indi

cat[ed] a difference among them as to the guilt of peti

tioner.” Id., at 365. Here, the jury was deprived of signifi

cant evidence of third-party guilt, and still we measure the

length of deliberations by weeks, not hours. In light of the

jurors’ evident uncertainty, the prospect of rebutting the

near-conclusive presumption that the Chambers error did

substantial harm vanishes completely.4

We have not been shy in emphasizing that federal ha

beas courts do not lightly find constitutional error. See

Carey v. Musladin, 549 U. S. ___ (2006). It follows that

when they do find an error, they may not lightly discount

its significance. Rather, a harmlessness finding requires

——————

4 See United States v. Fields, 483 F. 3d 313, 379 (CA5 2007)

(Benavides, J., dissenting from Part II–A–I and dissenting, in part,

from the judgment) (“Courts often have been unwilling to find error

harmless where the record, as in this case, affirmatively shows that the

jurors struggled with their verdict”); Kennedy v. Lockyer, 379 F. 3d

1041, 1056, n. 18 (CA9 2004) (“From the fact that the first trial ended

in a mistrial, as well as the fact that the jury deliberated for a consid

erable amount of time in the second trial, we infer that the question as

to [the defendant’s] guilt or innocence was a close one in both trials”);

Powell v. Collins, 332 F. 3d 376, 401 (CA6 2003) (finding prejudicial

error in a habeas case in part because the jury at one point told the

court that it was “ ‘at a stalemate’ ”); United States v. Varoudakis, 233

F. 3d 113, 127 (CA1 2000) (noting, in weighing harmlessness, that “the

jury’s ‘impasse’ note reveals uncertainty about [the defendant’s] guilt”);

United States v. Ottersburg, 76 F. 3d 137, 140 (CA7 1996) (“The length

of the jury’s deliberations makes clear that this case was not an easy

one”); Medina v. Barnes, 71 F. 3d 363, 369 (CA10 1995) (basing preju

dice determination in a habeas case in part on the fact that “at one

point during their deliberations, the jurors indicated that they might be

unable to reach a unanimous verdict”).

Cite as: 551 U. S. ____ (2007) 5

Opinion of STEVENS, J.

“fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error.”

Kotteakos, 328 U. S., at 765. Given “all that happened” in

this case, and given the nature of the error, I cannot agree

with the Ninth Circuit’s conclusion that the erroneous

exclusion of Maples’ testimony was harmless under that

standard.

Accordingly, I would reverse the judgment of the Court

of Appeals.

Cite as: 551 U. S. ____ (2007) 1

Opinion of BREYER, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 06–5247

_________________

JOHN FRANCIS FRY, PETITIONER v. CHERYL

K. PLILER, WARDEN

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 11, 2007]

JUSTICE BREYER, concurring in part and dissenting in

part.

I agree with the Court that Brecht v. Abrahamson, 507

U. S. 619 (1993), sets forth the proper standard of review.

Cf. id., at 643 (STEVENS, J., concurring). At the same

time, I agree with JUSTICE STEVENS that we should con

sider the application of the standard, that the error was

not harmless, and that “Chambers error is by nature

prejudicial.” Ante, at 3 (opinion concurring in part and

dissenting in part) (citing Chambers v. Mississippi, 410

U. S. 284 (1973)). Cf. Kyles v. Whitley, 514 U. S. 419,

435 (1995) (similar statement as to errors under

Brady v. Maryland, 373 U. S. 83 (1963)). Nonetheless, I

would remand this case rather than reversing the Court of

Appeals.

My reason arises out of the fact that here, for purposes

of deciding whether Chambers error exists, the question of

harm is inextricably tied to other aspects of the trial

court’s determination. The underlying evidentiary judg

ment at issue involved a weighing of the probative value of

proffered evidence against, e.g., its cumulative nature, its

tendency to confuse or to prejudice the jury, or the likeli

hood that it will simply waste the jury’s time. See App.

96–97; Cal. Evid. Code Ann. §352 (West 1995); cf. Fed.

Rule Evid. 403. In this context, to find a Chambers error a

2 FRY v. PLILER

Opinion of BREYER, J.

court must take account both of the way in which (and

extent to which) the trial court misweighed the relevant

admissibility factors and of the extent to which doing so

harmed the defendant. Moreover, to find this kind of error

harmless, as the Court of Appeals found it, should pre

clude the possibility of a Chambers error; but to find this

kind of error harmful does not guarantee the contrary. A

garden-variety nonharmless misapplication of evidentiary

principles normally will not rise to the level of a constitu

tional, Chambers, mistake. Cf., e.g., United States v. Schef

fer, 523 U. S. 303, 308 (1998).

All this, it seems to me, requires reconsideration by

the Court of Appeals of its Chambers determination. I

would not consider the question whether that exclusion of

evidence amounted to Chambers error because that ques

tion is not before us, see ante, at 3, n. 1 (opinion of the

Court). But the logically inseparable question of harm is

before us; and that, I believe, is sufficient.

I would remand the case to the Ninth Circuit so that,

taking account of the points JUSTICE STEVENS raises, ante,

at 1–4, it can reconsider whether there was an error of

admissibility sufficiently serious to violate Chambers. I

therefore join the Court’s opinion except as to footnote 1

and Part II–B, and I join JUSTICE STEVENS’ opinion in

part.