Eddleman v. McKee

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0458p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

Petitioner-Appellee, -

DAVID EDDLEMAN,

-

-

-

No. 05-1493

v.

,

>

KEN MCKEE, Warden, -

Respondent-Appellant. -

-

-

N

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit

No. 04-70830—Arthur J. Tarnow, District Judge.

Argued: September 11, 2006

Decided and Filed: December 14, 2006

Before: BOGGS, Chief Judge; MARTIN, Circuit Judge; and OLIVER, District Judge.*

_________________

COUNSEL

ARGUED: Raina I. Korbakis, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for

Appellant. Andrew N. Wise, FEDERAL PUBLIC DEFENDERS OFFICE, Detroit, Michigan, for

Appellee. ON BRIEF: Raina I. Korbakis, OFFICE OF THE ATTORNEY GENERAL, Lansing,

Michigan, for Appellant. Andrew K. Wilkins, Okemos, Michigan, for Appellee.

_________________

OPINION

_________________

BOGGS, Chief Judge. This case presents the question of what type of deference we owe on

collateral review to a state court’s harmless-error determination. David Eddleman was convicted

of second-degree murder and a firearm offense in a Michigan state court. On direct review, the

Michigan Court of Appeals affirmed his conviction, concluding that the trial court erred in admitting

his coerced confession but that the error was harmless. Eddleman petitioned for a writ of habeas

corpus in federal court. The district court granted the writ, and warden Ken McKee appealed.

*

The Honorable Solomon Oliver Jr., United States District Judge for the Northern District of Ohio, sitting by

designation.

1

No. 05-1493 Eddleman v. McKee Page 2

We affirm. We hold that, when a state court has found an error to be harmless, we should

ask on collateral review whether the state court’s harmless-error decision was contrary to, or an

unreasonable application of, the clearly established federal rule that a trial error is harmless only if

it is harmless beyond a reasonable doubt. Applying this standard of review to the case at hand, we

hold that the Michigan Court of Appeals’s harmless-error determination was an unreasonable

application of the Supreme Court’s decisions in Chapman v. California, 386 U.S. 18 (1967), and

Arizona v. Fulminante, 499 U.S. 279 (1991).

I

Eddleman’s conviction arose out of the shooting death of sixteen-year-old Joane Georgescu

early in the morning of October 13, 1996. Georgescu was seated in a car parked near the corner of

Kirkland and Trenton Streets in western Detroit, near Dearborn, when a bullet shot from a passing

car entered through the trunk of her car, passed through the back seat, and struck her in the heart.

The state of Michigan charged Eddleman with first-degree premeditated murder, second-degree

murder, and possession of a firearm during a felony. He stood trial in Wayne County Circuit Court,

starting on July 15, 1999.

The government argued that Eddleman was a member of the Insane Spanish Cobras, a street

gang, and shot Georgescu while carrying out a mission ordered by the gang’s leader, Jesus Garcia.

The evidence it introduced to support its theory consisted of Eddleman’s confession and the

testimony of four key witnesses – three other gang members and a jailhouse informant. As

discussed below, reasons existed to doubt the credibility of each of the witnesses. The government

did not present any physical evidence linking Eddleman to the crime or any other eyewitnesses who

could identify the vehicle used in the shooting or any of its occupants.

The first witness, Brian Babbitt, testified that he was a member of the Insane Spanish Cobras

street gang in October 1996 and that Garcia was the gang’s leader. He stated that on the evening

of October 12, 1996, shortly before the shooting, Garcia ordered Eddleman on a mission to find and

shoot members of a rival gang in order to increase his rank within the Insane Spanish Cobras.

According to Babbitt, Eddleman received a military-style M-1 carbine, the type of gun used in the

shooting, and then left to carry out the mission.

Eddleman allegedly sat in the front passenger seat of a burgundy Chevrolet Nova carrying

three other people: fellow gang member Richard Glockens, who was driving; Babbitt, who was in

the back seat; and an unnamed fourth individual, who was lying across the back seat after passing

out due to alcohol consumption. Their initial attempt to find rival gang members failed. They

returned to the gang house, where, according to Babbitt, Eddleman told Garcia that he knew the

location of a rival gang party. Garcia told him to “shoot it up,” and the car departed again, with

Eddleman giving Glockens directions to an address near the intersection of Kirkland and Trenton

Streets. A second car followed, “[t]o make sure the mission was done right.” Babbitt claimed that,

before the shooting, he got out of Eddleman’s car and got into the second car, because he “had a bad

feeling” about what was happening. From that second car, he testified, he saw a total of ten to

twelve shots fired from the passenger’s side of the Nova toward a crowd of young men gathered

outside a house. According to Babbitt, “Dave Eddleman [was] the only one firing any shots.”

Two categories of facts brought out at trial call Babbitt’s credibility into question. First,

Babbitt received significant benefits from the police in exchange for his testimony. On January 3,

1997, Babbitt was arrested for the killing of Georgescu. On January 7, 1997, he was arrested again,

this time for the murder of Freddy Sanchez. The Wayne County Prosecutor’s office granted him

immunity from prosecution for both murders on January 22, 1997, in exchange for his testimony

against Eddleman, Garcia, Glockens, and another gang member allegedly involved in the Sanchez

murder. At the time, Babbitt also faced charges of felony assault, using a firearm in the commission

No. 05-1493 Eddleman v. McKee Page 3

of a felony, and violating probation. After negotiating the immunity agreement, the prosecutor

allowed Babbitt to plead guilty only to a reduced charge of aiming without malice, with a sentence

of time served.

Second, Babbitt’s trial testimony conflicted in three ways with statements he had made

previously. On January 3, 1997, and again on January 10, 1997, Babbitt told police that he was

never in a car with Eddleman on the night of the shooting; at trial, he testified that he was in the

same car as Eddleman until shortly before the shooting. In the same January 3 interview, Babbitt

stated that Eddleman brought the M-1 carbine used in the shooting himself; in his preliminary

examination testimony for a separate trial against Garcia, he claimed that Garcia had given

Eddleman the gun; finally, at trial, he testified that another gang member, Cano, gave Eddleman the

gun. In another interview with police on January 7, 1997, Babbitt did not mention that Garcia was

involved in the shooting; at trial, he testified that Garcia directly ordered the shooting.

The next witness, jailhouse informant Ricky O’Neal, testified that he was the head of a

Chicago-area gang, that he had met and befriended Garcia while in prison in 1993 or 1994, and that

Garcia had introduced him to Eddleman while Garcia and Eddleman were in jail awaiting trial for

Georgescu’s murder. O’Neal claims that he talked to Eddleman while the two of them, along with

Garcia and Glockens, were working out at the jail gym. According to O’Neal, Eddleman admitted

that he had “shot and killed that innocent girl” and stated that “he wanted to take the rap alone to

free” Garcia and Glockens.

O’Neal testified pursuant to a plea agreement in which the state agreed to reduce a pending

charge of assault with intent to rob, which carried a possible life sentence, to two counts of felony

assault, for which he received concurrent sentences of one to four years. He had an extensive prior

criminal record, including convictions for breaking and entering, larceny, and unarmed robbery.

The next two witnesses, Brian Weaver and Thomas Valastek, both testified that they heard

Eddleman admit to the shooting. Weaver testified that he attended a gang meeting on October 13,

1996, the day after Georgescu’s murder, and that Eddleman stated at that meeting that he had

committed a drive-by shooting while on a mission the previous night. Weaver explained that he

remembered the date because, on the previous evening, he had watched the boxing match between

Mike Tyson and Evander Holyfield in which Tyson bit Holyfield’s ear. On cross-examination, the

defense impeached Weaver’s testimony with evidence that Tyson and Holyfield did not fight each

other at all until November 9, 1996, and that the ear-biting bout did not take place until June 28,

1997. The defense also presented evidence that Weaver may have avoided punishment for

numerous probation violations by testifying against Eddleman.

Valastek gave testimony substantially similar to Weaver’s: he stated that he was watching

the Tyson-Holyfield boxing match, that he heard Garcia mention a mission he wanted completed

that evening, and that the next morning he heard Eddleman bragging that he had been involved in

a drive-by shooting the day before. In addition to the inaccuracy of the boxing reference, three other

pieces of information call into question Valastek’s credibility. First, he too cooperated with police

only after he was arrested in connection with Georgescu’s murder. Second, he admitted on cross-

examination that his initial statement to police contained “a lot of lying.” Third, he admitted that

he chose to cooperate fully with police a day after he saw that Babbitt was receiving special perks

in jail – such as family visits, outside food, and television privileges – and figured “he must have

told them something really good to give him all that.”

A fifth witness, Jennifer Lertola, Eddleman’s girlfriend at the time of the shooting, testified

that Eddleman called her shortly after the time of the shooting and told her to watch the Channel 7

news. Before trial, she allegedly had told police that, when she asked Eddleman if he had shot

Georgescu, Eddleman laughed and said “that’s for me to know and for you to find out,” and that

No. 05-1493 Eddleman v. McKee Page 4

Eddleman later admitted to the shooting. At trial, however, she stated that she did not think that she

made those statements and that any statements she did make were driven by fear that the police

would take her children away if they thought she was concealing information.

Eddleman argued that the Insane Spanish Cobras had no role in the shooting. Instead, he

claimed at trial, the person who shot Georgescu was targeting a resident of a house at the corner of

Kirkland and Trenton Streets, who had been involved in an earlier bar fight. Four witnesses

supported this core theory. On cross-examination, all four admitted that they formed their beliefs

about what happened based on rumor and speculation rather than specific evidence.

The prosecution made frequent references to Eddleman’s confession, both in supporting its

theory of the case and in rebutting Eddleman’s theory. Four references stand out. First, in his

opening statement, the prosecutor emphasized the confession as soon as he began to discuss the

facts:

Let me see, if I can, introduce you once again to the Defendant in this case. . . . This

is David Eddleman, Insane Spanish Cobra, a member of the Insane Spanish Cobras.

Back in October of 1996, the evidence will show you that this Defendant, this Insane

Spanish Cobra, David Eddleman, confessed, made a full confession to shooting and

killing an innocent fifteen-year-old [sic] girl . . . .

Second, Detective Barbara Simon read Eddleman’s confession to the jury. Her testimony, focused

entirely on the confession, lasted for almost five hours. Third, the prosecutor used the confession

as a potent weapon during his1 cross-examination of each of the four witnesses supporting

Eddleman’s “prior fight” theory. Fourth, the prosecutor began his summary of the evidence in his

closing argument by stating that “[w]e’ve got the Defendant’s confession, first and foremost of all

in this case,” and later referred to the confession at least five more times.

The jury struggled to reach a verdict. After a day of deliberations, the jury communicated

to the court that it was deadlocked. The court instructed the jurors to continue their deliberations.

About an hour later, the jury returned a second communication stating that it could no longer

deliberate and had reached an impasse. The court then dismissed the jury for the weekend. Shortly

after reconvening, the jury found Eddleman not guilty of first-degree murder but guilty of both

second-degree murder and the firearm charge. The trial court sentenced Eddleman to thirty to sixty

years of imprisonment for the murder conviction, to be served consecutively to two years of

imprisonment for the firearm conviction.

Eddleman appealed to the Michigan Court of Appeals, arguing, inter alia, that the trial court

erred in admitting the confession into evidence. The court agreed, but concluded that the error was

harmless:

Nonetheless, we conclude that reversal is not warranted because the error was

harmless. People v. Anderson, 446 Mich. 392, 406 (1994). The testimony of several

witnesses clearly implicated the defendant in the crime. Brian Babbitt, also a

member of defendant’s street gang, was in a car traveling behind the car defendant

was riding in on the night of the shooting. Babbitt testified that he witnessed shots

1

Consider the following exchange during the cross-examination of George Sebastian Pitian:

Q. Would the fact that this man confessed to doing what he thought was a shooting of a gang member,

but by mistake hit Joane Georgescu, would that kind of change your mind about that?

A. Yeah.

No. 05-1493 Eddleman v. McKee Page 5

coming from the passenger side of defendant’s car, where defendant was seated.

Two other gang members, Brian Weaver and Thomas Valastek, testified that they

heard defendant admit to being the shooter. Defendant also told a fellow inmate that

he had shot and killed Georgescu. Given the weight of this evidence, we conclude

that the erroneous admission of the confession was harmless beyond a reasonable

doubt. Id.

People v. Eddleman, No. 224957, slip op. at 2 (Mich. Ct. App. Mar. 19, 2002). The Michigan

Supreme Court denied his petition for review.

Eddleman then filed a timely federal petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254, attacking only the state appellate court’s harmless-error determination. The district

court conditionally granted the writ, mandating that the state either schedule a new trial within

ninety days or release Eddleman. The warden appealed, and the district court agreed to stay its order

pending the resolution of this appeal.

II

The admission of an involuntary confession at trial is subject to harmless-error analysis.

Arizona v. Fulminante, 499 U.S. 279, 303 (1991). In this case, we must clarify what type of

deference we owe on collateral review to a state court’s determination that an error was harmless.

Prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), the Supreme Court articulated two harmless-error standards. On direct review, “before

a federal constitutional error can be held harmless, the court must be able to declare a belief that it

was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). On

collateral review, however, the Court instructed us to find an error to be harmless unless the error

“had a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)).

When Congress enacted AEDPA, it complicated this dichotomy. AEDPA states:

An application for writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim –

(1) resulted in a decision that was contrary to, or an involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). When a state court addresses a harmless-error claim on direct review, the

clearly established federal law that it must apply is the Chapman standard. As such, AEDPA’s plain

language requires federal courts to deny a habeas petition in this situation unless a state court’s

determination of harmless error was contrary to, or an unreasonable application of, the principle that

an error must be harmless beyond a reasonable doubt.

In cases when a state court ruled that an error was harmless, however, it is not clear whether

this new standard – Chapman plus AEDPA deference – supersedes Brecht’s “substantial and

injurious effect” standard or supplements it. The Second, Seventh, and Eighth Circuits have held

that AEDPA supersedes the Brecht standard and therefore have applied only Chapman’s “harmless

beyond a reasonable doubt” standard plus AEDPA deference. See Ben-Yisrayl v. Davis, 431 F.3d

No. 05-1493 Eddleman v. McKee Page 6

1043, 1052 (7th Cir. 2005); Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir. 2004); Whitmore v.

Kemna, 213 F.3d 431, 433 (8th Cir. 2000). The Fourth and Ninth Circuits have held that AEDPA

supplements Brecht and therefore have crafted a two-step approach, granting habeas relief only if

the state court’s decision was contrary to, or an unreasonable application of, the Chapman standard

and the error is not harmless under the Brecht standard. See Inthavong v. Lamarque, 420 F.3d 1055,

1059 (9th Cir. 2005); Jones v. Polk, 401 F.3d 257, 264-66 (4th Cir. 2005). Joined by the First, Fifth,

and Tenth Circuits, see Robertson v. Cain, 324 F.3d 297, 306-07 (5th Cir. 2003); Herrera v.

Lemaster, 301 F.3d 1192, 1200 (10th Cir. 2002) (en banc); Medina v. Matesanz, 298 F.3d 98, 101

(1st Cir. 2002), we have agreed that AEDPA supplements Brecht, but concluded that, if the

petitioner can make the showing required by Brecht, “he will surely have demonstrated that the state

court’s finding that the error was harmless beyond a reasonable doubt – the Chapman standard – was

outside the realm of credible outcomes, and therefore resulted from an unreasonable application of

Chapman.” Nevers v. Killinger, 169 F.3d 352, 371-72 (6th Cir. 1999). Consequently, we have

continued to apply only the Brecht standard despite the enactment of AEDPA. See Bulls v. Jones,

274 F.3d 329, 335 (6th Cir. 2001).

Today, we reconsider our position in light of the Supreme Court’s decision in Mitchell v.

Esparza, which strongly implied that courts should apply only the Chapman plus AEDPA deference

standard of review. 540 U.S. 12, 17-18 (2003) (per curiam), rev’g 310 F.3d 414 (6th Cir. 2002).

In Esparza, the Court reversed this court’s grant of a writ of habeas corpus, holding that we showed

insufficient deference under AEDPA to the harmless-error analysis of the Ohio Court of Appeals

and explaining:

A constitutional error is harmless when “it appears ‘beyond a reasonable doubt that

the error complained of did not contribute to the verdict obtained.’” Neder [v. United

States, 527 U.S. 1, 15 (1999) (quoting Chapman, 386 U.S. at 24).] We may not grant

respondent’s habeas petition, however, if the state court simply erred in concluding

that the State’s errors were harmless; rather, habeas relief is appropriate only if the

Ohio Court of Appeals applied harmless-error review in an “objectively

unreasonable” manner.

Id. at 17-18 (some citations omitted). The Supreme Court never discussed or cited Brecht. Two

circuits, the Second and the Seventh, already have relied on Esparza to revisit their prior precedents

and adopt the standard of Chapman plus AEDPA deference. See Ben-Yisrayl, 431 F.3d at 1051

(overruling sub silentio Aleman v. Sternes, 320 F.3d 687, 690-91 (7th Cir. 2003), which applied the

two-step approach); Gutierrez, 389 F.3d at 306. The Fifth Circuit has suggested in dicta that it

might do the same. See Garcia v. Quarterman, 454 F.3d 441, 447 (5th Cir. 2006). Taking guidance

from Esparza, we now join those circuits.2 We hold that AEDPA replaced the Brecht standard with

the standard of3Chapman plus AEDPA deference when, as here, a state court made a harmless-error

determination.

2

We agree with our statement in Nevers that the set of errors that are not harmless under the Brecht standard

is a lesser included subset of the set of errors that are not harmless under the standard of Chapman plus AEDPA

deference. See Nevers, 169 F.3d at 371-72; accord Polk, 401 F.3d at 264-66 (holding that the state court unreasonably

applied Chapman, but that the error was not prejudicial under Brecht); Robertson, 324 F.3d at 307 n.5 (noting that the

alternative of Chapman plus AEDPA deference “is supposed to be more rigorous and less deferential to the state court

than the Brecht standard that we re-affirm today”); cf. Gutierrez, 389 F.3d at 305 (observing a “persistent similarity in

outcomes” reached under the two standards). Thus, as a practical matter, we think that Brecht and our cases applying

the Brecht standard remain helpful even when applying the standard of Chapman plus AEDPA deference.

3

AEDPA applies only to claims “adjudicated on the merits in State court proceedings,” and the standard of

review it mandates depends on an assessment of an actual decision made by the state court. 28 U.S.C. § 2254(d). Thus,

as we frequently have noted and the Supreme Court has confirmed, the Brecht standard continues to apply when federal

courts must make a harmless-error determination in the first instance, as when a state court found no error and therefore

No. 05-1493 Eddleman v. McKee Page 7

This result makes practical sense for two reasons. First, a judicially crafted standard

generally gives way when Congress steps in to address the same issue, as long as the original

standard was not constitutionally required. See, e.g., Schweiker v. Chilicky, 487 U.S. 412, 425

(1988) (holding that the court-created Bivens remedy is unavailable when Congress, through the

Social Security Act, provided an alternative mechanism for a plaintiff to vindicate his due process

rights). That is precisely what happened here. The Brecht Court saw the harm caused by de novo

collateral review of state court harmless-error determinations and crafted its own solution to prevent

that harm. See 507 U.S. at 636. It recognized that in mandating an alternative standard of review

it was acting as a temporary substitute for Congress, not as a permanent partner: “In the absence of

any express statutory guidance from Congress,” it explained, “it remains for this Court to determine

what harmless-error standard applies” to the petitioner’s claim. Id. at 633 (emphasis added). When

Congress enacted AEDPA, it obviated the need for such a stopgap.

Second, we owe a different type of deference to state proceedings when a state court has

found an error to be harmless than when it found no error. We defer to state-court judgments for

two reasons. First, we respect the “presumption of finality” that “attaches to the conviction and

sentence at the conclusion of direct review.” Brecht, 507 U.S. at 633. Second, we respect a state’s

interest, grounded in principles of comity, in maintaining the “primary authority for defining and

enforcing the criminal law.” Id. at 635. Both Brecht and AEDPA reflect these finality and comity

interests. See, e.g., 141 Cong. Rec. H1425, 1427 (daily ed. February 8, 1995) (statement of Rep.

Cox) (“The central problem underlying federal habeas corpus review” prior to AEDPA “is a lack

of comity and respect for state judicial decisions.”); 141 Cong. Rec. H1400, 1400 (daily ed.

February 8, 1995) (statement of Rep. McCollum) (AEDPA “stands for the clear and simple

proposition that there must be finality and accountability.”).

One might think that these finality and comity interests are strongest when a state court

addressed the harmless-error issue and concluded that an error was harmless. In one sense, that

intuition is correct. When a state court explicitly has held that an error was harmless, we owe

deference to that conclusion of law as a matter of comity. When a state court does not reach the

question of harmless error, we owe no such deference, since there is no relevant conclusion of law

to which we could defer.

However, we do not defer to a state court solely out of respect for its resolution of a

particular legal issue. The principles of comity and finality also dictate that we should defer to a

state court’s ultimate disposition of a case. For two reasons, this second type of deference is weaker

when a state court found an error to be harmless than when it found no error at all. First, the state

interest in finality is weaker. A state court acknowledges that its resolution of the case was not

perfect when it recognizes that a federal constitutional error occurred at trial. While an imperfect

judgment still is entitled to a presumption of correctness, this presumption is not as strong as it

would be absent any finding of error. Second, the relevant state interest in comity is weaker. When

a state proceeding has violated federal constitutional rights, the state’s interest in the autonomous

administration of its criminal law gives way, at least in part, to the federal government’s interest in

protecting those rights. When a state court itself admits that a constitutional error occurred at a state

did not address whether an error would be harmless. See Penry v. Johnson, 532 U.S. 782, 795-96 (2001); Fulcher v.

Motley, 444 F.3d 791, 808-09 (6th Cir. 2006); Biros v. Bagley, 422 F.3d 379, 388 (6th Cir. 2005); Scott v. Gundy, 100

F. App’x 476, 480 (6th Cir. 2004); Hill v. Hofbauer, 337 F.3d 706, 718 (6th Cir. 2003); Mikesell v. Conley, 51 F. App’x

496, 506 (6th Cir. 2002); Stapleton v. Wolfe, 288 F.3d 863, 867-68 (6th Cir. 2002). We must scrupulously avoid

conflating cases that involve a state harmless-error determination and cases that do not, since AEDPA applies to the

former but not to the latter. Cf. Robertson, 324 F.3d at 305 (erroneously stating that, when the Supreme Court relied on

Brecht in Penry, a case in which the state court did not consider the issue of harmless error, it “acknowledged the vitality

of Brecht’s independent harmless-error analysis” in cases when a state court did consider the issue).

No. 05-1493 Eddleman v. McKee Page 8

trial (and therefore that a strong federal interest is in play), we do not compromise the state’s status

as a separate sovereign by lessening the deference to the final outcome reached in state court.

In the situation we face today, in which a state court found error but concluded that the error

was harmless, we owe deference primarily to the state court’s harmless-error determination rather

than to the final outcome the state court reached. The standard we announce, Chapman plus AEDPA

deference, provides this type of deference by requiring us to decide whether that determination was

contrary to, or an unreasonable application of, clearly established federal law. In contrast, if the state

court had found no error, we would owe deference only to the final outcome the state court reached.

The Brecht standard, which clearly applies in that situation, provides that type of deference by

requiring us to determine whether an error had a “substantial and injurious effect on the jury’s

verdict.”

Thus, our analysis of principles of separation of powers and of federalism supports our

reading of the Supreme Court’s precedent. When a state court addressed the question of harmless

error, the appropriate standard of review is the Chapman standard plus AEDPA deference.

III

We now must determine whether the Michigan Court of Appeals decision that admitting

Eddleman’s confession was harmless error was contrary to, or an unreasonable application of,

Chapman. Despite some confusion about the relationship between AEDPA and Brecht, the district

court properly applied the Chapman standard plus AEDPA deference and concluded that the state

court’s decision was an unreasonable application of Chapman. We agree.

Because the Michigan Court of Appeals applied the correct legal standard, asking whether

the error was harmless beyond a reasonable doubt, we evaluate its decision under the “unreasonable

application” portion of AEDPA. See (Terry) Williams v. Taylor, 529 U.S. 362, 405 (2000). A state

court unreasonably applies clearly established Supreme Court precedent when it reaches a result that

“falls outside the realm of plausible credible outcomes” dictated by the governing law. Barker v.

Yukins, 199 F.3d 867, 872 (6th Cir. 1999). Since the district court based its factual findings solely

“on a transcript from the petitioner’s state court trial,” we review de novo both those factual findings,

Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir. 2001), and the district court’s legal conclusions, Greer

v. Mitchell, 264 F.3d 663, 671 (6th Cir. 2001).

In Arizona v. Fulminante, the Supreme Court applied Chapman’s “beyond a reasonable

doubt” harmless-error analysis in the context of a coerced confession. 499 U.S. 279, 295 (1991)

(citing Chapman, 386 U.S. at 24). Fulminante represents the best available explication of the

“clearly established Federal law, as determined by the Supreme Court of the United States,” relevant

to Eddleman’s claim.

The defendant in Fulminante twice confessed to killing his stepdaughter. Id. at 283. The

Court held that the first confession, made to his FBI-informant cell mate while in jail on another

charge, was coerced. Ibid. The key piece of evidence remaining against him was his second

confession, made to the cellmate’s wife after his release from prison. Id. at 298. The Court

questioned the credibility of testimony about this second confession, noting that the cellmate did not

remember that it occurred until a year later, even though he was in the car when the alleged

conversation between his wife and the defendant took place; that the wife’s account of the

circumstances surrounding the confession sounded somewhat implausible; and that prosecutors

agreed to secure the cellmate a sentence reduction and to place both him and his wife in the witness

protection program in exchange for their testimony. Id. at 300.

Because the Court considered the case on direct review, it applied the Chapman standard, id.

at 296, and concluded that the erroneous admission of the first confession was not harmless, id. at

No. 05-1493 Eddleman v. McKee Page 9

302. It explained that the erroneous admission of a coerced confession presents a unique problem

under Chapman:

A confession is like no other evidence. Indeed, the defendant’s own confession is

probably the most probative and damaging evidence that can be admitted against him.

. . . In the case of a coerced confession such as that [at issue in this case], the risk that

the confession is unreliable, coupled with the profound impact that the confession has

upon the jury, requires a reviewing court to exercise extreme caution before

determining that the admission of the confession at trial was harmless.

Id. at 296 (quotation marks and citations omitted). It then evaluated the impact on Fulminante’s trial

of admitting his first confession, focusing on some of the five indicia of harmlessness that it

previously had set forth: the overall strength of the government’s case; the emphasis placed on the

confession within the government’s case; the relationship between the confession and other evidence;

the evidentiary value of the confession; and the defendant’s opportunity to attack the confession4

through cross-examination. Id. at 296-302; see Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

Considering these five indicia of reasonableness, we see a strong congruence between

Eddleman’s case and Fulminante. Regarding the strength of the government’s case, the prosecutions

in Eddleman’s case and in Fulminante both rested solely on the testimony of questionably credible

witnesses. As in Fulminante, no physical evidence linked Eddleman to the crime. As in Fulminante,

the key prosecution witnesses against Eddleman told inconsistent or unbelievable stories: Babbitt’s

trial testimony differed in several key ways from the first account he gave to police, while Weaver

and Valastek both identified the date of the murder and Eddleman’s admitting to it by reference to

a boxing match that did not occur until nine months later. And as in Fulminante, those witnesses all

had reasons to implicate Eddleman other than a commitment to telling the truth: Babbitt and Valastek

cooperated only after they were arrested for Georgescu’s murder; Babbitt, Valastek, and O’Neal

admittedly received immunity from prosecution for some crimes, benefits in sentencing for others,

or both in exchange for their testimony; and prosecutors arguably forgave Weaver for probation

violations in exchange for his testimony.

The Michigan Court of Appeals sidestepped these persistent similarities by focusing solely

on the number of witnesses implicating Eddleman. See Eddleman, No. 224957, slip op. at 2. The

Fulminante Court, however, rejected such formalistic classification of the type and quantity of

evidence, demanding instead that we consider how jurors might view the totality of the evidence

remaining when the confession is excised. Fulminante, 499 U.S. at 298. Even with the coerced

confession erroneously admitted into evidence, Eddleman’s jury twice informed the court that it was

deadlocked before returning its verdict. This datum was not present in Fulminante (in which the

Court never mentioned the jury’s deliberations) and provides a powerful indication that, without the

confession, jurors probably would view the case as quite weak. We do not believe that a court

reasonably could distinguish Eddleman’s case from Fulminante based on the strength of the

government’s case.

The other four factors provide equally little basis for a distinction. Regarding the emphasis

placed on the confession, the government here, as in Fulminante, made the confession “the

centerpiece of this case.” Id. at 297. The prosecutor in Eddleman’s case referenced the confession

4

We consider these same factors regardless of the applicable standard of review, which alters only the nature

of the bar a petitioner or defendant must clear to demonstrate that an error was not harmless. Compare Stapleton v.

Wolfe, 288 F.3d 863, 867-68 (6th Cir. 2002) (applying Brecht standard on collateral review) with United States v.

Stavroff, 149 F.3d 478, 481-83 (6th Cir. 1998) (applying Chapman on direct review); see also Zappulla v. New York,

391 F.3d 462, 468 (2d Cir. 2004) (applying the standard of Chapman plus AEDPA deference on collateral review).

No. 05-1493 Eddleman v. McKee Page 10

throughout his opening and closing statements, called it the “first and foremost” evidence in the case,

and told the court that the confession alone would justify a conviction.

Similarly, regarding the relationship between the confession and the other evidence, the

prosecutor routinely used the confession to deflect attention away from weak points in his case. He

used it to defend the credibility of the four key prosecution witnesses, arguing that their testimony

merely reinforced the confession. And he relied on it to undermine the credibility of Eddleman’s core

theory that the shooting was revenge for a bar fight unrelated to the activities of the Insane Spanish

Cobras, devoting almost all of his cross-examination of the four witnesses supporting that theory to

questions about the confession.

Regarding the confession’s evidentiary value, the Fulminante Court distinguished between

full confessions and partial confessions. “While some statements by a defendant may concern

isolated aspects of the crime or may be incriminating only when linked to other evidence, a full

confession in which the defendant discloses the motive for and means of the crime may tempt the jury

to rely upon that evidence alone in reaching its decision.” Id. at 296. Like the defendant in

Fulminante, Eddleman gave a full confession, including both a direct admission of guilt and detailed

information about the crime, such as what type of gun was used.

Regarding the final factor, the Fulminante Court suggested that the opportunity for cross-

examination alone could not overcome the other indications that the admission of the confession was

not harmless. See id. at 300 & n.10. Based on our reading of the trial transcript, Eddleman’s trial

attorney also seems to have done a superb job under difficult conditions. In light of Fulminante,

however, the Michigan Courts of Appeals could not reasonably have concluded, beyond a reasonable

doubt, that his efforts eliminated the prejudice caused by the erroneous admission of the confession.

On each of the dimensions that the Supreme Court identified as relevant to a harmless-error

determination, the circumstances of Eddleman’s case parallel the circumstances of Fulminante. No

other case-specific factors dictate that the two cases should come out differently. Consequently, we

hold that the Michigan Court of Appeals’s harmless-error decision was an unreasonable application

of clearly established federal law, as determined by the Supreme Court’s decisions in Chapman and

Fulminante.

IV

For the preceding reasons, the district court’s conditional grant of a writ of habeas corpus is

AFFIRMED. The case is remanded to the district court with instructions to order Eddleman’s release

unless the state grants Eddleman a new trial within a reasonable period.