Ervine Davenport v. Duncan MacLaren

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0307p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ERVINE LEE DAVENPORT, ┐

Petitioner-Appellant, │

│

> No. 17-2267

v. │

│

│

DUNCAN MACLAREN, Warden, │

Respondent-Appellee. │

┘

On Petition for Rehearing En Banc

United States District Court for the Western District of Michigan at Grand Rapids.

No. 1:14-cv-01012—Ellen S. Carmody, Magistrate Judge.

Decided and Filed: September 15, 2020

Before: COLE, Chief Judge; STRANCH and READLER, Circuit Judges.

_________________

COUNSEL

ON PETITION FOR REHEARING EN BANC: Fadwa A. Hammoud, Jared D. Schultz,

OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

ON RESPONSE: Tasha J. Bahal, Reuven Dashevsky, WILMER CUTLER PICKERING

HALE AND DORR LLP, Boston, Massachusetts, for Appellant.

The panel issued an order denying the petition for rehearing en banc. STRANCH, J.

(pp. 3–7), delivered a separate opinion concurring in the denial of rehearing en banc, in which

COLE, C.J., and MOORE, CLAY, WHITE, and DONALD, JJ., joined. SUTTON, J. (pp. 8–11),

delivered a separate opinion concurring in the denial of rehearing en banc, in which

KETHLEDGE, J., joined. GRIFFIN, J. (pp. 12–14), delivered a separate opinion dissenting

from the denial of rehearing en banc. THAPAR, J. (pp. 15–28), delivered a separate opinion

dissenting from the denial of rehearing en banc, in which BUSH, LARSEN, NALBANDIAN,

READLER, and MURPHY, JJ., joined.

No. 17-2267 Davenport v. MacLaren Page 2

_________________

ORDER

_________________

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision. The petition then was circulated to the full court.

Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied. Judge Readler would grant rehearing for the reasons

stated in his dissent.

No. 17-2267 Davenport v. MacLaren Page 3

_________________

CONCURRENCE

_________________

STRANCH, Circuit Judge, concurring in the denial of rehearing en banc. The en banc

petition and the dissents throughout the case argue that we stand alone in how we assess

harmless error when, in fact, we stand in the company of our sister circuits and follow the

precedent of the Supreme Court. We have long held that an underlying trial error must have had

a “substantial and injurious effect or influence in determining the jury’s verdict” for a habeas

petitioner to survive harmless error review. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Following the Supreme Court,

we have also repeatedly (and uniformly) held that applying Brecht exacts AEDPA deference, in

part because it is so much more onerous on habeas petitioners than the Chapman v. California

standard applied by state courts on direct review, 386 U.S. 18 (1967). The Supreme Court

recently reiterated the propriety of this approach, concluding: “[i]n sum, a prisoner who seeks

federal habeas relief must satisfy Brecht, and if the state court adjudicated his claim on the

merits, the Brecht test subsumes the limitations imposed by AEDPA.” Davis v. Ayala, 576 U.S.

257, 270 (2015). In that scenario, “a federal habeas court need not ‘formal[ly]’ apply both

Brecht and ‘AEDPA/Chapman.’” Id. at 268 (quoting Fry v. Pliler, 551 U.S. 112, 119–20

(2007)). The opinions that accompany the denial of rehearing en banc are mistaken to conclude

that the panel majority did anything more than apply this test, as authorized by the Supreme

Court, to Davenport’s case.

Against the plain language of the Supreme Court, the en banc petition and now the

dissenters argue that courts must be required to apply a separate AEDPA test on top of Brecht.

But that would make our circuit the outlier. The en banc petition and the original and current

dissents, moreover, cannot cite a single case across the circuit courts of appeal in which a habeas

petitioner who prevailed under Brecht’s harmlessness inquiry was then required to pass through

the gauntlet of a second harmlessness test. This is because, as pointed out at length in the

majority opinion, the position advanced in the en banc petition rests on a series of legal errors.

There is no dispute that both Brecht and AEDPA must be satisfied for a habeas petitioner to

No. 17-2267 Davenport v. MacLaren Page 4

show that a constitutional error was not harmless. The Supreme Court’s teaching in Ayala that

the Brecht test subsumes the limitations imposed by AEDPA and our acknowledgment that the

Brecht test handles the work of both tests show that the test the panel majority applied

accomplishes that principle. Davenport also recognizes that courts may choose to apply

AEDPA/Chapman before turning to Brecht’s more demanding inquiry. In sum, Davenport

merely reiterates the unremarkable tenet that when the state concedes a constitutional trial error,

we can assess harmlessness under Brecht. A closer look at the opinions cited in the en banc

petition and the original dissent reveals a consistent interplay between the tests: if a petitioner

would lose under AEDPA/Chapman, he necessarily would lose under Brecht; if the petitioner

would prevail under Brecht, he necessarily would prevail under AEDPA/Chapman.

The opinions filed with the denial of rehearing en banc either parrot the original dissent,

faltering for the reasons explained at length in the majority opinion, or raise peripheral and

undisputed issues inappropriate for further appellate review in this case. A critical error, from

which others follow, is the notion that our majority decision turns wide of AEDPA’s guardrails

or simply ignores them altogether. Following the original dissent’s call for en banc review,

pages of the majority opinion were devoted to showing that far from ignoring AEDPA, we apply

it—full force—to Davenport’s case. See, e.g., Davenport v. MacLaren, 964 F.3d 448, 458–59

(6th Cir. 2020). The majority also shows that requiring federal habeas tribunals to perform a

two-step harmless error analysis contravenes Sixth Circuit and Supreme Court precedent. Id. at

454–59. The majority decision was not waylaid by Fry’s procedural differences; it instead

shows that Ayala confirmed the application of Brecht to Davenport’s case. See id. at 456, 458

n.8. In addition, the majority demonstrates that though there may have been a historical circuit

split on the standard of review issue, Ayala cleared up the division and specifically authorized

the test applied in this case. Id. at 457. And the majority opinion reveals that many of the circuit

cases cited by the dissent, read carefully, confirm the precise dynamic between Brecht and

AEDPA that the majority applied. See, e.g., Sifuentes v. Brazelton, 825 F.3d 506, 535 (9th Cir.

2016) (citation omitted) (quoting Ayala, 576 U.S. at 270):

In sum, a petitioner “necessarily cannot satisfy” the Brecht requirement of

showing that he was “actually prejudiced” by the state court’s error . . . “if a

fairminded jurist could agree with the [state appellate court] that this procedure

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met the Chapman standard of harmlessness.” By the same token, if a petitioner

does satisfy the Brecht requirement of showing that an error resulted in “actual

prejudice,” then the petitioner necessarily must have shown that the state court’s

determination that the error was harmless was objectively unreasonable.

Nor has there been an intra-circuit split in the Sixth Circuit regarding the test to be

applied to state court harmlessness assessments. Cases like Stewart v. Trierweiler, 867 F.3d 633

(6th Cir. 2017), and Hollman v. Sprader, 803 F. App’x 841 (6th Cir. 2020), merely show that

habeas relief can be denied on AEDPA/Chapman grounds without reaching Brecht—an

analytical approach that, as painstakingly explained in the majority opinion, is consistent with

Davenport. Davenport, 964 F.3d at 455. Both dissenters from denial of rehearing en banc

recently applied the very rule they now decry. Judge Thapar called the harmless error

framework “a choice of prompts,” in which one “option—a shortcut of sorts—is to leapfrog

AEDPA and jump directly to Brecht.” Hollman v. Sprader, 803 F. App’x 841, 843 (6th Cir.

2020) (citing Ayala, 576 U.S. at 268–70). Judge Griffin wrote: “[t]he Supreme Court and this

court have made clear that ‘Brecht is always the test’ for evaluating harmless error on collateral

review, even where AEDPA applies.” Reiner v. Woods, 955 F.3d 549, 556 (6th Cir. 2020)

(quoting Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th Cir. 2009)). The majority decision

simply took the unremarkable step of employing our existing circuit standard, which applies

Supreme Court precedent. In sum, federal courts across the nation apply Brecht after Ayala. We

do too.

My dissenting colleagues also express alarm about the facts of this case in which,

different from other cited cases, the Brecht test was satisfied. Admittedly, cases presenting

AEDPA issues by their nature contain concerning facts. That is true here. But the manner or

type of case does not control what legal standards apply. And the constitutional right to a fair

trial cannot depend upon a defendant’s admission to certain underlying—and even egregious—

facts.

A few other points are worth mentioning. The majority opinion did not apply a

“presumption of prejudice,” as the dissents suppose. That language is not in the majority

opinion. Equally misguided is the observation that, notwithstanding the standard of review

dispute, the panel majority extended Supreme Court precedent to reach its disposition. My

No. 17-2267 Davenport v. MacLaren Page 6

colleagues assert that the majority “relied primarily on Sixth Circuit decisions” in evaluating the

state courts’ harmless error decision, (Sutton Concurring Op. at 3), and that it “rel[ied] upon

circuit precedent to show what a general Supreme Court standard clearly establishes,” (Thapar

Dissenting Op. at 10). True, clearly established law is determined solely by Supreme Court

rulings, Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), not by circuit precedent, Kernan v.

Cuero, 138 S. Ct. 4, 9 (2017). And circuit precedent cannot turn “a general principle of Supreme

Court jurisprudence into a specific legal rule” that has not been stated by the Supreme Court.

Lopez v. Smith, 574 U.S. 1, 7 (2014) (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013)). The

majority decision did not violate these dictates. Instead, “in accordance with its usual law-of-

the-circuit procedures, [it] look[ed] to circuit precedent to ascertain whether it ha[d] already held

that the particular point in issue is clearly established by Supreme Court precedent”—an

approach the Supreme Court has explicitly sanctioned. Marshall, 569 U.S. at 64.

The rule is not that the act of citing a Sixth Circuit precedent in this context automatically

dooms an opinion. None of the majority’s references to Sixth Circuit precedents overstep the

bounds set out by the Supreme Court. The opinion addressed the procedural differences between

Davenport’s case and Deck v. Missouri, 544 U.S. 622 (2005). And it then turned to the Supreme

Court’s admonition that “[t]he law has long forbidden routine use of visible shackles during the

guilt phase” of a criminal trial because “shackling is ‘inherently prejudicial.’” Id. at 626, 635

(quoting Holbrook v. Flynn, 475 U.S. 560, 568 (1986)). Here, the State of Michigan does not

dispute that there was no on-the-record justification for the shackling and therefore it was

unconstitutional. And the majority opinion did not ignore post-trial juror testimony or speculate

about juror bias. Instead, it specifically addressed testimony given by jurors three years after trial

that they still remember that Davenport was shackled during trial, leaving them with the

impression that he was dangerous. In this context, moreover, the Supreme Court has specified

that “[i]f ‘a procedure employed by the State involves such a probability that prejudice will result

that it is deemed inherently lacking in due process,’ little stock need be placed in jurors’ claims

to the contrary.” Holbrook, 475 U.S. at 570 (citation omitted) (quoting Estes v. Texas, 381 U.S.

532, 542–43 (1965)). Nor does application of the Brecht test make it inappropriate to assess

whether shackles branded Davenport as having a violent nature in a case depending on the sharp

distinction drawn by Michigan law between first-degree and second-degree murder, which

No. 17-2267 Davenport v. MacLaren Page 7

requires that “first-degree murder be committed with premeditation and deliberation.” People v.

Morrin, 187 N.W.2d 434, 448–49 (Mich. Ct. App. 1971). In sum, as the majority opinion

explicitly noted, the Supreme Court’s shackling jurisprudence was the exclusive basis for its

reasoning; it directly applied relevant and specific holdings of Holbrook and Deck. Davenport,

964 F.3d at 466–67.

Ultimately, a majority of this court denied en banc review because it recognized that

Davenport is but a recent installment in a chain of Sixth Circuit decisions that follow Supreme

Court precedent and apply Brecht to a state court’s harmless error analysis. For the reasons more

fully set out in the majority opinion, I concur in the conclusion of our full court that this case

does not require en banc review.

No. 17-2267 Davenport v. MacLaren Page 8

_________________

CONCURRENCE

_________________

SUTTON, Circuit Judge, concurring in the denial of rehearing en banc. This en banc

petition implicates a nagging tension between deciding cases correctly and delegating to panels

of three the authority to decide cases on behalf of the full court.

I am skeptical that the panel decided this case correctly. At stake is whether Ervine Lee

Davenport, a Michigan prisoner convicted of first-degree murder for choking Annette White to

death, is entitled to habeas relief for a Fourteenth Amendment Due Process violation caused

when the trial court required him to wear shackles during his trial. On direct appeal, the

Michigan Supreme Court determined that any constitutional violation was harmless and denied

Davenport relief. On collateral review, the Michigan Attorney General’s Office conceded that

the trial court’s shackling decision rose to the level of a constitutional violation but defended the

state supreme court’s decision that it was harmless. The panel granted the habeas petition on the

ground that it was not harmless over a dissent by Judge Readler.

Anyone who has been an Article III judge for five years or more has seen this movie, at

least part of this movie, before. What is the correct way to characterize the showing needed to

obtain habeas relief when it comes to establishing that the state court’s harmlessness ruling

warrants correction after passage of the Antiterrorism and Effective Death Penalty Act of 1996?

Debates over the answer center on two pre-AEDPA decisions. Does the Chapman test—which

requires the government to “prove beyond a reasonable doubt that the error complained of did

not contribute to the verdict”—capture the proper approach together with the AEDPA

requirement that any Chapman ruling must be “unreasonable”? Chapman v. California, 386

U.S. 18, 24 (1967); 28 U.S.C. § 2254(d)(1). Or does the Brecht test—which requires a court on

collateral review to have deep doubt about whether the error “had substantial and injurious effect

or influence in determining the jury’s verdict”—capture the proper approach by itself? Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (quotation omitted). It has never seemed easy to sort out

the difference between these standards, sometimes even to know which one favors whom, and it

does not help matters that they both predate AEDPA. More recently, Davis v. Ayala referred to

No. 17-2267 Davenport v. MacLaren Page 9

the Brecht formulation, said that it “subsumes” AEDPA, and explained that this language did not

make AEDPA irrelevant to harmless-error decisions by state courts. 576 U.S. 257, 269–270

(2015).

For my part, I would answer the problem this way. On direct review of criminal

convictions, the Chapman harmlessness standard applies. On collateral review, two main

possibilities arise. If the state court issues a ruling on the harmlessness question under Chapman,

then habeas claimants may obtain relief only if they can show that the state court’s Chapman

ruling sank to the level of an “unreasonable application of” “clearly established” federal law

under AEDPA. If the state court does not issue a ruling on the merits of the harmlessness

question, then the Brecht standard applies to our review of the decision. This approach seems to

account for the Court’s view that Brecht “subsumes” AEDPA and its view that AEDPA remains

pertinent to federal court review of state court decisions.

But the standard-of-review question in these sorts of cases—how to capture the ineffable

test and the burden of proof in meeting it, to say nothing of the meaning of “subsumes”—can

become a distraction, prompting lawyers and courts to overlook core process principles that we

must account for under AEDPA before second-guessing state court convictions. The key one

overlooked in this case is that we must measure constitutional challenges by the yardstick of

United States Supreme Court decisions, not the Chancellor’s foot of our own decisions.

Remember the relevant language of AEDPA. It prohibits us from granting a habeas

petition for a claim adjudicated on the merits in state court unless the state court unreasonably

applied “clearly established Federal law, as determined by the Supreme Court[.]” 28 U.S.C.

§ 2254(d)(1). Ayala tells us that a state court’s harmless-error determination constitutes an

adjudication on the merits under AEDPA. 576 U.S. at 269. The state courts held that

Davenport’s shackling was harmless. That requires us to measure the state court’s decision

against holdings of the United States Supreme Court, not holdings of our court. White v.

Woodall, 572 U.S. 415, 419 (2014).

No. 17-2267 Davenport v. MacLaren Page 10

But that’s not what the panel did. In deciding that the state courts clearly erred in their

harmless-error decision, the panel relied primarily on Sixth Circuit decisions. That’s the wrong

benchmark. AEDPA forbids it. And the United States Supreme Court has not been reticent

about correcting lower courts that violate this core measuring stick under AEDPA. See, e.g.,

Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (per curiam); Glebe v. Frost, 574 U.S. 21, 24 (2014) (per

curiam).

That brings me to the second process problem. As to the one Supreme Court decision the

panel did consider, Deck v. Missouri, 544 U.S. 622 (2005), Deck did not offer a holding on the

harmlessness question. While it said that Chapman would apply to any error, see 544 U.S. at

635, it did not provide “clearly established” law about how to apply a harmlessness test to a

shackling violation. It simply left matters at a Mt. Everest-level of generality, whether it’s the

Chapman formulation mentioned there or the Brecht formulation mentioned in Ayala. So the

panel’s reliance on Deck also violates AEDPA and Supreme Court interpretations of it. Nevada

v. Jackson, 569 U.S. 505, 512 (2013) (per curiam). Unlike this case, Deck involved the use of

physical restraints fully visible to the jury. See Davenport v. MacLaren, 964 F.3d 448, 478 (6th

Cir. 2020) (Readler, J., dissenting). And unlike this case, Deck had no reason to apply the

harmlessness test to such a violation. Those are distinctions with plenty of differences. Over

and over, the Supreme Court has admonished us not to frame its holdings at such a lofty level of

generality in deciding what law has been “clearly established.” Lopez v. Smith, 574 U.S. 1, 6

(2014) (per curiam) (quotation omitted); Metrish v. Lancaster, 569 U.S. 351, 367–68 (2013).

These problems with the panel’s decision and its debate over Chapman/Brecht seem to be

recurring ones in our circuit and outside of it, suggesting that there is room for clarification by

the Supreme Court when it comes to federal court review of state court harmless-error decisions

under AEDPA—and the process obligations of lower courts in applying the statute. Just read the

eighteen combined pages devoted to the standard of review by this one panel for evidence. It’s

been five years since the Court’s most recent contribution to the area and of course many

decades since Chapman and Brecht. I suspect every federal judge in the country would welcome

guidance in the area.

No. 17-2267 Davenport v. MacLaren Page 11

One last note. Query whether future panels need to follow one aspect of the panel’s

decision, its use of Sixth Circuit decisions to satisfy AEDPA. That was not a holding of the

court on a matter debated by the parties. The Michigan Attorney General’s Office did not raise

the point, and as a result it was not joined by the parties or for that matter the panel. A panel’s

implicit resolution of an issue that was neither raised by the parties nor engaged by the panel

generally does not bind future panels. See United States v. L.A. Tucker Truck Lines, Inc., 344

U.S. 33, 37–38 (1952); Webster v. Fall, 266 U.S. 507, 511 (1925). Because Michigan never

raised the point, the panel had no occasion to justify its use of circuit precedent to find a clear

violation of federal law. The question thus appears to remain open for future panels to consider

in the first instance.

That aspect of the decision makes me reluctant to grant en banc review in this case. So

does one other consideration. The problem at hand turns mainly on what to make of language in

Supreme Court decisions, particularly the meaning of “subsumes” first mentioned in Fry v.

Pliler, 551 U.S. 112, 120 (2007), and repeated in Ayala. Countless inefficiencies arise when a

full intermediate court debates the meaning of vexing language from the Supreme Court, the

most obvious being this: Not only are we fallible, we are not final either.

No. 17-2267 Davenport v. MacLaren Page 12

_________________

DISSENT

_________________

GRIFFIN, Circuit Judge, dissenting.

I respectfully dissent from the denial of the petition for rehearing en banc.

By the vote of 8–7, our en banc court has denied respondent’s petition for rehearing en

banc. This is most unfortunate for our circuit because the 2–1 panel opinion conflicts with a

previous decision of our court and is clearly wrong on a habeas-corpus issue of exceptional

importance. While some of my colleagues agree, they nevertheless have opposed the petition in

the hope that the Supreme Court will reverse us yet again to clean up our intra-circuit mess.1

This denial of rehearing en banc is reminiscent of CNH Industrial N.V. v. Reese, 138 S. Ct. 761

(2018), wherein we were reversed unanimously by the Supreme Court in a per curiam opinion

and admonished that “the en banc Sixth Circuit has been unwilling (or unable) to reconcile its

precedents.” Id. at n.2.

The Federal Rules of Appellate Procedure provide an important and necessary remedy for

courts of appeals to correct their conflicts and errors of exceptional importance. While en banc

hearings or rehearings are not favored, they are authorized when:

1) en banc consideration is necessary to secure or maintain uniformity of the

court’s decisions; or

2) the proceeding involves a question of exceptional importance.

Fed. R. App. P. 35(a). This case cries out for rehearing en banc by operation of both 35(a)(1)

and 35(a)(2).

First, rehearing en banc is necessary “to secure or maintain uniformity of [our] court’s

decisions.” The majority Davenport v. MacLaren opinion is in direct conflict with our prior

published opinion, Stewart v. Trierweiler, 867 F.3d 633 (6th Cir. 2017). Specifically, in Stewart,

1

See, e.g., Int’l Union v. Kelsey-Hayes Co., 872 F.3d 388, 390–93 (6th Cir. 2017) (Griffin, J., dissenting

from the denial of the petition for rehearing en banc).

No. 17-2267 Davenport v. MacLaren Page 13

Judge Sutton, writing for our unanimous court, ruled that the habeas petitioner had not sustained

his burden of proving that a state court’s ruling of harmless error was an “unreasonable

application of clearly established federal law as determined by the Supreme Court of the United

States.” Id. at 636–38. Thus by operation of the Antiterrorism and Effective Death Penalty Act

of 1996, 28 U.S.C. § 2254 (AEDPA), the petitioner in Stewart was not entitled to habeas relief.

867 F.3d at 638; see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“The petitioner carries

the burden of proof” under § 2254(d)).

Opposite to Stewart, the Davenport majority held that respondent Warden had not

sustained his burden of demonstrating that the error was not harmless. Davenport v. MacLaren,

964 F.3d 448, 451 (6th Cir. 2020) (“[T]he State has not met its burden to show the restraints did

not have a substantial and injurious effect or influence in determining the jury’s verdict.”).

Moreover, contrary to Davis v. Ayala, 576 U.S. 257, 268 (2015) (“AEDPA nevertheless

‘sets forth a precondition to the grant of habeas relief’” (emphasis added and citation omitted)),

and in conflict with Stewart, the Davenport panel held that AEDPA does not apply to issues of

harmless error raised in habeas corpus petitions. 964 F.3d at 460–63. Davenport viewed the

standards of Brecht v. Abrahamson, 507 U.S. 619 (1993), and AEDPA as the same. They are

not. While a constitutional error resulting in actual prejudice is sufficient under Brecht, id. at

637, AEPDA requires more.

Specifically, AEDPA requires the petitioner to prove that the error is “an unreasonable

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

United States.” § 2254(d)(1). This standard is materially different from proving actual

prejudice. As Judge Readler emphasized in his Davenport dissent, while “[i]t may be that a

federal court can deny habeas relief by ‘go[ing] straight to Brecht[,]’” 964 F.3d at 469 (Readler,

J., dissenting) (citations omitted), a court may not grant a writ of habeas corpus unless the

petitioner also sustains his burden under AEDPA of proving that the state court ruling was “an

unreasonable application of[] clearly established Federal law, as determined by the Supreme

Court of the United States.” § 2254(d)(1); see also Johnson v. Acevedo, 572 F.3d 398, 403–04

(7th Cir. 2009).

No. 17-2267 Davenport v. MacLaren Page 14

In addition, because Stewart was an earlier published decision of our court, Stewart

should have been precedentially binding for Davenport. 6 Cir. Rule 32.1(b); Miller v. Caudill,

936 F.3d 442, 447–48 (6th Cir. 2019). However, I also acknowledge that other decisions appear

to conflict with Stewart, see, e.g., O’Neal v. Balcarcel, 933 F.3d 618, 625 (6th Cir. 2019);

McCarley v. Kelly, 801 F.3d 652, 665 (6th Cir. 2015), thus compounding our intra-circuit

conflict.

Second, the issue of harmless error for habeas corpus petitions is of exceptional

importance, particularly for our court because we review habeas corpus death penalty petitions

arising from three of the four states in our circuit. In this regard, the issues of which party has

the burden of persuasion on the issue of harmless error for habeas review and whether AEDPA

applies are fundamental to our judicial system.

I note that our sister courts of appeals are on the other side on these issues. It appears that

we are alone in taking a “straight to Brecht approach” in determining on habeas review whether a

state court’s constitutional error was harmless. See Davenport, 964 F.3d at 475–77 (Readler, J.,

dissenting) (collecting cases).

Finally, the Davenport holding that AEDPA is inapplicable to harmless error rulings by

state courts trammels upon the important federalism principles that undergird AEDPA. See, e.g.,

Woodford v. Garceau, 538 U.S. 202, 206 (2003).

For these reasons, and for those articulated by Judge Readler in his persuasive panel

dissent, I respectfully dissent. Because our litigants, attorneys, and judges need guidance from

our en banc court on these issues of exceptional importance, I would grant respondent’s petition

for rehearing en banc.

No. 17-2267 Davenport v. MacLaren Page 15

_________________

DISSENT

_________________

THAPAR, Circuit Judge, dissenting from the denial of rehearing en banc. Thirteen years

ago, on a cold night in January, Earl Davenport killed Annette White. He closed his hand around

her neck and held it there as she struggled against him. Minutes later, she was dead.

Despite the overwhelming evidence of Davenport’s guilt, a panel majority voted to

vacate his conviction. It did so without even applying AEDPA deference to the state court’s

harmless-error determination.

This tragic case thus presents a fundamental question of habeas jurisprudence: Must a

state court’s harmless-error determination receive AEDPA deference under 28 U.S.C.

§ 2254(d)(1)? The plain text of the statute says that the answer is yes. But the panel majority

held that the answer is no. According to the panel opinion, federal judges can simply ignore

AEDPA’s guardrails whenever they find that a petitioner has suffered actual prejudice under

Brecht v. Abrahamson, 507 U.S. 619 (1993). This holding casts aside AEDPA and misinterprets

Supreme Court precedent. That matters because AEDPA’s procedural rules have bite that Brecht

lacks. The holding also deepens an existing circuit split. And what’s more, the panel opinion

defies Brecht itself, granting habeas relief based on mere speculation and a thin stack of

academic articles, some of which postdate the state court’s decision.

Given these errors and their importance, this case merited the attention of the en banc

court. I respectfully dissent.

I.

A.

At trial, Davenport did not contest that he killed Annette White. Instead, he claimed that

he acted in self-defense. As Davenport tells it, they were both high on crack cocaine that night,

and he was driving her around. They started arguing. He was trying to focus on traffic, and she

pulled out a box cutter. At that point, he grabbed her by the neck and pinned her against the

No. 17-2267 Davenport v. MacLaren Page 16

passenger-side window. He was choking her. She started kicking, and he pushed against her

neck even harder. He says that even though the strangulation “happened quick[ly],” “it seemed

like it took forever.”

It did. According to the medical examiner’s testimony, it would have taken at least four

minutes for Annette to die. She would have passed out much sooner, perhaps after thirty to forty

seconds without oxygen. So maybe at the start, the 6'5", 260-pound Davenport was up against an

angry, argumentative, 5'2" Annette—all one hundred pounds of her. Maybe at the start, she had

a box cutter. But soon he was up against an unconscious Annette: no more anger, no more

knife.

Yet he kept his hand around Annette’s throat. She was unconscious. Seconds passed,

then minutes passed, then she was dead. Davenport claims he was driving this entire time.

He then proceeded to dump Annette’s body in a field. After leaving her face down in the

dirt—wearing a bra and bloodied underwear and one sock—he went to her house. He took some

of her food, stole her stereo, and then met up with friends to smoke more crack. How did he feel

about Annette’s death? “Just a bad situation,” he said. “That’s all. Just a bad situation.”

Davenport was familiar with bad situations. Annette wasn’t even the first person he had

choked that week. Five days before, he found himself annoyed with another woman, so he came

up behind her and circled his hands around her neck. He squeezed, lifting her off the ground.

She bit her tongue and urinated on herself as she blacked out. By a stroke of luck, her boyfriend

walked in. He saw his girlfriend unconscious, feet off the floor, dangling from Davenport’s

hands. Davenport let her go, and she survived. “You know, you’re lucky,” he told her later.

“I wanted to squish you like a bug.”

Strangling, it seems, is how Davenport dealt with problems. He would brag about it,

flexing his hands: He didn’t have to worry about anyone giving him trouble; he’d just “choke

’em up” if it got bad. That’s what happened to Annette. And the jury concluded it was

first-degree murder.

No. 17-2267 Davenport v. MacLaren Page 17

B.

Davenport was partially shackled during trial. His right hand was uncuffed so that he

could write notes to his attorney. And there was a privacy curtain around defense counsel’s

table. Yet the trial court never made on-the-record findings justifying the restraints.

On appeal, the Michigan Supreme Court held that the shackling was unconstitutional. It

remanded for a determination of whether the jury saw the shackles, and if so, whether the

prosecution could show beyond a reasonable doubt that the error did not affect the verdict.

People v. Davenport, 794 N.W.2d 616 (Mich. 2011) (order) (Davenport I).

The trial court then held a two-day evidentiary hearing. All twelve jurors testified. Five

saw the restraints; four never noticed them; two heard about them from other jurors; and one

couldn’t remember either way. The jurors testified that the restraints were never discussed

during deliberations, and that to the extent they thought Davenport was dangerous, it was

because he was on trial for first-degree murder. Thus, the trial court ruled that the prosecution

had proved beyond a reasonable doubt that the shackling did not affect the verdict.

Davenport appealed again, and the Michigan Court of Appeals affirmed. It held that the

trial court “did not err in finding that the prosecution proved beyond a reasonable doubt that the

shackling error did not affect the verdict.” People v. Davenport, No. 306868, 2012 WL

6217134, at *3 (Mich. Ct. App. 2012) (per curiam) (Davenport II).

The Michigan Supreme Court denied leave to appeal. In denying leave to appeal, it said

that Holbrook should have governed the lower court’s harmless-error analysis. People v.

Davenport, 832 N.W.2d 389 (Mich. 2013) (Davenport III) (citing Holbrook v. Flynn, 475 U.S.

560, 570 (1986)). But the result would have been the same either way, the court reasoned,

“given the substantial evidence of guilt presented at trial.” Id. Thus, the case did not merit its

review.

Next, Davenport filed a habeas petition in federal court, which the district court denied.

This court then granted a certificate of appealability, and a three-judge panel reversed over Judge

Readler’s dissent. According to the majority, Davenport’s shackling amounted to actual

No. 17-2267 Davenport v. MacLaren Page 18

prejudice under the Brecht standard. Davenport v. MacLaren, 964 F.3d 448, 468 (6th Cir. 2020)

(Davenport IV). It thus vacated his conviction and ordered Michigan to release or retry

Davenport within 180 days. Id. In throwing out Davenport’s conviction, the majority held that

courts do not have to apply AEDPA deference once they make a finding of actual prejudice

under Brecht. Id. at 457–58. But as Judge Readler’s forceful dissent points out, the majority’s

error has real consequences—both for this case and for many cases to come.

II.

The majority’s opinion suffers from two fatal flaws. First, it refuses to apply AEDPA

deference to the state court’s harmless-error determination, holding that the Brecht standard

obviates any need for doing so. Second, it misapplies Brecht, granting habeas relief based on

little more than speculation. And as a result of those two errors, the panel vacates the conviction

of a Michigan murderer.

A.

The panel majority first erred in holding that AEDPA deference does not apply to state

court harmless-error determinations. See Davenport IV, 964 F.3d at 456–57. In reaching this

erroneous conclusion, the majority misconstrues AEDPA, misapplies Supreme Court precedent,

and deepens an existing circuit split.

1.

To understand how the panel erred in its application of AEDPA, it is important to

understand how a criminal defendant can challenge alleged constitutional violations. First, he

must bring his challenge in state court. And if the state court finds a constitutional violation, it

then analyzes whether that error was “harmless beyond a reasonable doubt.” Chapman v.

California, 386 U.S. 18, 24 (1967).

If the state court finds that the error was harmless beyond a reasonable doubt, the

petitioner can then seek habeas relief in federal court. But even before AEDPA, the Supreme

Court recognized that habeas is an “extraordinary remedy” designed to protect those who have

been “grievously wronged.” Brecht, 507 U.S. at 633–34 (citation omitted). Thus, the Supreme

No. 17-2267 Davenport v. MacLaren Page 19

Court held that a habeas petitioner can only obtain relief when he demonstrates “actual

prejudice.” Id. at 637 (citation omitted). Actual prejudice exists when a judge finds that an error

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

But that wasn’t enough for Congress. So three years after Brecht, Congress passed and

the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996. Under

AEDPA, federal courts can grant habeas relief only when a state court’s adjudication of a federal

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

clearly established Federal law, as determined by the Supreme Court,” or (2) “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). Put differently, if “fairminded jurists could disagree on the

correctness of the state court’s decision,” federal courts must deny habeas relief. Harrington v.

Richter, 562 U.S. 86, 101 (2011) (cleaned up). And that remains true even if a court also finds

actual prejudice under Brecht.

2.

This case presents the question whether a state court’s harmless-error determination must

always receive AEDPA deference in accordance with § 2254(d)(1). Under the plain text of

AEDPA, the answer is clear—yes.

Habeas requires us to review the final state court decision. Harrington, 562 U.S. at 98–

99. When that decision rests on the harmlessness of an alleged error (as is the case here), federal

courts must determine whether the state court’s harmless-error determination “was contrary to,

or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1). That is because federal law—namely Chapman—governs the harmless-error

inquiry in state court. Thus, AEDPA’s text requires deference to a state court’s harmless-error

inquiry.

Supreme Court precedent confirms this common-sense reading of the statute. In Davis v.

Ayala, the Court explained that independent of Brecht, “the limitation on federal habeas relief

that § 2254(d) plainly sets out” continues to apply. 576 U.S. 257, 268 (2015). Indeed, the

Supreme Court has squarely held that “habeas relief is appropriate only if [a state court has]

No. 17-2267 Davenport v. MacLaren Page 20

applied harmless-error review in an ‘objectively unreasonable’ manner.” Mitchell v. Esparza,

540 U.S. 12, 18 (2003) (per curiam) (citation omitted). The panel majority ignores that rule here.

Thus, not only does the panel opinion conflict with the plain text of AEDPA, it also violates

controlling Supreme Court precedent.

3.

How does the panel majority avoid AEDPA’s limits? By first misapplying Supreme

Court precedent and then clouding the important differences between Brecht and AEDPA

review.

Start with precedent. The panel’s confusion begins with Fry v. Pliler, 551 U.S. 112

(2007). That case concerned what standard federal courts should apply on collateral review

when a state court finds no constitutional error and thus doesn’t make a harmless-error

determination: Brecht or Chapman? See id. at 120 & n.2. The Supreme Court held that even

when a state court makes no harmless-error determination, federal courts must still apply the

Brecht test rather than Chapman’s lower standard. Id. at 118–19. In this context, the Court

reasoned, Brecht “obviously subsumes” the AEDPA/Chapman test because it requires a higher

showing for prejudice, so it “makes no sense to require formal application of both tests.” Id. at

120. Simply put, Fry stands for the proposition that there is nothing to defer to under AEDPA

when a state court does not make a harmless-error determination. Id. at 119–20; see Johnson v.

Acevedo, 572 F.3d 398, 404 (7th Cir. 2009) (Easterbrook, J.) (adopting this reading of Fry).

The panel takes Fry’s “obviously subsumes” dictum from its case-specific context and

insists that Brecht can always operate as a complete substitute for AEDPA deference. See

Davenport IV, 964 F.3d at 458–59. But this misreads Fry. Indeed, a closer look at Fry reveals

that—far from suggesting that AEDPA’s guardrails are surplusage—the Supreme Court

confirmed that courts must ordinarily apply AEDPA alongside Brecht: “[W]hen a state court

determines that a constitutional violation is harmless, a federal court may not award habeas relief

under § 2254 unless the harmlessness determination itself was unreasonable.” Fry, 551 U.S. at

119 (citing Mitchell, 540 U.S. 12).

No. 17-2267 Davenport v. MacLaren Page 21

If any doubt remains, the Supreme Court’s subsequent decision in Ayala should quash it.

There the Court explained that “[t]he Fry Court did not hold—and would have had no possible

basis for holding—that Brecht somehow abrogates the limitation on federal habeas relief that

§ 2254(d) plainly sets out.” Ayala, 576 U.S. at 268. So while there will be cases in which “a

federal habeas court need not formally apply both Brecht and AEDPA/Chapman, AEDPA

nevertheless sets forth a precondition to the grant of habeas relief.” Id. (cleaned up).

For all of these reasons, state court harmless-error determinations are entitled to AEDPA

deference under § 2254(d).

4.

The panel majority contends that its non-application of AEDPA makes sense because

Brecht imposes a higher bar than Chapman for granting habeas relief. See Davenport IV, 964

F.3d at 458 & n.6. And since Brecht imposes a higher bar than Chapman, the panel reasons that

we can safely ignore AEDPA’s statutory guardrails. But this approach makes little sense from a

first-principles perspective. Why? Because Brecht and AEDPA call for distinct inquiries.

Brecht asks whether a criminal defendant was actually prejudiced by a constitutional

error. 507 U.S. at 637. AEDPA, on the other hand, asks whether a state court decision was

unreasonable based on two factors: (1) clearly established federal law, and (2) evidence

presented in state court proceedings. 28 U.S.C. § 2254(d). So while Brecht might impose a

stricter substantive standard for relief than Chapman standing alone, Brecht and AEDPA ask

different questions and are governed by different procedural rules. It thus makes little sense to

say that a finding of actual prejudice under Brecht obviates any need to apply AEDPA’s clear

rules.

To be sure, if a habeas petitioner has not suffered actual prejudice under Brecht, a state

court’s determination that an error was harmless will always be reasonable under

§ 2254(d). Thus, a court must deny habeas outright when Brecht is not satisfied. See, e.g.,

Hollman v. Sprader, 803 F. App’x 841, 843 (6th Cir. 2020).

No. 17-2267 Davenport v. MacLaren Page 22

But the inverse is not also true: A showing of actual prejudice under Brecht does not

mean that a petitioner has also satisfied AEDPA’s requirements. Taking a closer look at the core

differences between Brecht and AEDPA shows why, even if one accepts the panel’s Brecht

analysis, AEDPA would require that we still affirm the conviction.

First, under the Brecht standard, a petitioner isn’t limited to clearly established Supreme

Court precedent. A petitioner can thus argue for an expansion of Supreme Court precedent when

attempting to show Brecht prejudice (at least absent AEDPA). But under AEDPA, extending

Supreme Court precedent is improper. See White v. Woodall, 572 U.S. 415, 425–26 (2014);

28 U.S.C. § 2254(d)(1).

This case shows why this rule matters. The panel majority rejected Michigan’s

harmless-error determination in part because the state court relied on post-trial testimony from

jurors. Davenport IV, 964 F.3d at 466; id. at 478 (Readler, J., dissenting). The majority

contends that Holbrook bars Michigan’s approach. 475 U.S. 560. But Holbrook concerned

pretrial testimony from prospective jurors during voir dire about what effect uniformed law

enforcement officers might have on their perception of the defendants. Id. at 565. That is a far

cry from post-trial testimony from jurors about how shackling actually affected their

verdict. Thus, the majority had to extend Holbrook to apply it here. Davenport IV, 964 F.3d at

479 (Readler, J., dissenting). And while such extensions might be permissible under Brecht

itself, they are strictly prohibited by AEDPA. Woodall, 572 U.S. at 425–26; see also Virginia v.

LeBlanc, 137 S. Ct. 1726, 1728–29 (2017) (per curiam).

Second, under Brecht, a petitioner arguably could rely upon circuit precedent to show

how Supreme Court cases should be applied. But as the Supreme Court has repeatedly reminded

us in the AEDPA context, we may not rely upon circuit precedent to show what a general

Supreme Court standard clearly establishes. The Supreme Court’s warning speaks for itself:

“As we explained in correcting an identical error by the Sixth Circuit two Terms ago, circuit

precedent does not constitute ‘clearly established Federal law, as determined by the Supreme

Court.’ It therefore cannot form the basis for habeas relief under AEDPA. Nor can the Sixth

Circuit’s reliance on its own precedents be defended in this case on the ground that they merely

No. 17-2267 Davenport v. MacLaren Page 23

reflect what has been clearly established by our cases.” Parker v. Matthews, 567 U.S. 37, 48–49

(2012) (cleaned up).

Again, this case shows why AEDPA’s constraints matter. The majority relies on Sixth

Circuit and Ninth Circuit cases to extend Supreme Court precedent in the shackling (or, as here,

partial-shackling) context. See Davenport IV, 964 F.3d at 465–68 (citing Ruimveld v. Birkett,

404 F.3d 1006, 1018 (6th Cir. 2005); Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir.

1999)). Based on that caselaw, the majority assumes that a “presumption of prejudice” attaches

any time a juror sees a shackled defendant, and that the “duration of the jury’s deliberations”

matter. See id. Yet Supreme Court caselaw does not require state courts to consider these

factors when conducting a harmless-error analysis. So under AEDPA, the state court cannot be

faulted for unreasonably applying “clearly established Federal law, as determined by the

Supreme Court.” 28 U.S.C. § 2254(d)(1).

Third, under the AEDPA standard, state courts have broad discretion when Supreme

Court precedent speaks at high levels of generality. Renico v. Lett, 559 U.S. 766, 776 (2010)

(“Because AEDPA authorizes federal courts to grant relief only when state courts act

unreasonably, it follows that the more general the rule at issue—and thus the greater the potential

for reasoned disagreement among fair-minded judges—the more leeway state courts have in

reaching outcomes in case-by-case determinations.” (cleaned up)). In the shackling context, the

Supreme Court has told us generally that Chapman applies. But it has not told us specifically

how state courts must conduct their Chapman inquiries. Compare Deck v. Missouri, 544 U.S.

622, 635 (2005) (requiring general harmless-error analysis in the shackling context), with

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (identifying more specific harmless-error

factors in the Confrontation Clause context). Thus, state courts may adopt any reasonable

approach when determining whether shackling the defendant was harmless.

Once more, this case highlights why AEDPA has bite. To determine whether the error

was harmless, the Michigan Supreme Court directed the trial court to hold a hearing concerning

how the shackling had (or had not) affected the verdict. Davenport I, 794 N.W.2d 616. The trial

court then required the jurors to testify at the evidentiary hearing. That legal approach—relying

on the jurors’ own post-trial views—is certainly a reasonable application of Chapman’s general

No. 17-2267 Davenport v. MacLaren Page 24

standard. And if it’s an acceptable approach, there can be no doubt as to the proper outcome in

this case under AEDPA. Then, when denying discretionary review of the trial court’s harmless-

error determination, the Michigan Supreme Court suggested that the trial court should have

focused on the overall evidence of the defendant’s guilt rather than the jurors’ testimony. (It

denied review because the evidence of guilt was overwhelming.) Davenport III, 832 N.W.2d

389. Given Chapman’s general standard, this alternative approach would have also been a

reasonable approach to harmless-error analysis in the shackling context.

But the majority, in determining Brecht prejudice, adopted its own harmless-error test—

asking whether a jury might have convicted the defendant of a lesser included offense (second-

degree murder) instead of his actual crime of conviction (first-degree murder). The majority

identifies no clearly established Supreme Court precedent requiring this approach. Indeed,

Davenport never made this lesser-included-offense argument to the state court. So the majority’s

approach, at least on collateral review, is out of bounds under AEDPA. Thus, even if one were

to accept the majority’s Brecht analysis, AEDPA would again require a different result.

Fourth, the Brecht standard—at least on its face—does not seem to bar habeas petitioners

from presenting evidence outside the state court record (although federalism and comity counsel

against it). But under AEDPA, habeas review is strictly “limited to the record that was before

the state court that adjudicated the prisoner’s claim on the merits.” Greene v. Fisher, 565 U.S.

34, 38 (2011) (citing Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). In this case, for example,

the panel majority relies on social-science studies about “implicit bias” (published as recently as

2019) to support its finding of actual prejudice. See Davenport IV, 964 F.3d at 466 & n.13; id. at

479 (Readler, J., dissenting). But that new evidence is outside the state court record and thus

cannot be considered under AEDPA.

The upshot of all this is that by shifting everything into the Brecht basket, the panel

dodges AEDPA’s clear rules—no looking at non-Supreme Court cases, no extending existing

Supreme Court precedent, and no relying on evidence not presented in state court. Jettisoning

these clear, rule-based requirements will make appellate review in habeas cases more difficult

and unpredictable. See generally Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi.

L. Rev. 1175 (1989). And by affording federal courts the ability to undo state convictions absent

No. 17-2267 Davenport v. MacLaren Page 25

a violation of existing Supreme Court precedent, the panel disrespects the comity and federalism

concerns at the heart of AEDPA.

In conclusion, the differences between Brecht and AEDPA matter. If AEDPA applies,

the panel decision is plainly erroneous since it extends Supreme Court precedent, relies on circuit

precedent, creates a new standard for harmless-error review in the shackling context, and

introduces evidence not presented in the state court proceedings. See Davenport IV, 964 F.3d at

479 (Readler, J., dissenting). Thus, this case presents an ideal vehicle for clarifying the

relationship between Brecht and AEDPA.

5.

This case also highlights a deepening split among the various federal Courts of Appeals.

See Davenport IV, 964 F.3d at 475–77 (Readler, J., dissenting) (discussing this circuit split).

One set of circuits generally holds that courts must apply both Brecht and AEDPA when

reviewing state court harmless-error determinations. See, e.g., Johnson v. Lamas, 850 F.3d 119,

133–34 (3d Cir. 2017); Johnson v. Acevedo, 572 F.3d 398, 404 (7th Cir. 2009); Malone v.

Carpenter, 911 F.3d 1022, 1029–30 (10th Cir. 2018); Mansfield v. Sec’y, Dep’t of Corr.,

679 F.3d 1301, 1307–08 (11th Cir. 2012).

Typical of this approach is the Seventh Circuit’s opinion in Acevedo. There, Judge

Easterbrook explained that Fry controls where a state court fails to conduct a harmless-error

analysis. Acevedo, 572 F.3d at 404. But when a state court does reach harmless error, “the

federal court must decide whether that analysis was a reasonable application of the Chapman

standard.” Id. And only after a finding of unreasonableness does AEDPA drop out of the

picture and allow a federal court to “make an independent decision” about prejudice under

Brecht. Id.

Another set of circuits arguably holds that a finding of actual prejudice under Brecht

obviates the need to apply AEDPA deference to state court harmless-error determinations.

While the panel’s holding charges to the front of the line, at least three other circuits seem to

No. 17-2267 Davenport v. MacLaren Page 26

have taken the same approach. See Connolly v. Roden, 752 F.3d 505, 511 (1st Cir. 2014); Wood

v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011); Deck v. Jenkins, 814 F.3d 954, 985 (9th Cir. 2016).

Of course, neatly dividing the circuits into categories at times proves too much. For the

question presented here has led to both “intracircuit” and “intercircuit” splits. See Deck, 814

F.3d at 973 (Bea, J., dissenting from denial of reh’g en banc). Indeed, my review of the caselaw

reveals subtle (and not so subtle) tension within many circuits. Compare Vazquez v. Sec’y, Fla.

Dep’t of Corr., 807 F. App’x 901, 905 (11th Cir. 2020) (“[F]ederal courts need not formally

apply both the Brecht standard and AEDPA-deference . . . though ultimately both tests must be

met for courts to grant habeas relief.” (citing Mansfield, 679 F.3d at 1307–08)), with Hammonds

v. Comm’r, Ala. Dep’t of Corr., 712 F. App’x 841, 849–50 (11th Cir. 2017) (“[I]f a petitioner

satisfies the Brecht standard, he necessarily also satisfies the AEDPA standard.”); compare also

Lamas, 850 F.3d at 133–34, with Bond v. Beard, 539 F.3d 256, 275–76 (3d Cir. 2008). And as

Judge Griffin’s dissent aptly points out, our circuit’s caselaw reflects the same tension. See ante

at 12–13 (Griffin, J., dissenting from denial of reh’g en banc).

Given the deep confusion within and among the circuits, the question presented here is

ripe for further review.

B.

Even if we cast aside AEDPA and its congressionally mandated guardrails, Davenport is

still not entitled to habeas relief. He cannot show that the shackling resulted in “actual

prejudice.” Brecht, 507 U.S. at 637 (citation omitted). To do so, the shackling must have had a

“substantial and injurious effect or influence [on] the jury’s verdict.” Id.

And here, all twelve jurors testified that the shackling “did not influence the[ir] verdict.”

Davenport II, 2012 WL 6217134, at *1; see Smith v. Phillips, 455 U.S. 209, 217 n.7 (1982)

(noting that a juror is “well qualified to say whether he has an unbiased mind in a certain

matter”). While the Supreme Court has not told us how to undertake the harmless-error analysis

in this context, the jurors’ testimony seems important. What’s more, eleven Michigan judges

concluded the error was harmless. Davenport II, 2012 WL 6217134, at *3, leave to appeal

denied, 832 N.W.2d 389, 390; see also Brecht, 507 U.S. at 636 (“[S]tate courts often occupy a

No. 17-2267 Davenport v. MacLaren Page 27

superior vantage point from which to evaluate the effect of trial error.”). And just in case anyone

thinks that the Michigan judiciary and jurors were out to lunch (they weren’t), a federal

magistrate judge, a district court judge, Judge Readler, and several members of this en banc court

agreed with their conclusion.

But even if we accept Davenport’s asserted harm, he did not suffer actual prejudice.

Davenport strangled Annette’s limp body after she lost consciousness, dumped her half-naked in

an empty field, and then robbed her house. Add to this that another woman testified that

Davenport had choked her earlier in the week. And if that isn’t enough, the jury heard about his

frequent boasts about choking anyone who gave him trouble. Plus, the prosecution repeatedly

impeached Davenport during trial. Simply put, the evidence of guilt was overwhelming. The

evidence that the shackles did not influence the jury is uncontroverted—not one juror said

otherwise. And the evidence that Davenport should go free is non-existent.

So what did two federal appellate judges see that everyone before them missed? The

panel’s conclusion largely rests on speculation about how the shackles must have biased the

jurors. See Davenport IV, 964 F.3d at 464–68. But the record does not support that speculation.

And while the panel also cites a smattering of academic articles about jury bias, those articles

hardly establish that the jurors were biased in this case. Id. at 466 & n.13; see also id. at 479

(Readler, J., dissenting). Rather than heed the Supreme Court’s teaching that trial courts

typically have “a superior vantage point from which to evaluate the effect of trial error,” the

majority casts aside the prior findings in favor of its own guesswork. Brecht, 507 U.S. at 636.

That is error. And given the grave consequences, it is error that should not go unchecked.

***

In sum, the panel erred by holding that a finding of actual prejudice under Brecht

obviates the need to consider AEDPA’s guardrails. AEDPA and Brecht ask different questions

that sometimes demand different answers. Thus, before a federal court may grant habeas relief,

it must find both that a state court’s harmless-error determination violated AEDPA and that

actual prejudice resulted under Brecht. To make matters worse, the panel opinion badly

No. 17-2267 Davenport v. MacLaren Page 28

misapplies Brecht on its own terms, relying on mere speculation to vacate the conviction of a

man who strangled a woman in cold blood.

Because this case warrants further review, I respectfully dissent.

ENTERED BY ORDER OF THE COURT

___________________________________

Deborah S. Hunt, Clerk