explaining that Brecht sets forth the correct standard to be applied upon AEDPA review, in light of Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)
How later courts described this case
- explaining that Brecht sets forth the correct standard to be applied upon AEDPA review, in light of Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)
- explaining that Brecht sets forth the correct standard to be applied upon AEDPA review, in light of Fry v. Pliler, - - - U.S. - - - -, 127 S. Ct. 2321 (2007)
- observing that the Brecht test is "stricter (i.e., tougher on the petitioner) than AEDPA/Chap-man ”
- noting the decision in Brown "leaves intact the Court’s prior jurisprudence regarding weighing states”
Written by the judges who cited it.
The opinion
ROGERS, Circuit Judge,
concurring.
I concur in the result and in all of the majority opinion except Part II.C.l.b.ii.(c). In my view there are two reasons why it is not necessary to resolve the issue of whether the holding of Coe v. Bell, 161 F.3d 320 (6th Cir.1998), is still good law in light of Brown v. Sanders, 546 U.S. 212 , 126 S.Ct. 884 , 163 L.Ed.2d 723 (2006).
First, the issue in Coe and the Sanders dictum appears to involve what to do when an aggravating factor is found to be invalid. See Coe, 161 F.3d at 334 (determining whether “if multiple aggravators are found but an appellate court strikes one of them down, the death sentence can still stand”), Sanders, 546 U.S. at 220 , 126 S.Ct. 884 (determining whether an invalid sentencing factor will render a death sentence unconstitutional when other sentencing factors exist). In this case, in contrast, the question is whether the sole aggravating factor is invalid in the first place. Our case simply does not involve reweighing of remaining aggravators (or harmless error based on remaining aggravators). Instead, our determination is that instructional error did not preclude consideration of the one aggravating factor. In other words, we are determining that the one aggravating factor was valid, once instructional error is deemed harmless.
Second, even assuming that this case requires us to resolve whether Coe survives Sanders , the state court did decide the harmless-error issue to the extent that it was relevant. Since we properly make the (questionable) assumption that the kidnapping instruction affected the capital specification (Part I.A. of the majority opinion), then whatever harmless-error analysis the state court applied to the kidnapping instruction would apply to the capital specification as well. That is, the issue of Wilson’s capacity to intend to kidnap is the same in both the kidnapping context (which the Ohio Supreme Court decided) and the evading-kidnapping context (which is before us only by virtue of the assumption that the evading-kidnapping aggravator requires a finding of kidnapping). The faulty jury instruction affected either both or neither, and the Ohio Supreme Court already determined that the faulty jury instruction was harmless in the kidnapping context. Thus, this is not really a case in which the federal court is independently doing the harmless error analysis.
In short, this is neither a case where the federal court is evaluating the harmlessness of a factor previously determined to be invalid, nor is it a case in which the state court did not make the relevant harmlessness determination. Accordingly, I concur in all but Part II.C.l.b.ii.(c) of the majority opinion.