Petitioners Brief — O'NEAL v. McAninch

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No. 93-7407

In The

Supreme Court of the United States

October Term, 1993

ROBERT O'NEAL,

Petitioner,

VS.

FRED McANINCH, WARDEN,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

BRIEF FOR PETITIONER

GioriA EYEerRLy

Ohio Public Defender

Grecory L. Ayers

Chief Deputy Public Defender

JOHN A. Bay

Assistant State Public Defender

THomMAS R. WertTERER, JR.

(Counsel of Record)

Assistant State Public Defender

Ohio Public Defender Commission

8 East Long Street, 11th Floor

Columbus, Ohio 43266-0587

(614) 466-5394

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

WHEN A PETITIONER HAS ESTABLISHED A CONSTI-

TUTIONAL VIOLATION IN A FEDERAL HABEAS

ACTION, DOES THE STATE HAVE THE BURDEN OF

PROVING THE ERROR WAS HARMLESS UNDER

BRECHT V. ABRAHAMSON, 113 S. Ct. 1710 (1993)?

TABLE OF CONTENTS

Page

QUESTION PRESENTED. . ......060.sscccscesdounae i

OPINIONS. BELOW. 2.0.56 6sescecvesdeusenbeeeeee ]

PURI TOON . 0.0 ce orsceevsitechdeeneneeee 1

CONSTITUTIONAL PROVISION INVOLVED....... 1

STATEMENT OF THE CAGE... ..00cvscssseseneee 2

SUMMARY OF THE ARGUMENT ................. 9

ARGUMENT

I. BRECHT V. ABRAHAMSON, 113 S. CT. 1710

(1993), DID NOT CHANGE THE LONGSTAND-

ING RULE THAT THE PARTY THAT COMMIT-

TED AND STANDS ‘TO BENEFIT FROM A

PROVEN CONSTITUTIONAL VIOLATION

HAS THE BURDEN OF SHOWING THE VIO-

LATION DID NOT AFFECT THE PROCEEDING

WELTSTERTETVI PT tie 14

A. The Nature Of Harmless Error Analysis Has

Long Been Understood To Require Allocat-

ing The Burden Of Proof To The State.... 14

B. Although Brecht Changed Chapman's Harm-

less Error Standard, It Evidenced No Inten-

tion To Change The Longstanding Rule,

Predating Chapman, That Gives The Proven

Wrongdoer The Burden Of Proving Harm-

SOSOROES .... 20S 005406-00ne aa eee 17

C. Not Only The Concurring Opinion That

Supplied The Fifth Vote For The Majority In

Brecht, But Also All The Authorities That

Brecht Identified As Authoritative In Defin-

ing The New Standard Of Harmlessness On

Habeas, Assign The Burden Of Proof To The

POISENT ET es ee 20

Il.

TABLE OF CONTENTS - Continued

Page

THE STATE MUST BEAR THE BURDEN OF

PROVING A CONSTITUTIONAL ERROR

HARMLESS IN A FEDERAL HABEAS PRO-

CEEDING TO ENSURE THE ACCURACY OF

CONVICTIONS AND TO PRESERVE THE

ESSENTIAL FUNCTION OF HABEAS CORPUS

AS A REMEDY FOR CONSTITUTIONAL VIO-

LATIONS THAT RENDER. A TRIAL FUNDA-

MENTALLY UNFAIR ........---6--000 eee eee 23

A. The Court’s Modern Habeas Corpus Juris-

prudence Balances The Competing Policies

Of Protecting The Reliability Of The Trial

Process And Effectuating The State’s Inter-

est In Finality, Comity, And Federalism... 23

B. ‘Brecht’s Standard Of Proof For Harmless

Error Sufficiently Accommodates The

State’s Interests Without Changing The Bur-

CE ac occcescecccerosccccscccess 28

C. Giving Petitioners The Burden To Prove A

Constitutional Error Is Not Harmless Will

Increase The Risk Of An Erroneous Decision

By The Habeas Court And Not Ensure The

Accuracy Of Convictions..............++-: 30

D. Placing The Burden Of Proof On The Peti-

tioner Is Not Consistent With Traditional

Habeas Practice And Will Burden Rather

Than Assist The Court In Deciding Which

Constitutional Claims Are Entitled To Relief

ne eee eee eee re eeeeeeeeweseeweeeeeeseeee eo eS

E. Considerations Of Finality, Comity, And

Federalism Do Not Support A Change In

The Current Burden Of Proof Procedure .. 39

TABLE OF CONTENTS - Continued -

Page

Ill. BECAUSE THE SIXTH CIRCUIT ERRO-

NEOUSLY PLACED THE BURDEN OF PRO-

VING THE CONSTITUTIONAL VIOLATION

WAS NOT HARMLESS ON O'NEAL, THIS

CASE SHOULD BE REMANDED TO THE

SIXTH CIRCUIT FOR HARMLESS ERROR

RIGA 65 ci scciniicivcdies kebab encbiacaens: 42

A. The Sixth Circuit Decided This Case With-

out The Benefit Of Briefing On The Impact

OS BOGE 0 concn se sngeh4seadseuacowedorts 42

B. Under A Fair Allocation Of The Burden To

The State, O’Neal Is Entitled To Habeas

| Pre en ee Oe 44

SE 9 Ss's-rs'c knoe chav seek o enka cacueeeeee cs 50

APPENDIX

Pe Oe I WE PP ho inh bck kc Rasantccea ts dondess la

Rule 2, Rules Governing Section 2254............. 2a

Rule 4, Rules Governing Section 2254............. 4a

Rule 5, Rules Governing Section 2254............. 5a

Ohio Rev. Code Ann., § 2903.01................... 6a

Ohio Rev. Code Ann., § 2905.01................... 6a

Ohio Rev. Code Amn., § 2011.O1. ...:.......c000-.: 7a

St EN NO oh 08 kdb Ses olededeeweeniebaloveeus 8a

WM Ak OI 5k oe sbdca es occ ends 9a

Ss Mins 4 batasineus 6s socnnbbaniad ouaas 10a

28 U.S.C. § On 2a ne So Oe lla

Wh A Soros iid 12a

TABLE OF AUTHORITIES

Page

Cases:

Addington v. Texas, 441 U.S. 418 (1979) .............. 35

Amadeo v. Zant, 486 U.S. 214 (1988) ................. 36

Arizona v. Fulminante, 499 U.S. 279 (1991) ........... 31

Brecht v. Abrahamson, 113 S. Ct. 1710 (1993)..... passim

Bruno v. United States, 308 U.S. 287 (1939)........... 21

Chapman v. California, 386 U.S. 18 (1967) ........ passim

Coleman v. Thompson, 111 S. Ct. 2546 (1991) ...... 25, 26

Darden v. Wainwright, 477 U.S. 168 (1986) ........... 17

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ......... 31

Desist v. United States, 394 U.S. 244 (1969)........... 30

Dowling v. United States, 493 U.S. 342 (1990)......... 41

Edelman v. Jordan, 415 U.S. 651 (1974)............... 18

Elder v. Holloway, 114 S. Ct. 1019 (1994)............. 19

Engle v. Isaac, 456 U.S. 107 (1982)........ 24, 25, 26, 41

Estelle v. McGuire, 112 S. Ct. 475 (1991) ............. 41

Estelle v. Smith, 451 U.S. 454 (1981) ................. 36

Fahy v. Connecticut, 375 U.S. 85 (1963)............... 28

Fey vw. Neola, 372 US. -FP2 (19GB) «2 5 00. cc cecccwcccces 24

Franks v. Bowman Transportation Co., 424 U.S. 747

Ss sid nak bball dte Ob ta Se ReN ORES needs ave chans 16

Godinez v. Moran, 113 S. Ct. 2680 (1993)............. 36

Granberry v. Greer, 481 U.S. 129 (1987)............... 36

TABLE OF AUTHORITIES - Continued

Page

Greer ©. Miller, 463 US. TE6 CISBZ) «oc... ccc cccccecis 15

Haynes v. Washington, 373 U.S. 503 (1963) ........... 15

Herrera v. Collins, 113 S. Ct. 853 (1993).............. 28

Holland v. McGinnis, 963 F.2d 1044 (7th Cir. 1992),

onve, Gated, BES BGR. Te Cs bi vs ives tcccccs 36

Hopper v. Evans, 456 U.S. 605 (1982).............05.. 17

Ge ve Werte, SOT UG. SOO (aOP ee cs cc ccc vccscvcases 35

Jackson v. Virginia, 443 U.S. 307 (1979)............... 26

Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992) ....25, 40

Keyes v. School District No. 1, 413 U.S. 189 (1973) .... 16

Kimmelman v. Morrison, 477 U.S. 365 (1986).......... 27

Kotteakos v. United States, 328 U.S. 750 (1946).... passim

Kuhlmann v. Wilson, 477 U.S, 436 (1986)............. 29

Lankford v. Idaho, 500 U.S. 110 (1991)............. 13, 43

Lockhart v. Fretwell, 113 S. Ct. 838 (1993) ............ 15

Lynumn v. Illinois, 372 U.S. 528 (1963)............... 15

Mackey v. United States, 401 U.S. 667 (1971).......... 30

McCleskey v. Zant, 499 U.S. 467 (1991)........... passim

Miller v. Fenton, 474 U.S. 104 (1985)................. 27

Miranda v. Arizona, 384 U.S. 436 (1966)........... 15, 26

Murray v. Carrier, 477 U.S. 478 (1986) ........ 11, 25, 26

O'Neal v. Morris, 3 F.3d 143 (6th Cir. 1993)...... passim

Vii

TABLE OF AUTHORITIES..- Continued

Page

Payne v. Arkansas, 356 U.S. 560 (1958).......6....4.. 15

Price v. Johnston, 334 U.S. 266 (1948) .............5. . 34

Reed v. Ross, 468 U.S. 1 (1984) ...... PSE ee ay 24, 42

Riggins v. Nevada, 112 S. Ct. 1810 (1992).......... 32, 33

Rose v. Clark, 478 U.S. 570 (1986)............. 17, 31, 43

Satterwhite v. Texas, 486 U.S. 249 (1988)........... 11, 33

Sherley v. Seabold, 929 F.2d 272 (6th Cir. 1991)....... 42

Spano v. New York, 360 U.S. 315 (1959) .............. 15

State ex rel. Greene v. Enright, 63 Ohio St. 3d 729,

590 N.E.2d 1257, cert. denied, 113 S. Ct. 667

Rock a'sllh oceca ca ceekenretdaennedeaehtes nee4.s5 34

Stone v. Powell, 428 U.S. 465 (1976).............. passim

Stoner v. Sowders, 997 F.2d 209 (6th Cir. 1993)....... 43

Strickland v. Washington, 466 U.S. 668 (1984)......... 35

Sullivan v. Louisiana, 113 S. Ct. 2078 (1993) ..11, 32, 33, 37

Teague v. Lane, 489 U.S. 288 (1989) ........... 10, 26, 30

United States v. Cerro, 775 F.2d 908 (7th Cir. 1985) .... 33

United States v. Lane, 474 U.S. 438 (1986)........ passim

United States v. Mechanik, 475 U.S. 66 (1986)......... 41

United States v. Olano, 113 S. Ct. 1770 (1993)........ passim

Wainwright v. Sykes, 433 U.S. 72 (1977).......... passim

- Viil

TABLE OF AUTHORITIES — Continued

Page

Withrow v. Williams, 113 S. Ct. 1745 (1993)...11, 26, 27, 28

Wright v. West, 112 S. Ct. 2482 (1992) ............... 27

RUuLes:

. eg Bt ES Merry treet e Te eee Tere -... passim

Rule 2, Rules Governing Section 2254.............6.. 37

Rule 4, Rules Governing Section 2254............ 14, 37

Rule 5, Rules Governing Section 2254........ 36, 37, 41

CONSTITUTIONAL PROVISION:

Fourteenth Amendment, United States Constitu-

STATUTORY PROVISIONS:

Ohio Rev. Code Ann. (Anderson 1980), § 2903.01 ..... 2

Ohio Rev. Code Ann. (Anderson, 1980), § 2905.01 ..... 2

Ohio Rev. Code Ann. (Anderson, 1980), § 2911.01..... 2

pO AUN a cnes coun eehabadhe seesauens beet 2, 21

nhs pk chy cee shaeneues ever Ganeekan a

i ind 66 nee va evs 40 05 ACR EEE OLA RTO: 2

eC Gin 5) dnc Se thks neues okemwebauians 2

ee Ee a ivibdnivecdes tue shsdstsurvaseeda passim

MISCELLANEOUS:

1 Wigmore, Evidence § 21 (3d ed. 1940) ............ 16

Brief of Amici Curiae The National and Ohio Asso-

ciations of Criminal Defense Lawyers in Sup-

Re ee I a 0 dad es otters seh Ksebuns qeevs 48

TABLE OF AUTHORITIES — Continued

Brief of Amicus Curiae Timothy Scott Sherman in

NE GET 5 oc vcnvsivanccisscoedsessses¥s 15

Faust, et al., The Great. Writ In Action: Empirical

Light On The Federal Habeas Corpus Debate, 18

N.Y.U. Rev. L. & Soc. Change, 637 (1990-91) ...... 34

Jeitelbaum, et al., Evaluating the Prejudicial Effect of

Evidence; Can Judges Identify the Impact of

Improper Evidence on Juries? 1983 Wis. L. Rev.

DOE Cease oc tar yecheesacieese ins eReeceackakewat 33

R. Traynor, The Riddle of Harmless Error (1970)... 31, 33

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Sixth Circuit is reported. O'Neal v. Morris, 3 F.3d

143 (6th Cir. 1993) (Joint Appendix (hereinafter J.A.)

217-29). The entry of the Court of Appeals denying

rehearing and suggestion for rehearing en banc, (J.A. 230),

is not reported. 3

The judgment and opinion of the United States Dis-

trict Court for the Southern District of Ohio, Western

Division, (J.A. 211-16), the Magistrate’s Supplemental

Report and Recommendation, (J.A. 200-12), the district

court’s original remand order, (J.A. 191-99), and the Mag-

istrate’s Report and Recommendation, (J.A. 99-190), are

unreported.

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was entered on August 20, 1993. (J.A.

217.) The order of the Court of Appeals denying O’Neal’s

petition for rehearing and suggestion for rehearing en

banc was entered on October 4, 1993. (J.A. 217, 230.) The

petition for certiorari was timely filed on January 3, 1994,

and was granted on April 4, 1994.

The Court’s jurisdiction rests upon 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Fourteenth Amendment to the

Constitution of the United States, which provides in per-

tinent part: :

FOURTEENTH AMENDMENT

SECTION I. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

STATUTES INVOLVED

Ohio Revised Code Annotated, Section 2903.01 — Aggra-

vated Murder ,

Ohio Revised Code Annotated, Section 2905.01 — Kidnap-

ping

Ohio Revised Code Annotated, Section 2911.01 —- Aggra-

vated Robbery

The United States Code, 28 U.S.C. § 391

The United States Code, 28 U.S.C. § 1254

The United States Code, 28 U.S.C. § 2111

The United States Code, 28 U.S.C. § 2254(a)

The United States Code, 28 U.S.C. § 2243

STATEMENT OF THE CASE

A. Procedural History

Dimple Podborny, Lloyd Allen, and Petitioner Robert

O'Neal (hereinafter O’Neal), were tried jointly and found

guilty, in October 1981, of the kidnapping (Ohio Revised

Code Annotated (hereinafter O.R.C.) Section 2905.01),

aggravated robbery (O.R.C. Section 2911.01), and aggra-

vated murder (O.R.C. Section 2903.01) of Henry Pod-

borny. After exhausting his state remedies on appeal to

the Cuyahoga County, Ohio Court of Appeals and the

Supreme Court of Ohio, O’Neal filed a pro se petition for

a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in

the United States District Court for the Southern District

of Ohio, Western Division, on September 24, 1986. (J.A.

1.) The District Judge assigned the case to a Magistrate

who appointed counsel on August 22, 1988. (J.A. 1.) The

Magistrate held an oral argument on July 27, 1990 and an

evidentiary hearing on February 19, 1991. On January 22,

1992, the Magistrate issued his Report and Recommenda-

tion finding the jury instructions on intent were constitu-

tionally defective, and that prosecutorial misconduct and

erroneously admitted evidence deprived O’Neal of a fun-

damentally fair trial. (J.A. 161-62.)

Upon review of the Report and Recommendation, the

District Court remanded the case to the Magistrate for

further review on the jury instruction issue. (J.A. 191-99.)

The Magistrate issued a Supplemental Report and Rec-

ommendation reaffirming that a new trial was mandated.

(J.A. 200-10.) The District Court adopted both reports.

(J.A. 211-16.)

Respondent (hereinafter the State) appealed to the

United States Court of Appeals for the Sixth Circuit and

obtained a stay of the new trial order. While the State’s

appeal was pending, this Court issued its decision in

Brecht v. Abrahamson, 113 S. Ct. 1710 (1993). (J.A. 1.)

Without benefit of briefing on the impact of Brecht, the

Sixth Circuit held that O’Neal had the burden of proving

the constitutional error was not harmless. O'Neal v.

Morris, 3 F.3d 143 (6th Cir. 1993). (J.A. 221.) The Sixth

Circuit concluded that the constitutional errors resulting

from the jury instructions and prosecutor’s closing argu-

ment were harmless. Id. at 147. (J.A. 227-29.) O’Neal’s

timely Petition for Rehearing with Suggestion for Rehear-

ing En Banc was denied on October 4, 1993. (J.A. 1, 230.)

B. Trial Facts And Lower Court Rulings

This case involves the kidnapping, aggravated rob-

bery, and aggravated murder of Henry Podborny and the

conspiracy to commit those acts. As a result of constitu-

tionally defective jury instructions, erroneously admitted

evidence, and egregious prosecutorial misconduct,

O'Neal was wrongfully convicted of these crimes.

The events leading to the commission of these crimes

began with the 1980 separation of Henry and Dimple

Podborny of Chicago, Illinois. (Tr: 5350-51.) Shortly after

the separation, Dimple began receiving threats, believed

to be delivered at the direction of her husband, Henry.

(Tr. 5315, 5321-22, 5349.) Turning to her daughter-in-law,

Gail Toney, Dimple asked for assistance in hiring some-

one to provide protection. (Tr. 1762-63, 5349-50) (J.A. 7.)

Recognizing an opportunity to defraud her mother-

in-law, Toney contacted James McLean, who agreed to

play the role of the personal security provider. (Tr. 1752,

1764-65) (J.A. 708.) In June 1980, Toney introduced

McLean to Dimple. A $5,000 fee was negotiated and paid.

(Tr. 1776, 1778-83.) Two months later, terrified and believ-

ing her life was in danger from her husband after a

month of threats made by McLean’s associates, Dimple

paid Toney another $10,000 to continue the personal pro-

tection. (Tr. 2981-83.)

Distressed by the continuing threats, Dimple again

turned to Toney, this time to ask for assistance in arrang-

ing the murder of Henry. (Tr. 1784-86.) After consulting

with McLean, Toney quoted her mother-in-law a fee of

$25,000. (Tr. 1787.) A few days later, Dimple paid Toney

$24,400. (Tr. 1791-94.)

Toney, the state’s principal witness against O’Neal,

testifed in exchange for a reduced sentence and admitted

she would lie to stay out of prison. (Tr. 2120, 2126-27,

2351-53.) Toney claimed to have contacted and invited

O’Neal to join the conspiracy. (Tr. 1807-08.) The plan,

according to Toney, was to lure Henry to Cleveland,

kidnap him, loot his Chicago residence and business,

AP ee Eee

drug him, and then release him safely in Chicago. (Tr.

1840-44.) In January 1981, the plan was put into action.

Dimple lured her husband to Cleveland on the pretext of

reconciling their marriage. (Tr. 1842.) According to Toney,

she picked up Henry at the airport and drove him to

O’Neal’s saloon. (Tr. 1842, 1858) (J.A. 13-14.) Toney testi-

fied she dropped off Henry and watched him enter the

saloon. Within minutes, according to Toney, O'Neal

exited the saloon and gave her Henry’s valuables. (Tr.

— 1859) (J.A. 14-15.)

Toney then began the process of looting the Pod-

borny residence and business. (Tr. 1869-1906, 1915-18,

1928-29, 1935-37.) In February 1981, the plan began to

unravel when the FBI arrested McLean for forging

Henry’s traveler’s checks. (Tr. 3279-82.) McLean told the

FBI that he had information concerning the disap-

pearance of Henry and agreed to cooperate. (Tr. 3002.)

Wearing a wire, McLean contacted Toney and discussed

her and Gary Gabbard’s (Toney’s brother) participation in

the kidnapping and robbery of Henry. (Tr. 4783-90.) No

mention was made of O’Neal. (Tr. 3240-41.)

On April 24, 1981, Henry’s body was found in a

vacant lot in Cleveland, Ohio. (Tr. 4489-90.) He had been

struck five times in the head with a blunt instrument and

shot in the forehead. (Tr. 3708-09.) The assistant coroner

testified that a date and time of death could not be

accurately determined, but Henry ” . . . had been dead for

a period of at least weeks.” (Tr. 3711) (J.A. 26.)

During the course of O’Neal’s trial, the prosecutor

improperly introduced evidence that O’Neal had been

involved in a prior killing in which a man was shot in the

head, (J.A. 139-51, 209-210), and numerous gruesome

exhibits, including: “the actual ‘smelly’ clothing and

wrappings in which [Henry] was discovered; a jar con-

taining the skin from [Henry’s] left finger; a box contain-

ing scalp hair from [Henry]; and a crowbar found in

O'Neal's bar.” Magistrate’s Report and Recommendation.

(J.A. 132.) The Magistrate found that: “[T]he prosecutor

introduced the gruesome evidence for the express pur-

pose of enabling him to make an inflammatory argument

at the conclusion of the case.” (J.A. 151.)

During closing argument, the prosecutor made the

following inflammatory argument to the jury, explaining

how he wanted the jurors to use the gruesome evidence

he had introduced:

And as far as the crowbar, you pick that crowbar

up, you get the dirt on your hands, you tell me

about it. There is nothing on the crowbar, but

when you get back there, think about what it

might be like, first of all, to sit down and talk

about kidnapping another human being. Get

into the case. You are going to have his clothes

back there. Grab those things, they stink, ’

they’ve got blood on them. Wrap yourself in

that blanket and see what the victim of a murder

is like.

MR. D’ANGELO: Objection.

THE COURT: Overruled.

MR. MARINO: _ As I said, I asked you to do

this, to get into the case, to really handle this

case. You can always wash up later, folks. To

find out how seedy an act is, to grab a man and

murder him, pick up that tire iron and ask your-

selves to really take that iron yourself and hit

somebody in the head five times, could you do

that? Who could be a murderer. Who could but a

man who would never < he would be crazy to

kill someone with a registered gun.

(Tr. 6121-26) (J.A. 63-65.)

Immediately after the prosecutor's closing argument,

the trial court improperly instructed the jury by relieving

the State of the burden of proving the intent element of

each of the crimes charged. (J.A. 169-90.) For example,

regarding aggravated murder, the trial court instructed:

Purpose to kill is an element of the crime of

aggravated murder. A person acts purposely

when it is his specific intention to cause a cer-

tain result. It must be established in this case

that at the time in question there was present in

the minds of the defendant or co-defendant or

aiders and abettors, if you so find, a specific inten-

tion to kill the decedent Henry Podborny.

(Tr. 6159) (J.A. 170) (emphasis added).

The prosecutor compounded the impact of these

defective instructions by encouraging the jury to use the

instructions to determine O’Neal’s guilt or innocence.

The Magistrate identified the prosecutor’s conduct in his

Report:

MR. MARINO: Now, I fear that defense coun-

sel gave you the impression that each defendant

must commit every element of the crime to be

liable (sic). That’s incorrect.”

(Tr. 6075.) The judge overruled an objection to the

statement, thus appearing to endorse it. Id. The pros-

ecutor continued:

MR. MARINO: In the state of Ohio and in most

states in my opinion we have what's called con-

spiracy and the judge is going to tell you about

that. The State is bound to prove to a jury two

things. First, that the crimes alleged have been

committed. And at this point, is there any doubt

in your mind that the man was kidnapped, he

was robbed, he was bludgeoned and shot to

death. The next thing we’re bound to prove to

you is that those accused of the crime partici-

pated in a criminal conduct and engaged in a

course of criminal conduct which eventually led

to the commission of those crimes.

MR. MILANO: Objection. It is misstatement of

the law, sir.

THE COURT: Overruled.

MR. MARINO: Folks, if that’s a misstatement

of the law, you are the second jury to hear it

(referring to the trial of the codefendants).

Magistrate’s Report and Recommendation. (Tr. 6075-76)

(J.A. 129-30.)

During jury deliberations, the jury sent the following

question to the trial court: “Can we please have a brief

definition on the laws of aggravated murder?” (Tr.

6207-08) (J.A. 77.) The trial court repeated the defective

instructions, and the jury returned guilty verdicts on all

counts. (J.A. 77-82.)

The District Judge adopted the Magistrate’s conclu-

sion that the jury instructions and prosecutor’s argument

were, in the context of O’Neal’s trial, constitutional

errors. (J.A. 130-31, 206-09, 214.) According to the Magis-

trate:

The jury was left with the impression that the

State did not have to prove beyond a reasonable

doubt an independent intent to commit each

crime so long as it proved that each defendant

was in some way involved in a conspiracy that

eventually led to kidnapping, robbery, and mur-

der.

Magistrate’s Report and Recommendation. (J.A. 130.)

On the State’s appeal to the Sixth Circuit, the court

agreed that the prosecutor’s closing argument “improp-

erly suggested that the prosecution need not make an

independent showing of intent as to each defendant in

order for conspiracy liability to attach.” O'Neal, 3 F.3d at

147 (J.A. 227.) However, the Sixth Circuit concluded that

the constitutional errors resulting from the jury instruc-

tions and closing argument were harmless because

“... all of the evidence upon which the jury could have

relied to establish [O’Neal’s] guilt pointed to his guilt as a

principal . . . [and] any error by the trial court pertaining

to the intent of the conspirators or aiders and abettors did

not injuriously influence the jury’s decision to convict

[O’Neal] as a principal.” Id. (J.A. 227-28.)

SUMMARY OF ARGUMENT

I. Throughout this country’s history, in both the consti-

tutional and nonconstitutional contexts, and as a matter

of common law, statutory provision, and federal rule, the

burden of demonstrating that a proven error was or was

not harmless has always rested with the State. Chapman v.

California, 386 U.S. 18, 24 (1967) (constitutional errors);

Kotteakos v. United States, 328 U.S. 750, 760-61 (1946) (non-

constitutional errors); United States v. Olano, 113 S. Ct.

1170, 1778 (1993) (Fed. R. Crim. P. 52(a)).

In Brecht v. Abrahamson, 113 S. Ct. 1710 (1993), this

Court evidenced no intention to change the longstanding

rule predating Chapman that the party that committed

and stands to benefit from a proven constitutional viola-

tion has the burden of showing the violation did not

affect the proceeding. What the Court did change with

Brecht was Chapman's harmless error standard. The Court

decided that the “harmless beyond a reasonable doubt”

standard did not apply in federal habeas review. Brecht,

113 S. Ct. at 1721. Instead, the Court held that “the

standard for determining whether habeas relief must be

granted is whether the [constitutional] error ‘had sub-

stantial and injurious effect or influence in determining

the jury’s verdict.” Id. at 1714 (quoting Kotteakos v.

United States, 328 U.S. at 776). The Court adopted the

Kotteakos standard because it is “grounded in the federal

harmless error rule” and “federal courts may turn to an

existing body of case law to apply it.” Id. at 1722. The

Kotteakos federal harmless error standard places the bur-

den of proof on the issue of harmless error on the govern-

ment.

The Sixth Circuit incorrectly interpreted Brecht to

place the burden on O'Neal to prove not only that a

constitutional error occurred, but also that it was not

harmless. In explaining its departure from Chapman, the

Court in Brecht repeatedly confined its discussion to the

standard of proof, never purporting to change, either

Chapman's or the longstanding pre-Chapman allocation of

the burden of proof to the State. The Court’s statement in

Brecht that petitioners are not entitled to relief unless they

can establish the constitutional error resulted in “actual

prejudice,” Brecht, 113 S. Ct. at 1722, is a synonym for the

harmless error standard a petiticner must meet.

The concurring opinion that supplied the fifth vote

for the majority in Brecht, as well as all the other authori-

ties that Brecht identified in defining the new standard of

harmlessness on habeas review, assign the burden of

proof to the State. See Kotteakos, 328 U.S. at 760; United

States v. Lane, 474 U.S. 438, 449 (1986). To make Brecht’s

application consistent with all the statutes, rules, and

decisions it treats as authoritative, the Court must place

the burden of proving harmless error on the State.

Il. The Court’s habeas decisions have effectuated the

State’s interests in finality, comity, and federalism by

excluding certain issues that do not bear on guilt or

innocence, see Stone v. Powell, 428 U.S. 465, 482 (1976), by

enforcing procedural defaults, see Wainwright v. Sykes, 433

U.S. 72, 87-89 (1977), and by only applying constitutional

rules in existence when a conviction becomes final, see

Teague v. Lane, 489 U.S. 288, 306 (1989). At the same time,

the Court’s decisions have protected the reliability of the

trial process by ensuring that habeas relief will be

afforded to petitioners who are innocent or would other-

wise be victims of a miscarriage of justice. Sykes, 433 U.S.

at 91; Murray v. Carrier, 477 U.S. 478, 496 (1986). The

Court has also resisted broad-based attacks on the writ

designed to eliminate from review issues that are central

to the correct ascertainment of guilt. See Jackson v. Vir-

ginia, 443 U.S. 307 (1979); Withrow v. Williams, 113 S. Ct.

1745 (1993). Throughout its modern jurisprudence the

Court has preserved the core function of the writ as a

remedy for fundamentally unfair trials and for avoiding

conviction of the innocent.

Brecht’s standard of proof for harmless error suffi-

ciently accommodates the State’s interests in finality

without changing the burden of proof. Habeas relief is

now limited to petitioners who actually had a fundamen-

tally unfair trial (constitutional errors had a substantial

and injurious effect or influence in determining the jury’s

verdict, Brecht, 113 S. Ct. at 1722) rather than the possi-

bility of one, as under the Chapman standard. Brecht

increases the likelihood that retrials will occur only in

situations where removal of the error may make a differ-

ence in the outcome. A change in the longstanding rule

on the burden of proof for harmless error is unnecessary.

The central focus of the Court's jurisprudence is the

writ’s assurance that constitutional errors do not cause

the conviction of the innocent. Giving habeas petitioners

the burden to prove a constitutional error is not harmless

will increase the risk of an erroneous decision and will

not ensure the accuracy of convictions. Harmless error

analysis speaks directly to the reliability of criminal pro-

cedures and the accuracy of their outcomes. The Court

has acknowledged that harmless error analysis is inher-

ently difficult and often speculative. See Sullivan v. Louisi-

ana, 113 S. Ct. 2078, 2082 (1993); Satterwhite v. Texas, 486

U.S. 249, 258 (1988). Since the vast majority of habeas

petitioners proceed pro se, without legal training, and

without access to the complete record, they are ill-

equipped to bear the burden of proof. Given the imbal-

ance between the State and most habeas petitioners,

switching the harmless error burden of proof to petitioner

may substantially increase the number of unremedied

constitutional errors affecting the reliability of trials. Such

result is inconsistent with the Court’s habeas jurispru-

dence and with the goals of fair trials and accurate deter-

minations of guilt or innocence.

Placing the burden of proof on petitioner is also

inconsistent with current habeas practice. Petitioners now

must justify they are entitled to relief when they pro-

cedurally default their claims. Likewise, the equitable

nature of habeas practice should require that once the

petitioner establishes the State has violated his constitu-

tional rights, the State should bear the burden of proving

its violation was harmless. Moreover, harmless error is an

issue normally pleaded by the State to avoid the conse-

quences of constitutional violations, similar to the other

habeas defenses of non-exhaustion, non-retroactivity,

procedural default, and abuse of the writ. Further, the

State has access to the complete record and is better

positioned to identify the salient facts and arguments on

the harmless error issue.

More importantly, shifting the harmless error burden

to petitioner could drastically increase the federal courts’

workload. If showing prejudice becomes a part of a

habeas petitioner’s burden, it could drastically increase

the length, complexity, and time required to plead, brief,

argue, and decide habeas cases. This issue would be

addressed as to all claims in all cases throughout the

habeas proceedings. Efficiency counsels that the burden

remains a part of the State’s case. Finally, the Kotteakos

body of case law (allocating the burden of proof on

harmless error to the State) will be of no value to the

habeas court if the burden is allocated to the petitioner.

The considerations of finality, comity, and federalism

do not support a change in the current burden of proof.

When habeas petitioners have established constitutional

violations, the State’s interests have been accommodated.

See McCleskey v. Zant, 499 U.S. 467 (1991). Requiring

habeas petitioners to initially establish prejudice to obtain

relief, the same as petitioners who procedurally default

their claims, would not only be inequitable, but would

deprive the Court’s jurisprudence of a rational unifor-

mity. The State does not have a valid interest in the

finality of a conviction if there has not been a reliable

determination of guilt. See Stone, 428 U.S. at 491 n.31.

Requiring a petitioner to prove a constitutional error

harmless will not ensure the accuracy of convictions or

avoid conviction of the innocent.

Ill. For these reasons, the burden of proving a constitu-

tional error was harmless error must be placed on the

State. Because the Sixth Circuit erroneously placed the

harmless burden on O'Neal, this case must be remanded

to the Sixth Circuit for harmless error review. Since the

impact of Brecht was not briefed in the Sixth Circuit

before O’Neal’s case was decided, a remand will afford

the parties an opportunity to submit their best arguments

before the court conducts its harmless error analysis.

Principles of due process and fair procedure require no

less. See Lankford v. Idaho, 500 U.S. 110, 126 n.22 (1991).

With a fair allocation of the burden to the State,

O’Neal is entitled to habeas relief because the constitu-

tionally defective jury instructions, coupled with the

prosecutorial misconduct, did have a substantial and

injurious effect on the jury verdict. In finding the consti-

tutional errors harmless, the Sixth Circuit failed to con-

sider the following critical items: (1) the impact of the

improper transferred intent instructions on the defense’s

theory of actual innocence; (2) the evidence that did not

neatly fit within the State’s theory of O’Neal’s guilt as a

principal, but did fit within the State’s alternative theory

that O’Neal could be convicted as an aider and abettor

lacking any intent to kill; (3) the wide range of errors and

prosecutorial misconduct at O’Neal’s trial that made the

jury prone to use the defective instructions to convict;

and (4) the evidence that the defective, unconstitutional

jury instructions and the prosecutor’s improper argument

confused the jury.

ARGUMENT

I. BRECHT V. ABRAHAMSON, 113 S. CT. 1710 (1993),

DID NOT CHANGE THE LONGSTANDING RULE

THAT THE PARTY THAT COMMITTED AND

STANDS TO BENEFIT FROM A PROVEN CONSTI-

TUTIONAL VIOLATION HAS THE BURDEN OF

SHOWING THE VIOLATION DID NOT AFFECT

THE PROCEEDING.

A. The Nature Of Harmless Error Analysis Has

Long Been Understood To Require Allocating

The Burden Of Proof To The State.

A federal court’s habeas corpus jurisdiction is

invoked when a petition is filed on behalf of a person

who is held in state custody in violation of the Constitu-

tion, laws or treaties of the United States. 28 U.S.C.

§ 2254(a). The federal court must dismiss the petition

unless it reveals on its face that the prisoner is entitled to

relief. Rule 4, Rules Governing Section 2254 Cases in the

United States District Courts (hereinafter Rules Govern-

ing Section 2254 Cases). To obtain relief a petitioner must

prove that the State has committed a constitutional error.

Only at this point does the question of harmless error

arise. “[H]armless error analysis is triggered only after the

reviewing court discovers that an error had been commit-’

ted.” Lockhart v. Fretwell, 113 S. Ct. 838, 842 n.2 (1993);

accord Greer v. Miller, 483 U.S. 756, 761 n.3 (1987). |

The burden of proving harmless error has historically

rested with the party that benefited from the error.' In

Chapman v. California, 386 U.S. 18, 22 (1967), this Court

held for the first time that some constitutional errors may

be harmless, i.e., may have little or no effect on the

outcome of the trial.2 The Court recognized, however,

that constitutional errors “affect[ing] substantial rights”

of a defendant cannot be harmless. Id. at 23. The Court

recognized as well that, in fairness, the State should bear

the burden of proving the error it committed was harm-

less:

Certainly error, constitutional error, in illegally

admitting highly prejudicial evidence or com-

ments, casts on someone other than the person

prejudiced by it a burden to show that it was

harmless.

Id. at 24. As the Chapman Court noted, the same equitable

considerations had prompted the allocation of the burden

of proof to the wrongdoer under the original common-

law harmless error rule:

It is for that reason that the original common-

law harmless-error rule put the burden on the

beneficiary of the error either to prove that there

was no injury or to suffer a reversal of his

erroneously obtained judgment.

1 See Brief for Timothy Scott Sherman as Amicus Curiae in

Support of Petitioner, Section 1.

2 Prior to Chapman a Constitutional violation resulted in an

automatic new trial. Payne v. Arkansas, 356 U.S. 560 (1958); Spano

v. New York, 360 U.S. 315 (1959); Lynumn v. Illinois, 372 U.S. 528

(1963); Haynes v. Washington, 373 U.S. 503 (1963); Miranda v.

Arizona, 384 U.S. 436 (1966).

ld. (citing 1 Wigmore, Evidence § 21 (3d ed. 1940).* The

Court_therefore held that the beneficiary of the constitu-

tional error must prove beyond a reasonable doubt that

the error complained of did not contribute to the verdict.

Id.

Nearly two decades before Chapman, the Court had

interpreted the federal harmless error statute governing

nonconstitutional error to place the burden of proving

any substantial, or “non-technical,” error harmless on the

government. Kotteakos v. United States, 328 U.S. 750,

760-61 (1946). Just last term, nearly three decades after

Chapman, the Court confirmed that the burden of proving

harmlessness under Federal Rule of Criminal Procedure

52(a) falls on the government. United States v. Olano, 113

S. Ct. 1770, 1778 (1993). Throughout this country’s his-

tory, therefore, in both the constitutional and noncon-

stitutional contexts and as a matter of common law,

statutory provision, and federal rule, the burden of dem-

onstrating that a proven error was or was not harmless

has always rested with the State. Chapman, 386 U.S. at 24.

Justice Blackmun summarized the Court’s harmless

error history concisely:

* The Court has followed this equitable rule in civil cases

where there is evidence a party has violated the other party's

constitutional rights. See Keyes v. School District No. 1, 413 U.S.

189, 208 (1973) (prima facie case of unlawful segregrative design

on part of school authorities shifts to those authorities the bur-

den of proving that other segregrated schools within the system

are not also the result.of intentionally segregrative actions);

Franks v. Bowman Transportation Co., 424 U.S. 747, 772 (1976)

(“petitioners here have carried their burden of demonstrating

the existence of a discriminatory hiring pattern and practice by

the respondents and, therefore, the burden will be upon respon-

dents to prove that individuals who reapply were not in fact

victims of previous hiring discrimination.”).

Every harmless-error standard that this Court

has employed, however, shares two salient fea-

tures. [First,] once serious error has been identi-

fied, the burden shifts to the beneficiary of the

error to show that the conviction was not

tainted.

Darden v. Wainwright, 477 U.S. 168, 197 (1986) (Blackmun,

J., dissenting) (citations omitted).

B. Although Brecht Changed Chapman's Harmless

Error Standard, It Evidenced No Intention To

Change The Longstanding Rule, Predating

Chapman, That Gives The Proven Wrongdoer

The Burden Of Proving Harmlessness.

Prior to Brecht v. Abrahamson, 113 S. Ct. 1710 (1993),

Chapman's “harmless beyond a reasonable doubt” stan-

dard of harmless error was applied in federal habeas

cases. See, e.g., Rose v. Clark, 478 U.S. 570, 576 (1986);

Hopper v. Evans, 456 U.S. 605, 613-14 (1982). In Brecht, the

Court decided that the “harmless beyond a reasonable

doubt” standard did not apply in federal habeas review.

Id. at 1721. Instead, the Court held that “the standard for

determining whether habeas relief must be granted is

whether the [constitutional] error ‘had substantial and

injurious effect or influence in determining the jury’s

verdict.’ ” Id. at 1714 (quoting Kotteakos, 328 U.S. at 776).

The Court adopted this harmless error standard from its

decision in Kotteakos, which since 1946 had governed

harmless error analysis for nonconstitutional errors

under the federal harmless error statute. Id. at 1718. In

explaining its departure from Chapman, the Court repeat-

edly confined its discussion to the standard of proof,

never purporting to change either Chapman’s or the long-

standing pre-Chapman allocation of the burden of proof to

the State:

The imbalance of the costs and benefits of

applying the Chapman harmless-error standard

on collateral review counsels in favor of apply-

ing a less onerous standard on habeas review of

constitutional error. The Kotteakos standard, we

believe, fills the bill. The test under Kotteakos is

whether the error “had substantial and injurious

effect or influence in determining the jury’s ver-

dict.” 328 U.S., at 776, 66 S. Ct., at 1253. Under

this standard, habeas petitioners may obtain

plenary review of their constitutional claims,

but they are not entitled to habeas relief based

on trial error unless they can establish that it

resulted in “actual prejudice.” See United States

v. Lane, 474 U.S. 438, 449, 106 S. Ct. 725, 732, 88

L.Ed.2d 814 (1986). The Kotteakos standard is thus

better tailored to the nature and purpose of

collateral review, and more likely to promote the

considerations underlying our recent habeas

cases.

Brecht, 113 S. Ct. at 1721-22 (emphasis added).

The Sixth Circuit in this case interpreted the above

passage in Brecht to mean that O’Neal had the burden of

proving not only that a constitutional violation occurred

but also that it was not harmless. O'Neal, 3 F.3d at 145.

(J.A. 221.) This interpretation is incorrect, for several

reasons. First, the only issue before the Court in Brecht

was whether the Chapman harmless error standard applies

in habeas cases. Brecht, 113 S. Ct. at 1713-14. This was the

only issue on which the Court granted review and the

only issue the Court undertook to address and decide. See

id. at 1721-22. Although Brecht reprised both the Chapman

standard of proof and Chapman's allocation to the State of

the burden of proof, id. at 1717, it confined its holding to

the standard, and not the burden, of proof. Id. at 1717-18.

Thus, the burden of proof issue was not decided. See

Edelman v. Jordan, 415 U.S. 651, 670-71 (1974) (constitu-

tional claims are not decided until fully explored and

considered). At most, the Sixth Circuit's interpretation

relies on a dictum in Brecht.

Second, although Chapman defined the standard of

harmlessness that the Court modified in Brecht, Chapman

was not responsible for allocating the burden of proving

harmlessness to the State. That allocation had long preda-

ted Chapman, so more than a change in Chapman would be

needed to revise the allocation of the burden of proof to

the State. Yet, to the extent the Brecht Court addressed

pre-Chapman practice, e.g., in Kotteakos, it endorsed that

practice. See, e.g., Brecht, 113 S. Ct. .at 1718, 1721-22

(adopting Kotteakos standard).

Third, the Court's statement that petitioners “are not

entitled to habeas relief based on trial error unless they

can establish that it resulted in ‘actual prejudice,’ ” id. at

1722, does not create a burden of proof, even in dicta. See

Elder v. Holloway, 114 S. Ct. 1019, 1022-23 (1994) (lower

court erred in interpreting language in prior Supreme

Court decision, which said that. plaintiffs had to make a

particular “showing,” as giving plaintiffs the burden of

making the showing; in fact, the language simply

described the legal standard the courts were to apply).

The quoted language from Brecht can just as easily be

read as a statement of the traditional principle that

habeas petitioners bear the burden of establishing consti-

tutional violations that withstand analysis under the

harmless error (or synonymously, the “actual prejudice”)

standard that applies.* Given this noncontroversial inter-

pretation, there is simply no basis for ascribing to this

4 The Court’s use of the term “actual prejudice” adds no

support to the court of appeals’ controversial construction. Both

the cited case, Lane, 474 U.S. at 449, and the Court's decision last

term in Olano, 113 S. Ct. at 1778, make clear that, in this context,

“actual prejudice” is simply a synonym for harmless error anal-

ysis. Indeed, the cited passage in Lane applies both Kotteakos and

passage the exceedingly controversial sea change in pre-

existing law that the court of appeals thought it saw

there.

Finally, as will be shown below, all of the authorities

that Brecht cited in support of this passage, and partic-

ularly the Kotteakos decision from which the Court

adopted its new habeas corpus standard, assign the bur-

den of proof to the State. The Court in Brecht therefore

evidenced no intention to change this longstanding rule.

C. Not Only The Concurring Opinion That Sup-

plied The Fifth Vote For The Majority In Brecht,

But Also All The Authorities That Brecht Iden-

tified As Authoritative In Defining The New

Standard Of Harmlessness On Habeas, Assign

The Burden Of Proof To The State.

Justice Stevens’s vote was necessary to make a major-

ity for Chief Justice Rehnquist’s lead opinion in Brecht. In

his concurring opinion, Justice Stevens stated that he

joined the Court’s opinion adopting the rule of Kotteakos

precisely because Kotteakos places the burden of proving

an error to be harmless squarely on the prosecution:

Because [the Kotteakos] standard accords with

the statutory rule for reviewing other trial errors

that affect substantial rights; places the burden on

prosecutors to explain why those errors were harm-

less; requires a habeas court to review the entire

record ¢e novo in determining whether the error

influenced the jury’s deliberations; and leaves

considerable latitude for the exercise of judg-

ment by federal courts, I am convinced that our

answer is correct. I write separately only to

emphasize that the standard is appropriately

demanding.

Federal Rule of Criminal Procedure 52(a), both of which give the

state the burden of proving harmlessness. See |.C, infra.

Brecht, 113 S. Ct. at 1723 (Stevens, J., concurring)

(emphasis added); accord id. at 1723-24 (“Kotteakos plainly

stated that unless an error is merely ‘technical,’ the bur-

den of sustaining a verdict by demonstrating that the

error was harmless rests on the prosecution,” and “[a]

constitutional violation, of course, would never fall in the

‘technical’ category.”).

Justice Stevens’s analysis of Kotteakos is correct. As

Brecht noted, id. at 1718, the Kotteakos standard is based

on the federal harmless error statute, now codified in 28

U.S.C. § 2111: “On the hearing of any appeal or writ of

certiorari in any case, the court shall give judgment after

an examination of the record without regard to errors or

defects which do not affect the substantial rights of the

parties.”° Interpreting the predecessor statute, the Kot-

teakos Court distinguished technical errors from errors

affecting substantial rights. As to merely technical errors,

i.e., errors unrelated to the rights of litigants,® the burden

is upon the defendant seeking a new trial to show the

error affected his substantial rights. Kotteakos, 328 U.S. at

760. On the other hand, where a violation affects any

nontechnical right, i.e., a right that is intended for the

protection of litigants, Kotteakos puts the burden of dem-

onstrating harmlessness upon the State:

If the error is of such a character that its natural

effect is to prejudice a litigant’s substantial

rights, the burden of sustaining a verdict will,

> Kotteakos construed Section 2111's predecessor, 28 U.S.C.

§ 391, but as Brecht recognized, Congress left untouched the

phrase “affect substantial rights of the parties.” Id. at n.7. Thus,

“Section 2111 did not alter the basis for the harmless error

standard announced in Kotteakos.” Id.

(technical errors concern the “mere etiquette” and “formalities”

of trials and procedure).

notwithstanding this legislation rest upon the

one who claims under it.

Id. at 760-61.

In adopting the Kotteakos standard for harmless error,

the Brecht Court also cited United States v. Lane, 474 US.

438, 449 (1986). Brecht, 113 S. Ct. at 1722. In Lane, the

Court interpreted Federal Rule of Criminal Procedure

52(a),7 the harmless error rule, in considering a defen-

dant’s misjoinder claim. Lane, 474 U.S. at 444. The Court

noted that Rule 52(a) focuses on whether the error

“affectted] substantial rights” and that the Court had

construed a harmless error statute with similar language

in Kotteakos. Id. at 449. Then, in the very passage this

Court cited in Brecht, the Lane, Court applied the Kotteakos

standard in interpreting Rule 52(a):

Invoking the Kotteakos test, we hold that an error

involving misjoinder “affects substantial rights”

and requires reversal only if the misjoinder

results in actual prejudice because it “had sub-

stantial and injurious effect or influence in

determining the jury’s verdict.”

Lane, 474 U.S. at 449. (quoting Kotteakos, 328 U.S. at 776).

The Brecht Court's citation of this passage from Lane

supports O’Neal’s argument that the State bears the bur-

den of proving harmlessness in three separate ways.

First, the passage from Lane treats Kotteakos as authorita-

tive, and, as shown above, Kotteakos gave the government

the burden of proof on the nontechnical and constitu-

tional error under consideration there. Second, the cited

passage in Lane additionally makes Criminal Rule 52(a)

authoritative; and, in Olano, 113 S. Ct. at 1777-78, the

7 Rule 52(a) provides: “Harmless Error. Any: error, defect,

irregularity or variance which does not affect substantial rights

shall be disregarded.”

Court squarely reaffirmed that the government bears the

burden of proving harmlessness under Rule 52(a) (as

opposed to plain error, under Rule 52(b), which the

defendant must prove). Third, the cited passage from

Lane makes clear that the term “actual prejudice,” on

which the court below relied, has nothing to do with any

allocation of a burden of proof to the petitioner. Instead it

is simply a shorthand for the Kotteakos standard of proof,

i.e., for an error that “had substantial and injurious effect

or influence in determining the jury’s verdict.” Lane, 474

U.S. at 449. |

Brecht further indicated it was adopting the Kotteakos

standard because it is “grounded in the federal harmless-

error rule” and “federal courts may turn to an existing

body of case law in applying it.” Brecht, 113 S. Ct. at 1722.

As shown above, the Kotteakos federal harmless error

standard places the burden of proof on the issue of harm-

less error on the government.

To make Brecht’s application consistent with all the

statutes, rules, and decisions that it treats as authorita-

tive, this Court must place the burden of proving harm-

less error on the State.

Il. THE STATE MUST BEAR THE BURDEN OF PRO-

VING A CONSTITUTIONAL ERROR HARMLESS

IN A FEDERAL HABEAS PROCEEDING TO

ENSURE THE ACCURACY OF CONVICTIONS

AND TO PRESERVE THE ESSENTIAL FUNCTION

OF HABEAS CORPUS AS A REMEDY FOR CON-

STITUTIONAL VIOLATIONS THAT RENDER A

TRIAL FUNDAMENTALLY UNFAIR.

A. The Court’s Modern Habeas Corpus Jurispru-

dence Balances The Competing Policies Of Pro-

tecting The Reliability Of The Trial Process

And Effectuating The State’s Interest In Final-

ity, Comity, And Federalism.

This Court’s modern habeas corpus jurisprudence

has balanced two competing policies. On one hand, the

writ of habeas corpus is a fundamental safeguard against

unlawful custody. Fay v. Noia, 372 U.S. 391, 449 (1963)

(Harlan, J., dissenting). In enacting the federal habeas

corpus statute, 28 U.S.C. § 2254, Congress clearly

expressed its intent to provide a federal forum and rem-

edy for a violation of a state prisoner’s federal constitu-

tional rights. Reed v. Ross, 468 U.S. 1, 10 (1984). The

independent federal courts have been described by the

Court, in the words of James Madison, as the “guardians

of those [constitutional] rights,” Chapman, 386 U.S. at 21,

“to protect the people from unconstitutional action.”

Reed, 468 U.S. at 10. As one of the most important grants

of jurisdiction to the federal courts to perform that task,

the Great Writ of Habeas Corpus “indisputably holds an

honored position in our jurisprudence.” Engle v. Isaac, 456

U.S. 107, 126 (1982). It is a “bulwark against convictions

that violate fundamental fairness.” Id.

On the other hand, in defining the scope of the

modern writ, the Court has paid close attention to the

competing policies of finality of convictions, comity, and

federalism that are implicated when the federal courts

review state judgments. See Brecht, 113 S. Ct. at 1719-20.

In particular, the Court has sought to avoid an overly

liberal allowance of the writ that would undermine the

finality of state convictions, impinge on a state’s sover-

eignty and good-faith efforts to honor constitutional

rights, id. at 1720-21, or impose significant costs, such as

problematic retrials. Engle, 456 U.S. at 128.

During the last two decades, this balancing process

has led the Court to adjust habeas law so as to focus its

remedial power on, and limit its effects on state interests

to, situations in which the reliability of the trial process is

threatened and there is a risk of the conviction of the

innocent. Several decisions of the Court are illustrative.

In Stone v. Powell, 428 U.S. 465, 482 (1976), the Court

determined that Fourth Amendment search and seizure

claims were not cognizable in federal habeas proceedings

when there was a full and fair opportunity to litigate

them in the state courts. The Court found the benefits of

applying the exclusionary rule on collateral review, i.e.,

deterrence, did not outweigh the costs to the system of

excluding reliable evidence and ften freeing the guilty.

Id. at 489-90. Although the Court validated broad habeas

corpus relief as an additional safeguard against the con-

viction of the innocent, id. at 491 n.31, it stressed that a

petitioner’s Fourth Amendment claims actually deflect

the truth-finding process, id. at 490, and have “no bearing

on the basic justice of his incarceration.” Id. at 491-492 n.

31.

In Wainwright v. Sykes, 433 U.S. 72 (1977), a petitioner

failed to comply with a state procedural rule in raising a

constitutional claim in state court. The Court held this

default constituted an adequate and independent state

ground for the state courts’ refusal to hear his claim,

which barred habeas corpus relief. Because the petitioner

was at fault for not respecting the State’s rules and the

State’s interest in curing its own errors, the Court held

that he could not obtain habeas relief unless he could

meet the extenuating burden of showing “cause” for the

procedural default and “prejudice” therefrom. Id. at

87-89; accord Engle, 456 U.S. at 129 (1982); Murray v.

Carrier, 477 U.S. 478, 489 (1986); Coleman v. Thompson, 111

S. Ct. 2546, 2565 (1991); see also Keeney v. Tamayo-Reyes,

112 S. Ct. 1715, 1719-20 (1992) (“cause and prejudice”

standard applicable to petitioner’s failure to develop

material fact in state court proceedings); McCleskey v.

Zant, 499 U.S. 467, 490 (1991) (“cause and prejudice”

standard applies to determine if there has been an abuse

of the writ through inexcusable neglect).

Nevertheless, the Court in Sykes and subsequent

cases held that this rule will not prevent a habeas court

from hearing the claim of a petitioner who would other-

wise be a victim of a “miscarriage of justice.” Sykes, 433

U.S. at 91; Engle, 456 U.S. at 135; Coleman, 111 S. Ct. at

2565. “Where a constitutional violation has probably

resulted in the conviction of one who is actually innocent,

a federal habeas court may grant the writ even in the

absence of a showing of cause for the procedural

default.” Murray, 477 U.S. at 496.

These goals were further expressed in Teague v. Lane,

489 U.S. 288 (1989), where the petitioner sought to estab-

lish a new rule of constitutional law in federal habeas

proceedings. This Court denied relief, finding that the

“[a)pplication of constitutional rules not in existence at

the time a conviction became final seriously undermines

the principle of finality which is essential to the operation

of our criminal justice system.” Id. at 309. In reaching this

conclusion, however, the Court was careful to create an

exception for new rules or procedures that were “central

to an accurate determination of innocence or guilt.” Id. at

313. Throughout its modern jurisprudence, therefore, the

Court has emphasized the importance of the writ in pro-

tecting the reliability and accuracy of the trial process

and avoiding the conviction of the innocent.

At the same time, the Court has resisted broad-based

attacks on the writ that would seriously impair its impor-

tant functions. This is especially true when, unlike in

Sykes, the petitioner has adhered to all state and federal

procedural rules and has met a heavy burden of estab-

lishing that the State has violated important constitu-

tional norms. For example, in Withrow v. Williams, 113 S.

Ct. 1745 (1993), the Court was asked to extend Stone to

bar habeas relief for violations of Miranda v. Arizona, 384

U.S. 436 (1966). The Court refused to do so because,

unlike the Fourth Amendment exclusionary rule, Miranda

safeguards “a fundamental trial right,” i.e., a defendant’s .

Fifth Amendment privilege against self-incrimination,

which often helps to achieve the “correct ascertainment

of guilt.” Withrow, 113 S. Ct. at 1753. See also Jackson v.

Virginia, 443 U.S. 307 (1979) (Court refused to apply Stone

to Fourteenth Amendment due process claim that evi-

dence was insufficient to support the conviction, stress-

ing that the issue was “central to the basic question of

guilt or innocence,” id. at 323); Kimmelman v. Morrison,

477 U.S. 365 (1986) (Court refused to apply Stone to

claims of ineffective assistance of counsel, recognizing

that the Sixth Amendment right to counsel is a funda-

mental trial right that “assures the fairness, and thus the

legitimacy, of our adversary process,” id. at 374); Withrow,

113 S. Ct. at 1757 (O’Connor, J., dissenting) (a prisoner’s

equitable interest in avoiding incarceration when inno-

cent normally is sufficient by itself “to outweigh other

concerns and justify adjudication of the prisoner’s consti-

tutional claim”).

Similarly, in Wright v. West, 112 S. Ct. 2482 (1992), the

State sought to have the Court change the settled rule

that “mixed constitutional questions are ‘subject to plen-

ary federal [or de novo] review’ on habeas.” Id. at 2491

(quoting Miller v. Fenton, 474 U.S. 104, 112 (1985). The

State asked the Court to replace this standard with one

that afforded deference to state court determinations

applying law to the specific facts of a case. West, 112 S.

Ct. at 2486. The case was decided on other grounds, but

Justice Thomas acknowledged, in his plurality opinion

for the Court, that such a change would be “far-reach-

ing.” Id. at 2492. In'a concurring opinion, Justice O’Con-

nor indicated the Court has strongly adhered to the de

novo review of constitutional claims on habeas and

“always held that the federal courts, even on habeas,

have an independent obligation to say what the law is.”

Id. at 2497 (O’Connor, J., concurring). Justice O’Connor

warned that a move away from this standard would be a

“substantial change in our construction of the authority

conferred by the habeas corpus statute.” Id. at 2498. The

following Term in Withrow a majority of the Court then

reaffirmed the rule of de novo review. Withrow, 113 S. Ct.

at 1754.

Finally, in another decision last Term, Herrera v. Col-

lins, 113 S. Ct. 853 (1993), the Court made clear the crucial

focus of habeas corpus relief: it is not simply the interest

in accurate outcomes or the interest in correcting viola-

tions of federal law, but rather the confluence of both

interests. As such, even proof of a colorable claim of

innocence, in the absence of any violation of federal

constitutional law, could not justify relief. Id. at 862. The

Court thus emphatically reiterated that the federal court's

remedial powers on habeas are focused on “constitutional

violations occurring in the course of underlying state

criminal proceedings.” Id.

The above habeas decisions preserve the core func-

tion of the writ as a remedy for fundamentally unfai

trials and for avoiding conviction of the innocent. T e

State’s interests in finality, comity, and federalism also are

accommodated. To receive plenary review of a constitu-

tional claim, a petitioner must be properly before the

court. Claims brought by petitioners who have disre-

garded state and federal rules and cannot comply with

the Court’s rules regarding exhaustion, procedural

default, abuse of the writ, and retroactivity are not heard. i

B. Brecht’s Standard Of Proof For Harmless Error

Sufficiently Accommodates The State’s Inter-

ests Without Changing The Burden Of Proof.

Prior to Brecht, Chapman required relief if there was

any “ ‘reasonable possibility’ ” that constitutional trial

error contributed to the verdict. Chapman, 386 U.S. at 24

(quoting Fahy v. Connecti. ‘t, 375 U.S. 85, 86-87 (1963)). In

Brecht the Court determined that habeas relief requires

more certainty of harm to assure that the petitioner has

been “grievously wronged” — the historic standard for

granting habeas relief. Brecht, 113 S. Ct. at 1721. The

Court therefore adopted the more forgiving Kotteakos

standard, which requires relief only if the error “had

substantial and injurious effect or influence in determin-

ing the jury’s verdict.” Id. at 1722 (quoting Kotteakos, 328

U.S. at 776).

The Brecht/Kotteakos standard sufficiently satisfies the

state’s interest in finality. The Brecht/Kotteakos standard

denies relief for errors having no substantial impact on

the jury’s deliberations and verdict. Relief is limited to

petitioners who actually had a fundamentally unfair trial.

- Once the court reaches this degree of certitude that con-

stitutional error causing prejudice actually occurred, a

petitioner has been “grievously wronged.” The historic

habeas standard for relief has been met. The State’s inter-

est in finality is no longer decisive.

The Brecht/Kotteakos standard also adequately

addresses the “social costs” involved in retrying defen-

dants, such as “erosion of memory” or “dispersion of

witnesses,” Brecht, 113 S. Ct. at 1721, making reconviction

on retrial more difficult. Id. Under the Chapman standard,

there was a greater risk, due to these factors, that a

defendant would be acquitted even though he deserved

to be convicted. See McCleskey v. Zant, 499 U.S. at 491

(“[w]hen a habeas petitioner succeeds in obtaining a new

trial the ‘erdsion of memory’ and ‘dispersion of wit-

nesses’ that occur with the passage of time prejudice the

government and diminish the chances of a reliable adju-

dication.” (quoting Kuhlmann v. Wilson, 477 U.S. 436, 453

(1986) (plurality opinion)). Brecht solved this problem by

limiting habeas reversals to cases where the constitu-

tional error actually affected, in a substantial and inju-

rious way, the outcome of the trial. Under the Brecht/

Kotteakos standard, therefore, there will be a high proba-

bility that any new outcome on retrial is a function of

curing the constitutional error, and not a product of the

staleness of evidence.

The Brecht/Kotteakes standard sufficiently accommo-

dates the State’s interest in finality. A change in the

longstanding rule on the burden of proof regarding

harmless error is therefore unnecessary and unwarranted.

Moreover, as demonstrated below, it will undermine the

important function of the writ in protecting the reliability

of the trial process and avoiding conviction of-the inno-

cent.

C. Giving Petitioners The Burden To Prove A Con-

stitutional Error Is Not Harmless Will Increase

The Risk Of An Erroneous Decision By The

Habeas Court And Not Ensure The Accuracy Of

Convictions.

Under the Sixth Circuit’s ruling, O’Neal not only had

the burden of establishing the constitutional error, but

also had the burden of proving it was not harmless.

O'Neal, 3 F.3d at 145. (J.A. 221.) Such a major change in

federal habeas law is unwise, unsound, and’ inconsistent

with the Court’s recent habeas jurisprudence. This

change will create the substantial risk that inaccurate

convictions, including those of actually innocent people,

will be preserved.

As developed above, the central focus of this Court's

modern habeas jurisprudence is the writ’s assurance that

constitutional errors do not cause the conviction of an

actually innocent person. Stone, 428 U.S. at 491-92 n.31;

Teague, 489 U.S. at 312-13; Brecht, 113 S. Ct. at 1729

(O’Connor, J., dissenting). In Desist v. United States, 394

U.S. 244 (1969), Justice Harlan stated one of the principal

functions of the writ of habeas corpus is ” . . . to assure

that no man has been incarcerated under a procedure

which creates an impermissibly large risk that the inno-

cent will be convicted.” Id. at 262 (Harlan, J., dissenting);

see also Teague, 489 U.S. at 313 (“Since Mackey [Mackey v.

United States, 401 U.S. 667 (1971)] was decided, our cases

ee Oe ae | er a

have moved in the direction of reaffirming the relevance

of the likely accuracy of convictions in determining the

available scope of habeas review.”). This view of habeas

is, of course, consistent with the often stated principle

that the central purpose of a trial is to decide the question

of guilt or innocence. Stone, 428 U.S. at 490; Rose v. Clark,

478 U.S. at 577.

Harmless error analysis speaks directly to this central

question of the reliability of criminal procedures and the

accuracy of their outcomes. When a court conducts a

harmless error analysis after finding constitutional error,

it must quantitatively assess the error in the context of

the other evidence to determine the effect it had on the

fact-finding process at the trial. Brecht, 113 S. Ct. at 1717

(citing Arizona v. Fulminante, 499 U.S. 279, 281 (1991));

accord Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). As

this Court recognized in Van Arsdall:

The harmless-error doctrine recognizes the prin-

ciple that the central purpose of a criminal trial

is to decide the factual question of the defen-

dant’s guilt or innocence, and promotes public

respect for the criminal process by focusing on

the underlying fairness of the trial . . .

Id. at 681 (citations omitted); accord Fulminante, 449 U.S. at

308 (Rehnquist, C.J. concurring). Thus, the harmless error

standard and its proper application are “crucial to our

faith in the accuracy of the outcome.” Brecht, 113 S. Ct. at

1730 (O’Connor, J., dissenting); see Lane, 474 U.S. at 478

(Stevens, J., concurring and“ dissenting) (“A determina-

tion that an error was harmless is an extremely weighty

conclusion; it implicates profound notions of fairness and

justice.”); R. Traynor, The Riddle of Harmless Error 80

(1970) (“[T]he evaluation of an error as harmless or preju-

dicial is one of the most significant tasks of an appellate

court, as well as one of the most complex.”).

In Brecht, 113 S. Ct. at 1722, the Court reduced the

standard for finding a constitutional error to be harmless

in a federal habeas proceeding. No longer will the State

have to prove beyond a reasonable doubt that there is no

reasonable possibility that the constitutional error con-

tributed to the verdict. Id. at 1721; see Chapman, 386 U.S.

at 24. Instead, habeas relief will only be granted where

the error “had substantial and injurious effect or influ-

ence in determining the jury’s verdict.” Brecht, 113 S. Ct.

at 1722 (quoting Kotteakos, 328 U.S. at 776). No less than

four Justices of the Court dissented from the Court's

departure from the Chapman standard. See Brecht, at

1725-32 (White, Blackmun, Souter, O'Connor, JJ., dissent-

ing). Substantial doubts thus have been raised whether

the new standard can adequately protect federal constitu-

tional rights. Justice O’Connor specifically found that the

new standard “increases the likelihood that a conviction

will be preserved despite an error that actually affected

the reliability of the trial.” Id. at 1730 (O'Connor, J.,

dissenting).

As the 5-4 vote and the dissenters’ concerns suggest,

the balance struck in Brecht was delicate. As O’Neal dem-

onstrates below, tipping the balance even further against

the redress of proven constitutional errors by giving the

petitioner the burden on the harmless error issue will

skew the balance. It will increase the risk of preserving

the conviction despite constitutional error that affected

the reliability of the result.

This Court has frequently acknowledged that harm-

less error review is inherently difficult. See, e.g., Sullivan

v. Louisiana, 113 S. Ct. 2078, 2082 (1993) (misdescription of

the burden of proof vitiates jury’s findings, and review-

ing court can only engage in pure speculation of what a

reasonable jury would have done); Riggins v. Nevada, 112

S. Ct. 1810, 1816 (1992) (guesses as to outcome of trial if

CD Rear ott

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defendant had not been forcibly medicated would be

purely speculative); Satterwhite v. Texas, 486 U.S. 249, 258

(1988) (evaluation of consequences of an error in sentenc-

ing phase of a capital case may be more difficult because

of discretion given to the sentencer). See also United States

v. Cerro, 775 F.2d 908, 915 (7th Cir. 1985) ((“It is always

perilous to speculate on what the effect of evidence

improperly admitted was on a jury, or what the effect of

evidence improperly excluded would have been.”) (citing

Jeitelbaum, Sutton-Barbere and Johnson, Evaluating the

Prejudicial Effect of Evidence; Can Judges Identify the Impact

of Improper Evidence on Juries? 1983 Wis.. L. Rev. 1147));

Traynor, Supra, at 29 (“It is not always easy to answer the

[harmless error] question in the light or the dark of a

trial.”); Kotteakos, 328 U.S. at 764 (“The crucial thing is the

impact of the thing done wrong on the minds of other

men, not on one’s own, in the total setting.”); Cf. Satter-

white, 486 U.S. 256; Riggins, 112 S. Ct. at 1816; Olano, 113

S. Ct. at 1780-81 (all recognizing that in some situations

harmless error analysis becomes so speculative as to be

impossible). As stated by Chief Justice Rehnquist in his

concurring opinion in Sullivan:

In the typical case, of course, a jury does not

make explicit factual findings; rather it simply

renders a general verdict on the question of

guilt or innocence. Thus, although it may be

possible to conclude from the jury’s verdict that

it has found a predicate fact (or facts), the

reviewing court is usually left only with the

record developed at trial to determine whether

it is possible to say beyond a reasonable doubt

that the error did not contribute to the jury’s

verdict. Moreover, any time an appellate court con-

ducts harmless-error review it necessarily engages in

some speculation as to the jury’s decisionmaking

process; for in the end no judge can know for certain

what factors led to the jury’s verdict.

113 S. Ct. at 2084 (citations omitted) (emphasis added).

Given the inherent difficulty of harmless error anal-

ysis, the vast majority of habeas petitioners are ill-

equipped to bear the burden of proof on the issue. It is

well known that most federal habeas petitioners are unre-

presented by counsel. See Price v. Johnston, 334 US. 266,

292 (1948) (“prisoners .. . act. . . often as their own

counsel in habeas corpus proceedings”); Faust, Rubens-

tein & Yackle, The Great Writ In Action: Empirical Light On

The Federal Habeas Corpus Debate, 18 N.Y.U. J.L. & Soc.

Change, 637, 688 (1990-91) (1973-75 and 1979-81 data)

(“[M]ost petitioners filed their habeas corpus petitions

pro se.”). Unlike the State, which is always represented

by counsel, petitioners often must prepare their own

petitions and subsequent pleadings without any legal

training or ability to marshal the facts and law in their

favor. Additionally, prisoners frequently do not have

access to the complete record in their case. See, e.g., State

ex rel. Greene v. Enright, 63 Ohio St. 3d 729, 590 N.E.2d

1257, cert. denied, 113°S. Ct. 667 (1992) (pro se defendant on

direct appeal not entitled to have trial transcript sent to

him in prison so he could prepare his appellate brief).

Thus, most habeas petitioners would be at a distinct

disadvantage in trying to meet such a critical burden of

proof. |

Given the imbalance between the State .and most

habeas petitioners, switching the burden of proof on

harmless error from the State to the petitioner may sub-

stantially increase the number of unremedied constitu-

tional errors affecting the reliability of trials. Such a result

is inconsistent with this Court’s habeas jurisprudence and

with the goals of fair trials and accurate determinations

of guilt-or innocence. This is especially so in the wake of

two decades worth of decisions of this Court limiting the

availability of habeas relief to petitioners who have assid-

uously respected state procedural rules, who have borne

tin

the burden of proving violations of well-established con-

stitutional norms that affect the integrity of the trial

process, and who are the victims of violations that cannot

be shown to lack substantial effect on the outcome. In

addition, such result fails to comport with the traditional

principle that “[i]n the administration of criminal justice,

our society imposes almost the entire risk of error on

itself.” Addington v. Texas, 441 U.S. 418, 423-24 (1979). See

also In re Winship, 397 U.S. 358, 364 ( 1970).

D. Placing The Burden Of Proof On The Petitioner

Is Not Consistent With Traditional Habeas Prac-

tice And Will Burden Rather Than Assist The

Court In Deciding Which Constitutional Claims

Are Entitled To Relief.

Placing the burden of proving harm on the petitioner

is inconsistent with traditional habeas practice and will

burden, rather than assist, federal courts in deciding

which claims are entitled to relief. To begin with, by the

time the harmless error question arises, habeas peti-

tioners already will have met the burden of establishing a

constitutional violation. In some cases that burden will

have been very great. See, e.g., Strickland v. Washington,

466 U.S. 668, 687 (1984) (to estabtish claim of ineffective

assistance of counsel petitioner must show counsel vio-

lated essential duty to client and reasonable likelihood

result of trial would have been different). As the Court’s

procedural default rules illustrate, see I/.A, supra, once a

party has demonstrated that the other party has not

played. by the established rules (in this case, fundamental

constitutional rules), the burden should shift to the proven

wrongdoer to show that its interests should be vindicated

despite its wrongdoing. Thus, once procedural default or

abuse of the writ is shown by the State, the petitioner has

the burden to establish “cause” and “prejudice” to obtain

habeas relief. Sykes, 433 U.S. at 87: McCleskey, 499 US. at

468. The equitable traditions of federal habeas practice

should likewise require that once the petitioner has estab-

lished that the respondent State has violated his constitu-

tional rights, the State should bear the burden of showing

its violation is harmless.

Moreover, harmless error is logically an argument or

defense to be pleaded by the responding party to avoid

the consequences of the proven wrongdoing. It is for this

reason that courts have found the State waived the harm-

less error argument by failing to timely raise it. See

Amadeo v. Zant, 486 U.S. 214, 228 (1988); Holland v.

McGinnis, 963 F.2d 1044, 1057 (7th Cir. 1992), cert. denied,

113 S. Ct. 1053 (1993). Such allocation of the burden is

dictated by longstanding harmless error practice in civil,

criminal, constitutional, nonconstitutional, statutory, and

common law contexts. See 1.A, supra. In addition, it is

consistent with the other habeas defenses of non-exhaus-

tion, non-retroactivity, procedural default, and abuse of

the writ which must be pleaded and proved by the State.

See Granberry v. Greer, 481 U.S. 129, 134 (1987) (exhaus-

tion); McCleskey, 499 U.S. at 482 (abuse of writ); Godinez v.

——-Meran, 113 S. Ct. 2680, 2685 n.8 (1993) (non-retroactivity);

Estelle v. Smith, 451 U.S. 454, 468 n.12 (1981) (procedural

default).

Furthermore, allocating the burden to. petitioner is

not an efficient use of scarce judicial resources. The

State’s attorney has access to the complete record and is

the party that Congress and this Court in the habeas rules

have made responsible for responding to the allegations

of the petition in an answer. See Rule 5, Rules Governing

Section 2254 Cases; Granberry, 481 U.S. at 132 n.5. Respon-

dent is in a much better position to identify the salient

facts and legal arguments on the harmless error issue

than most habeas petitioners. This current allocation of

the burden of proof assists the court in its analysis of the

ee eee -

oo amt wer ing -

harmless error issue and ultimate decision-making. See

Rule 5, Rules Governing Section 2254 Cases, Advisory

Committee Note, 28 U.S.C. § 2254 at 1122 (“[T]he return

serves several important functions: it permits the court

and parties to uncover quickly the disputed issues.”).

Putting the burden on a lay petitioner will be less likely

to do so. Judicial economy and use of resources will not

be promoted if the court must seek out a lay petitioner’s

facts and arguments on the harmless error issue. A dili-

gent habeas court may also see the need for an evidenti-

ary hearing or further discovery if the facts have not been

adequately marshaled by the petitioner. Even when rep-

resented by counsel, the petitioner is still not in a better

position to answer the Brecht/Kotteakos harmless error

question (whether the constitutional error had a substan-

tial impact on the verdict). The petitioner has no better

access to the relevant information than the state. See

Sullivan, 113 S. Ct. at 2084. (Rehnquist, C.J., concurring)

(harmless error determination must be made from record

developed at trial).

More important, shifting the burden to the petitioner

could drastically increase the federal courts’ workload. If

a petitioner must demonstrate that the error is harmful to

obtain relief, doing so might become an essential part of

every petitioner’s burden in habeas cases. This may cre-

ate an incentive, or even, eventually, a legal requirement

on the part of petitioners to demonstrate harm as to every

claim in every petition. See Rules 2 and 4 of the Rules

Governing Section 2254 Cases (petitioner bears burden of

comprehensively pleading bases necessary for relief, and

federal court may summarily dismiss petition for failure

to do so without securing answer from State). At the

least, reallocating the burden would create an incentive

on the part of the respondent to demand a showing of

harm at the pleading stage as to all claims.

Making harm a threshold component of every claim

in every habeas petition could drastically increase the

length, complexity, and time required to plead, brief,

argue and decide habeas corpus cases. Giving petitioners

the burden on the issue and subjecting them to dismissal

if they do not comprehensively treat the issue from the

outset would inevitably force petitioners to address

harmless error from the outset as to all claims in all cases.

For example, given a habeas petition raising ten claims,

the new burden on petitioner would create the possibility

of ten new discussions devoted to “harm” in the petition,

the answer, the opening and responsive briefs, the oral

argument, and the opinion. Moreover, each discussion of

error might have to be lengthy because each would

require consideration of an as yet unadjudicated error in

light of the entire record. The most efficient way to deal

with the harmlessness issue is not to make it a part of

petitioner’s case. Otherwise, it threatens to become a

major aspect of every claim in every case. Instead, it

should remain a part of the State’s case, but only if the

State is found to have violated the Constitution.

Finally, the Kotteakos body of case law will not be of

assistance to the court if the allocation of the burden of

proof on harmless error is changed. In Brecht, the Court

stated that it adopted the Kotteakos standard so that “the

federal courts may turn to a body of case law in applying

it” and “[t}herefore, application of the Kotteakos standard

is unlikely to confuse matters for habeas courts.” Brecht

113 S. Ct. at 1722. This will not be the case if this Court

changes longstanding law and practice governing who

has the burden of proof on harmless error. The Kotteakos

case law discussing the harmless error issue in the con-

text of the State’s burden of proof not only will be of no

value, but will be extremely confusing to federal courts.

In addition, to require habeas courts to follow a different

a ella dn

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| hte meal ete nam Mg he

procedure for analyzing harmless error issues in habeas

proceedings than in other proceedings, such as federal

postconviction proceedings, will contribute to erroneous

decision-making. Simplicity and consistency in judicial

procedures strongly counsel against a change in the tradi-

tional burden of proof on harmless error.

E. Considerations Of Finality, Comity, And Feder-

alism Do Not Support A Change In The Current

Burden of Proof Procedure.

Placing the burden of proof of harmlessness on peti-

tioners who have established constitutional violations

will not advance the interests of finality, comity, and

federalism. These petitioners are properly before the

court. They have exhausted their state remedies. They

have not procedurally defaulted their claims in either the

state or federal courts. They have not abused the writ.

They have borne the burden of proving constitutional

error. Moreover, under Brecht, they cannot obtain habeas

relief if it is shown that the constitutional error had no

substantial impact on the outcome of the trial. Under

such circumstances, the interests of finality, comity, and

federalism have been fully accommodated. See McCleskey,

499 U.S. at 492-93 (“The federal writ of habeas corpus

overrides all these considerations, essential as they are to

the rule of law, when a petitioner raises a meritorious

constitutional claim in a proper manner in a habeas peti-

tion.”).

Piling on petitioners the additional burden imposed

by the court below thus is unnecessary in terms of the

State’s interest. Worse, the effect of that proposed burden

would be to undermine the equitable force and pruden-

tial effect of the Court’s procedural default and abuse of

the writ doctrines. It would treat all petitioners as if they

have procedurally defaulted their claims in the state or

federal courts and thereby harmed the State’s interests. If

all petitioners have to prove prejudice as part of their

constitutional claim, then all will essentially have to make

the same showing as petitioners who have procedurally

defaulted or abused their claims. See Sykes, 433 U.S. at

87-89 (habeas petitioners who procedurally default their

constitutional claims in state court must show “cause” for

the default and “prejudice” therefrom to obtain relief);

McCleskey, 499 U.S. at 468 (same burden as to “abused”

claims).

This proposed subjection of all petitioners to a bur-

den now reserved for those who have procedurally

defaulted in the state or federal courts not only is unfair,

it also deprives the Court’s habeas jurisprudence of a

rational uniformity by according the same treatment to

petitioners who the Court has long recognized are not

similarly situated. See Keeney, 112 S. Ct. at 1720 (applica-

tion of cause-and-prejudice standards to habeas peti-

tioner’s failure to develop material fact in state court

proceedings “advances uniformity in the law of habeas

corpus”). Cf. Olano, 113 U.S. at 1178 (under the federal

criminal rules the government has the burden of proving

a properly preserved error was harmless; the defendant

only bears the burden of proof on the prejudice issue

when he has procedurally defaulted or forfeited the claim

and must claim plain error (Rule 52(b)). Giving all, rather

than only defaulted, petitioners a burden of proving prej-

udice could undermine the incentives the Court's default

and abuse doctrines give petitioners to obey state and

federal procedural rules.

Moreover, the State has no valid interest in the final-

ity of a conviction if there has not been a fair trial and a

reliable determination of guilt. Indeed, the Court in Stone

expressly excluded constitutional claims bearing on guilt

en ee

SE er NN IL Ne Pe I Eo we pee ny ede. @ set? OD.

or innocence from other habeas claims that impinge upon

a state’s interest in finality, comity, and federalism:

Resort to habeas corpus, especially for purposes

other than to assure that no innocent person suffers

an unconstitutional loss of liberty, results in

serious intrusions on values important to our

system of government.

We nevertheless afford broad relief, recognizing

the need in a free society for an additional safe-

guard against compelling an innocent man to suffer

an unconstitutional loss of liberiy.

Stone, 428 U.S. at 491-92 n.31 (emphasis added).

It is true there are costs to the system, such as prob-

lematic retrials, when habeas relief is granted. Engle, 456

U.S. at 128. These costs are, however, the inevitable con-

sequence of three factors that, in our system, require relief

notwithstanding its costs: (1) having superior federal con-

stitutional law that governs state criminal proceedings in

order to safeguard important individual liberties; (2) a

state’s demonstrated violation of that law that has not

been shown to lack substantial effect; and (3) a federal

statute adopted 127 years ago that requires federal habeas

corpus relief in the event of a constitutional violation. 28

U.S.C. § 2254. As this Court has recognized, these costs

are “an acceptable and necessary consequence when an

error in the first proceeding has deprived a defendant of

a fair determination of the issue of guilt or innocence.”

United States v. Mechanik, 475 U.S. 66, 72 (1986). It is

important to remember, however, these costs are incurred

in only few cases where defendants’ trials were funda-

mentally unfair. Brecht, 113 S. Ct. at 1719; see also Estelle v.

McGuire, 112 S. Ct. 475, 482 (1991) ((“ ‘We have defined

the category of infractions that violate fundamental fair-

ness very narrowly.’ ”) quoting Dowling v. United States,

493 U.S. 342, 352 (1990)).

Finally, as pointed out above, see /I.B, supra, the

Brecht standard requires more certainty that the error

adversely affected the jury’s verdict than the Chapman

standard. By doing so, the Court has increased the likeli-

hood that retrials will occur only in situations where

removal of the error may make a difference in the out-

come. No further adjustment in habeas law is necessary

to accommodate the State’s interest in finality.

Requiring a petitioner to prove a constitutional error

harmless would not ensure the accuracy of convictions or

avoid conviction of the innocent. It would not permit the

writ to serve as a remedy for those errors that violate

fundamental fairness, constitute a miscarriage of justice,

and are an extreme malfunction in the state criminal

justice system. See Brecht, 113 S. Ct. at 1719-20. Rather, it

would remove any guarantee that the writ would issue

under such egregious circumstances, and thereby remove

the federal courts as the “guardians of the people’s fed-

eral rights.” See Reed, 468 U.S. at 10.

Ill. BECAUSE THE SIXTH CIRCUIT ERRONEOUSLY

PLACED THE BURDEN OF PROVING THE CON-

STITUTIONAL VIOLATION WAS NOT HARM-

LESS ON O’NEAL, THIS CASE SHOULD BE

REMANDED TO THE SIXTH CIRCUIT FOR

HARMLESS ERROR ANALYSIS.

A. The Sixth Circuit Decided This Case Without

The Benefit Of Briefing On The Impact Of

Brecht.

Brecht v. Abrahamson did not change the longstanding

rule that the party who committed and stands to benefit

from a proven constitutional violation has the burden of

showing that the violation did not affect the proceeding.

Sixth Circuit law prior to, and after Brecht, placed the

burden on the prosecution. See Sherley v. Seabold, 929 F.2d

272 (6th Cir. 1991) and Stoner v. Sowders, 997 F.2d. 209, 213

(6th Cir. 1993).

Because Brecht was announced while O'Neal was

pending before the Sixth Circuit and after the parties’

briefs had been filed, the appellate court did not have the

benefit of the parties’ analysis and reasoning in reaching

its decision to place the burden on the habeas petitioner.

Offering no analysis for its interpretation of Brecht, the

Sixth Circuit abruptly changed existing law and erro-

neously placed the burden of proving the constitutional

violation was not harmless on O'Neal. O'Neal, 3 F.3d at

147 (J.A. 221.) For this reason, O’Neal’s case should be

remanded to the Sixth Circuit for harmless error analysis

with the burden placed on the prosecution. Remand

would afford the parties an opportunity to submit their

best arguments before the court conducts its harmless

error analysis. Principles of due process and fair pro-

cedure require no less. See Lankford v. Idaho, 5U0 U.S. 110,

126 n.22 (1991) (“In a variety) of contexts, our cases have

repeatedly ernphasized the’ importance of giving the par-

‘ties sufficient notice to enable them to identify the issues

on which a‘ decision may.turn.”). Furthermore, this

Court’s general practice not to conduct harmless error

analysis on the facts of a particular case, Rose v. Clark, 478

U.S. 570 (1986), and the extraordinary length (over 6200

pages) of the trial transcript strongly militate in favor of

remand.§

8 Even if this Court determines the burden of proving the

constitutional violation was not harmless was correctly placed

on O'Neal, this case should be remanded to afford O’Neal an

opportunity to satisfy the burden.

B. Under A Fair Allocation Of The Burden To The

State, O’Neal Is Entitled To Habeas Relief.

The Magistrate and District Court in this case con-

cluded that the trial court’s jury instructions, in combina-

tion with the prosecutor’s closing argument,

unconstitutionally relieved the state of its burden of pro-

ving that O'Neal not only intended to participate in a

conspiracy to kidnap and rob Henry, but also intended to

kill him. (J.A. 130-31, 206-09, 214.)° Nonetheless, after

giving O'Neal the burden of proving harm, the Sixth

Circuit found these constitutional violations harmless

because: (1) the record contained sufficient evidence of

O’Neal’s guilt; and (2) “ .. . all of the evidence upon

which the jury could have relied to establish petitioner's

guilt pointed to his guilt as a principal.” O'Neal, 3 F.3d. at

147. (J.A. 227.) Neither reason is sound. Indeed, given the

dearth of proot.in this record that O’Neal had the requi-

site intent, the Sixth Circuit’s erroneous allocation of the

burden of proving harmlessness has led to precisely the

kind of error that habeas corpus was designed to correct

~ the affirmance of a constitutionally tainted conviction of

one who may well be innocent of the offense.

This case was not as simple as the Sixth Circuit's

Opinion suggests, for five reasons. First, the fact that the

remaining evidence may be sufficient to support.a convic-

tion does not make the error harmless under the rule of

Brecht and Kotteakos. Brecht, 113 S. Ct. at 1724 (Stevens, J.,

concurring).

* For example, regarding the intent element of aggravated

murder, the trial court instructed the jury that it must be estab-

lished that “at the time in question there was present in the

mind of the defendants or co-defendants or aiders and abettors, if

you so find, a specific intention to kill the decedent Henry

Podborny.” (Tr. 6159) (J.A. 170) (emphasis added).

aes a 1 gee RE

;

If, when all is said and done, the conviction is

sure that the error did not influence the jury, or

had but very slight effect, the verdict and the

judgment should stand .. . But if one cannot say,

with fair assurance, after pondering all that hap-

pened without stripping the erroneous action

from the whole, that the judgment was not sub-

stantially swayed by the error, it is impossible to

conclude that substantial rights were not

affected. The inquiry cannot be merely whether

there was enough to support the result, apart from

the phase affected by the error. It is rather, even so,

whether the error itself had substantial influence. If

so, or if one is left in grave doubt, the conviction

cannot stand.

Kotteakos, 328 U.S. at 764-65 (emphasis added).

Second, the appellate court failed to consider the

impact of the improper transferred intent instructions,

(J.A. 169-190), on the defense’s theory of actual inno-

cence. The physical evidence and all the testimonial evi-

dence save Toney’s (given in return for a reduced

sentence) was consistent with the defense theory that

Toney and her brother, Gabbard, with or possibly without

the help of Waress, killed Henry at O’Neal’s saloon with-

out O’Neal’s knowledge, and that O’Neal’s participation,

if any, in the conspiracy did not include an intent to kill

Henry. (Tr. 3227-30, 5840-43.)!° Toney told the other con-

spirators about O’Neal; O’Neal was not part of their

discussions. (Tr. 2062, 2065, 2071, 3069, 3222-23, 3232,

10 The day after Henry disappeared, Toney told McLean

that she and her brother had taken Henry to Gabbard’s home in

Amherst, Ohio to hold him a few days. (Tr. 2989.) Toney also

told McLean that Henry was moved later from Amherst to

Cleveland. (Tr. 3233-34.) It is possible that Henry was later taken

to O’Neal’s saloon and killed. Henry’s date of death could not

be determined. (Tr. 3712.)

3240-41, 5177, 5249.) Under the constitutionally defective

instructions, however, O’Neal could have been found

guilty of murder based on the mental state of Toney or

Gabbard as long as O’Neal played some part in the

balance of the conspiracy.

Moreover, there is ample evidence in the record of

O’Neal’s actions that do not reveal any homicidal or even

criminal intent, but nevertheless may have furthered the

conspiracy of Toney and Gabbard, and may have quali-

fied O’Neal for conviction under the defective instruc-

tions and prosecutorial argument. For example, there was

evidence that O’Neal: (1) provided Dimple with protec-

tion during her divorce by traveling with her to Chi-

cago!! (Tr. 4837-39, 4870); (2) attempted to help Toney

invest $6,500 of the money she received from Dimple for

attempting to kill Henry (Tr. 4024-32, 4042-44, 4841,

4885-86) (J.A. 47-48); (3) gave Toney, his employee, the

keys to his saloon, where Toney and others secreted and

killed Henry (Tr. 4900, 4952); and loaned Toney his .38

caliber Smith and Wesson handgun. (Tr. 4878-79.) The

defective transferred intent instructions, coupled with the

prosecutor’s improper closing argument, would have

confused and led any rational juror to impute Toney’s

criminal responsibility to O’Neal without proof of

O’Neal’s mental culpability or involvement in the actual

robbery, kidnapping, and murder of Henry. As the Magis-

trate found:

The jury had substantial credibility issues to

resolve. The improper instructions on state of

mind could have led the jury to convict even if

'' The jury could have found O’Neal guilty because he

assisted Toney when he protected Dimple on the Chicago trip.

The prosecutor's closing argument also implied that O’Neal

was guilty solely due to the trip to Chicago, since he provided

Dimple with protection. (Tr. 6094-95) (J.A. 62-63.)

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they believed O’Neal’s version of events, on the

basis that O’Neal had been involved in a con-

spiracy to obtain money from either Mrs. or Mr.

Podborny that eventually led to kidnapping,

robbery and murder. See discussion supra pp.

18-24 [J.A. 123-31]. The impartial atmosphere in

which the jury should have resolved these

issues was destroyed by the needless introduc-

tion of gruesome evidence, the prosecutor’s

inflammatory argument regarding said evi-

dence, the prosecutor’s improperly establishing

that O’Neal had previously killed a person by

shooting him in the head with his revolver, and

by the prosecutor’s improperly suggesting that

the previous killing was credible evidence that

O’Neal was guilty of Podborny’s murder. Addi-

tionally, the prosecutor intentionally deprived

O'Neal of jurors of his own race to help deter-

mine his guilt. We find it impossible to conclude

that these factors “pale into relative insignifi-

cance” in the face of the record evidence of

O’Neal’s guilt... .

For all these reasons, we conclude O’Neal did

not receive a fair trial.

Magistrate’s Report and Recommendation (J.A. 160-62)

(citation. omitted).

Third, the Sixth Circuit unfairly ignored the above

evidence that did not neatly fit within the State’s theory

of O’Neal’s guilt as a principal, but did fit within the

State’s alternative theory that O’Neal could be convicted

as an aider and abettor lacking any intent to kill. The

Sixth Circuit ignored the very evidence to which the

prosecutor pointedly referred in his comments inviting

the jury to convict O’Neal whether or not he intended the

victim to be killed. (Tr. 6075-76) (J.A. 58-59.)!2 As stated

by the Magistrate:

The jury was left with the impression that the

State did not have to prove beyond a reasonable

doubt an independent intent to commit each

crime so long as it proved that each defendant

was in some way involved in a conspiracy that

eventually led to kidnapping, robbery, and mur-

der.

Magistrate’s Report and Recommendation (J.A. 130.)

Fourth, the Sixth Circuit also failed to consider how

the wide range of errors and prosecutorial misconduct at

O’Neal’s trial made the jury prone to use the defective

instructions to convict O’Neal.!* The prosecutor did not

seek to have the jury methodically and rationally evalu-

ate the testimony and evidence. Instead, the prosecutor

intentionally introduced evidence of an unrelated shoot-

ing and pleaded to the emotions and passions of the

jurors through gruesome evidence. (J.A. 150-51, 209-10.)

The* Magistrate recognized that the prosecutor deliber-

ately sought to have the jury abandon its impartiality in

weighing the evidence:

The prosecutor’s improper conduct in eliciting

the details of O’Neal’s killing another man was

calculated, highly prejudicial and extensive. See

Id. at 30-39 [J.A. 139-50]. The introduction of

gruesome evidence, coupled with the prosecu-

tor’s inflammatory remarks regarding such evi-

dence, was also prejudicial and was done for the

'2 Even though the state identified Toney, Allen, O'Neal

and Dimple as principals, (Tr. 6107-08), the jury was instructed

on aiding and abetting. (Tr. 6159-61) (hA. 170-71.)

'S O'Neal's prosecutor has also engaged in misconduct in

other cases. See Brief of Amici Curiae The National and Ohio

Associations of Criminal Defense Lawyers In Support Of Peti-

tioner, 7 n.1.

snnmntinapebieet aes

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express purpose of inflaming the jury’s pas-

sions. See id. at 28-30, 39-40 [J.A. 135-39, 148-51].

It is likely that these errors, which were effec-

tively endorsed by the trial judge, caused the

jury to abandon its impartiality in weighing the

evidence. Although the evidence against O’Neal

was substantial, it was not overwhelming and

there were substantial credibility issues for the

jury to resolve. Id. at 47-48 [J.A. 159-61]. Accord-

ingly, we conclude that the prosecutor’s miscon-

duct and the erroneous admission of

inflammatory evidence, taken as a whole and

within the context of the entire record, deprived

O'Neal of a fundamentally fair trial.

Supplemental Report and Recommendation (j.A. 209-10.)

Finally, the appellate court did sot consider that the

defective, unconstitutional jury instructions and the pros-

ecutor’s improper argument confused the jury. After

deliberating for some time, the jury asked, “Can we

please have a brief definition on the laws of aggravated

murder?” (Tr. 6207-08) (J.A. 77.) In reply, the trial court

compounded the error by repeating the constitutionally

defective intent instructions. (Tr. 6208-15) (J.A. 77*82.) As

a result, the jury, emotionally disposed against O’Neal by

the prosecutor's intentionally inflammatory tactics,

decided O’Neal’s fate without the proper legal tools to

complete its task. |

With a fair allocation of the burden of proof to the

State, O’Neal is entitled to habeas relief because the

defective jury instructions, coupled with the pros-

ecutorial misconduct, did have a substantial and inju-

rious effect on the jury verdict.

CONCLUSION

For the foregoing reasons, Petitioner Robert. O’Neal

requests the judgment of the United States Court of

Appeals for the Sixth Circuit be reversed and his case

remanded to that court to determine whether or not the

State can demonstrate that the constitutional errors were

harmless.

Gioria Every

Ohio Public Defender

Grecory L. Ayers

Chief Deputy Public Defender

Joun A. Bay

Assistant State Public Defender

THomas R. Werterer, Jr.

(Counsel of Record)

Assistant State Public Defender

Ohio Public Defender Commission

8 East Long Street, 11th Floor

Columbus, Ohio 43266-0587

(614) 466-5394

4 . .

Counsel for Petitioner

—_—

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RULES

Federal Rule of Criminal Procedure 52 provides:

“(a) HARMLESS ERROR. Any error, defect, irregu-

larity or variance which does not affect substantial rights

shall be disregarded. «/

“(b) PLAIN ERROR. Plain errors or defects affecting

substantial rignts may be noticed although they were not

brought to the attention of the court.”

RULE 2, RULES GOVERNING § 2254 CASES

Rule 2. Petition

(a) Applicants in present custody. If the applicant

is presently in custody pursuant to the state judgment in

question, the application shall be in the form of a petition

for a writ of habeas corpus in which the state officer

having. custody of the applicant shall be named as

respondent.

(b) Applicants subject to: future custody. If the

applicant is not presently in custody pursuant to the state

judgment against which he seeks relief but may be sub-

ject to such custody in the future, the application shall be

in the form of a petition for a writ of habeas corpus with

an added prayer for appropriate relief against the judg-

ment which he seeks to attack. In such a case the officer

having present custody of the applicant and the attorney

general of the state in which the judgment which he seeks

to attack was entered shall each be named as respon-

dents, ~

stantially the form annexed to these rules, except that any

district court may by local rule require that petitions filed

with it shall be in a form prescribed by the local rule.

Blank petitions in the prescribed form shall be made

available without charge by the clerk of the district court

to applicants upon their request. It shall specify all the

grounds for relief which are available to the petitioner

and of which he has or by the exercise of reasonable

diligence should have knowledge and shall set forth in

summary form the facts supporting each of the grounds

thus specified. It shall also state the relief requested. The

s a

petition shall be typewritten or legibly handwritten and

shall be signed under penalty of perjury by the petitioner.

(d) Petition to be directed to judgments of one

court only. A petition shall be limited to the assertion of a

claim for relief against the judgment or judgments of a

single state court (sitting in a county or other appropriate

political subdivision). If a petitioner desires to attack the

validity of the judgments of two or more state courts

under which he is in custody or may be subject to future

custody, as the case may be, he shall do so by separate

petitions.

(e) Return of insufficient petition. If a petition

received by the clerk of the district court does not sub-

stantially comply with the requirements of rule 2 or rule

3, it may be returned to the petitioner, if a judge of the

court so directs, together with a statement of the reason

for its return. The clerk shall retain a copy of the petition.

RULE 4, RULES GOVERNING § 2254 CASES

Rule 4. Preliminary Consideration by Judge

The original petition shall be presented promptly to a

judge of the district court in accordance with the pro-

cedure of the court for the assignment of its business. The

petition shall be examined promptly by the judge to

whom it is assigned. If it plainly appears from the face

the petition and any exhibits annexed to it that the peti-

tioner is not entitled to relief in the district court, the

judge shall make an order for its summary dismissal and

cause the petitioner to be notified. Otherwise the judge

shall order the respondent to file an answer or other

pleading within the period of time fixed by the court or

to take such other action as the judge deems appropriate.

In every case a copy of the petition and any order shall be

served by certified mail on the respondent and the attor-

ney general of the state involved.

RULE 5, RULES GOVERNING § 2254 CASES

Rule 5. Answer; Contents

The answer shall respond to the allegations of the

petition. In addition it shall state whether the petitioner

has exhausted his state remedies including any post-

conviction remedies available to him under the statutes

or procedural rules of the state and including also his

right of appeal both from the judgment of conviction and

from any adverse judgment or other in the post-convic-

tion proceeding. The answer shall indicate what tran-

scripts (of pretrial, trial, sentencing, and post-conviction

proceedings) are available, when they can be furnished,

and also what proceedings have been recorded and not

transcribed. There shall be attached to the answer such

portions of the transcripts as the answering party deems

relevant. The court on its own motion or upon request of

the petitioner may order that further portions of the

existing transcripts be furnished or that certain portions

of the non-transcribed proceedings be transcribed and

furnished. If a transcript is neither available nor procur-

able, a narrative summary of the evidence may be sub-

mitted. If the petitioner appealed from the judgment of

conviction or from an adverse judgment or order in a

post-conviction proceeding, a copy of the petitioner’s

brief on appeal and of the opinion of the appellate court,

if any, shall also be filed by the respondent with the

answer.

STATUTES

Ohio Revised Code, Section 2903.01 —- Aggravated Murder

(A) No person shall purposely, and with prior calcula-

tion and design, cause the death of another.

(B) No person shall purposely cause the death of

another while committing or attempting to commit, or

while fleeing immediately after committing or attempting

to commit kidnapping, rape, aggravated arson or arson,

aggravated robbery or robbery, aggravated burglary or

burglary, or escape.

vated murder and shall be punished as provided in sec-

tion 2929.02 of the Revised Code.

Ohio Revised Code Section 2905.01 — Kidnapping

(A) No person, by force, threat, or deception, or, in the

case of a victim under the age of thirteen or mentally

incompetent by any means, shall remove another from

the place where he is found or restrain him of his liberty,

for any of the following reasons:

(1) To hold for ransom, or as a shield or hos-

tage;

(2) To facilitate the commission of any felony

or flight thereafter;

(3) To terrorize, or to inflict serious physical

harm on the victim or another;

(4) To engage in sexual activity, as defined in

section 2907.01 of the Revised Code, with

the victim against his will;

(5) To hinder, impede, or obstruct a function of

government, or to force action or conces-

sion on the part of governmental authority.

*+* + *

ping, a felony of the first degree. If the offender releases

the victim in a safe place unharmed, kidnapping is a

felony of the second degree.

Ohio Revised Code Section 2911.01 - Aggravated Rob-

bery

(A) No person, in attempting or committing a theft

offense as defined in section 2913.01 of the Revised Code,

or in fleeing immediately after such attempt or offense,

shall do either of the following:

(1) Have a deadly weapon or dangerous ord-

nance as defined in section 2923.11 of the

Revised Code on or about his person or

under his control;

(2) Inflict, or attempt to inflict serious physical

harm on another.

(B) Whoever violates this section is guilty of aggravated

robbery, a felony of the first degree.

28 U.S.C. § 391

(Repealed)

On the hearing of any appeal, certiorari, writ of error,

or motion for new trial, in any case, civil or criminal, the

court shall give judgment after an examination of the

entire record before the court, without regard to technical

errors, defects, or exceptions which do not affect the

substantial rights of the parties.

2 28 U.S.C. § 1254

§ 1254. Courts of appeals; certiorari; certified ques-

tions

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition of

any party to any civil or criminal case, before or after

rendition of judgment or decree.

10a

28 U.S.C. § 2111

§ 2111. Harmless error

On the hearing of any appeal or writ of certiorari in

any case, the court shall give judgment after an examina-

tion of the record without regard to errors or defects

which do not affect the substantial rights of the parties.

lla

28 U.S.C. § 2243

§ 2243. Issuance of writ; return; hearing; decision

A court, justice or judge entertaining an application

for a writ of habeas corpus shall forthwith award the writ

or issue an order directing the respondent to show cause

why the writ should not be granted, unless it appears

from the application that the applicant or person

detained is not entitled thereto.

The writ, or order to show cause shall be directed to

the person having custody of the person detained. It shall

be returned within three days unless for good cause

additional time, not exceeding twenty days, is allowed.

The person to whom the writ or order is directed

shall make a return certifying the true cause of the deten-

tion.

When the writ or order is returned a day shall be set

for hearing, not more than five days after the return

unless for good cause additional time is allowed.

Unless the application for the writ and the return

present only issues of law the person to whom the writ is

directed shall be required to produce at the hearing the

body of the person detained.

The applicant or the person detained may, under

oath, deny any of the fats set forth in the return or allege

any other material facts.

The return and all suggestions made against it may

be amended, by leave of court, before or after being filed.

The court shall summarily hear and determine the

facts, and dispose of the matter as law and justice require.

12a

28 U.S.C. § 2254

§ 2254. State custody; remedies in State courts:

(a)

“[A] district court shall entertain an application for a

writ of habeas corpus in behalf of a person in cus-

tody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of

the Constitution or laws or treaties of the United

states.” . .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.