Amicus Curiae Brief — O'NEAL v. McAninch

No. 93-7407 bs!

In the Supreme Court of the United States

OCTOBER TERM, 1994

ROBERT O'NEAL, PETITIONER

Vv.

FRED MCANINCH, WARDEN

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING RESPONDENI

DREW S. Days, Ill

Solicitor General

JO ANN HARRIS

Assistant Attorney General

LAWRENCE G. WALLACI

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the State has the burden of proving a‘constitu-

tional error to be harmless under Brecht v. Abrahamson,

113 S. Ct. 1710 (1993).

(I)

TABLE OF CONTENTS

Page

re |

EES 2

EE 2

Tene cau wereecsees y)

Argument:

A. The habeas petitioner should bear the burden

of proof on the issue of harmlessness ....... 11

B. Requiring the habeas petitioner to bear the

burden of proof as to harmlessness follows

from this Court’s recent cases and comports

with customary procedures in_ litigating

ee ck ce be rs ccsecss 17

EN ES EL 22

TABLE OF AUTHORITIES

Cases:

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

Brecht v. Abrahamson, 113 S. Ct. 1710 (1993) .... = 2, 9,

10, 12, 16, 17, 20

Chambers v. Maroney, 399 U.S. 42 (1970) ....... 12

Davis v. United States, 417 U.S. 333 (1974) ....... 14

Director, Office of Workers’ Compensation Pro-

grams v. Greenwich Collieries, No. 93-744 (June

ee tcc seecece 12

Engle v. Isaac, 456 U.S. 107 (1982) ........... 15, 16, 17

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

Herrera v. Collins, 113 S. Ct. 853 (1993) ......... 17

Hopper v. Evans, 456 U.S. 605 (1982) ........... 12

Kimmelman v. Morrison, 477 U.S. 365 (1986) .. .. 18

Kirk v. Finkbeiner, 474 U.S. 929 (1985) .......... 14

Kotteakos v. United States, 328 U.S. 750 (1946)... 10, 12

Kuhlmann v. Wilson, 477 U.S. 436 (1986) ........ 15, 17

(111)

Cases — Continued: Page Miscellaneous — Continued: Page

Maleng v. Cook, 490 U.S. 488 (1989)... 00.0.0... 13 2 McCormick on Evidence (J. Strong ed., 4th ed.

McCleskey v. Zant, 499 U.S. 467 (1991) .. 2... 15, 16, 19 DE svc i dkddp bocce ba ests ckceesesdives'es 13

Milton v. Wainwright, 407 U.S. 371 (1972) ....... 12 5 Stuart Speiser, Charles Krause & Alfred Gans,

Murray v. Carrier, 477 U.S. 478 (1986) .......... 17, 20 The American Law of Torts (1988) ..........-. 13

Pinkerton v. United States, 328 U.S. 640 (1946) ... 7

Rose v. Clark, 478 U.S. 570 (1986) .............. 12

Rose v. Mitchell, 443 U.S. 545 (1979)... 2.0.0... 17

Rushen v. Spain, 464 U.S. 114 (1983) ............ 12

Sawyer v. Whitley, 112 S. Ct. 2514 (1992) ........ 17

Teague v. Lane, 489 U.S. 288 (1989) ........ SIS OK

Texas Dep’t of Community Affairs v. Burdine, 450

Spe SE 6 ke ee ay 13

United States v. Frady, 456 U.S. 152 (1982) ...... |

United States v. Olano, 113 S. Ct. 1770 (1993) .... 16

United States Postal Serv. Bd. of Governors v.

FED, GR an VER CUNEO cach cc ccevecceccins 13

Wainwright v. Sykes, 433 U.S. 72 (1977) ....... 15, 19, 20

Withrow v. Williams, 113 S. Ct. 1745 (1993) ...... 20

Yates v. Evatt, 500 U.S. 391 (1991) .............. 12

Constitution and statutes:

U.S. Const.:

Amend. VI (Compulsory Process Clause) ... . 5 |

Amend. VI (Confrontation Clause) ......... 5

Amend. XIV (Due Process Clause) ......... 5, 6, 8 !

Administrative Procedure Act, § 7(c), 5 U.S.C.

SA RR ye Se Rr a od ene ree 13

ED oak kine db acvacsniktravitowesbns l

EE ce Lacincagenedanwueewat 2, 10, 14

RE Ee eer rere ree l

Miscellaneous:

Henry J. Friendly, /s Innocence Irrelevant? Col-

lateral Attack on Criminal Judgments, 38 U.

Gas i EG es acti vaaveuct coaneas 16

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 93-7407

ROBERT O'NEAL, PETITIONER

V.

FRED MCANINCH, WARDEN

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether the State or

the hatvas petitioner bears the burden of proof on the

issue Of l:armless error in a habeas corpus case, once the

habeas petitioner has established that a constitutional

violation has been committed. The United States has a

substantial interest in the resolution of that question.

Although this case arises from a habeas petition filed by a

state prisoner pursuant to 28 U.S.C. 2254, many of the

standards governing such petitions are similar to those

governing collateral attacks by federal prisoners pursuant

to 28 U.S.C. 2255. See, e.g., United States v. Frady, 456

U.S. 152, 166, 169 & n.17 (1982). Because of its interest in

(1)

2

the circumstances under which federal prisoners may col-

laterally attack their convictions, the United States par-

ticipated as amicus curiae in Brecht v. Abrahamson, 113

S. Ct. 1710 (1993). This Court’s decision in Brecht pro-

vides the predicate for the question presented in this case.

STATUTE INVOLVED

28 U.S.Ct 2254(a) provides:

The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

custody 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.

STATEMENT

1. Petitioner was convicted after a jury trial in 1981 of

aggravated murder, aggravated robbery, and kidnapping.

The charges arose out of a scheme to kidnap and murder

Henry Podborny, to steal Podborny’s money and valu-

ables, and to plunder his house and place of business.

Henry Podborny and his wife, “Dimple” Podborny,

separated in 1980. Dimple became frightened that Henry

would attempt to hurt her. She got in touch with her

daughter-in-law by a prior marriage, Gail Toney, to see if

Toney could help her obtain protection. Toney developed

a scheme to frighten Dimple Podborny further, and then

to extort money from Dimple for allegedly supplying pro-

tection. Ultimately, Dimple requested that Toney arrange

to kill her estranged husband. J.A. 103-104.

As a result of the scheme, Dimple Podborny arranged

for Henry Podborny to fly from his home in Chicago to

3

Cleveland so that he might meet with her to attempt to

reconcile their marital differences. On January 29, 1981,

Henry Podborny flew to Cleveland. Toney met him at the

airport and dropped him off at petitioner’s saloon, where

he was told his wife would be waiting for him. He entered

the saloon, but was never again seen alive by anyone other

than petitioner and his co-defendants. J.A. 107-109.

On January 30, 1981, Toney, Dimple Podborny, and

other co-conspirators drove to Chicago. They entered

Henry Podborny’s home and stole valuable items. They

also went to Henry Podborny’s place of business and

opened the safe, but they did not find any money there.

They then returned to Cleveland. During February and

March, 1981, Toney and others attempted to obtain

money from Henry Podborny’s bank account. They also

attempted to conceal his disappearance by writing letters

that purported to be from Henry Podborny and through

other schemes. Henry Podborny’s partially decomposed

body was found on April 24, 1981, in a field in Cleveland.

J.A. 109-111.

2. Petitioner and five others were tried before a jury in

state court. Petitioner was convicted of aggravated

murder, aggravated robbery, and kidnapping. Substantial

evidence was introduced against petitioner.

First, Toney testified at trial against petitioner. She

stated that petitioner had been involved in the early stages

of the plan to extort money from Dimple Podborny, and

had made two trips to Chicago for that purpose. J.A. 105,

107. She also testified that she helped develop a plan under

which petitioner would kidnap Henry Podborny and hold

him in petitioner’s saloon, while a group of co-conspira-

tors would rob his house and place of business in Chicago.

J.A. 107-108. She testified that a few minutes after she

dropped Henry Podborny off at petitioner’s saloon, peti-

tioner came out of the saloon and entered her car, where

4

he gave her the victim’s wallet, traveler’s checks, credit

card, and keys. J.A. 109. Toney testified that, during

February and early March, 1981, petitioner told her that

the victim was alive and that petitioner wanted money in

return for holding the victim. J.A. 110.

Second, physical evidence showed that blood removed

from various places in petitioner’s saloon matched the

blood found on the victim’s shirt, and other physical evi-

dence linked the murder to petitioner’s saloon. Indeed,

petitioner’s counsel in closing argument conceded that the

murder had taken place there. J.A. 157.

Third, a police officer testified that both petitioner and

co-conspirator Lloyd Allen told him that they had been

present when the victim had come to petitioner’s saloon,

and that petitioner h had then gone gutside. and given the

victim’s money and valuables to Toney in her car. J.A.

156.

Fourth, Wilbur Higgins, an acquaintance of peti-

tioner’s, testified that, during the winter of 1981, he had

seen petitioner and a co-conspirator parked near Higgins’

house, but that petitioner had asked Higgins to leave

because petitioner claimed he and the co-conspirator had

women in the car with them. Higgins also testified that

petitioner asked him to visit petitioner in jail on April 2,

1981; that petitioner confessed to Higgins that he had

killed a man and put his body in a field near Higgins’

house; and that petitioner asked Higgins to cover the body

so that it would not be found. The body of Henry Podbor-

ny was in fact found in a field near Higgins’ house. J.A.

159.

Petitioner’s theory at trial was that Toney had access to

petitioner’s saloon, and that she and others had kidnapped

and murdered the victim. J.A. 160. He denied having been

involved in the murder, he denied having made inculpa-

tory statements to the police, and he denied having told

5

Higgins that he had committed the murder. J.A. 160-161.

Higgins himself admitted that he had not told the police of

petitioner’s admissions until he was arrested and held in

jail for five hours, and he admitted telling defense counsel

that he signed a statement for the police because they

threatened that he would be charged with murder if he did

not. J.A. 161. Finally, co-conspirator Allen testified that

he was beaten to coerce him to sign a statement inculpat-

ing petitioner and himself. J.A. 160.

Petitioner’s convictions were affirmed by the Ohio

Court of Appeals. J.A. 83-98. The Ohio Supreme Court

denied leave to appeal. See J.A. 1.

3. On September 24, 1986, petitioner filed a petition

for a writ of habeas corpus in the United States District

Court for ihe Souttern Distfict’of Ohio: The case -was T2-~ ~

ferred to a magistrate, who rejected a number of the

grounds petitioner proffered for habeas relief. See J.A.

111-115 (rejecting petitioner’s claim that he had been en-

titled to a trial severance); J.A. 115-121 (rejecting peti-

tioner’s Confrontation and’ Compulsory Process Clause

claims); J.A. 162-167 (rejecting petitioner’s claim that the

Ohio appellate court had failed to address one of his

claims).

The magistrate found, however, that the jury instruc-

tions had the effect of relieving the State of its burden of

proof on the element of intent, in violation of the Due

Process Clause. The magistrate explained that, under

Ohio law, a co-conspirator or aider and abettor is liable

for an aggravated felony, if he knew that the felony and

the manner of its accomplishment would be reasonably

likely to produce death. J.A. 126-127. In this case, the

magistrate found that the trial court had properly charged

the jury on that theory when it instructed:

[W]here you have an unlawful act contemplated in

the original conspiracy, although not identical with or

6

similar to the criminal act charged in the indictment,

if the defendants conspired to commit an unlawful

act, and the manner in which it was performed was

reasonable [sic] or likely to produce the death of

another, then each conspirator, or aider and abettor

is equally guilty as the principal offender of the homi-

cide. |

J.A. 127. But the magistrate found that elsewhere the in-

structions referred to the intent of “the defendants and/or

co-conspirators, or aiders and abettors,” and thereby (ac-

cording to the magistrate) let the jury believe that it need

only find the necessary intent for one principal in order to

find that all accomplices and co-conspirators were guilty.

See, e.g., J.A. 67, 70, 73, 183.

- The magistrate’ found -that~ the~ prosecutor that’ Coni-"

pounded the error in his closing argument by stating:

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

First, that the crimes alleged have been committed.

* * * The next thing we’re bound to prove to you is

that those accused of the crime participated in a

criminal conduct and engaged in a course of criminal

conduct which eventually led to the commission of

those crimes.

J.A. 58. Petitioner’s objection to that statement had been

overruled. The magistrate found that the prosecutor’s

statement had the effect of emphasizing the problem in the

jury instructions, so that a reasonable juror could find

petitioner guilty without finding that the State had proven

that he had the necessary intent, as defined by Ohio law.

J.A. 130-131.

The magistrate also found that a number of other errors

had been committed, the cumulative effect of which

amounted to a fundamentally unfair trial, in violation of

the Due Process Clause. Among those errors were the

_-— --

a oe

7

admission in evidence of photographs of the decomposed

body of Henry Podborny, the bloodstained clothes the

body was wearing, some skin from the victim’s hand

(ostensibly to show the fingerprints and thus identify the

corpse), and a crowbar found in petitioner’s bar that was

not shown to have anything to do with the murder. The

magistrate found that all of that evidence (except the

crowbar) was relevant, but that it was unduly prejudicial

and cumulative under Ohio law. See J.A. 132-139. In ad-

dition, the magistrate found that the prosecutor improper-

ly questioned petitioner about a prior homicide, see J.A.

139-148, and that the prosecutor’s closing argument was

unduly inflammatory, see J.A. 148-151.

Finally, the magistrate recognized that habeas relief

could 6é grariféd Gnly if the above trrors were not naft-

less. But he concluded that, taken together, they were not.

J.A. 151-162.

4. The district court initially requested a supplemental

report from the magistrate concerning the relevance, if

any, of the standard federal conspirator liability instruc-

tion, derived from Pinkerton v. United States, 328 U.S.

640 (1946), to the magistrate’s conclusion in this case. See

J.A. 191-193. The magistrate issued a supplemental

report, J.A. 201-210, essentially repeating his prior find-

ings and stating that the problem in this case was “that

[petitioner] could be found guilty of the crimes of kidnap-

ping, robbery and murder simply based on his participa-

tion in a conspiracy to obtain money from either Mrs. or

Mr. Podborny that eventually led to the commission of the

offenses.” J.A. 206-207. Although the magistrate stated

that the trial court might have dispelled the problem in its

instruction on aggravated murder, it had not done so in its

instructions on aggravated robbery or kidnapping. J.A.

207-208. Moreover, the magistrate continued to believe

that the trial was fundamentally unfair, in violation of the

8

Due Process Clause, because of the various evidentiary

and other errors that he believed had been committed.

J.A. 209-210.

The district court accepted the magistrate’s report and

granted the writ, on the grounds of “defective instructions,

the prosecutor’s prejudicial misconduct, and the admis-

sion of certain prejudicial evidence,” in violation of the

Due Process Clause. J.A. 213-214.

5. The court of appeals reversed. J.A. 217-229. The

court rejected the district court’s determination that the

prosecutor’s statements during closing argument and the

improper admission of evidence rendered.the trial funda-

mentally unfair, concluding that those errors “were at

most errors in the application of state law.” J.A. 228. That

left the allegedly improper jury instructions, coupled- with --

the prosecutor’s reference to accomplice liability in his

closing argument, as the sole basis for the grant of habeas

relief.

The court of appeals stated that the district court had

applied the wrong standard in evaluating the jury instruc-

tions. J.A. 222. The question should not be whether a

reasonable juror “could have interpreted” the instructions

to shift the burden of proof (the standard the district court

applied), but rather “ ‘whether there is a reasonable likeli-

hood that the jury has applied the challenged instruction

in a way’ that violates the Constitution.” /bid., quoting

Estelle v. McGuire, 112 S. Ct. 475, 482 & n.4 (1991).

Applying the correct standard, the court held that “the

[trial] court’s reference to ‘defendants or co-defendants or

aiders and abettors’ appears to be nothing more than an

unartful boilerplate reiteration that the same individuals

could be found guilty either as principals * * * or as ‘aiders

and abettors.’ ” J.A. 224. The court also quoted the por-

tion of the instructions in which the trial court correctly

charged the jury on accomplice liability. J.A. 225-226.

9

The court “conclude[d] that petitioner has not demon-

strated a reasonable likelihood that the jury interpreted

the instructions, taken as a whole, to permit petitioner’s

conviction without proof that he himself had the requisite

intent to kill.” J.A. 226.

The court of appeals then adverted to the prosecutor’s

misstatement of the law during closing argument, which

did appear to suggest that the petitioner’s own intent was

unimportant. The court stated that the district court’s

overruling of the objection to the prosecutor’s remark “im-

properly suggested that the prosecution need not make an

independent showing of intem as to each defendant in

order for conspiracy liability to attach.” J.A. 227. But, the

court held, “even if this remark, in conjunction with any

-- confusion engendered by thé cbiirt’s Tiistricftidns On mens

rea, could be said to have abridged petitioner’s constitu-

tional rights,” the error was harmless, under the “sub-

stantial and injurious effect or influence in determing the

jury’s verdict” standard adopted by this Court in Brecht v.

Abrahamson. J.A. 227-228.

The court had stated earlier in its opinion that petitioner

had the burden, under Brecht, of showing lack of harm-

lessness. J.A. 221. Upon review of the evidence, the court

found that “all of the evidence upon which the jury could

have relied to establish petitioner’s guilt pointed to his

guilt as a principal.” J.A. 227. Accordingly, the court con-

cluded, even if an error had been committed, it was harm-

less and habeas relief should not be granted. J.A. 228.

SUMMARY OF ARGUMENT

Before a federal court may grant habeas relief on the

ground that the habeas petitioner’s trial was tainted by

“trial-type” constitutional error, the court must determine

not only whether the error occurred, but also whether it

= - eer

10

was harmless. In Brecht v. Abrahamson, 113 S. Ct. 1710

(1993), this Court clarified that the question of harmless-

ness on collateral review is governed by the standard an-

nounced in Kotteakos v. United States, 328 U.S. 750, 776

(1946): whether the error “had substantial and injurious

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

question in this case is whether the State or the prisoner

bears the burden of proof on that issue.

In our view, the burden of proof —or, what is the same

in this context, the burden of persuasion — is appropriately

placed on the habeas petitioner. That conclusion follows

naturally from the ordinary rule that the plaintiff in a civil

action bears the burden of persuasion as to every element

of his claim. A habeas petitioner is a civil plaintiff, and the

~~ =" "success-of-his auction depends on a shfOwirig that Tie i§ “ify ~~

custody in violation of the Constitution.” 28 U.S.C.

2254(a). A mere showing that there has been a constitu-

tional violation will thus ordinarily be insufficient; what

must be shown is that there was a link between the peti-

tioner’s custody and the violation —i.e., that the violation

was not a mere harmless error. Accordingly, lack of harm-

lessness is appropriately seen as an element of the habeas

petitioner’s case, on which the habeas petitioner therefore

bears the burden of persuasion.

That result also follows from fundamental principles

concerning collateral attack on criminal convictions. The

costs of granting habeas relief are high. It disserves the

State’s interest in the finality of criminal convictions. It

detracts from the focus on the trial and direct review as the

primary fora for resolving all relevant issues. It denigrates

the ability of the trial and appellate courts to adjudicate

constitutional claims, and perhaps discourages them from

taking seriously their duty to do so. Since there is no time

limit on filing for habeas relief, the retrial that will be

necessary when such relief is granted often will pose a

=> -—-——

substantial risk that a guilty defendant will go free due to

the fading of memory or the unavailability of evidence. In

light of those substantial costs, unless the habeas court can

affirmatively determine that the error did have an effect

on the judgment pursuant to which the prisoner is con-

fined —i.e., unless the court determines the error was not

harmless — habeas relief ought not be granted.

Petitioner’s rationale for requiring the State to bear the

burden of persuasion on this issue is unconvincing. Re-

quiring the habeas petitioner to bear the burden of persua-

sion on harmlessness is consistent with other decisions of

this Court that have recognized the important distinctions

between direct review and collateral attack —even where

the issue, as in Brecht and this case, involved harmless er-

ror --Moreoverz,-tie rule we- advecate eomports with tie

customary procedures used in habeas cases and does not

render the litigation of such cases unwieldy or unfair.

Regardless of how the burden of persuasion is allocated,

the issue of harmless error will inevitably be litigated in

habeas cases; both parties will inevitably argue their views

of the record to the court; and the court will ultimately be

obliged to review the entire record to make a harmless er-

ror determination. The issue in this case is one of sub-

stance, not procedure: whether the court must grant

habeas relief when, at the end of the litigation, it is in

equipoise on the harmless error issue. There is no reason

to believe that the resolution of that question will have any

effect on the difficulty of adjudicating habeas claims.

ARGUMENT

A. THE HABEAS PETITIONER SHOULD BEAR THE

BURDEN OF PROOF ON THE ISSUE OF HARMLESSNESS

1. It has long been established that a federal habeas

court may not grant relief to a prisoner on the basis of a

-“-- --7-,

12

“trial error,” see Arizona v. Fulminante, 499 U.S. 279, 307

(1991), if it finds that the error was harmless. See, e.z.,

Yates v. Evatt, 500 U.S. 391, 402 (1991); Rose v. Clark,

478 U.S. 570 (1986); Rushen v. Spain, 464 U.S. 114,

117-118 & n.2 (1983); Hopper v. Evans, 456 U.S. 605

(1982); Milton v. Wainwright, 407 U.S. 371 (1972);

Chambers v. Maroney, 399 U.S. 42, 52-53 (1970). Thus,

harmless error review is an inescapable part of adjudicat-

ing most types of constitutional claims on collateral attack

of a criminal conviction.

In Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993),

this Court explained that, in the habeas context, the stan-

dard governing the harmless error analysis is the standard

employed by the Court in Kotteakos v. United States, 328

-. . - -ALS. 75077641946); whether.the errer “had substantial

and injurious effect or influence in determining the jury’s

verdict.” The question presented in this case is whether the

State or the habeas petitioner bears the burden of making

that showing. :

2. Initially, we note that the question presented in this

case is a narrow One. The term “burden of proof” has been

used to refer to two different concepts. The more common

and more recent use of the term refers to the “burden of

persuasion”—the “notion that if the evidence is evenly

balanced, the party that bears the burden of persuasion

must lose.” Director, Office of Workers’ Compensation

Programs v. Greenwich Collieries, No. 93-744 (June 20,

1994), slip op. 5. But it has also been used to refer to the

“burden of production” —“a party’s obligation to come

forward with evidence to support its claim.” /bid.

The question presented in this case concerns only. the

burden of persuasion. Both parties in a habeas case will, in

the ordinary case, attempt to convince the court that an er-

ror was (or was not) harmless by means of references to

the record and legal argument. But the “evidence” on the

13

basis of which a habeas court will decide the harmless er-

ror issue ordinarily consists simply of the record of the

original trial. Since no additional evidence ordinarily need

be introduced—and since the record of the trial will

already have been placed before the habeas court in the

course of litigation concerning whether a constitutional er-

ror was committed —there is no occasion for allocating a

burden of production of evidence concerning harmless er-

ror. Thus, the only burden to allocate with regard to

harmless error is the burden of persuasion —/.e., whether

the State or the prisoner wins in the unusual case in which

a court is in equipoise as to whether the error is harmless.

3. The ordinary rule governing the allocation of the

burden of persuasion is that the plaintiff bears the burden

-.- --- -- Of persuasion on. every -issue -necessary-to-mmake eut-his. ---

claim. As Dean McCormick explained, that is because “the

plaintiff * * * generally seeks to change the present state

of affairs and * * * therefore naturally should be expected

to bear the risk of failure of proof or presentation.” 2 Mc-

Cormick on Evidence § 337, at 428 (J. Strong ed., 4th ed.

1992). That rule is applied in areas from tort law, where

the plaintiff bears the burden of persuading the trier of

fact as to both negligence and causation, see, e.g., 5 Stuart

Speiser, Charles Krause & Alfred Gans, The American Law

of Torts § 18:41, at 763, 764 (1988), to the law of employ-

ment discrimination, where a long line of this Court’s

precedents have established that, regardless of the fact

that burdens of production may shift, the plaintiff at all

times bears the ultimate burden of persuasion. See, eé.z.,

United States Postal Serv. Bd. of Governors v. Aikens,

460 U.S. 711, 716 (1983); Texas Dep’t of Community Af-

fairs v. Burdine, 450 U.S. 248, 256 (1981). Indeed, as this

Court recently explained in Greenwich Collieries, the Ad-

ministrative Procedure Act codified this principle in Sec-

tion 7(c), 5 U.S.C. 556(d), which provides that “the pro-

14

ponent of a rule or order has the burden of proof.” See

Greenwich Collieries, slip op. 9.

A habeas corpus action is a separate proceeding in

which the petitioner is in the position of a plaintiff. The

allegation the habeas petitioner must make in order to ob-

tain relief is provided by 28 U.S.C. 2254(a): federal courts

are given authority by that provision to “entertain an ap-

plication for a writ of habeas corpus” by a state prisoner

“only on the ground that he is in custody in violation of

the Constitution or laws or treaties of the United States.”

lt is only on that basis that a federal court may grant

habeas relief.

That bedrock criterion for habeas relief requires proof

of two facts. First, there must have been a violation of the

Constitution, which is ordinarily the only source of federal

law whose violation in a state criminal proceeding could

warrant exercise of a federal court’s habeas jurisdiction.

See Davis v. United States, 417 U.S. 333, 346 (1974)

(habeas relief available only for “a fundamental defect

which inherently results in a miscarriage of justice”). But

cf. Kirk v. Finkbeiner, 474 U.S. 929 (1985) (White, J.,

dissenting from denial of certiorari). Second, the habeas

petitioner must be “in custody.” But those facts are linked

in the statutory phrase, rather than entirely separate and

independent. Nor does it satisfy the meaning of the phrase

“in custody in violation of the Constitution” merely to re-

quire that the constitutional violation must have occurred

in the course of the trial that led up to the conviction pur-

suant to which the petitioner is in custody. See, e.z.,

Maleng v. Cook, 490 U.S. 488 (1989) (per curiam). In-

stead, the requirement that the prisoner be “in custody in

violation of the Constitution” requires a link between the

constitutional violation and the custody: the constitutional

error must not merely have occurred at the prisoner’s trial,

but it must have resulted in the prisoner’s current custody .—

o-

15

Where an error is harmless—i.e., where it had no

“substantial and injurious” effect on the verdict — it cannot

be said to have resulted in the prisoner’s custody. There-

fore, proof of the requisite causal relationship —i.e., proof

of a lack of harmlessness —is most naturally regarded as a

necessary part of the proof of the core statutory criterion

for habeas relief —that the petitioner is in custody in viola-

tion of the Constitution. It follows that the burden of

proving that fact is most naturally placed on the habeas

petitioner. 6

4. The conclusion that the habeas petitioner bears the

burden of persuasion on the issue of harmlessness is re-

inforced by fundamental principles concerning the nature

of collateral review of criminal convictions. As this Court

tras repeatedly empnasized, granting Nabeds relief imposes

a heavy cost on society. It directly frustrates the public in-

terest in the finality of criminal convictions, which is

essential to the “deterrent effect” of the criminal law, see

Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality opin-

ion), and without which “[nJeither innocence nor just

punishment can be vindicated.” McCleskey v. Zant, 499

U.S. 467, 491 (1991). “[T]he deterrent force of penal laws

is diminished to the extent that persons contemplating

criminal activity believe there is a possibility that they will

escape punishment through repetitive collateral attacks.”

Kuhlmann v. Wilson, 477 U.S. 436, 452-453 (1986)

(plurality opinion).

Granting habeas relief also “degrades the prominence of

the trial itself,” Engle v. Isaac, 456 U.S. 107, 127 (1982), as

the primary forum for resolution of all legal and factual

issues regarding the charges against the defendant. Not

only does it encourage the litigants to focus their attention

away from the “main event” to the collateral proceedings

that may follow, Wainwright v. Sykes, 433 U.S. 72, 90

(1977), but it also denigrates the ability of the original trial

16

and appellate courts to enforce the federal constitution.

See, e.g., Brecht, 113 S. Ct. at 1721.

Finally, the belated retrials that result from granting

habeas relief —in this case, a retrial if required would take

place some 14 years after the offense and the original

trial—seriously undermine the capacity of the judicial

system to fulfill its primary, truth-seeking function.

“|Wjhen a habeas petitioner succeeds in obtaining a new

trial, the erosion of memory and dispersion of witnesses

that occur with the passage of time * * * prejudice the

government and diminish the chances of a reliable

criminal adjudication.” McCleskey v. Zant, 499 U.S. at

491 (internal citation and quotation marks omitted); Engle

v. Isaac, 456 U.S. at 127-128; Henry J. Friendly, /s_In-

~ nocenée Trrélevani? Collatéral Attack On Criminal Judg-

ments, 38 U. Chi. L. Rev. 142, 147 (1970).

In light of those costs, this Court has limited the availa-

bility of collateral review and has distinguished between

direct and collateral review in a variety of circumstances.

See Brecht, 113 S. Ct. at 1720 (citing cases). It is appro-

priate to do so in this case as well. The question presented

in this case arises only where the habeas court is in equi-

poise as to whether a constitutional error did or did not af-

fect the verdict at the prisoner’s trial. On direct review, it is

reasonable to conclude that in that situation of equipoise a

new trial should be ordered —at least where the defendant

properly raised and preserved the claim of error. See

United States v. Olano, 113 S. Ct. 1770, 1778 (1993). But

on habeas, a prisoner who has already had the benefit of

direct review is now bringing an independent action seek-

ing to Overturn his conviction. At that stage, if the court is

in equipoise on the issue of harmlessness, it is reasonable

to conclude that the “extraordinary remedy” afforded by

habeas corpus is not available. See Brecht, 113 S. Ct. at

1719. Unless the habeas court can affirmatively determine

ee eee Pane)

a Dea ene

17

that the error did have an effect on the judgment pursuant

to which the prisoner is committed, it does not violate

“fundamental fairness,” ibid., quoting Engle v. Isaac, 456

U.S. 107, 126 (1982), to conclude that the prisoner has

failed to establish his entitlemei to relief.

B. REQUIRING THE HABEAS PETITIONER TO BEAR THE

BURDEN OF PROOF AS TO HARMLESSNESS FOLLOWS

FROM THIS COURT'S RECENT CASES AND COMPORTS

WITH CUSTOMARY PROCEDURES IN LITIGATING

HABEAS CORPUS CASES

1. Petitioner contends that “the central focus of this

Court’s modern habeas jurisprudence is the writ’s

assurance that constitutional errors do not cause the con-

viction Of an attuaily imrotent person;” Pet? Br. -30, and

that placing the burden of persuasion as to harmlessness

on the habeas petitioner would contravene that principle.

Petitioner’s premise is mistaken. The touchstone of the

Court’s recent habeas jurisprudence is recognition that

“the writ of habeas corpus has historically been regarded

as an extraordinary remedy, a bulwark against convictions

that violate fundamental fairness” as a result of a constitu-

tional error. Brecht, 113 S. Ct. at 1719 (internal quotation

marks omitted); see also Herrera v. Collins, 113 S. Ct. 853

(1993). Where it is fundamentally unfair to continue to

hold a prisoner in confinement — such as “where a consti-

tutional violation has probably resulted in the conviction

of one who is actually innocent,” Murray v. Carrier, 477

U.S. 478, 496 (1986)—the Court has indicated a willing-

ness to relax otherwise applicable rules that may limit the

claims available to a habeas petitioner. See, e.g., Sawyer

v. Whitley, 112 S. Ct. 2514, 2518 (1992); Teague v. Lane,

489 U.S. at 311-313; Kuhlmann v. Wilson, 477 U.S. 436,

455 & n.17 (1986). But this case concerns how a habeas

petition is to be treated in precisely those cases in which

18

it cannot be said that the habeas petitioner has shown that

the constitutional error “probably resulted in the convic-

tion of One who is actually innocent.” For the Court’s allo-

cation of the burden of persuasion will only affect cases in

which the habeas court is in equipoise as to whether the

verdict would or would not have been affected had the

claimed constitutional error not occurred. By definition,

none of those cases will be ones in which the habeas peti-

tioner has made a showing that, though he was innocent, a

constitutional error probably resulted in his conviction.

Moreover, in light of the variety of interests that are

protected by constitutional rules, there will undoubtedly

be cases in which the harmless error inquiry and the ques-

tion of actual innocence will not be at all parallel. Thus,

there may well be cases in which a constitutional error oc-

curred and was found not to be harmless, but in which the

error casts little doubt on the habeas petitioner’s guilt of

the underlying crime. See, e.g., Kimmelman v. Morrison,

477 U.S. 365, 379-380 (1986); Rose v. Mitchell, 443 U.S.

545 (1979). In short, allotting to the habeas petitioner the

burden of persuasion on the issue of harmless error is re-

inforced by this Court’s recent cases recognizing the limits

of habeas review, and it is not at all inconsistent with the

Court’s recognition of the “actual innocence” exception to

those limits. Indeed, the decision in Brecht to apply a less

rigorous form of harmless error analysis on habeas itself

establishes that conclusion.

2. Petitioner also argues that allocating the burden of

proof as to harmlessness to pro se habeas petitioners

would needlessly complicate the process of resolving their

claims. In this regard, petitioner argues that courts will be

required to “seek out a lay petitioner’s facts and arguments

on the harmless error issue,” and to create “an incentive,

or even * * * a legal requirement on the part of petitioners

a

i ae

19

to demonstrate harm as to every claim in every petition.”

Pet. Br. 37.

_ Petitioner’s fears are unfounded. The “evidence” as to

harmlessness, which will ordinarily consist of the record of

the original trial, will be entirely before the court, regard-

less of how the burden of persuasion as to harmlessness is

allocated. Because neither party thus has to introduce any

evidence as to the harmless error issue, arguments about

which party has superior access to the evidence or superior

ability to bring it before the court are entirely beside the

point. Regardless of how this case is decided, in cases in

which the harmless error issue is potentially dispositive,

both parties will have every incentive to argue before the

court for their interpretations of the record and the court,

having heard the argument, will have to review the entire

record and make the ultimate judgment as to harmless-

ness.

Nor is the order of proof in habeas cases likely to be af-

fected by the Court’s decision in this case. At present,

habeas courts are free to decide the harmless error issue

prior to deciding the merits if proceeding in that way ap-

pears to be most convenient. Nothing in the allocation of

the burden of persuasion as to harmless error is likely to

change that. Nor is there any reason to believe that the

technical rules of pleading or practice in habeas cases

would be altered by the Court’s decision in this case.

3. Finally, petitioner argues (Pet. Br. 39-42) that allo-

cating the burden of persuasion as to harmlessness to

habeas petitioners would in effect impose the same burden

of “prejudice” on all habeas petitioners as current law im-

poses on habeas petitioners who have procedurally de-

faulted on their claims or who have abused the writ. See

Wainwright v. Sykes, 433 U.S. at 87-89; McCleskey v.

Zant, 499 U.S. at 468.

20

Petitioner is mistaken on this point as well. The “preju-

dice” standard that must be satisfied under Sykes or Mc-

Cleskey is substantially more rigorous than the harmless

error standard at issue in this case. To show prejudice that

would sustain a habeas petition containing defaulted or

abusive claims, the petitioner must show “not merely that

the errors at * * * trial created a possibility of prejudice,

but that they worked to his actual and substantial disad-

vantage, infecting his entire trial with error of consti-

tutional dimensions.” Murray v. Carrier, 477 U.S. at 494

(internal quotation marks omitted). By contrast, under the

Kotteakos harmless error standard adopted by this Court

in Brecht, an error is not harmless if it “had substantial

and injurious effect or influence in determining the jury’s

verdict.” Brecht, 113 S. Ct. at 1722.

An example will illustrate the difference between the

two standards. A habeas petitioner may, depending on the

facts, be able to satisfy the Kotteakos harmless error

standard by showing that a non-Mirandized, though

voluntary and intelligent, confession was admitted at his

trial; if so, the petitioner may obtain habeas relief if his

claim was properly raised and preserved. See Withrow v.

Williams, 113 S. Ct. 1745 (1993). But a habeas petitioner

who had defaulted on such a claim probably could not ob-

tain relief under the “prejudice” prong of the Wainwright

v. Sykes standard, for it may. not be “fundamentally un-

fair” for his conviction to rest in part on the basis of a

voluntary and intelligent confession.

In any event, even if the harmless error inquiry and the

“prejudice” prong of the Sykes/McCleskey cause and pre-

judice standard were more similar than they are, imposing

the burden of proving harmless error on all habeas peti-

tioners who allege trial error would have little impact on

the incentives for either party to raise claims at the earliest

opportunity. A prisoner of course could always benefit by

21

bringing his claim at the first opportunity, because he

would thereby be relieved of the burden of proving

“cause” for his default or abuse and because he would be

likely to want to avoid unnecessary time in confinement.

4. The court of appeals’ decision should be affirmed.

The court stated that “[t]he habeas petitioner bears the

burden of establishing” harmless error. J.A. 221. The only

error that the court of appeals identified — and, as we read

the court of appeals’ opinion, it merely accepted arguendo

that the error had been committed —was the possibility

that the prosecutor’s closing argument, coupled with some

confusion in the court’s instructions, may have left the

jury misinformed about the proper standard for ac-

complice liability under Ohio law. See J.A. 227. But the

court found that the alleged error was in any event harm-

less because “all of the evidence upon which the jury could

have relied to establish petitioner’s guilt pointed to his

guilt as a principal.” /bid.

In light of the court of appeals’ conclusions, even if this

Court were to decide that the State must bear the burden

of persuasion as to harmlessness, there would be a

substantial argument that the State had satisfied that

burden. But that question need not be reached in this case.

Since the court of appeals applied the appropriate stand-

ard for proving harmlessness and correctly placed the

burden of persuasion on the issue on petitioner, the court

of appeals’ decision should be upheld.

22

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

Drew S. Days, Ill

Solicitor General

JO ANN HARRIS

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

JULY 1994

US GOVERNMENT PRINTING OFFICE: 1994 — 301.157/66169