Amicus Curiae Brief — O'NEAL v. McAninch

ROLAND W. BURRIS

Attorney General

of Illinois

100 West Randolph Street

Chicago, IL 60601

(312) 814-2235

PAMELA CARTER

Attorney General

of Indiana

219 State House

Indianapolis, IN 46204

(317) 232-6207

BONNIE J. CAMPBELL

Attorney Generai

of Iowa

Hoover State Office

Building

Des Moines, IA 50319

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ROBERT T. STEPHAN

Attorney General

of Kansas

2nd Floor Kansas Judicial

_ Center

Topeka, KS 66612

(913) 296-2215

CHRIS GORMAN

Attorney Geneval

of Kentucky

State Capitol, Room 116

Frankfort, KY 40601

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RICHARD P. IEYOUB

Attorney General

of Louisiana

P.O. Box 94095

Baton Rouge, LA 70804

(504) 342-7013

MICHAEL E. CARPENTER

Attorney General

of Maine

State House Building

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SCOTT HARSHBARGER

Attorney General

of Massachusetts

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FRANK J. KELLEY

Attorney General

of Michigan

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HUBERT H. HUMPHREY III

Attorney General

of Minnesota

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MIKE MOORE

Attorney General

of Mississippi

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JEREMIAH "JAY" NIXON

Attorney General

of Missouri

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JOSEPH P. MAZUREK

Attorney General

of Montana

Justice Building

P.O. Box 201401

Helena, MT 59620

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DON STENBERG

Attorney General

of Nebraska

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Lincoln, NB 68509

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FRANKIE SUE DEL PAPA

Attorney General

of Nevada

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JEFFREY R. HOWARD

Attorney General

of New Hampshire

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Concord, NH 03301

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DEBORAH T. PORITZ

Attorney General

of New Jersey

Department of Law

and Public Safety

Richard J. Hughes

Justice Complex

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Trenton, NJ 08625

(609) 984-6500

TOM UDALL

Attorney General

of New Mexico

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Santa Fe, NM 87504

(505) 827-6000

G. OLIVER KOPPEL

Attorney General

of New York

The Capitol

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MICHAEL F. EASLEY

Attorney General

of North Carolina

Department of Justice

P.O. Box 629

Raleigh, NC 27602

(919) 733-3377

SUSAN B. LOVING

Attorney General

of Oklahoma

State Capitol Building

Rm. 112

Oklahoma City, OK

73105-4894

(405) 521-3921

THEODORE R.

KULONGOSKI

Attorney General

of Oregon

100 Justice Building

Salem, OR 97310

(503) 378-4402

q

4

:

:

:

J

;

ERNEST D. PREATE, JR.

Attorney General

of Pennsylvania

16th Floor Strawberry

Square

Harrisburg, PA 17120

PEDRO R. PIERLUISI

Attorney General

of Puerto Rico

Puerto Rico Department

of Justice

Box 192

San Juan, PR 00902

(809) 721-7700

JEFFREY B. PINE

Attorney General

of Rhode Island

72 Pine Street

Providence, RI 02903

(401) 274-4400

T. TRAVIS MEDLOCK

Attorney General

of South Carolina

P.O. Box 11549

Columbia, SC 29211

MARK BARNETT

Attorney General

of South Dakota

500 East Capitol Avenue

Pierre, SD 57501

(605) 773-3215

CHARLES BURSON

Attorney General and

Reporter of Tennessee

500 Charlotte Avenue

Nashville, TN 37243

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DAN MORALES

Attorney General

of Texas

Capitol Station

P.O. Box 12548

Austin, TX 78711

(512) 463-2191

JAN GRAHAM

Attorney General

of Utah

State Capitol, Room 236

Salt Lake City, UT 84114

(801) 538-1326

JEFFREY L. AMESTOY

Attorney General

of Vermont

109 State Street

Montpelier, VT 05609

(802) 828-3171

ROSALIE SIMMONDS

BALLENTINE

Attorney General

-of the Virgin Islands

8050 Kronprindsens Gades

S.T.V.I1.

St. Thomas, VI 00802

(809) 774-5666

JAMES S. GILMORE, III

Attorney General

of Virginia

_101 North Eighth Street

Richmond, VA 23219

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CHRISTINE O. GREGOIRE

Attorney General

of Washington

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P.O. Box 40100

Olympia, WA 98504

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DARRELL V. MCGRAW JR.

Attorney General

of West Virginia

State Capitol

Charleston, WV 25305

(304) 558-2021

JAMES E. DOYLE

Attorney General

of Wisconsin

P.O. Box 7857

Madison, WI 53707

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JOSEPH B. MEYER

Attorney General

of Wyoming

123 Capitol Building

Cheyenne, WY 82002

(307) 777-7841

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

I. THE CHIEF JUSTICE’S OPINION FOR THE

COURT IN BRECHT IS CORRECT IN

HOLDING THAT KOTTEAKOS ASSIGNS

THE BURDEN TO THE PETITIONER TO

SHOW ACTUAL PREJUDICE

Il. THE NATURE OF COLLATERAL REVIEW

DICTATES THAT THE BURDEN OF

PROVING ACTUAL PREJUDICE SHOULD

FALL ON THE HABEAS PETITIONER .... 13

A. Collateral And Direct Review Serve Distinct

, —si(Cs‘(‘(‘é‘éir AOePegeviesvas 14

B. The Historic Meaning Of Habeas Corpus And

The Principles Of Federalism And Comity

Make The Case For Allocating To The Habeas

Petitioner The Burden Of Proof On The Issue

Of Harmless Error

Ill. THE PLENARY REVIEW MANDATED BY

KOTTEAKOS ENSURES A FAIR

DETERMINATION OF ACTUAL

PREJUDICE

CONCLUSION

il

TABLE OF AUTHORITIES

Page

CASES:

Anderson v. Nelson,

390 U.S. 523 (1968)... ee eee eee 14

Arizona v. Fulminante,

499 U.S. 279 (1991)... eee eee reer renee 12

Barefoot v. Estelle,

463 U.S. 880 (1983) ....-- eee ee eee 15, 16

Bibbins v. Dalsheim,

91 F.3d 13 (2d Cir. 1994) 2... eee eens 5

Boyde v. California,

494 U.S. 370 (1990) ....-- ee ee eee 3, 13

Brecht v. Abrahamson,

113 S. Ct. 1710 (1993) ....- eee ee eee passim

Brewer v. Williams,

490 U.S. BET CIGTT) 00. cc etme rrcees 19

Brown vy. Allen,

344 U.S. 443 (1953) ....--- +e ee ee ea 19

Chapman v. California,

386 U.S. 18 (1967)... 66. ee ee ee es passim

Coleman v. Thompson,

$01 U.S. 722 (1991)... eee eee eee ees 16, 18

Cumbie v. Singletary,

991 F.2d 715 (11th Cir. 1993)... 6-2 eee ee eee: 23

Douglas v. California,

372 U.S. 353 (1963)... eee eee eee ee eeee 17

SO tc phe Re

ee ee ee

Engle v. Isaac,

456 U.S. 107 (1982)

Estelle v. McGuire,

112 S. Ct. 475 (1991)

Fay v. Noia,

372 U.S. 391 (1963)

Gideon v. Wainwright,

372 U.S. 335 (1962) ......

Griffith v. Kentucky,

479 U.S. 314 (1987)

Harris v. Reed,

489 U.S. 255 (1989)

Henry v. Estelle,

993 F.2d 1423 (9th Cir. 1993)

Jackson v. Virginia,

443 U.S. 307 (1979) ......

Kotteakos v. United States,

328 U.S. 750 (1946)

Kuhiman v. Wilson,

477 U.S. 436 (1986)

Lewis v. Jeffers,

497 U.S. 764 (1990)

Libby v. Duval,

19 F.3d 733 (Ist Cir. 1994)

Lowery v. Collins,

996 F.2d 770 (Sth Cir. 1993)

Mackey v. United States,

401 U.S. 667 (1971) ce.

mk FS = «

iV

McClesky v. Zant,

499 U.S. 467 (1991)... 2. eee eee ee ees 18, 20

Milton v. Wainwright, re

407 U.S. 371 (1972)... eee eee ee eens

Mullaney v. Wilbur,

421 U.S. 684 (1975) .. 2... ee eee ee ees 16

O'Neal v. Morris, ,

3 F.3d 143 (6th Cir. 1993) .. 2... ee ee eee ees

Pennsylvania v. Finley,

481 U.S. 551 (1987)... eee ee eee cree 15, 17

Reed v. Farley, -

62 U.S.L.W. 4564 (1994) ..-.. . eee ee eee eee

Robinson v. Arvonio,

F.3d __, 1994 WL 259746 (3rd Cir. 1994) ..... 5

Rose v. Clark, es

478 U.S. STO (1986) 0 ww ce cece eee eeess

Rose v. Hodges, ”

oR YF ee ee

Rose v. Lundy, ‘a

Gi EF ) +, ee ae

Rose v. Mitchell, “

443 U.S. 545 (1979) .. 2. ee ee ee ee ene

Sandstrom v. Montana, e

O43 U.S. SID CIGTA) 2 nw ccc ccc cece cccce » eS

Sawyer v. Whitley,

VS Fo.) 7), eee 18

Stone v. Powell, i

. oe Fe ee oe

y

—_—, oT

Stoner v. Sowders,

997 F.2d 209 (6th Cir. 1993)

Strickland v. Washington,

466 U.S. 668 (1984)

Sullivan v. Louisiana,

113 S. Ct. 2078 (1993)

Sunal v. Large,

332 U.S. 174 (1947)

Teague v. Lane,

SN I so on kw be 86 oe 8 ea 15, 17, 20

United States v. Frady,

456 U.S. 152 (1982)

United States v. Lane,

ER ne ane aE eens 10, 12

Wainwright v. Sykes,

I a is nS 4d oe die ww ob a ele 15

Wright v. West,

SOG ie GE MUOOD 6 oc kv cowie ce vicewiéiens 14, 19

Yates v. Evatt,

a Te ar eae 14, 22

STATUTES AND LEGISLATIVE MATERIALS:

28 U.S.C. § 2254

OTHER MATERIALS:

Blume, John H. and Garvey, Stephen P.,

Harmless Error In Federal Habeas

Corpus After Brecht v. Abrahamson,

35 William and Mary L. Rev. 163 (1993) ......... 6

vi

Goldberg, Steven H.., rae Error:

Constitutional Sneak Thief,

71 J. Crim. Law & Criminology 421 (1980) ....... 8

Goldblatt, Craig, Harmless Error As

Constitutional Common Law: Congress S$

Power To Reverse Arizona v. Fulminante,

60 Univ. Chi. L. Rev. 985 (1993)... ..- +e e eee 8

Liebman, James S., Federal Habeas

Corpus Practice And Procedure ( Pe weseeae tan 19

Webster’s New Collegiate me

Dictionary (1981) .. 0... ee eee reer

~~ te

ee een oe

em

ey ee ee

ae reat eR ORAS Be ee tO 8 oS ee

No. 93-7407

+

In the

Supreme Court of the United States

October Term, 1994

+

ROBERT O'NEAL,

Petitioner,

Vv.

FRED MCANINCH, WARDEN,

Respondent.

S

On Writ of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

+

BRIEF OF THE STATES OF MARYLAND, ET AL.,'

AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

¢

INTEREST OF THE AMICI CURIAE?

At issu€ inthis case is the allocation of the burden of

proof to establish that trial error was harmless on habeas

review of state criminal convictions under Brecht vy.

Abrahamson, 113 S. Ct. 1710 (1993). The Court must clarify

' States joining this brief are listed on the cover and their respective

counsel are listed on the inside cover.

? This brief is submitted by the amici states through their respective

Attorneys General in accordance with Rule 37.5 of the Rules of the

Supreme Court.

2

whether the party bearing that burden is the state or the habeas

petitioner. The answer to this question necessarily implicates

the twin interests of concluded litigation and the proper scope

of federal habeas review of state criminal convictions,

interests of no small concern to the amici states.

Resolution of the question presented will affect not

only that principle upon which the co-existence between the

states and the federal courts depends, that is, the principle of

organization otherwise dubbed "federalism," but also the

resources of state criminal justice systems already feeling the

strain engendered by collateral review of convictions. The

states, of course, are the entities that bear the brunt of the

costs, be they economic or social, of habeas review of state

prisoner claims; hence, this amicus brief in which amici

strongly urge the Court to allocate to the habeas petitioner the

obligation of proving that a trial error actually prejudiced the

jury verdict.

STATEMENT OF THE CASE

In 1981, Petitioner Robert O’Neal was tried by a jury

in an Ohio state court and convicted of the aggravated murder,

aggravated robbery, and kidnapping of Henry Podborny as

part of a conspiracy. O'Neal v. Morris, 3 F.3d 143, 144 (6th

Cir. 1993). O'Neal was sentenced to life imprisonment.

After exhausting his state remedies, O’Neal sought habeas

corpus relief on, inter alia, the grounds that the trial court’s

instructions allowed the jury to impute the intent to kill of

other conspirators to O'Neal, in violation of Sandstrom v.

Montana, 442 U.S. 510 (1979); and that the prosecutor’s

closing argument also improperly suggested that the

prosecution need not make an independent showing of intent

as to each defendant for conspiracy liability to attach.

O’Neal, 3 F.3d at 145, 147. The district court granted habeas

relief.

ae ee

Te ey perenne eee ee ee ee one ee a en ee ee ee ee Bee

3

The United States Court of Appeals for the Sixth

Circuit reversed. The Sixth Circuit held that petitioner's

Sandstrom claim failed the Boyde test:’ the jury instruction

did not constitute trial error. Jd. at 147. The appeals court

did find error as to the prosecutor's argument, but held that

error was harmless. /d. Citing Brecht v. Abrahamson for the

proposition that habeas relief is not warranted unless the

habeas petitioner establishes that federal constitutional trial

error had a substantial and injurious effect or influence on the

jury’s verdict, the Sixth Circuit held that O'Neal! failed to

meet his burden of establishing actual prejudice. /d. at 148.

O'Neal then filed a petition for writ of certiorari with

this Court, raising four issues. See Cert. Pet. at (i). On April

4, 1994, the Court granted review solely on question number

two, the question concerning the allocation of the burden of

proof for establishing harmless error.

SUMMARY OF ARGUMENT

This case presents a question left in doubt by the

Court’s decision in Brecht v. Abrahamson: whether under the

Kotteakos standard held applicable in Brecht, the petitioner

bears the burden of proof on habeas review to show that trial

error substantially prejudiced the verdict. Amici respectfully

submit that the burden of proof is properly assigned to

petitioner under this standard. Amici argue: first, that the

Chief Justice’s opinion for the Court in Brecht is correct in

holding that the Korteakos test allocates to the petitioner the

> In Estelle v. McGuire, 112 S. Ct. 475 (1991), the Court held that the

test for error in jury instructions is that set out in Boyde v. California, 494

U.S. 370 (1990): **whether there is a reasonable likelihood that the jury

has applied the challenged instruction in a way’ that violates the

eae Estelle, 112 S. Ct. at 482 and n.4, quoting Boyde, 494

S. at 380.

4

burden of proving actual prejudice in all cases where the error

is amenable to harmless error analysis; second, that allocation

of the burden to the petitioner on habeas, while the state

retains the burden on direct review to show that the error was

harmless beyond a reasonable doubt, is consistent with the

well-established distinction between direct and habeas review,

and third, that the plenary review mandated by Kotteakos

safeguards the petitioner in that in no case will the burden of

proof predetermine the outcome.

ARGUMENT

I. THE CHIEF JUSTICE’S OPINION FOR THE

COURT IN BRECHT IS CORRECT IN

HOLDING THAT KOTTEAKOS ASSIGNS

THE BURDEN TO THE PETITIONER TO

SHOW ACTUAL PREJUDICE.

In Brecht v. Abrahamson, the Chief Justice, writing for

the Court, held that in federal habeas the burden of proof to

establish that error was not “harmless” rests with the habeas

petitioner. Brecht, 113 $.Ct. at 1722. The Court’s opinion

adopted the test for harmless error set out in Kotteakos v.

United States, 328 U.S. 750 (1946), “under which an error

requires reversal only if ‘it had substantial and injurious effect

or influence in determining the jury’s verdict.’" Brecht, 113

S.Ct. at 1718, quoting Kotreakos, 328 U.S. at 776. The Chief

Justice’s opinion for the Court clearly states that “under this

standard, habeas petitioners ... are not entitled to habeas relief

based on trial error unless they can establish that it resulted in

‘actual prejudice.’" Brecht, 113 S.Ct. at 1722 (emphasis

added). The majority of federal courts to rule on the issue

have followed this express language and allocated the burden

5

of proof to the petitioner,‘ except the First Circuit, see Libby

v. Duval, 19 F.3d 733, 739-40 n. 15 (1st Cir. 1994) and the

Sixth Circuit, which is split on this question. In this case, the

Sixth Circuit placed the burden on O'Neal, 3 F. 3d at 147: but

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

Circuit allocated the burden of proving the error was harmless

to the state. /d. at 213.

The minority view is based on Justice Stevens’

concurrence in Brecht. Although Justice Stevens concurred in

the one opinion as well as in its judgment, he wrote

separately to state that he supported adoption of the Kotteakos

standard because first, that standard requires de novo review,

and second, in his view, it places the burden on the state to

explain why the errors were harmless. Brecht, 113 S.Ct. at

1723 (Stevens, J., concurring).

* Robinson v. Arvonio, __ F.3d ~ , 1994 WL 2597 :

1994); Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d cae abe a

Dixon, 14 F.3d 956, 975 (4th Cir. 1994) (en banc); Tague v. Richards 3

F.3d 1133, 1140 (7th Cir. 1993); Castillo v. Stainer, 997 F.2d 669. 669

(9th Cir. 1993), modifying 983 F.2d 145 (9th Cir. 1992): Lowery v

Collins, 996 F.2d 770, 773 (Sth Cir. 1993); Henry v. Estelle. 993 F.2d

1423, 1427 (9th Cir. 1993); Cumbie v. Singletary, 991 F.2d 715 725

(11th Cir. 1993), cert. denied, 114 S.Ct. 650 (1994).

* Justice White's dissent in Brecht (joined by Justices Blackmun and

Souter) views Kotteakos as placing the burden of proof on the petitioner.

Brecht, 113 S.Ct. at 1727 (White, J., dissenting). Justice O’Connor’s

separate dissent generally suggests agreement with Justice Stevens’

concurrence. Id. at 1731 (O'Connor, J., dissenting). Thus, different

majorities of the Court in Brecht agreed that (1) Kotteakos provides the

appropriate standard for habeas cases (the Chief Justice and Justices

Stevens, Scalia, Kennedy and Thomas); and (2) that Korteakos places the

burden of proof on the petitioner (the Chief Justice and Justices Blackmun

White, Scalia, Kennedy, Souter, and Thomas).

6

Amici states respectfully submit that the Chief Justice's

opinion for the Court in Brecht is correct in holding that the

Kotteakos test places the burden on the petitioner to show that

the error substantially affected the jury verdict, and Justice

Stevens’ concurrence is mistaken in its contrary reading of

Kotteakos on the burden issue.* A careful reading of

Kotteakos itself, and the plain language and historical meaning

of the federal harmless error statute on which the Kotteakos

test is based, compel this conclusion. Additionally, Justice

Stevens’ reading of Kotteakos and his reading of the legislative

history of the federal harmless error statute rest on a

distinction between "technical" and “other” potentially

harmless trial error that cannot be found in the statute or in

Kotteakos and has been repeatedly rejected by the Court's

harmless error jurisprudence.

The Chief Justice’s opinion for the Court in Brecht

explains that the Kotteakos test is grounded in the federal

harmless error statute and specifically, that Kotteakos equates

the statutory definition of harmless error: error that does not

affect the “substantial rights” of the parties -- with the

standard the opinion articulates: error that does not have a

"substantial and injurious effect" on the jury verdict. As the

Court’s opinion in Brecht explicitly recognizes, Kotteakos

construed the statutory phrase “substantial rights” to mean

"substantial effect on the verdict." Brecht, 113 S. Ct. at

1718, n. 7. In other words, it is the reliability of the jury

* One law review article has suggested that the Chief Justice’s opinion

for the Court in Brecht did not properly consider the issue of burden of

proof and is therefore not entitled to full weight on that issue. John H.

Blume and Stephen P. Garvey, Harmless Error In Federal Habeas Corpus

After Brecht v. Abrahamson, 35 William and Mary L. Rev. 163, 173

(1993). Given Justice Stevens’ concurrence, there can be little doubt that

both the majority and the dissents in Brecht were quite aware of the issue

and that the opinions reflect the considered views of the respective Justices.

7

verdict, and the "rights" of both state and the defendant ("the

parties") to a reliable verdict, that are the proper focus of

harmless error analysis, not the specific constitutionally-

guaranteed right of the defendant allegedly infringed by trial

error. Similarly, ‘ substantial” rights refers to the magnitude

of the effect of the error on the reliability of the outcome, not

to the "importance" of the specific Bill of Rights guarantee (or

Statutory protection) infringed by the alleged error.

This reading of Kotteakos is fully supported by the

express language of that case. Justice Rutledge’s eloquent

opinion for the Court paraphrases the federal harmless error

rule that the Court adopts as follows: "It comes down on its

face to a very plain admonition: Do not be technical, where

technicality does not really hurt the party whose rights in the

trial and in its outcome the technicality affects." 328 U.S. at

760 (emphasis added). This language reads the Statutory

phrase “substantial rights” as referring to the parties’ rights in

the reliability of the verdict and accordingly holds that the

Statutory definition of harmless error: error which does not

affect the “substantial rights” of the parties -- means error

po does not substantially prejudice the reliability of the

result.

In the very next sentence, Kotteakos goes on to note

first, that the legislative history of the statute supports its plain

language in defining "harmless error” as only that error which

does not “affect the parties’ substantial rights” -- i.e. does not

substantially prejudice the reliability of the verdict: second,

that there remains a limited category of error to which the

Statute and harmless error analysis do not apply; and third

that the burden of showing that error is not harmless, if

harmless error analysis applies at all, rests with the defendant.

8

"(T]he purpose of the bill ...was... to ..."cast

upon the party seeking a ncw trial the burden

of showing that any technical errors he may

complain of have affected his substantial nights,

otherwise they are to be disregarded.” H.R.

Rep. No. 913, 65th Cong. 3d Sess. 1. But that

this burden does not extend to all errors

appears from the statement which follows

immediately. “The proposed legislation affects

only technical errors. If the error is of such a

character that its natural effect is to prejudice a

litigant’s substantial rights [in the verdict], the

burden of sustaining the verdict will

notwithstanding this legislation rest upon the

one who claims under it." Jbid.

Kotteakos at 760.’

’ Kotteakos supports its analysis by tracing the origins of the harmless

error doctrine. /d. at 758-63. The doctrine was developed in the context

of direct review. Its history began in England. The doctrine was created

in response to the Exchequer Rule. Steven H. Goldberg, Harmless Error:

Constitutional Sneak Thief, 71 J. Crim. Law & Criminology 421, 422

(1980). See also Craig Goldblatt, Harmless Error As Constitutional

Common Law: Congress's Power To Reverse Arizona v. Fulminante, 60

Univ. Chi. L. Rev. 985, 993-94 (1993). Under that rule, errors which

occurred during the trial were held presumptively prejudicial and cause for

reversal. Id.

The rule resulted in much overcrowding in the English courts;

litigation seemed to survive until the parties expired. Goldberg, supra at

422. The English then created a harmless error rule for civil litigation

which prevented reversal absent substantial wrong. /d. The Exchequer

Rule was eventually imported to the United States and as a consequence,

the American courts became hostage to the same backlog and delay in

cases experienced by the English courts. Jd. Despite this detrimental effect

on litigation, the American courts persisted in applying the Exchequer

Rule, no matter how insignificant the error. Jd. As the Kotteakos Court

explained, the courts became “impregnable citadels of technicality.” 328

9

Justice Stevens’ concurrence in Brecht cites this last-

quoted passage from Kotteakos for the contrary proposition:

that Korteakos imposes the burden of proof on the state to

show that trial error is harmless unless the specific right

allegedly infringed by trial error is “merely technical."

Brecht, 113 S. Ct. at 1723-24 (Stevens, J. concurring).' This

interpretation, which focuses on a distinction between types of

constitutional or statutory rights and corresponding varieties

of harmless error analysis is not faithful to the plain language

of Kotteakos and the statute, nor does it comport with the

historical meaning or the logic of these authorities.

As noted, the passage quoted by Justice Stevens

follows immediately after Justice Rutledge’s paraphrase of the

harmless error statute: "do not be technical - don’t reverse

convictions where the error doesn’t substantially affect the

verdict." That context makes clear that Justice Stevens is

misguided in relying on the word "technical" in the 1919

Statute to create two types of harmless error analysis. Rather,

U.S. at 759.

Lawyers were not at all shy about purposely planting error in the

record as a means of redressing a losing verdict. Goldberg, supra at 422.

Criminal trials in particular fell victim to such tactics. Kotteakos, 328

U.S. at 759. Finally, many members of the bar, some judges, and legal

scholars were moved to seek remedial legislation which resulted in

harmless error” legislation in nearly all jurisdictions. Ibid and n. 12, see

also Goldberg, supra, at 422. Congress enacted a federal harmless ener

statute in 1919. Act of February 26, 1919 c. 48, 40 Stat. 1181, see

Kotteakos, 328 U.S. at 758. The statute commanded federal appellate

courts to ignore errors that did not “affect the substantial rights of the

parties.” 28 U.S.C. § 391 (1925-26 ed.), Congress reenacted the harmless

error rule as 28 U.S.C. § 2111 in 1949, “tinkering with the language” but

leaving the meaning intact. Brecht, 113 S. Ct. at 1718, n. 7.

* Justice Stevens categorizes constitutional rights as “never technical."

Brecht, 113 S. Ct. at 1723-24.

10

“technical” is shorthand for the conciusion that the error does

not warrant reversal.

The historical background of the key phrases further

clarifies that the Kotteakos test provides only one harmless

error analysis for all potentially harmless error, and it places

the burden on the petitioner. In his concurring opinion in

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

explained the historical background of the key statutory phrase

from which the Kotteakos test is derived.

Reference to whether error “affected the

substantial rights of the parties" was not

invented by Congress in 1919. The phrase was

commonly used by courts throughout the 19th

century . . . [A]s used by these courts, error

which "affected the substantial rights of the

parties” was generally understood to refer, not

to errors respecting a particular class of rights,

but rather to any error which affected the

fairness of the trial as a whole by calling into

question the reliability of the result. [citations

omitted]

Lane, 474 U.S. at 455-56.

Justice Brennan goes on to discuss the legislative

history of the statutory harmless error rule, noting that

Congress likewise intended a focus on the effect of the error

on the reliability of the outcome, and not segregation of

different classes of trial error for different harmless error

analysis. Jd. at 457-58. Indeed, Congress later deleted the

obsolete (and in the present day confusing) word "technical"

from the harmless error statute without changing the meaning

of the statute, nor does this change affect the Kotteakos test.

See Lane, 474 U.S. at 459; Brecht, 113 S.Ct. at 1718, n.7.

1]

Justice Brennan concludes that consistent with this

Statutory interpretation, Korteakos derives from the statute a

single harmless error test, which focuses on the outcome, and

does not distinguish between “technical” and “substantial”

guarantees.

In Kotteakos, we expressly rejected the

argument that the 1919 Act required a

determination of what are only technical, what

substantial rights; and what really affects the

latter hurtfully . . . . We held instead that the

Act’s command to disregard errors unless they

‘affect the substantial rights of the parties’ was

a command not to overturn a conviction unless,

after examining the record as a whole, the

court concludes that the error may have had

substantial influence on the outcome of the

proceeding.

Lane at 458-59.

In summary, the statute and Kotteakos subject all error

amenable to harmless-error analysis to one test: has the

petitioner shown that the error substantially affected the

verdict. Neither the statute nor Kotteakos distinguishes

between “merely technical” error that may or may not be

harmless but which places the burden of proof on the

petitioner, and some other sort of error that may or may not

be harmless but which places the burden of proof on the State,

as Justice Stevens would have it.

ag Moreover, the Court’s recent harmless error

jurisprudence generally disfavors an approach which

categorizes the allegedly infringed Constitutional or Statutory

guarantee, and applies different rules to each subcategory, in

favor of an approach which asks the reviewing court to focus

12

on the effect of the error on the verdict. In Chapman v.

California, 386 U.S. 18 (1967), the Court set a standard

higher than the federal statute or the Kotteakos test for direct

review of constitutional error, placing the burden on the state

to show “beyond a reasonable doubt" that the error did not

affect the verdict. Jd. at 24. But the Court again rejected a

bright-line rule that all constitutional violations require

reversal, and instead focused on the effect of the error on the

outcome of the trial. Chapman, 386 U.S. at 22-23.

Similarly, in Lane, 474 U.S. at 446, the Court applied the

Kotteakos test -- did the error substantially affect the verdict -

- to errors involving misjoinder raised on direct review. The

Lane Court rejected the approach of Justice Stevens in that

case advocating categorization of rights to determine whether

to conduct harmless error analysis and if so, what analysis to

conduct. Lane, 474 U.S. at 448 n.11 and 449. See also id.

at 458-59 (Brennan, J., concurring in part and dissenting in

part).

Of course, the Court has also consistently recognized

that "there are some constitutional rights so basic to a fair trial

that their infraction can never be treated as harmless error."

Chapman, 386 U.S. at 567. In other words, the “natural

effect [of error as to these rights] is to prejudice a litigant’s

substantial rights” in the verdict. Kotteakos, 328 U.S. at 760.

But the Court has consistently resisted allowing the exception

to swallow the rule: only those constitutional deprivations that

are “structural defects in the constitution of the trial

mechanism” have been held not amenable to harmless error

analysis. Arizona v. Fulminante, 499 U.S. 279, 286 (1991)

(opinion of the Chief Justice, Part II, for the Court). As the

13

Court’s limited grant of review recognizes, this case presents

no such issue.’

In summary, amici states maintain that Kotteakos

imposes the burden of proof on the petitioner and that the

opinion of the Chief Justice for thé Court in Brecht was

therefore correct in adopting this burden of proof as part of

the Kotteakos standard. The contrary reading urged by

Justice Stevens’ concurrence in Brecht is not consistent with

either the language or the structure of the federal harmless

error statute ( either the old or the new version). Nor is it

supported by the Kotteakos opinion itself or by this Court's

subsequent jurisprudence on the issue, because it depends on

a distinction between "technical" and “nontechnical”

potentially harmless error rejected by these decisions. Amici

urge this Court to clarify that the Korteakos standard adopted

by the Court in Brecht places the burden on the petitioner to

show that the error substantially affected the jury verdict as a

condition for obtaining habeas relief.

II. THE NATURE OF COLLATERAL REVIEW

DICTATES THAT THE BURDEN OF

PROVING ACTUAL PREJUDICE SHOULD

FALL ON THE HABEAS PETITIONER.

That habeas corpus is not intended to function as a

surrogate for direct review is a simple enough proposition. It

IS a proposition that nonetheless provides the proper focus for

* The error identified by the Sixth Circuit -- misleading prosecutorial

argument -- cannot rise to this level because it is only argument - not an

error in the evidence or in the law presented to the jury. As noted,

petitioner's Sandstrom claim was rejected by the Sixth Circuit on the basis

that the jury instructions were not error under Boyde, but in any event,

such claims have also been held amenable to harmless error analysis.

Sullivan v. Louisiana, U.S. __ 113 S. Ct. 2078, 2082 (1993).

14

determining the allocation of the burden of proof for

establishing that trial error of constitutional dimension was or

was not harmful.

A. Collateral And Direct Review

Serve Distinct Functions.

In Brecht, the court’s adoption of the Kotteakos

standard over the Chapman standard"® was predicated on the

notion that the former test:

is ... 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 1722.

The conclusion that the allocation of the burden of

proof for demonstrating harmless error on direct review does

not apply on habeas review is likewise deducible from the

differences between direct and collateral review. As early as

1947, this Court made clear that the two modes of review are

not mirror images. See Sunal v. Large, 332 U.S. 174, 178

(1947) (writ of habeas corpus will not be allowed to do

service for an appeal). That principle has been echoed over

and again, most recently in Brecht. 113 S.Ct. at 1712. See

also Wright v. West, 112 S.Ct. 2482, 2490 (1992) (opinion of

‘© Until the issue was squarely presented in Brecht, . was a

lied to federal habeas cases. See, ¢.g., Yates v. ;

Po ea ene 404-05 (1991); Rose v. Clark, 478 U.S. 570, 579-80

(1986); Milton v. Wainwright, 407 U.S. 371, 378 (1972); Anderson v.

Nelson, 390 U.S. 523, 525 (1968) (per curiam). See also John H. Blume

& Stephen P. Garvey, supra n. 5 at 163. As noted, Chapman places the

burden of proving harmless error on the state on direct review.

15

Thomas, J.); Teague v. Lane, 489 U.S. 288, 306 (1989)

(opinion of O'Connor, J.); Pennsylvania v. Finley, 481 U.S.

551, 556-57 (1987); Mackey v. United States, 401 U.S. 667,

682 (1971) (Harlan, J., dissenting in part and concurring in

judgments in part).

As this Court explained in Barefoot v. Estelle, 463

U.S. 880, 887 (1983), direct review is the channel for

challenging a conviction. Once that process comes to closure,

a presumption of not only finality but correctness attaches to

the conviction and sentence. Brecht, 113 S.Ct. at 1719;

Barefoot, 463 U.S. at 887. It is this presumptively correct

and final conviction at which the state prisoner strikes on

collateral habeas review. Therefore, the role of habeas corpus

is secondary and limited; it is not a forum to relitigate state

trials. Jd."

'' In conducting habeas review, a federal court is limited to deciding

whether a conviction was obtained in violation of the federal Constitution,

laws, or treaties of the United States. 28 U.S.C. § 2254; Estelle v.

McGuire, 112 S. Ct. 475, 479 (1991); Rose v. Hodges, 423 U.S. 19, 21

(1975) (per curiam). Violations of state law and procedure which do not

infringe specific federal constitutional protections are not cognizable under

Section 2254(a). Lewis v. Jeffers, 497 U.S. 764, 780 (1990). And federal

review is further limited: where the State has provided an opportunity for

full and fair litigation of a Fourth Amendment claim, a state prisoner may

not be granted federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was introduced at his or

her trial. Stone v. Powell, 428 U.S. 465, 494 (1976). Other rules

requiring the exhaustion of all available state remedies and eliminating

claims procedurally defaulted in state court limit the claims cognizable on

habeas. See, e.g., Reed v. Farley, 62 U.S.L.W. 4564 (1994) (defendant's

failure to object to violation of time limitation for trial pursuant to

Interstate Agreement on Detainer renders claim non-cognizable on federal

habeas review); Rose v. Lundy, 455 U.S. 509, 515 (1982) (petition

containing unexhausted claims mandates dismissal of entire petition or

deletion of unexhausted claim). See also Wainwright v. Sykes, 433 U.S.

72, 81 (1977) (adequate and independent finding by state court of

procedural default will bar federal habeas review of federal claim unless

16

Put in the simplest of terms, the difference between

collateral and direct review lies in the fact that the latter mode

of review is concerned with reexamining the judgment of

conviction. Barefoot, 463 U.S. at 887. This is not the case in

habeas. Coleman v. Thompson, 501 U.S. 722, 738 (1991).

When a federal court reviews a state prisoner’s habeas corpus

petition pursuant to 28 U.S.C. § 2254, the court does not

revisit the question of the petitioner’s guilt or innocence;

rather, the court determines whether the petitioner is “in

custody in violation of the Constitution, or laws, or treaties of

the United States." Jackson v. Virginia, 443 U.S. 307, 332 n.

5 (1979) (Stevens, J., concurring in judgment). This shift in

focus is predicated upon the presumption of correctness that

attaches to the conviction once the direct review process is

completed."

It follows from the fact that the state conviction has

been upheld as presumptively correct, that the burden of

rebutting that presumption should be shouldered by the habeas

petitioner. Otherwise, the presumption of correctness is

rendered meaningless. The presumption has effect only if the

habeas petitioner bears the burden of proving that an error of

constitutional magnitude resulted in his being actually

prejudiced.

That the difference between direct review and collateral

review betokens the application of different rules is not a

habeas petitioner can show cause for default and consequent prejudice).

'2 A presumption is defined as a legal inference as to the existence or

truth of a fact not certainly known that is drawn from the known or proved

existence of some other fact. Webster's New Collegiate Dictionary at 904

(1981). See also Mullaney v. Wilbur, 421 U.S. 684, 703 n. 31 (1975)

(describing a presumption as procedural device requiring trier of fact to

conclude the existence of one fact from proved existence of other facts).

17

Proposition alien to this Court. The Court need look no

further than its decision in Brecht for an example that the

difference between the two modes of review dictate whether

4 rule governing direct review will also govern collateral

review. The Court's decision not to extend the Chapman

standard to habeas cases was rooted in its history of

distinguishing between direct and collateral review. 113 S.Ct.

at 1720.

Similarly, in Teague v. Lane, 489 U.S. at 305-10

(1989) (opinion of O'Connor, J.), the Court held that new

constitutional rules of criminal procedure will seldom have

retroactive application to criminal cases on federal habeas,

although new rules always have such application to criminal

cases on direct review. See Griffith v. Kentucky, 479 U.S.

314, 320-28 (1987). Likewise, in Pennsylvania v. Finley, 481

U.S. at 555-56, the Court held that there is no right to counsel

on collateral review, even though the Constitution guarantees

the right to counsel on direct appeal. See Douglas v.

California, 372 U.S. 353, 355 (1963). In United States v.

Frady, 456 U.S. 152 (1982), the Court again crafted, on

collateral review, a rule different from the one applied on

direct review. The Court held that while the federal plain

error rule applies in determining whether a defendant may

raise a claim for the first time on direct appeal, the "cause and

prejudice” standard applies in determining whether that same

claim may be raised on habeas. Jd. at 162-69. In this case

also, the notion that different rules should apply on direct and

collateral review justifies placing upon the habeas petitioner

the onus of proving that a trial error was harmful.

Conversely, the net effect that would result from

having the state bear the burden of proof in establishing that

trial error resulted in no actual prejudice to the state prisoner

on both collateral and direct review is to sanction that which

was deplored in Frady, 456 U.S. at 164, namely, treating the

18

two modes of review as one and the same. Moreover,

allocating the burden of proof to the state on both direct and

collateral review is tantamount to a proclamation that the state

must prove anew the validity or correctness of the state

prisoner's conviction. This is precisely why it is fitting that

on collateral review, the state prisoner bear the burden of

proving that an error of constitutional magnitude resulted in

his being actually prejudiced.

This Court has not hesitated in placing the burden on

the habeas petitioner in analogous federal habeas contexts.

For example, in Strickland v. Washington, 466 U.S. 668, 687

(1984), the Court placed the burden on the habeas petitioner

to show prejudice as a necessary element of a claim of

ineffective assistance of counsel. A habeas petitioner must

also show prejudice for procedurally defaulting a claim in

state court “even in cases in which the alleged constitutional

error impaired the truthfinding function of the tral.”

Coleman v. Thompson, 501 U.S. at 739. Likewise, the

habeas petitioner must show prejudice with respect to

successive claims or claims not. previously raised which

constitute an abuse of the writ. Sawyer v. Whitley, 112 S.Ct.

2514, 2521 (1992); McClesky v. Zant, 499 U.S. 467, 491

(1991). There is no good reason why the burden should not

be allocated to the habeas petitioner on the issue of whether

constitutional trial error substantially and injuriously affected

the jury's verdict.

B. The Historic Meaning Of Habeas Corpus And

The Principles Of Federalism And Comity

Make The Case For Allocating To The Habeas

Petitioner The Burden Of Proof On The Issue

Of Harmless Error.

Yet another reason counsels in favor of allocating to

the habeas petitioner the burden of proving that a trial error

19

substantially and injuriously influenced the jury's verdict.

Allocation of the burden to the habeas petitioner is fully

congruent with the historic purpose for which the writ of

habeas corpus is made available. The Great Writ is an

extraordinary remedy that serves "to guard against extreme

malfunctions in the state criminal justice system." Wright v.

West, 112 S. Ct. at 2490; Kuhlman v. Wilson, 477 U.S. 436,

447 (1986) (plurality opinion); Engle v. Isaac, 456 U.S. 107,

126 (1982).

The writ’s “historic function” is to provide relief in

those rare cases where "there are meritorious causes in which

habeas corpus is the ultimate and only relief and designed to

be such.” Brown v. Allen, 344 U.S. 443, 501 (1953). See,

e.g., Rose v. Mitchell, 443 U.S. 545, 559 (1979) (habeas

relief granted where discrimination in selection of grand jury

established); Brewer v. Williams, 430 U.S. 387, 404-06 (1977)

(habeas relief granted where police interrogated petitioner and

elicited incriminating statements from him in violation of the

Sixth Amendment right to counsel); Gideon v. Wainwright,

372 U.S. 335, 345 (1962) (writ granted where indigent

petitioner was denied right to counsel at his state trial). Given

that the writ is a unique and exceptional remedy reserved for

those persons whom society has grievously wronged, Fay v.

Noia, 372 U.S. 391, 440-41 (1963), and given that the state

prisoner’s conviction has been deemed valid on direct review,

') Although triggered by criminal prosecutions, the writ is

denominated a civil remedy. James S. Liebman, Federal Habeas Corpus

Practice And Procedure § 2.1 at 3 (1988). The nature of the writ as a

prisoner-initiated civil remedy informed by equitable principles, id., is an

additional reason to charge the habeas petitioner with the responsibility of

proving that a trial error was harmful. Traditionally, in civil proceedings

the party bringing the complaint bears the burden of proving injury

entitling him or her to the grant of the relief requested. No different rule

should apply here.

20

it stands to reason that on collateral review the burden of

proving harmful error should rest with the habeas petitioner.

Beyond that, imposing the burden of proving harmless

error on the state on collateral review would ignore important

interests that it is this Court’s tradition to honor. An

animating concern in the Court’s habeas jurisprudence has

been to ensure that the principles of comity and federalism are

respected. See Brecht, ii} S. Ct. at 1720. The Court stated

in Teague, 489 U.S. at 308, that the interests in comity and

finality must be considered in determining the proper scope of

habeas review. It is undisputed that habeas review potentially

undermines the state’s significant interest in concluded

litigation. See McClesky, 499 U.S. at 491; Harris v. Reed,

489 U.S. 255, 282 (1989) (Kennedy, J., dissenting).

Moreover, undue federal intrusion into state criminal trials

frustrates both the states’ sovereign power to punish offenders

and their good-faith attempts to honor constitutional rights.

Engle, 456 U.S. at 128. Forcing the state, on both direct and

collateral review, to shoulder the burden of proving that a trial

error of constitutional dimension was harmless converts

collateral review into yet another round of direct review.

More importantly, such a rule is incredibly intrusive, for it

forces the state to prove anew the validity of a state conviction

that has already survived the cold glare of direct review.

Faithful adherence to the imperatives of federalism, comity

and the historic purpose of the Great Writ, dictates that the

burden of proving harmful trial error rest with the habeas

petitioner.

Ignoring the principles of federalism and comity would

have a practical impact on the states as well. These costs far

outweigh the benefit petitioner argues may be derived from a

rule under which the burden of establishing harmless error is

allocated to the state. It is no secret that habeas review may

cost society the right to punish admitted offenders because

21

retrial is often difficult, if not impossible, due to the passage

of time, erosion of memory, and dispersion of witnesses.

Engle, 456 U.S. at 128. That the state should not be forced

to gather forgetful witnesses and moldering evidence for a

second trial at every drop of the habeas hat is a legitimate

concer. This is rio less of a concern in the context of the

burden allocation for proving that a trial error was or was not

harmless.

As this Court pointed out in Brecht, 113 S. Ct. at

1721, there is no statute of limitations governing federal

habeas. The habeas petitioner controls the timing of habeas

litigation. The longer he waits to bring a claim, the more

difficult it becomes for the state to defend against the claim.

Conversely, putting the burden of proof on the habeas

petitioner forces the petitioner to bring his claim in a more

timely fashion. If the petitioner bears the burden of proof, it

will be to his advantage to bring his claims as promptly as

possible. Such a rule would also help to slam the door on the

filing of frivolous claims. Federal courts, like state courts,

must be concerned with husbanding judicial resources.

Allocating to the habeas petitioner the burden of proof with

respect to demonstrating that a trial error was harmful will do

much to stem the tide of frivolous prisoner petitions that is

sure to result if a contrary rule is adopted.

While some might argue that having the state bear the

burden on both direct and collateral review encourages the

State’s adherence to constitutional rules and procedures, that

argument was rejected in Brecht, 113 S. Ct. at 1721. It

should likewise be rejected here. It simply defies logic to

Suggest that prosecutors and state courts alike will

intentionally flout federal constitutional dictates because they

know that the state will not have to prove that a trial error

resulted in no actual prejudice to the state prisoner on

collateral review. A more than adequate incentive to obey

22

federal constitutional rules, if any is needed, flows from the

threat that the conviction may not pass muster on direct

review -- and, as noted below, from the plenary review

available on habeas. In sum, the nature of collateral review,

the purpose of habeas corpus, and the principles of federalism

and comity, as well as common sense, dictate that the habeas

petitioner bear the burden of proving that a trial error created

a substantial and injurious effect on the jury’s verdict

sufficient to warrant the grant of habeas relief.

Ill. THE PLENARY REVIEW MANDATED BY

KOTTEAKOS ENSURES A_ FAIR

DETERMINATION OF ACTUAL

PREJUDICE.

Application of the harmless error doctrine on either

direct or collateral review demands that a reviewing court

engage in the task of examining the entire record of the

criminal trial to determine whether a constitutional error

prejudiced the trial’s outcome. Yates v. Evatt, 500 U.S. 391,

404-05 (1991). This is the practice in direct review cases

under Chapman, see Chapman, 386 U.S. at 56 (Harlan, J.,

dissenting), and, as Justice Stevens emphasized in Brecht, the

Kotteakos harmless error analysis also requires the federal

courts on collateral review to review the entire trial record de

novo to decide whether the constitutional error did or did not

substantially and injuriously influence or affect the jury’s

verdict. 113 S. Ct. at 1724. The Court’s opinion in Brecht

conducts such de novo review, see id. at 1722-23. See also

id., at 1731 (O’Connor, J., dissenting) (observing that federal

courts, on collateral review, must conduct review of entire

trial record de novo in undertaking harmless error analysis).

As Justice Stevens explained:

23

The purpose of reviewing the entire record is,

of course, to consider all the ways that an error

can infect the course of a trial.

Brecht, 113 S. Ct. at 1724. By virtue of the fact that under

the Kotteakos standard, just as under the Standard in

Chapman, the federal courts review the state trial record de

novo in conducting a harmless error analysis, the courts retain

the discretion to make of that record what they will. At each

level of review the federal court is free to reach a conclusion

on the effect of the constitutional error that is different from

the determination reached by the state courts. What this

means in terms of the burden allocation issue is that the

allocation, while important, will not automatically and

necessarily be determinative of whether habeas relief will be

granted. The burden allocation becomes one factor of several

io consider in this caiculus.

Bearing out this contention are Henry v. Estelle, 993

F.2d 1423, 1425-27 (9th Cir. 1993) and Cwmbie y. Singletary

991 F.2d 715, 724-25 (11th Cir. 1993), two cases where the

federal courts of appeal, citing to Brecht, allocated to the

habeas petitioner the burden of proving that a constitutional

trial error was harmful. In both cases the courts nonetheless

concluded, after a de novo review of the state Criminal trial

record, that the error was-not harmless and that habeas relief

was warranted. Given that the burden allocation will not be

dispositive of the question of whether the constitutional error

was” sufficiently harmful to warrant habeas relief, it is

consistent with the equitable concerns underlying habeas

review tO impose upon the petitioner the burden of proving

that the trial error was harmful.

24

CONCLUSION

For the reasons stated above, the judgment of the Sixth

Circuit should be affirmed.

Respectfully submitted,

Of Counsel:

Eleni M. Constantine

444 N. Capitol St.

Washington, DC 20001

J. JOSEPH CURRAN JR.

Attorney General of Maryland

TARRA DESHIELDS-MINNIS

Assistant Attorney General \

200 St. Paul Place

Baltimore, MD 21202-2202

(410) 576-7901

Counsel for Amici States

Counsel of Record

July 1, 1994