# Amicus Curiae Brief — O'NEAL v. McAninch

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0535%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 432

## Text

ROLAND W. BURRIS
Attorney General

of Illinois

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of Indiana

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of Iowa

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Building

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of Kansas

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_ Center

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and Public Safety
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of New Mexico

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MICHAEL F. EASLEY
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of North Carolina
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SUSAN B. LOVING
Attorney General

of Oklahoma

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THEODORE R.
KULONGOSKI
Attorney General
of Oregon

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Salem, OR 97310
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q
4
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J
;

ERNEST D. PREATE, JR.

Attorney General

of Pennsylvania

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Square

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PEDRO R. PIERLUISI
Attorney General

of Puerto Rico

Puerto Rico Department
of Justice

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San Juan, PR 00902
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JEFFREY B. PINE
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of Rhode Island

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of South Carolina
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MARK BARNETT
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of South Dakota

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CHARLES BURSON
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Reporter of Tennessee
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DAN MORALES
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of Texas

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JAN GRAHAM

Attorney General

of Utah

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JEFFREY L. AMESTOY
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of Vermont

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ROSALIE SIMMONDS
BALLENTINE

Attorney General

-of the Virgin Islands
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S.T.V.I1.

St. Thomas, VI 00802

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JAMES S. GILMORE, III
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of Virginia

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CHRISTINE O. GREGOIRE
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DARRELL V. MCGRAW JR.

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of Wisconsin

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of Wyoming

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0535%3A12. Public record. Not legal advice.