PG VII(E) Standard of Prejudice On Federal Habeas.
ALERT: On April 24, 1996, President Clinton signed the “Anti-Terrorism and Effective Death Penalty Act of 1996.” The new legislation makes key changes to federal habeas corpus practice, including a new standard of review which precludes the granting of a writ with respect to any claim that was adjudicated on the merits in state court unless the adjudication of the claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” Obviously, it will be some time before the meaning of this and other provisions of the new act have been clarified. [A copy of the new law is available to FORECITE subscribers. Ask for Article Bank # A-64.]
PG VII(E)(1) Standard Of Prejudice On Federal Habeas Corpus:
An instructional error which violates due process is not prejudicial on federal habeas unless it “had substantial and injurious effect or influence in determining the jury’s verdict.” (Brecht v. Abrahamson (93) 507 US 619 [123 LEd2d 353, 363; 113 SCt 1710] ; see also Calderon v. Coleman (98) 525 US 141 [142 LEd2d 521; 119 SCt 500] [distinguishing between Boyde test as to existence of constitutional error and Brecht test as to harmless-error analysis].) However, Brechtapplies only to “constitutional error of the trial type.” (123 LEd2d at p. 373, fn omitted.) Insofar as the failure to instruct on all of the elements of the offense is not a “trial” error, but a “structural defect affecting the framework within which the trial proceeds …” (Arizona v. Fulminante (91) 499 US 279 [113 LEd2d 302, 331; 111 SCt 1246] [holding that rights such as public trial, absence of counsel, etc. are structural defects]), Brecht should not be applicable in a case where the court fails to instruct on all of the elements of the crime. (See Sullivan v. Louisiana (93) 508 US 275 [124 LEd2d 182, 189-90; 113 SCt 2078] [error in a reasonable doubt instruction is a structural defect requiring per se reversal].)
In Duest v. Singletary (11th Cir. 1993) 997 F2d 1336, 1339, the court explained that “the essential question” under Brecht is: Did the constitutional error “‘substantially influence’ the verdict, or, at least, does a ‘grave doubt’ exist as to whether it did? If so, then petitioner is entitled to relief.” In granting relief, the Deust court heavily relied upon the fact that the result would have been different if even one juror had been influenced. (Duest, 997 F2d at 1339.) Hence, since it was likely that “at least one juror” was influenced, the Brecht standard was met. (See also Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1320-22 [failure to require jury determination of special circumstance element “necessarily influenced the jury’s verdict” thus requiring reversal under the Brecht standard].)
In O’Neal v. McAninch (95) 513 US 432 [130 LEd2d 947; 115 SCt 992], the Supreme Court addressed the “narrow” question of whether reversal is required “where the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error.” (O’Neal, 130 LEd2d at 952-53.) The court held that if a reviewing court has such “grave doubt”, then the error must be held to be prejudicial. NOTE: The majority opinion stated that this “rule avoids the need for judges to read lengthy records to determine prejudice in every habeas case.” However, as the dissent pointed out, this is an interesting concept because it suggests that the reviewing judge may, in the midst of reading a record, declare himself or herself to be in grave doubt and stop reading.
In Riley v. Deeds (9th Cir. 1995) 56 F3d 1117, 1119, fn 3, the 9th Circuit noted that “it may be the state’s burden to show the absence of prejudice” under O’Neal v. McAninch (95) 513 US 432 [130 LEd2d 947; 115 SCt 992].
In California v. Roy (96) 519 US 2 [136 LEd2d 266; 117 SCt 337] the U.S. Supreme court held that the “harmless error” standards enunciated in Brecht and O’Neal should apply to instructional error which is “as easily characterized as a ‘misdescription of an element’ of the crime, as it is characterized as an error of ‘omission.’” Under this standard, the reviewing court must determine whether there is “grave doubt as to the harmlessness of the error.” However, according to the concurring opinion of Scalia and Ginsburg, the lead opinion in Roy does not authorize a finding of harmlessness when the jury failed to return a formal verdict finding the defendant guilty of each necessary element of the crime. “To allow the error to be cured in that fashion would be to dispense with trial by jury.” (Roy, 136 LEd2d at 272.)
On remand in Roy v. Gomez (94-15994, 3/4/97) 108 F3d 242, the Ninth Circuit concluded, in light of the Supreme Court’s reversal, “we must determine if the erroneous jury instruction in this case ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ [Citation]”
[An article discussing the Brecht standard is available to FORECITE subscribers. Ask for Article Bank # A-52.]
PG VII(E)(2) Chapman Applies If State Court Failed To Apply Correct Standard:
The Brecht standard of prejudice for habeas corpus assumes that the state court properly evaluated the error’s prejudicial effect on the trial process under Chapman. In such a case, Brecht concluded that “it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.” (Brecht v. Abrahamson (93) 507 US 619 [123 LEd2d 353, 372; 113 SCt 1710].) Therefore, if the state court (1) found no error at all; (2) found state law error and used a state law test to prejudice; or (3) found federal constitutional error, but misapplied the Chapman test, the federal habeas court should conduct its own Chapman harmless error analysis. (See Orndorff v. Lockhardt (8th Cir. 1993) 998 F2d 1426, 1430.)
PG VII(E)(3) Standard of Prejudice On Federal Habeas: Habeas Help Available:
Defense teams trying to protect their clients’ rights under the habeas provisions of the Antiterrorism and Effective Death Penalty Act of 1996 can get help from two projects.
The California Appellate Project (CAP) offers aid to attorneys who are currently representing clients in federal habeas corpus proceedings. Interested persons should contact Linda Fox, Legal Publications Coordinator, at 415-495-0500.
The Habeas Assistance Project is funded through the Administrative Office of the U.S. Courts. John Blume and Mark Olive, both experienced habeas practitioners, are counsel for the project. Blume can be reached at 803-765-1044 and Olive at 804-643-6848.
PG VII(E)(4) Standard of Prejudice On Federal Habeas: Antiterrorism Act (AEDPA).
Under the “contrary to” clause [of the AEDPA], a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on materially indistinguishable facts. “Unreasonable application” means that a federal court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the case. (Williams v. Taylor (2000) 529 US 362, 399 [146 LEd2d 389; 120 SCt 1495, 1521-23].)
If the state court identifies no governing legal principle at all (e.g., a postcard denial of a habeas petition), a federal court must review the record independently, and will grant the writ if that independent review shows the state court’s decision is not a reasonable application of controlling U.S Supreme Court opinions to the facts of the case. (Delgado v. Lewis (9th Cir. 2000) 223 F3d 976, 982.)
Ineffective Assistance of Counsel (IAC) under the 6th Amendment of the federal constitution is cognizable on federal habeas under the Antiterrorism Act (AEDPA) because it is contrary to clearly established federal law per Strickland v. Washington (84) 466 US 668 [80 LEd2d 674; 104 SCt 2052]. (Baylor v. Estelle (9th Cir. 1996) 94 F3d 1321; see also Ayala v. Speckard (2d Cir. 1996) 89 F3d 91.) This interpretation of the revised habeas standard suggests that the “contrary to clearly established federal law” requirement refers to the general nature of the constitutional violation rather than the specific manner in which the constitution was violated.
PG VII(E)(5) Standard Of Review On Habeas Corpus: No Deference To California Supreme Court’s Postcard Denial Of Habeas Petition.
See Fisher v. Roe (9th Cir. 2001) 263 F3d 906, 913.