Mostly harmless: an analysis of post-AEDPA federal habeas corpus review of state harmless error determinations.

AuthorJacobi, Jeffrey S.
PositionAntiterrorism and Effective Death Penalty Act of 1996

TABLE OF CONTENTS INTRODUCTION I. THE RESULTS OF FEDERAL HABEAS HARMLESS ERROR ANALYSES II. HOW FEDERAL HABEAS COURTS CONDUCT HARMLESS ERROR REVIEW A. How Courts Say Harmless Error Review Should Be Conducted B. How Circuit Courts Actually Conduct Harmless Error Review C. The Current State of Harmless Error Analysis Is Not Harmless III. GROUP 2 HAS IT RIGHT A. Chapman's "Harmless Beyond a Reasonable Doubt" B. Jurisdiction Stripping C. The Muddled Middle CONCLUSION APPENDIX INTRODUCTION

Sixty years ago, in Kotteakos v. United States, the Supreme Court ruled that a small class of so-called harmless errors committed by courts did not require correction. (1) The Court acknowledged that some judicial errors, though recognizable as errors, did not threaten the validity of criminal convictions and therefore did not require reversal. (2) Specifically, the Court held that errors that violated federal statutes should be deemed harmless unless they had a "substantial and injurious effect or influence in determining the jury's verdict." (3) While Kotteakos represented the Supreme Court's first treatment of the concept of harmlessness, (4) other courts had a history of preserving convictions using harmless error review. (5) For some time before Kotteakos, state statutes had directed appellate courts throughout the country to use harmless error review, (6) a doctrine that prevents appellate courts from disposing of convictions on technicalities, (7) "conserve[s] judicial resources by enabling appellate courts to cleanse the judicial process of prejudicial error without becoming mired in harmless error," (8) and allows courts to focus on "decid[ing] the factual question of the defendant's guilt or innocence." (9)

The Supreme Court expanded the category of harmless errors when it first allowed appellate courts to disregard certain criminal trial errors that violated the United States Constitution. (10) In 1967, Chapman v. California concluded that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (11) Chapman thus provided a more burdensome standard for more troublesome errors. (12) For over a quarter of a century, constitutional errors deemed "harmless beyond a reasonable doubt" under Chapman, (13) and federal law errors that had a "substantial and injurious effect or influence in determining the jury's verdict" under Kotteakos, (14) did not warrant relief on federal habeas corpus review.

The Court retooled harmless error review again in 1993, this time addressing criminal claims on federal habeas corpus review and making it easier for federal habeas courts to call constitutional errors harmless. (15) Brecht v. Abrahamson announced that one harmless error standard should apply to all cases on federal collateral review. (16) The Court directed the lower courts to review both constitutional errors and errors of federal law, which had previously been subject to two different standards of harmless error review, under the less petitioner-friendly standard of Kotteakos v. United States. (17)

Only three years later, Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), which amended the federal habeas corpus statute. AEDPA added a provision that precluded federal habeas relief when a state court decision was neither "contrary to, [nor] ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (18) The Supreme Court interpreted this statute as allowing federal habeas relief only when a federal habeas court could establish that a state court determination was not simply error, but an objectively unreasonable application of federal law. (19)

In May of 2005, seeking to end the "extraordinary delays" often created by "a single Federal judge" on federal habeas review, (20) Congress proposed the Streamlined Procedures Act of 2005 (SPA). (21) If enacted, this statute would have stripped the jurisdiction of federal courts in a small but significant way: the SPA would have eliminated federal review of any sentencing

error found by a state court to be harmless or nonprejudicial. (22) According to the bill's proponents, the problem is that federal "judges are acting ... lawlessly" in reversing state court denials of collateral relief, and therefore "[i]t is not unreasonable for Congress to ... seek to circumscribe federal judicial discretion." (23)

This Note will show that the bill's proponents have misidentified the problem. The real problem is that federal habeas courts have differing interpretations of the law of harmless error and thus diverge in their application of harmless error review. The problem is not that federal judges are using their jurisdiction to grant unmeritorious habeas petitions by capriciously reversing state court harmless error determinations because, as shown below, most federal habeas courts rarely reverse state court harmless error determinations. Instead, the current articulation of harmless error law gives federal habeas courts inadequate guidance. While stripping the courts of jurisdiction might solve the problem of legal uncertainty by removing the question altogether, such a radical procedure would be "the functional equivalent of amputating four limbs to improve the blood flow of a healthy and functioning human being." (24)

This Note argues that the Supreme Court should clarify the standard by which federal habeas courts conduct harmless error review where there is a state court determination of harmlessness. This Note organizes three and a half years' worth of federal habeas court harmless error analyses into four categories and concludes that the best analysis is that in which the Brecht standard is integrated into AEDPA's analysis. Part I of this Note surveys habeas corpus cases over the course of three and a half years, from January 2003 through June 2006, and concludes that Congress's proposed action, jurisdiction stripping, is an inappropriate measure because most circuit courts already regularly agree with the harmless error determinations of state courts. Part II argues that the Supreme Court should clarify how to apply Brecht and AEDPA in federal review of state court harmless error determinations because the law is unclear. Part III discusses several approaches to federal review of state court harmless error determinations and ultimately argues that the proper solution is to adopt a uniform analysis for harmless error that integrates the Brecht standard into AEDPA's analysis.

  1. THE RESULTS OF FEDERAL HABEAS HARMLESS ERROR ANALYSES

    Scholars, courts, and practitioners claim, among other things, (25) that "many Federal courts seem flatly unwilling to affirm capital sentences." (26) In response, federal lawmakers have proposed the SPA, which would strip federal courts of habeas corpus jurisdiction when a state court has deemed a sentencing error harmless. (27) But the SPA's proponents have got it wrong; this reform will not significantly affect the number of state court decisions, capital or otherwise, that are affirmed. As this Part concludes, the SPA provides an ineffective solution because most circuit courts already regularly agree with the harmless error determinations of state courts.

    Far from being "flatly unwilling to affirm" (28) state court convictions or sentences, a survey of every available circuit court habeas opinion decided over the span of three and a half years (29) reveals that in cases in which the state court explicitly found an error harmless or non-prejudicial, most circuit courts, with the notable exceptions of the Sixth and Ninth Circuits, seemed "flatly unwilling" to reverse a denial of a petition for a writ of habeas corpus. (30) From the beginning of 2003 to the end of June 2006, the circuit courts heard 68 habeas appeals in which a state court had explicitly determined that all apparent federal and constitutional errors were harmless. (31) The circuit courts agreed with the state courts that the errors were harmless in 52 of these cases (76.5%) and disagreed with the state court's determination of harmlessness, finding the errors non-harmless, in 16 cases (23.5%). (32) At first blush, these aggregate rates may seem high; the circuit courts appear to disagree with the state courts in approximately one out of every four state court harmless error determinations. (33)

    When viewed by circuit, however, the numbers show that two circuit courts, the Sixth and Ninth Circuits, account for almost every case illustrating a disagreement with a state court's harmless error determination. (34) The Sixth Circuit disagreed with 8 out of 18 (44.4%) state court determinations of harmless error, (35) and the Ninth Circuit disagreed with 5 out of 30 (16.7%) state court determinations of harmless error. (36) Of the remaining 20 circuit court opinions, only 3 other petitions were granted. (37) Over a span of three and a half years, the Second, Fourth, and Seventh Circuits each disagreed with only one state court determination of harmless error. (38)

    No circuit court was "flatly unwilling to affirm" (39) capital convictions when the state had determined errors harmless. (40) In fact, the circuit courts disagreed with the state courts' findings of harmlessness in capital cases less often than in noncapital cases. (41) Specifically, of 19 cases involving petitions from capital prisoners in which the state court had determined the errors harmless, the circuit courts disagreed with the states' assessments only 4 times (21.1%). (42) The First, Second, and Third Circuits did not discuss state court findings of harmless error when reviewing state capital convictions, but the other circuit courts were willing to agree with state court harmless error determinations and affirm capital convictions.

    This survey shows that the jurisdiction-stripping provision of section 6 of the proposed...

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