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AEDPA Deference and Harmless Error

In Davis v. Ayala, the Supreme Court today once again touched on the question of how the habeas corpus reforms enacted by Congress in 1996 interact with the limitations created in case law in the two decades prior.

Ayala claimed that the prosecution exercised peremptory challenges of jurors based on racial bias.  The trial judge permitted the prosecutor to state his legitimate reasons for the challenges to the judge, without the defense attorney present, and rejected the defense's claim.  On appeal, the California Supreme Court said that it was error under state law to exclude the defense.  It did not answer the question of whether that was a federal constitutional error because, if it was, it was harmless beyond a reasonable doubt, the standard required on direct appeal under Chapman v. California.  That is, the record was sufficiently developed that the court could say it would have made no difference if defense counsel had been in the room.

Three years before AEDPA, when federal courts in habeas corpus were still redeciding from scratch issues already fully considered by the state courts, the Supreme Court decided in Brecht v. Abrahamson that a judgment would not be overturned on collateral attack unless there was actual prejudice.

With the enactment of AEDPA and the "deference" standard, should a federal court decide (1) if the state court's "beyond a reasonable doubt" holding was "reasonable"; (2) if there was "actual prejudice" under Brecht; or (3) both?

In Fry v. Pliler (2007), the Supreme Court said that applying Brecht "obviously subsumes" §2254(d).  This apparently meant that the Brecht test was so difficult for a petitioner to meet that in any case where the petitioner could meet Brecht a state court's holding that he did not meet the much easier Chapman standard would necessarily be unreasonable.  That was not "obvious" to me at the time, and it still is not.  The views of judges vary widely, and §2254(d) requires a finding that the state court decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement."  (Page 12, quoting Harrington v. Richter.)  Is it really impossible that a federal judge could find the Brecht standard met, if deciding the case from scratch, and yet conclude that a contrary view on Chapman is not "beyond any possibility for fair-minded disagreement."  I think it is quite possible.

Today's opinion confirms that the §2254(d) standard is still there and still must be met, yet the Court repeats the "subsumes" language.

In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA.
The Court then proceeds to reverse the Ninth Circuit, 5-4.  The last section is this (emphasis added):

The pattern of peremptory challenges in this case was sufficient to raise suspicions about the prosecution's motives and to call for the prosecution to explain its strikes.As we have held, the Fourteenth Amendment prohibits a prosecutor from striking potential jurors based on race. Discrimination in the jury selection process undermines our criminal justice system and poisons public confidence in the evenhanded administration of justice.

In Batson, this Court adopted a procedure for ferreting out discrimination in the exercise of peremptory challenges,and this procedure places great responsibility in the hands of the trial judge, who is in the best position to determine whether a peremptory challenge is based on an impermissible factor. This is a difficult determination because of the nature of peremptory challenges: They are often based on subtle impressions and intangible factors.In this case, the conscientious trial judge determined that the strikes at issue were not based on race, and his judgment was entitled to great weight. On appeal, five justices of the California Supreme Court carefully evaluated the record and found no basis to reverse. A Federal District Judge denied federal habeas relief, but a divided panel of the Ninth Circuit reversed the District Court and found that the California Supreme Court had rendered a decision with which no fairminded jurist could agree.

For the reasons explained above, it was the Ninth Circuit that erred. The exclusion of Ayala's attorney from part of the Batson hearing was harmless error. There is no basis for finding that Ayala suffered actual prejudice,and the decision of the California Supreme Court represented an entirely reasonable application of controlling precedent.

Hmmm.  The first and third italicized phrases are AEDPA language, and the second is Brecht language.  So is the Court applying both?  Are the two the same in every case, or do they just get to the same result in this case?  It is not clear to me.

Of course, if the Supreme Court would overrule Chapman and decide that nonstructural constitutional errors are judged by the same standard as nonconstitutional errors (the Kotteakos standard adopted in Brecht), then the issue would go away.  The question on federal habeas would become whether the state court's application of Kotteakos was reasonable.  Problem solved.

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