Odd that we missed this one. An actual habeas case. And today, the SCOTUS took it up.

What is the scintillating issue the Justices seized upon, committing all manner of “judicial resources” to resolve it?

Issue: Whether a federal habeas court may grant relief based solely on its conclusion that the test from Brecht v. Abrahamson is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th and 10th Circuits have held.

Maybe not so odd. The case didn’t seem to be on anyone’s radar. Not even the SCOTUS blog. At least, not before today. It was relisted only once. It had no amicus participation.

As is so often the case with a cert grant, though, the government is the Petitioner, and this is especially true of a habeas case.

Yet this one is a tiny bit interesting.

Overall, we object to the SCOTUS taking up any habeas case at the behest of the government. While the government-as-petitioner means that there was a habeas grant, as a practical matter federal habeas cases are never granted, so there’s no reason for the SCOTUS to take a look, because of that alone. It is true that federal habeas cases are routinely granted in death penalty cases, but the same objection applies there: too rare to have any “general importance”. Let the states kill or not kill as they see fit. And if some federal judge somewhere decides that the state can’t kill in this or that case, well, that’s even more rare than the state deciding to kill in the first place. Just leave it alone. What’s the point in the SCOTUS taking it up?

Here’s what strikes us about Brown v. Davenport, though. Brecht holds that a habeas petitioner must show prejudice by the constitutional error he is alleging before relief can be granted, meaning basically that but for the constitutional error he would have been acquitted. The AEDPA requires that a state court’s determination of a federal issue in upholding a conviction must be “unreasonable”, not just incorrect.

Question: is the Chapman “harmless error” ruling of a state court subject to the AEDPA “deference”, so that even if the state court found the error to be harmless when it was not, that error would have to be even worse than that – it would have to be an unreasonably wrong finding that the error was harmless. Or is that question resolved when the underlying error is plainly and unreasonably wrong?

In Brown v. Davenport, the shackling of the Defendant at his trial was plainly an unreasonable federal constitutional error. Could it still be “harmless”?

That’s the question that has attracted the attention of the attention stingy SCOTUS.

The 6th circuit held, over a dissent, that once a prejudicial error under Brecht was made by the state court it’s not necessary to inquire whether the error was also “harmless” under Chapman. We guess one way of putting it is that if it’s prejudicial there is a conclusive presumption that it is not harmless. The State doesn’t get to argue “harmlessness” twice: once in arguing that there was no “prejudice” under Brecht; and the other in arguing that, well, even if there was prejudice, it wasn’t such a terrible error intellectually. The second argument focuses on the state of mind of the state court. We’d call that a “meta” concern. We think meta concerns are the stuff of due process.

We actually have some sympathy for the argument that the dissent made.

We’ll be interested to see how this one pans out. Next term, of course.

The other thing we are overdue to explain to our readers (all three of them!) is the significance of the other recent SCOTUS foray into habeas, which went the usual way (a summary reversal of a habeas grant)(also out of the 6th circuit. Hmmm.), when compared with other cases that the SCOTUS eagerly spent its time and treasure upon. To see if we can come up with some kind of common rule.

And the answer is…..we can’t!!! Well, no, that’s not fair. We’ve had a thought. Remember when the SCOTUS took up the case of Anna Nicole Smith?

Make of it what you will. And discuss among yourselves!