| O'Neal v. McAninch (93-7407), 513 U.S. 432 (1995). | ||
|---|---|---|
| Syllabus | Dissent [ Thomas ] | Opinion [ Breyer ] |
| HTML version WordPerfect version | HTML version WordPerfect version | HTML version WordPerfect version |
No.
ROBERT O'NEAL, PETITIONER v.
on writ of certiorari to the united states court of appeals for the sixth circuit
[
Justice
Though the majority begins with an examination of precedent construing the federal harmless error statute, 28 U.S.C. § 2111 the proper place to begin is with the statute governing habeas relief for prisoners in state custody. After all, the petitioner does not seek relief under the harmless error statute.
Where a state prisoner is concerned, a writ of habeas corpus may issue only when that prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2254(a). It is not enough that the habeas petitioner is in custody and that some violation of the Constitution or a federal statute occurred at trial; as amicus curiae the Solicitor General correctly argues, the statute requires a causal link between the violation and the custody. Quite
obviously, a habeas petitioner who proves that a trivial ("harmless") error occurred at trial will not secure habeas relief because such an error could not be said to have been a cause of the custody. Notwithstanding the error, the petitioner would have been in custody and thus relief is unwarranted. Even the majority implicitly agrees that causation is necessary, for otherwise it would have no need to discuss harmful errors as opposed to mere errors.
The habeas petitioner comes to federal court as a plaintiff. Because the plaintiff "seeks to change the present state of affairs," he "naturally should be expected to bear the risk of failure of proof or persuasion." 2 McCormick on Evidence §337, at 428 (J. Strong, 4th ed. 1992). Part of that burden is the requirement that the plaintiff show that the defendant's actions caused harm. In other areas of the law, the plaintiff almost invariably bears the burden of persuasion with respect to whether the defendant's actions caused harm. See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 669 (1989) (Stevens, J., dissenting) ("In the ordinary civil trial, the plaintiff bears the burden of persuading the trier of fact that the defendant has harmed her"); 2 Restatement (Second) of Torts §433B(1) (1965) ("the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff"). Establishing causation is thus an essential element of the plaintiff's case in chief. Under the majority's rationale, however, the habeas petitioner need not prove causation at all; once a prisoner establishes error, the government must affirmatively persuade the court of the harmlessness of that error. Ante, at 11. Without explaining why it favors habeas plaintiffs over other plaintiffs, the Court thus treats the question of causation as an affirmative defense.
Requiring the habeas petitioner to bear the risk of non persuasion not only accords with the usual rules of litigation, but also is compelled by what we have said about the nature of habeas relief. "When the process of direct review . . . comes to an end, a presumption of finality and legality attaches to the conviction and sentence." Barefoot v. Estelle, 463 U.S. 880, 887 (1983). We have acknowledged that the "writ strikes at finality," one of the "law's very objects," McCleskey v. Zant, 499 U.S. 467, 491 (1989), and that when a habeas petitioner obtains a new trial, the government is put at a disadvantage "through the `erosion of memory' and `dispersion of witnesses' that occur with the passage of time," Kuhlmann v. Wilson, 477 U.S. 436, 453 (1986) (plurality opinion) (quoting Engle v. Isaac, 456 U.S. 107, 127-128 (1982)). Our habeas cases indicate that upsetting the finality of judgments should be countenanced only in rare instances. See, e.g., Brecht v. Abrahamson, 507 U. S. ___, ___ [113 S. Ct. 1710, 1719] (1993) (noting that "the writ of habeas corpus has historically been regarded as an extraordinary remedy").
We have ample cause to be wary of the writ. Our criminal law does not routinely punish the innocent. Instead, our Constitution requires proof of guilt beyond a reasonable doubt. See In Re Winship, 397 U.S. 358 (1970). As a result, the overwhelming majority of the innocent will never reach the habeas stage, since they will not have been found guilty at trial. Appeals and possible state post conviction relief further reduce the possibility that an innocent is in custody. The presumption of finality that we apply in habeas proceedings is therefore well founded.
Our habeas jurisprudence has also been informed by a proper recognition of the affront to a state when federal courts conduct habeas review. Habeas review " `disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.' " Duckworth v. Eagan, 492 U.S. 195, 210 (1989) (O'Connor, J., concurring) (quoting Harris v. Reed, 489 U.S. 255, 282 (1989) (Kennedy, J., dissenting)). See also McCleskey, 499 U. S., at 491; Engle, 456 U. S., at 128. Where the habeas court cannot say that an error resulted in harm, it seems particularly disrespectful to resolve doubts against the propriety of state court judgments.
Our "harmless error" inquiry in the habeas context concerns whether an error " `had a substantial and injurious effect or influence in determining the jury's verdict.' " Brecht, 507 U. S., at ___ [113 S. Ct. at 1714] (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). As alluded to earlier, supra, at ___, this test consists of a causation inquiry--was the error a cause of the conviction. Thus, like all plaintiffs, the habeas plaintiff must show causation if he is to succeed.
The Court derives its contrary rule from cases construing the harmless error statute, the purposes underlying the writ of habeas corpus, and the virtue of administrative consistency that stems from following established precedent. The Court's analysis is unpersuasive.
The Court begins by examining harmless error practice in the context of direct criminal appeals. I do not quarrel with the majority's conclusion that once an error has been shown on direct appeal, the government must demonstrate that it was harmless if the conviction is to stand. See ante at 4-5 (citing Kotteakos, supra, at 764-765, 776; Chapman v. California, 386 U.S. 18, 24 (1967); and United States v. Olano, 507 U. S. ___, ___, ___ [113 S. Ct. 1770, 1778, 1781] (1993)). Still, neither the harmless error statute (which was the subject of Kotteakos) nor the rules governing harmless errors in District Courts (discussed in Olano) apply to habeas review of errors that occurred in a prior case. See 28 U.S.C. § 2111; Fed. R. Crim. Proc. 52(a); see also Fed. R. Civ. Proc. 61.
To be sure, we have borrowed the applicable standard for judging harmlessness in habeas from cases interpreting the federal harmless error statute. See, e.g., Brecht, 507 U. S., at ___ [113 S. Ct. at 1718]. Applying harmless error analysis makes sense, because a trivial error could not be said to cause custody and thus warrant habeas relief. But the harmless error statute and rules do not apply of their own force in the habeas cases, and so the harmless error precedents relied upon by the majority are certainly not dispositive. Indeed, Brecht itself--despite adopting the standard for harmlessness set out in Kotteakos--departed from Kotteakos by placing the burden upon the habeas petitioner to "establish" that this standard has been met. See 507 U. S., at ____ [113 S. Ct. at 1722].
If we are to look at cases examining the harmless error statute, I would think that civil cases would be of greater relevance. As the Court admits, habeas is a civil proceeding. See ante, at 7 (citing Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 269 (1978)). Although the Court acknowledges that Palmer v. Hoffman, 318 U.S. 109 (1943), put the burden on the party claiming prejudice to demonstrate it, the Court dismisses Palmer as a pre-Kotteakos case about technical errors. See ante, at 6. But Kotteakos did not purport to overrule Palmer. Nor is it true that the rule in Palmer is limited to cases involving technical errors. Palmer merely quoted former 28 U.S.C. § 391 (the predecessor to the modern §2111, and the statute at issue in Kotteakos as well), which itself referred to "technical errors." Palmer held that the party seeking relief from a judgment because of an erroneous ruling "carries the burden of showing that prejudice resulted"; it did not say that only those challenging "technically" erroneous rulings were so encumbered. See 318 U. S. at 116. Accordingly, most of the Courts of Appeals that have considered the issue place the burden of showing prejudice on the civil appellant, just as Palmer did. See, e.g., Smith v. Wal Mart Stores (No. 471), 891 F. 2d 1177, 1180 (CA5 1990) (per curiam); United States v. Killough, 848 F. 2d 1523, 1527 (CA11 1988); United States v. Seaboard Surety Co., 817 F. 2d 956, 964 (CA2), cert. denied, 484 U.S. 855 (1987); see also ante, at 7 (citing cases from the Sixth, Eighth and Tenth Circuits). But see Barth v. Gelb, 2 F. 3d 1180, 1188 (CADC 1993) (quoting the "grave doubt" language of Kotteakos, 328 U. S. at 765).
The Court concludes that Palmer and these cases may be disregarded because the federal harmless error statute, 28 U.S.C. § 2111 makes no distinction between civil and criminal cases; since the rule in the criminal context places the burden of persuasion on the government, the Court decides that the same should be true in the civil context. Ante, at 7-8. But the majority's syllogism could just as easily be turned against the result it reaches. Authority in the civil context assigns the risk of non persuasion to the party alleging error, and since the statute draws no distinction between civil and criminal cases, we might just as easily conclude that the civil rule should be followed in the criminal context. The Court's reasoning yields no determinate answer.
As indicated above, however, the harmless error provisions do not actually apply in habeas cases anyway. We have no occasion to harmonize the harmless error cases by overruling Palmer and by rejecting the practice that prevails in the majority of the Courts of Appeals that have considered the issue, as the Court does today.
The Court's second claim is that its "conclusion is consistent with the basic purposes underlying the writ of habeas corpus." Ante, at 8. As part of its argument, the Court lays claim to the moral high ground: "We are dealing here with an error of constitutional dimension --the sort that risks an unreliable trial outcome and the consequent conviction of an innocent person." Ibid. The Court suggests that when there is a grave doubt about the harmfulness of an error, "a legal rule requiring issuance of the writ will, at least often, avoid a grievous wrong--holding a person `in custody in violation of the Constitution . . . of the United States.' " Id., at 8-9 (quoting 28 U.S.C. §§ 2241(c)(3), 2254(a)).
The Court concedes that there are other interests at stake--a state's interest in the finality of its judgments and the promotion of federal state comity, see ante, at 9--but goes on to set these principles aside. The Court concludes that the state's interest in finality, while "legitimate and important", ibid, is diminished by the fact that "the number of acquittals wrongly caused by grant of the writ and delayed retrial . . . will be small when compared with the number of persons whom [the] opposite rule . . . would wrongly imprison or execute," ante, at 9-10.
Despite its rhetoric, the Court itself is merely balancing the costs and benefits associated with disturbing judgments when a court is in grave doubt about harm. The Court decides that the possibility of unlawful custody should lead to the adoption of its grave doubt rule. But because the Court draws the line at "grave doubt" rather than "significant doubt" or "any doubt," it is not willing to go as far as it must in order to ensure that no one is unlawfully imprisoned. Thus, under the majority's assumptions, even its own rule will guarantee that "many, in fact, will be held in unlawful custody." Id., at 9.
It is important to recognize, moreover, that when the Court discusses erroneous imprisonments and executions, it is not addressing questions of innocence or guilt. The standard for judging harmlessness in habeas cases certainly does not turn on the innocence of the habeas petitioner. In fact, the Court's rule applies only when the habeas court cannot make up its mind about whether a jury would have entertained any reasonable doubt about the defendant's guilt. Though the majority seems to suggest otherwise, it certainly will not be true that in half of such cases, the state will have unjustly imprisoned an innocent person.
Citing Kotteakos, Chapman, and other cases, the Court concludes that its rule will be easier to administer because it is consistent with the way courts have treated grave doubts about harm. Ante, at 10. As indicated above, Palmer and the majority view in the Courts of Appeal provide an equally attractive rule that is consistent with longstanding practice. As for the Court's assertion that its rule eliminates "the need for judges to read lengthy records to determine prejudice in every habeas case", ibid., I thought it settled that "it is the duty of a reviewing court to consider the trial record as a whole" when conducting a harmless error analysis, United States v. Hasting, 461 U.S. 499, 509 (1983). Surely a judge cannot, in the midst of reading a record, declare himself to be in grave doubt, stop reviewing, and issue the writ. Because further review may always disturb the judge's current view of the error, the judge cannot stop until he finishes reviewing the relevant portions of the record. Indeed, given that further review always has the potential to resolve any grave doubt, one is tempted to require a judge to continue to read and reread the relevant portions of the record until his grave doubts dissipate.
Fortunately, the rule announced today will affect only a minuscule fraction of cases. Even when there is a close question about whether an error was harmful, the conscientious judge ordinarily should make a ruling as to harm. The Court's rule is not a means for judges to escape difficult decisions; it applies only in that "special circumstance" in which a judge, after a thorough review of the record, remains in equipoise. See ante, at 1.
The rule has such limited application that it most likely will have no effect on this case. The majority suggests that O'Neal "might have lost in the Court of Appeals, not because the judges concluded that [any supposed] error was harmless, but because the record of the trial left them in grave doubt about the effect of the error." Id., at 2. The Sixth Circuit did observe that "[t]he habeas petitioner bears the burden of establishing . . . prejudice." O'Neal v. Morris, 3 F. 3d 143, 145 (1993). But the Court of Appeals did not refer again to this burden and did not appear to rely on it in reaching a decision. See id., at 147. That we chose this case to establish a "grave doubt" rule is telling: cases in which habeas courts are in equipoise on the issue of harmlessness are astonishingly rare.
Though the question that the Court decides today will have very limited application, I believe that the Court gives the wrong answer to that question.
Accordingly, I respectfully dissent.