Davenport v. MacLaren

• Decision Date: 15 September 2020
• Docket Number: No. 17-2267,17-2267
• Parties: Ervine Lee DAVENPORT, Petitioner-Appellant, v. Duncan MACLAREN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

975 F.3d 537 (Mem)

Ervine Lee DAVENPORT, Petitioner-Appellant,

v.Duncan MACLAREN, Warden, Respondent-Appellee.

No. 17-2267

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 15, 2020

ORDER

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied. Judge Readler would grant rehearing for the reasons stated in his dissent.

CONCURRENCE

STRANCH, Circuit Judge, concurring in the denial of rehearing en banc.

The en banc petition and the dissents throughout the case argue that we stand alone in how we assess harmless error when, in fact, we stand in the company of our sister circuits and follow the precedent of the Supreme Court. We have long held that an underlying trial error must have had a "substantial and injurious effect or influence in determining the jury's verdict" for a habeas petitioner to survive harmless error review. Brecht v. Abrahamson , 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States , 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) ). Following the Supreme Court, we have also repeatedly (and uniformly) held that applying Brecht exacts AEDPA deference, in part because it is so much more onerous on habeas petitioners than the Chapman v. California standard applied by state courts on direct review, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967 ). The Supreme Court recently reiterated the propriety of this approach, concluding: "[i]n sum, a prisoner who seeks federal habeas relief must satisfy Brecht , and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA." Davis v. Ayala , 576 U.S. 257, 270, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015). In that scenario, "a federal habeas court need not ‘formal[ly]’ apply both Brecht and ‘AEDPA/ Chapman .’ " Id. at 268, 135 S.Ct. 2187 (quoting Fry v. Pliler , 551 U.S. 112, 119–20, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) ). The opinions that accompany the denial of rehearing en banc are mistaken to conclude that the panel majority did anything more than apply this test, as authorized by the Supreme Court, to Davenport's case.

Against the plain language of the Supreme Court, the en banc petition and now the dissenters argue that courts must be required to apply a separate AEDPA test on top of Brecht . But that would make our circuit the outlier. The en banc petition and the original and current dissents, moreover, cannot cite a single case across the circuit courts of appeal in which a habeas petitioner who prevailed under Brecht ’s harmlessness inquiry was then required to pass through the gauntlet of a second harmlessness test. This is because, as pointed out at length in the majority opinion, the position advanced in the en banc petition rests on a series of legal errors. There is no dispute that both Brecht and AEDPA must be satisfied for a habeas petitioner to show that a constitutional error was not harmless. The Supreme Court's teaching in Ayala that the Brecht test subsumes the limitations imposed by AEDPA and our acknowledgment that the Brecht test handles the work of both tests show that the test the panel majority applied accomplishes that principle. Davenport also recognizes that courts may choose to apply AEDPA/ Chapman before turning to Brecht ’s more demanding inquiry. In sum, Davenport merely reiterates the unremarkable tenet that when the state concedes a constitutional trial error, we can assess harmlessness under Brecht. A closer look at the opinions cited in the en banc petition and the original dissent reveals a consistent interplay between the tests: if a petitioner would lose under AEDPA/ Chapman , he necessarily would lose under Brecht ; if the petitioner would prevail under Brecht , he necessarily would prevail under AEDPA/ Chapman .

The opinions filed with the denial of rehearing en banc either parrot the original dissent, faltering for the reasons explained at length in the majority opinion, or raise peripheral and undisputed issues inappropriate for further appellate review in this case. A critical error, from which others follow, is the notion that our majority decision turns wide of AEDPA's guardrails or simply ignores them altogether. Following the original dissent's call for en banc review, pages of the majority opinion were devoted to showing that far from ignoring AEDPA, we apply it—full force—to Davenport's case. See, e.g. , Davenport v. MacLaren , 964 F.3d 448, 458–59 (6th Cir. 2020). The majority also shows that requiring federal habeas tribunals to perform a two-step harmless error analysis contravenes Sixth Circuit and Supreme Court precedent. Id. at 454–59. The majority decision was not waylaid by Fry ’s procedural differences; it instead shows that Ayala confirmed the application of Brecht to Davenport's case. See id. at 456, 458 n.8. In addition, the majority demonstrates that though there may have been a historical circuit split on the standard of review issue, Ayala cleared up the division and specifically authorized the test applied in this case. Id. at 457. And the majority opinion reveals that many of the circuit cases cited by the dissent, read carefully, confirm the precise dynamic between Brecht and AEDPA that the majority applied. See, e.g. , Sifuentes v. Brazelton , 825 F.3d 506, 535 (9th Cir. 2016) (citation omitted) (quoting Ayala , 576 U.S. at 270, 135 S.Ct. 2187 ):

In sum, a petitioner "necessarily cannot satisfy" the Brecht requirement of showing that he was "actually prejudiced" by the state court's error ... "if a fairminded jurist could agree with the [state appellate court] that this procedure met the Chapman standard of harmlessness." By the same token, if a petitioner does satisfy the Brecht requirement of showing that an error resulted in "actual prejudice," then the petitioner necessarily must have shown that the state court's determination that the error was harmless was objectively unreasonable.

Nor has there been an intra-circuit split in the Sixth Circuit regarding the test to be applied to state court harmlessness assessments. Cases like Stewart v. Trierweiler , 867 F.3d 633 (6th Cir. 2017), and Hollman v. Sprader , 803 F. App'x 841 (6th Cir. 2020), merely show that habeas relief can be denied on AEDPA/ Chapman grounds without reaching Brecht —an analytical approach that, as painstakingly explained in the majority opinion, is consistent with Davenport . Davenport , 964 F.3d at 455. Both dissenters from denial of rehearing en banc recently applied the very rule they now decry. Judge Thapar called the harmless error framework "a choice of prompts," in which one "option—a shortcut of sorts—is to leapfrog AEDPA and jump directly to Brecht ." Hollman v. Sprader , 803 F. App'x 841, 843 (6th Cir. 2020) (citing Ayala , 576 U.S. at 268–70, 135 S.Ct. 2187 ). Judge Griffin wrote: "[t]he Supreme Court and this court have made clear that ‘ Brecht is always the test’ for evaluating harmless error on collateral review, even where AEDPA applies." Reiner v. Woods , 955 F.3d 549, 556 (6th Cir. 2020) (quoting Ruelas v. Wolfenbarger , 580 F.3d 403, 412 (6th Cir. 2009) ). The majority decision simply took the unremarkable step of employing our existing circuit standard, which applies Supreme Court precedent. In sum, federal courts across the nation apply Brecht after Ayala . We do too.

My dissenting colleagues also express alarm about the facts of this case in which, different from other cited cases, the Brecht test was satisfied. Admittedly, cases presenting AEDPA issues by their nature contain concerning facts. That is true here. But the manner or type of case does not control what legal standards apply. And the constitutional right to a fair trial cannot depend upon a defendant's admission to certain underlying—and even egregious—facts.

A few other points are worth mentioning. The majority opinion did not apply a "presumption of prejudice," as the dissents suppose. That language is not in the majority opinion. Equally misguided is the observation that, notwithstanding the standard of review dispute, the panel majority extended Supreme Court precedent to reach its disposition. My colleagues assert that the majority "relied primarily on Sixth Circuit decisions" in evaluating the state courts’ harmless error decision, (Sutton Concurring Op. at 542), and that it "rel[ied] upon circuit precedent to show what a general Supreme Court standard clearly establishes," (Thapar Dissenting Op. at 550). True, clearly established law is determined solely by Supreme Court rulings, Stewart v. Erwin , 503 F.3d 488, 493 (6th Cir. 2007), not by circuit precedent, Kernan v. Cuero , ––– U.S. ––––, 138 S. Ct. 4, 9, 199 L.Ed.2d 236 (2017). And circuit precedent cannot turn "a general principle of Supreme Court jurisprudence into a specific legal rule" that has not been stated by the Supreme Court. Lopez v. Smith , 574 U.S. 1, 7, 135 S.Ct. 1, 190 L.Ed.2d 1 (2014) (quoting Marshall v. Rodgers , 569 U.S. 58, 64, 133 S.Ct. 1446, 185 L.Ed.2d 540 (2013) ). The majority decision did not violate these dictates. Instead, "in accordance with its usual law-of-the-circuit procedures, [it] look[ed] to circuit precedent to ascertain whether it ha[d] already held that the particular point in issue is clearly established by Supreme Court precedent"—an approach the Supreme Court has explicitly sanctioned. Marshall , 569 U.S. at 64, 133 S.Ct. 1446.

The rule is not that the act of citing a Sixth Circuit precedent in this context automatically dooms an opinion. None of the majority's references to Sixth Circuit precedents overstep the bounds set out by the Supreme Court. The opinion addressed the procedural...