It used to be that a state prisoner could use federal habeas corpus to raise any trial errors in the criminal case that violated the U.S. Constitution or federal law. The federal courts effectively became a venue to retry unfair state cases, the courts complained, and the Supreme Court mostly shut down this practice. Then along came Congress and slammed the door shut with the Antiterrorism and Effective Death Penalty Act in 1996 (AEDPA), codifying those judge-made rules into laws.
Today, trial errors in federal habeas corpus face numerous obstacles under the AEDPA. Relief can often be quite elusive, if you don`t understand these obstacles. Let`s go over some ways of getting around them.
The Different Types of Trial Errors
There are two categories of errors that occur in the course of a criminal trial: Structural and non-structural errors. The Supreme Court has distinguished the two errors this way:
Trial error occurs during the presentation of the case to the jury, and is amenable to harmless-error analysis because it may be qualitatively assessed in the context of other evidence presented in order to determine the effect had on the trial. At the other end of the spectrum of constitutional errors lie structural defects in the Constitution of the trial mechanism, which defy analysis by harmless-error standards. The existence of such defects — deprivation of the right to counsel, for example — requires automatic reversal of the conviction because they infect the entire trial process.
Brecht v. Abrahamson, 507 U.S. 619 (1993)
The prototypical structural error cited by courts is the denial of an attorney in a criminal case, as established in Gideon v. Wainwright, 372 U.S. 335 (1963). Structural errors are rather rare, and the overwhelming majority of errors in trials are considered non-structural or “trial” errors. Medina v. Hornung, 386 F.3d 872 (9th Cir. 2004).
Even if a trial error is a constitutional violation it can still be “harmless,” the Supreme Court said in Chapman v. California, 386 U.S. 18 (1967). The Court established a harmless-error standard for trial errors in Brecht for federal habeas corpus:
Brecht held that a state prisoner seeking to challenge his conviction in collateral federal proceedings must show that the error had a substantial and injurious effect or influence on the outcome of his trial.
Brown v. Davenport, 2022 U.S. LEXIS 2096 (Apr. 21, 2022).
Federal prisoners differ from state in that federal habeas corpus in that a federal prisoner must raise any trial errors on direct appeal, and not habeas corpus, and any claim that was addressed in a direct appeal can`t be relitigated in a motion under 28 U.S.C. sec 2255, the habeas equivalent for federal prisoners. McKay v. United States, 657 F.3d 1190 (11th Cir. 2011).
But a state prisoner can relitigate a trial error that`s not only been rejected on direct appeal, but also one that`s been rejected under post-conviction review in state court. Magwood v. Patterson, 561 U.S. 320 (2010) (recognizing this practice). In effect, state prisoners get a chance to litigate a trial error three different ways.
The State Court`s Decision on Trial Errors
Before bringing a trial error to federal habeas court, you must first “properly exhaust” any state-court remedies, if they`re available and effective to address the error. 28 U.S.C sec 2254(b). This gives the state court the first chance to hear the claim, and the federal courts are required, under the AEDPA, to give the state court`s decision great weight.
This “deference” toward the state court, however, gets pushed aside if the court failed to address your claim. Instead, the federal court reviews your claim de novo, or without consideration of the state court`s decision. See Porter v. McCollum, 558 U.S. 30 (2009), Avena v. Chappell, 932 F.3d 1237 (9th Cir. 2019).
Also be sure that you and your lawyer make every effort to develop the factual basis of your claim in the state post-conviction courts. The Supreme Court recently held, in Shinn v. Martinez Ramirez, 2022 U.S. LEXIS 2557 (May 23, 2022), that when a federal habeas petitioner is at fault for not developing the record, he must meet all of the harsh exceptions listed in sec 2254(e)(2) in order to get an evidentiary hearing in federal court. This includes your lawyer`s errors, the Court said, because any error your lawyer makes is “attributed” to you as your agent.
AEDPA`s Bar to Relief Still Applies
Even if you can show that a trial error had a “substantial and injurious effect” on the outcome of your case to get past Brecht`s harmless-error test, the AEDPA still applies. In Davenport, the Court held that while the harmless-error and AEDPA tests appear to “subsume” each other, they are different hurdles and both must be cleared.
The second hurdle is that a federal court can`t grant habeas relief unless the state court`s decision:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. sec 2254(d)
The Supreme Court, in turn, defined the term “unreasonable” in sec 2254(d) this way: “Even if reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court`s determination.” Wood v. Allen, 558 U.S 290 (2010).
“Clearly established federal law” is a holding of the Supreme Court, and not merely dicta or the reasons supporting the Court`s holding. Williams v. Taylor, 529 U.S. 362 (2000). And it`s the habeas court that chooses which holding applies based on the claim, not the case you or the state says should apply. Miller v. Genovese, 994 F.3d 734 (6th Cir. 2021).
A good example of a state-court decision that was contrary to clearly established federal law can be found in Dennis v. Secretary Penn. DOC, 834 F.3d 263 (3d Cir. 2016), where the state prosecutor withheld favorable evidence that someone else committed the murder. The Supreme Court held in Brady v. Maryland, 373 U.S. 83 (1963), that a prosecutor`s failure to turn over favorable evidence was an egregious constitutional violation. There are three criteria that must be met to prove a Brady violation: (1) the evidence must be favorable to the accused, (2) it must have been suppressed by the state, and (3) it must be “material” or relevant to guilt or innocence.
The Pennsylvania court, however, added a fourth criterion: That the evidence had to by admissible under the rule of evidence. This extra requirement by the state court rendered its decision contrary to Brady, the federal court said, and granted habeas relief.
As for the “unreasonable determination of the fact” exception, the same “unreasonableness” definition above applies. There are three general circumstances when a state court`s decision would be an unreasonable determination of the facts:
Where the state court failed to make a factual determination it was required to make (Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004)),
Where the state court made an “evidentiary finding” without holding an evidentiary hearing (Jones v. Ryan, 1 F.4th 1179 (9th Cir. 2021)),
Where the state court`s evidentiary hearing wasn`t a “full and fair” hearing (Newman v. Harrington, 726 F.3d 921 (7th Cir. 2013)).
An example of a state-court decision that was an unreasonable determination of the facts to allow the federal court to grant relief was Jones v. Ryan, noted above. This was a death penalty case where counsel spent only a few hours investigating the case and then relied on the state`s expert, instead of hiring his own. When the petitioner lost his case and all of his appeals, he filed for state post-conviction relief. The same trial judge then relied on his own memory to deny post-conviction counsel`s request for an expert and to deny relief without a hearing.
On federal habeas review, it was established that the state court`s failure to appoint an expert prevented the petitioner from even developing his claims, and that the judge`s reliance on his own memory and not holding a hearing was an unreasonable determination of the facts to allow federal habeas relief.
IN CONCLUSION, trial errors come in all shapes and sizes. But the ones that win habeas relief are those that can pass both the harmless-error test and the AEDPA.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.