Opinion · Supreme Court of the United States

Fry v. Pliler

551 U.S. 112

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
2007-06-11
Topic
general

How later courts describe this case

  • holding that federal habeas courts must apply the Brecht standard even where the state court did not recognize a constitutional error
  • holding that Brecht harmless error review applies whether or not the state court recognized the error and reviewed it for harmlessness
  • holding that the Brecht harmless-error standard, rather than the Chapman formulation, is applicable on federal habeas review
  • holding that the Brecht standard governs in federal habeas eases regardless of whether state courts recognized the error and applied any harmless error review
  • holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness
  • holding that a court must assess the prejudicial impact of constitutional error whether or not the state appellate court recognized the error and reviewed it
  • holding that the Brecht standard applies to all constitutional errors by a state court under collateral review
  • holding that section 2254(d) 5 “sets forth a precondition to the grant of habeas relief . . ., not an entitlement to it.”

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Cited by
1005 opinions
FRY v. PLILER,551 U.S. 112(2007)
127 S.Ct. 2321
JOHN FRANCIS FRY, PETITIONER v. CHERYL K. PLILER, WARDEN.
No. 06-5247.
Argued March 20, 2007.
Decided June 11, 2007.
The trial judge presiding over petitioner's criminal trial excluded the testimony of defense-witness Pamela Maples. After his conviction, petitioner argued on appeal,inter alia,that the exclusion of Maples' testimony violatedChambersv.Mississippi,410 U. S. 284, which held that a combination of erroneous evidentiary rulings rose to the level of a due-process violation. The California Court of Appeal did not explicitly address that argument in affirming, but stated, without specifying which harmless-error standard it was applying, that "no possible prejudice" could have resulted in light of the cumulative nature of Maples' testimony. The State Supreme Court denied discretionary review. Petitioner then filed a federal habeas petition raising the due-process and other claims. The Magistrate Judge found the state appellate court's failure to recognizeChamberserror an unreasonable application of clearly established law as set forth by this Court, and disagreed with the finding of "no possible prejudice," but concluded there was an insufficient showing that the improper exclusion of Maples' testimony had a "substantial and injurious effect" on the jury's verdict underBrechtv.Abrahamson,507 U. S. 619,631. Agreeing, the District Court denied relief, and the Ninth Circuit affirmed.Held:In28 U.S.C. § 2254proceedings, a federal court must assess the prejudicial impact of constitutional error in a state-court criminal trial underBrecht's "substantial and injurious effect" standard, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth inChapmanv.California,386 U. S. 18,24. Pp. 3-8.Page 2(a) ThatBrechtapplies in § 2254 cases even if the state appellate court has not found, as did the state appellate court inBrecht,that the error was harmless underChapman,is indicated by this Court'sBrechtopinion, which did not turn on whether the state court itself conductedChapmanreview, but instead cited concerns about finality, comity, and federalism as the primary reasons for adopting a less on erous standard on collateral review.507 U. S., at 637. Since each of these concerns applies with equal force whether or not the state court reaches theChapmanquestion, it would be illogical to make the standard of review turn upon that contingency.Brecht, supra,at 636, distinguished. Petitioner presents a false analogy in arguing that, ifBrechtapplies whether or not the state appellate court con ductedChapmanreview, thenBrechtwould apply even if a State eliminated appellate review altogether. The Court also rejects peti tioner's contention that, even ifBrechtadopted a categorical rule, post-Brechtdevelopments — the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as interpreted inMitchellv.Esparza,540 U. S. 12— require a different review standard. That result is not suggested byEsparza, which had no reason to decide the point, nor by AEDPA, which sets forth a precondition, not an entitlement, to the grant of habeas relief. Pp. 3-7.
(b) Petitioner's argument that the judgment below must still be re versed because excluding Maples' testimony substantially and injuri ously affected the jury's verdict is rejected as not fairly encompassed by the question presented. Pp. 7-8.


Affirmed.
SCALIA, J., delivered the opinion for a unanimous Court with respect to all but footnote 1 and Part II-B. ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined that opinion in full; STEVENS, SOUTER, and GINSBURG, JJ., joined it as to all but Part II-B; and BREYER, J., joined as to all but footnote 1 and Part II-B. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which SOUTER and GINSBURG, JJ., joined, and in which BREYER, J., joined in part. BREYER, J., filed an opinion concurring in part and dissenting in part.
Page 1
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT.
JUSTICE SCALIA delivered the opinion of the Court.
We decide whether a federal habeas court must assess the prejudicial impact of constitutional error in a state- court criminal trial under the substantial and injurious effect" standard set forth inBrechtv.Abrahamson,507 U. S. 619(1993), when the state appellate court failed to recognize the error and did not review it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth inChapmanv.California,386 U. S. 18(1967).
I
After two mistrials on account of hung juries, a third jury convicted petitioner of the 1992 murders of James and Cynthia Bell. At trial, petitioner sought to attribute the murders to one or more other persons. To that end, he offered testimony of several witnesses who linked one Anthony Hurtz to the killings. But the trial court excluded the testimony of one additional witness, Pamela Maples, who was prepared to testify that she had heard Hurtz discussing homicides bearing some resemblance to the murder of the Bells. In the trial court's view, the defense had provided insufficient evidence to link thePage 2incidents described by Hurtz to the murders for which petitioner was charged.

Following his conviction, petitioner appealed to the California Court of Appeal, arguing (among other things) that the trial court's exclusion of Maples' testimony deprived him of a fair opportunity to defend himself, in violation ofChambersv.Mississippi,410 U. S. 284(1973) (holding that a combination of erroneous evidentiary rulings rose to the level of a due process violation). Without explicitly addressing petitioner'sChambersargument, the state appellate court held that the trial court had not abused its discretion in excluding Maples' testimony under California's evidentiary rules, adding that "no possible prejudice" could have resulted in light of the "merely cumulative" nature of the testimony.Peoplev.Fry, No. A072396 (Ct.App.Cal., 1st App. Dist., Mar. 30, 2000), App. 97, n. 17. The court did not specify which harmless-error standard it was applying in concluding that petitioner suffered "no possible prejudice." The Supreme Court of California denied discretionary review, and petitioner did not then seek a writ of certiorari from this Court.

Petitioner next filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California, raising the aforementioned due-process claim (among others). The case was initially assigned to a Magistrate Judge, who ultimately recommended denying relief. He found the state appellate court's failure to recognize error underChambersto be "an unreasonable application of clearly established law as set forth by the Supreme Court," App. 180, and disagreed with the state appellate court's finding of "no possible prejudice." But he nevertheless concluded that "there ha[d] been an insufficient showing that the improper exclusion of the testimony of Ms. Maples had a substantial and injurious effect on the jury's verdict" under the standard set forth inBrecht.Page 3App. 181-182. The District Court adopted the Magistrate Judge's findings and recommendations in full, and a di vided panel of the United States Court of Appeals for the Ninth Circuit affirmed. We granted certiorari.549 U. S. (2006).
II
A
InChapman, supra, a case that reached this Courtondirect reviewof a state-court criminal judgment, we held that a federal constitutional error can be considered harmless only if a court is "able to declare a belief that it was harmless beyond a reasonable doubt."Id., at 24. InBrecht, supra,we considered whether theChapmanstandard of review appliesoncollateral reviewof a state-court criminal judgment under28 U. S.C. § 2254. Citing concerns about finality, comity, and federalism, we rejected theChapmanstandard in favor of the more forgiving standard of review applied to nonconstitutional errors on direct appeal from federal convictions. SeeKotteakosv.UnitedStates,328 U. S. 750(1946). Under that standard, an error is harmless unless it "'had substantial and injurious effect or influence in determining the jury's verdict.'"Brecht, supra,at 631 (quotingKotteakos, supra,at 776). The question in this case is whether a federal court must assess the prejudicial impact of the unconstitutional exclusion of evidence during a state-court criminal trial underBrechteven if the state appellate court has not found, as the state appellate court inBrechthad found, that the error was harmless beyond a reasonable doubt underChapman.1Page 4

We begin with the Court's opinion inBrecht. The primary reasons it gave for adopting a less onerous standard on collateral review of state-court criminal judgments did not turn on whether the state court itself conductedChapmanreview. The opinion explained that application ofChapmanwould "undermin[e] the States' interest in finality,"507 U. S., at 637; would "infring[e] upon [the States'] sovereignty over criminal matters,"ibid; would undercut the historic limitation of habeas relief to those "'grievously wronged,'"ibid.;and would "impos[e] significant 'societal costs,'"ibid. (quotingUnited Statesv.Mechanik,475 U. S. 66,72(1986)). Since each of these concerns applies with equal force whether or not the state court reaches theChapmanquestion, it would be illogical to make the standard of review turn upon that contingency.

The opinion inBrechtclearly assumed that theKotteakosstandard would apply in virtually all § 2254 cases. It suggested an exception only for the "unusual case" in which "a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prose-cutorial misconduct . . . infect[s] the integrity of the proceeding."507 U. S., at 638, n. 9. This, of course, has nothing to do with whether the state court conducted harmless-error review. The concurring and dissenting opinions shared the assumption thatKotteakoswould almost always be the standard on collateral review. The former stated in categorical terms that the "Kotteakosstandard" "will now apply on collateral review" of state convictions,507 U. S., at 643(STEVENS, J., concurring). Justice White's dissent complained that under the Court's opinionKotteakoswould apply even where (as in this case) the state court found that "no violation had occurred,"Page 5507 U. S., at 644; and Justice O'Connor's dissent stated thatChapmanwould "no longer appl[y] toanytrial error asserted on habeas,"507 U. S., at 651. Later cases also assumed thatBrecht's applicability does not turn on whether the state appellate court recognized the constitutional error and reached theChapmanquestion. SeePenryv.Johnson,532 U. S. 782,795(2001);Calderonv.Coleman,525 U. S. 141,145(1998)(per curiam).

Petitioner's contrary position misreads (or at least exaggerates the significance of) a lone passage from ourBrechtopinion. In that passage, the Court explained:
"State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect on the trial process underChapman, and state courts often occupy a superior vantage point from which to evaluate the effect of trial error. For these reasons, it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review thatChapmanrequires state courts to engage in on direct review."507 U. S., at 636(citation omitted).


But the quoted passage does little to advance petitioner's position. To say (a) that since state courts arerequiredto evaluate constitutional error underChapmanit makes no sense to establishChapmanas the standard for federal habeas review is not at all to say (b) that whenever a state court fails in its responsibility to applyChapmanthe federal habeas standard must change. It would be foolish to equate the two, in view of the other weighty reasons given inBrechtfor applying a less onerous standard on collateral review — reasons having nothing to do with whether the state court actually appliedChapman.

Petitioner argues that, ifBrechtapplies whether or not the state appellate court conductedChapmanreview, thenBrechtwould apply even if a StateeliminatedappellatePage 6review altogether. That is not necessarily so. The federal habeas review rule applied to the class of case in which state appellate review is available does not have to be the same rule applied to the class of case where it is not. We have no occasion to resolve that hypothetical (and highly unrealistic) question now. In the case before us petitionerdidobtain appellate review of his constitutional claim; the state court simply found the underlying claim weak and therefore did not measure its prejudicial impact underChapman. The attempted analogy — between (1) eliminating appellate review altogether and (2) providing appellate review but rejecting a constitutional claim without assessing its prejudicial impact underChapman— is a false one.

Petitioner contends that, even ifBrechtadopted a categorical rule, post-Brechtdevelopments require a different standard of review. Three years after we decidedBrecht, Congress passed, and the President signed, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), under which a habeas petition may not be granted unless the state court's adjudication "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. . . ."28 U.S.C. § 2254(d)(1). InMitchellv.Esparza,540 U. S. 12(2003)(per curiam),we held that, when a state court determines that a constitutional violation is harmless, a federal court may not award habeas relief under § 2254 unlesstheharm-lessness determination itselfwas unreasonable. Petitioner contends that § 2254(d)(1), as interpreted inEsparza, eliminates the requirement that a petitioner also satisfyBrecht's standard. We think not. That conclusion is not suggested byEsparza, which had no reason to decide the point. Nor is it suggested by the text of AEDPA, which sets forth a precondition to the grant of habeas relief ("a writ of habeas corpus . . . shall not be granted" unless the conditions of § 2254(d) are met), not an entitlement to it.Page 7Given our frequent recognition that AEDPA limited rather than expanded the availability of habeas relief, see,e.g.,Williamsv.Taylor,529 U. S. 362,412(2000), it is implausible that, without saying so, AEDPA replaced theBrechtstandard of "'actual prejudice,'"507 U. S., at 637(quotingUnited Statesv.Lane,474 U. S. 438,449(1986)), with the more liberal AEDPA/Chapmanstandard which requires only that the state court's harmless-beyond-a-reasonable-doubt determination be unreasonable. That said, it certainly makes no sense to require formal application ofbothtests (AEDPA/ChapmanandBrecht) when the latter obviously subsumes the former. Accordingly, the Ninth Circuit was correct to apply theBrechtstandard of review in assessing the prejudicial impact of federal constitutional error in a state-court criminal trial.2
B
Petitioner argues that, even ifBrechtprovides the standard of review, we must still reverse the judgment below because the exclusion of Maples' testimony substantially and injuriously affected the jury's verdict in this case. That argument, however, is not fairly encompassed within the question presented. We granted certiorari to decide a question that has divided the Courts of Appeals — whetherBrechtorChapmanprovides the appropriate standard of review when constitutional error in a state-court trial is first recognized by a federal court. Compare,e.g.,Bainsv.Cambra,204 F. 3d 964,976-977(CA9 2000), withOrn-dorffv.Lockhart,998 F. 2d 1426,1429-1430(CA8 1993).Page 8It is true that the second sentence of the question presented asks: "Does it matter which harmless error standard is employed?" Pet. for Cert. I. But to ask whetherBrechtmakes any real difference is not to ask whether the Ninth Circuit misappliedBrechtin this particular case. Petitioner seems to have understood this. Only in a brief footnote of his petition did he hint that the Ninth Circuit erred in its application of theBrechtstandard. Pet. for Cert. 23, n. 19.3Indeed, if application of theBrechtstandard to the facts of this case were encompassed within the question presented, so too would be the question of whether there was constitutional error in the first place. After all, it would not "matter which harmless error standard is employed" if there were no underlying constitutional error. Unlike the dissenting JUSTICES, some of whom would reverse the decision below on the ground that the error was harmful underBrecht, and one of whom would vacate the decision below on the ground that it is unclear whether there was constitutional error in the first instance, we read the question presented to avoid these tangential and factbound questions, and limit our review to the question of whetherChapmanorBrechtprovides the governing standard.Page 9
* * *
We hold that in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the "substantial and injurious effect" standard set forth inBrecht,507 U. S. 619, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth inChapman,386 U. S. 18. Since the Ninth Circuit correctly applied theBrechtstandard rather than theChapmanstandard, we affirm the judgment below.It is so ordered.Page 1
JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, and with whom JUSTICE BREYER joins in part, concurring in part and dissenting in part.
While I join all of the Court's opinion except Part II-B, I am persuaded that we should also answer the question whether the constitutional error was harmless under the standard announced inBrechtv.Abrahamson,507 U. S. 619(1993). The parties and the Solicitor General asamicus curiaefully briefed and argued the question, presumably because it appears to fit within the awkwardly drafted question that we agreed to review.1Moreover, our answer to the question whether the error was harmless would emphasize the important point that theBrechtstandard, as more fully explained in our opinion inKot-teakosv.United States,328 U. S. 750(1946), imposes a significant burden of persuasion on the State.

Both the history of this litigation and the nature of the constitutional error involved provide powerful support for the conclusion that if the jurors had heard the testimonyPage 2of Pamela Maples, they would at least have had a reasonable doubt concerning petitioner's guilt. Petitioner was not found guilty until after he had been tried three times. The first trial ended in a mistrial with the jury deadlocked 6 to 6. App. 121. The second trial also resulted in a mistrial due to a deadlocked jury, this time 7 to 5 in favor of conviction.Ibid.In the third trial, after the jurors had been deliberating for 11 days, the foreperson advised the judge that they were split 7 to 5 and "'hopelessly deadlocked.'"Id.,at 74-75. When the judge instructed the jury to continue its deliberations, the foreperson requested clarification on the definition of "reasonable doubt."Id., at 75. The jury deliberated for an additional 23 days after that exchange — a total offive weeks— before finally returning a guilty verdict.2

It is not surprising that some jurors harbored a reasonable doubt as to petitioner's guilt weeks into their deliberations. The only person to offer eyewitness testimony, a disinterested truckdriver, described the killer as a man who was 5'7" to 5'8" tall, weighed about 140 pounds, and had a full head of hair. Tr. 4574 (Apr. 26, 1995). Petitioner is 6'2" tall, weighed 300 pounds at the time of the murder, and is bald. Record, Doc. No. 13, Exh. L (arrest report);Ibid., Exh. M (petitioner's driver's license). Seven different witnesses linked the killings to a man named Anthony Hurtz, some testifying that Hurtz had admitted to them that he was in fact the killer. App. 60-64, 179.Page 3Each of those witnesses, unlike the truckdriver, was impeached by evidence of bias, either against Hurtz or for petitioner.Id., at 61-64, 73, 179-180.

However, Pamela Maples, a cousin of Hurtz's who was in all other respects a disinterested witness, did not testify at either of petitioner's first two trials. During the third trial, she testified out of the presence of the jury that she had overheard statements by Hurtz that he had committed a double murder strikingly similar to that witnessed by the truckdriver. As the Magistrate Judge found, the exclusion of Maples' testimony for lack of foundation was clear constitutional error underChambersv.Mississippi,410 U. S. 284(1973), and the State does not argue other-wise.3Cf.Skipperv.South Carolina,476 U. S. 1,8(1986) ("The testimony of more disinterested witnesses . . . would quite naturally be given much greater weight by the jury").Chamberserror is by nature prejudicial. We have said thatChambers"does not stand for the proposition that the defendant is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence."United Statesv.Scheffer,523 U. S. 303,316(1998). Rather, due process considerations hold sway over state evidentiary rules only when the exclusion of evidence "undermine[s] fundamental elements of the defendant's defense."Id., at 315. Hence, as a matter of law and logical inference, it is well-nigh impossible for a reviewing court to conclude that such error "did not influence the jury, or had but very slight effect" on its verdict.Kot-teakos,328 U. S., at 764; see alsoO'Nealv.McAninch,513 U. S. 432,445(1995) ("[W]hen a habeas court is in gravePage 4doubt as to the harmlessness of an error that affects substantial rights, it should grant relief").

It is difficult to imagine a less appropriate case for an exception to that commonsense proposition. We found inParkerv.Gladden,385 U. S. 363(1966)(per curiam), that 26 hours of juror deliberations in a murder trial "indi-cat[ed] a difference among them as to the guilt of petitioner."Id., at 365. Here, the jury was deprived of significant evidence of third-party guilt, and still we measure the length of deliberations by weeks, not hours. In light of the jurors' evident uncertainty, the prospect of rebutting the near-conclusive presumption that theChamberserror did substantial harm vanishes completely.4

We have not been shy in emphasizing that federal habeas courts do not lightly find constitutional error. SeeCareyv.Musladin,549 U. S. ___(2006). It follows that when they do find an error, they may not lightly discount its significance. Rather, a harmlessness finding requiresPage 5"fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error."Kotteakos,328 U. S., at 765. Given "all that happened" in this case, and given the nature of the error, I cannot agree with the Ninth Circuit's conclusion that the erroneous exclusion of Maples' testimony was harmless under that standard.
Accordingly, I would reverse the judgment of the Court of Appeals.
Page 1
JUSTICE BREYER, concurring in part and dissenting in part.
I agree with the Court thatBrechtv.Abrahamson,507 U. S. 619(1993), sets forth the proper standard of review. Cf.id.,at 643 (STEVENS, J., concurring). At the same time, I agree with JUSTICE STEVENS that we should consider the application of the standard, that the error was not harmless, and that"Chamberserror is by nature prejudicial."Ante,at 3 (opinion concurring in part and dissenting in part) (citingChambersv.Mississippi,410 U. S. 284(1973)). Cf.Kylesv.Whitley,514 U. S. 419,435(1995) (similar statement as to errors underBradyv.Maryland,373 U. S. 83(1963)). Nonetheless, I would remand this case rather than reversing the Court of Appeals.

My reason arises out of the fact that here, for purposes of deciding whetherChamberserror exists, the question of harm is inextricably tied to other aspects of the trial court's determination. The underlying evidentiary judg-ment at issue involved a weighing of the probative value of proffered evidence against,e.g.,its cumulative nature, its tendency to confuse or to prejudice the jury, or the likelihood that it will simply waste the jury's time. See App. 96-97; Cal. Evid. Code Ann. §352(West 1995); cf. Fed. Rule Evid.403. In this context, to find aChamberserror aPage 2court must take accountbothof the way in which (and extent to which) the trial court misweighed the relevant admissibility factorsandof the extent to which doing so harmed the defendant. Moreover, to find this kind of error harmless, as the Court of Appeals found it, should preclude the possibility of aChamberserror; but to find this kind of error harmful does not guarantee the contrary. A garden-variety nonharmless misapplication of evidentiary principles normally will not rise to the level of a constitutional,Chambers, mistake. Cf.,e.g.,United Statesv.Scheffer,523 U. S. 303,308(1998).

All this, it seems to me, requires reconsideration by the Court of Appeals of itsChambersdetermination. I would not consider the question whether that exclusion of evidence amounted toChamberserror because that question is not before us, seeante, at 3, n. 1 (opinion of the Court). But the logically inseparable question of harm is before us; and that, I believe, is sufficient.

I would remand the case to the Ninth Circuit so that, taking account of the points JUSTICE STEVENS raises,ante, at 1-4, it can reconsider whether there was an error of admissibility sufficiently serious to violateChambers. I therefore join the Court's opinion except as to footnote 1 and Part II-B, and I join JUSTICE STEVENS' opinion in part.Page 128
  1. As this case comes to the Court, we assume (without deciding) that the state appellate court's decision affirming the exclusion of Maples' testimony was an unreasonable application ofChambersv.Mississippi,410 U. S. 284,302(1973). We also assume that the state appellate court did not determine the harmlessness of the error under theChapmanstandard, notwithstanding its ambiguous conclusion that the exclusion of Maples' testimony resulted in "no possible prejudice." ↩
  2. We do not agree with petitioner'samicusthatBrecht's concerns regarding the finality of state-court criminal judgments and the difficulty of retrying a defendant years after the crime "have been largely alleviated by [AEDPA]," which "sets strict time limitations on habeas petitions and limits second or successive petitions as well." Brief for Innocence Network 7. Even cases governed by AEDPA can span a decade, as the nearly 12-year gap between petitioner's conviction and the issuance of this decision illustrates. ↩
  3. The question presented included one additional issue: "[I]f theBrechtstandard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?" Pet. for Cert. I. We have previously held that, when a court is "in virtual equipoise as to the harmlessness of the error" under theBrechtstandard, the court should "treat the error . . . as if it affected the verdict. . . ."O'Nealv.McAninch,513 U. S. 432,435(1995). The majority opinion below did not refer toO'Neal,presumably because the majority harbored no grave doubt as to the harmlessness of the error. Neither did the dissenting judge refer toO'Neal, presumably because she did not think the majority harbored grave doubt as to the harmlessness of the error. Moreover, the State has conceded throughout this § 2254 proceeding that it bears the burden of persuasion. Thus, there is no basis on which to conclude that the court below ignoredO'Neal. ↩
  4. InBrechtitself the application of the standard ofKotteakosv.United States,328 U. S. 750(1946), to the facts of the case was not even arguably encompassed within the question presented. We nonetheless found it appropriate to rule on whether the error was harmless under that standard. SeeBrecht,507 U. S, at 638("All that remains to be decided is whether petitioner is entitled to relief). ↩
  5. According to data compiled by the National Center for State Courts, the average length of jury deliberations for acapitalmurder trial in California is 12hours. See Judge and Attorney Survey (California), State of the States — Survey of Jury Improvement Efforts (2007), online at http://www.ncsconline.org/D_research/cjs/xls/SOSJAData/CA_JA_State.xls (as visited June 8, 2007, and available in Clerk of Court's case file). Three days before the jury reached a verdict in this noncapital case, the trial judge speculated that it was perhaps the longest deliberation in the history of Solano County. Tr. 5315 (June 5, 1995). ↩
  6. As the Magistrate Judge remarked, "[j]ust how many double execution style homicides involving a female driver shot in the head and a male passenger also shot in a parked car could there be in a community proximate to the victims' murder herein?" App. 179. ↩
  7. SeeUnited Statesv.Fields,483 F. 3d 313,379(CA5 2007) (Benavides, J., dissenting from Part II-A-I and dissenting, in part, from the judgment) ("Courts often have been unwilling to find error harmless where the record, as in this case, affirmatively shows that the jurors struggled with their verdict");Kennedyv.Lockyer,379 F. 3d 1041,1056, n. 18 (CA9 2004) ("From the fact that the first trial ended in a mistrial, as well as the fact that the jury deliberated for a considerable amount of time in the second trial, we infer that the question as to [the defendant's] guilt or innocence was a close one in both trials");Powellv.Collins,332 F. 3d 376,401(CA6 2003) (finding prejudicial error in a habeas case in part because the jury at one point told the court that it was "'at a stalemate'");United Statesv.Varoudakis,233 F. 3d 113,127(CA1 2000) (noting, in weighing harmlessness, that "the jury's 'impasse' note reveals uncertainty about [the defendant's] guilt");United Statesv.Ottersburg,76 F. 3d 137,140(CA7 1996) ("The length of the jury's deliberations makes clear that this case was not an easy one");Medinav.Barnes,71 F. 3d 363,369(CA10 1995) (basing prejudice determination in a habeas case in part on the fact that "at one point during their deliberations, the jurors indicated that they might be unable to reach a unanimous verdict"). ↩