THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 15 - CHAPTER 298
Go to Volume 15 Table of Contents  -  Go to Chapter 298 Table of Contents

298.3 Standard Of Prejudice On Federal Habeas

    298.3.1 Standard Of Prejudice On Federal Habeas: General Principles
    298.3.2 Standard Of Prejudice On Federal Habeas: Only One Juror Need Be Affected To Warrant Relief
    298.3.3 Standard Of Prejudice On Federal Habeas: Chapman Applies If State Court Failed To Apply Correct Standard
    298.3.4 Standard of Prejudice On Federal Habeas: Antiterrorism Act
    298.3.5 Standard Of Prejudice On Habeas: Whether Brecht Applies To AEDPA Cases

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 15 - CHAPTER 298

PRACTICE NOTE: An instructional error which violates due process is not prejudicial on federal habeas unless it "had substantial and injurious effect or influence in determining the jury's verdict." (Brecht v. Abrahamson (1993) 507 US 619, 631 [113 SCt 1710; 123 LEd2d 353]; see also Calderon v. Coleman (1998) 525 US 141, 145-47 [119 SCt 500; 142 LEd2d 521] [distinguishing between Boyde test as to existence of constitutional error and Brecht test as to harmless-error analysis].) However, Brecht applies only to "constitutional error of the trial type." (507 US at 638.) Insofar as the failure to instruct on all of the elements of the offense is not a "trial" error, but a "structural defect affecting the framework within which the trial proceeds ..." (Arizona v. Fulminante (1991) 499 US 279, 310 [111 SCt 1246; 113 LEd2d 302] [holding that rights such as public trial, absence of counsel, etc. are structural defects]), Brecht should not be applicable in a case where the court fails to instruct on all of the elements of the crime. (See Sullivan v. Louisiana (1993) 508 US 275, 281 [113 SCt 2078; 124 LEd2d 182] [error in a reasonable doubt instruction is a structural defect requiring per se reversal].)

    In Duest v. Singletary (11th Cir. 1993) 997 F2d 1336, 1339, the court explained that "the essential question" under Brecht is: Did the constitutional error "'substantially influence' the verdict, or, at least, does a 'grave doubt' exist as to whether it did? If so, then petitioner is entitled to relief." In granting relief, the Deust court heavily relied upon the fact that the result would have been different if even one juror had been influenced. (Duest, 997 F2d at 1339.) Hence, since it was likely that "at least one juror" was influenced, the Brecht standard was met. (See also Wade v. Calderon (9th Cir. 1994) 29 F3d 1312, 1320-22 [failure to require jury determination of special circumstance element "necessarily influenced the jury's verdict" thus requiring reversal under the Brecht standard].)

    In O'Neal v. McAninch (1995) 513 US 432 [115 SCt 992; 130 LEd2d 947], the Supreme Court addressed the "narrow" question of whether reversal is required "where the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error." (O'Neal, 513 US at 437.) The court held that if a reviewing court has such "grave doubt," then the error must be held to be prejudicial.

NOTE: The majority opinion stated that this "rule avoids the need for judges to read lengthy records to determine prejudice in every habeas case." However, as the dissent pointed out, this is an interesting concept because it suggests that the reviewing judge may, in the midst of reading a record, declare himself or herself to be in grave doubt and stop reading.

    In Riley v. Deeds (9th Cir. 1995) 56 F3d 1117, 1119, fn 3, the Ninth Circuit noted that "it may be the state's burden to show the absence of prejudice" under O'Neal v. McAninch (1995) 513 US 432 [115 SCt 992; 130 LEd2d 947].

    In California v. Roy (1996) 519 US 2 [117 SCt 337; 136 LEd2d 266] the U.S. Supreme court held that the "harmless error" standards enunciated in Brecht and O'Neal should apply to instructional error which is "as easily characterized as a 'misdescription of an element' of the crime, as it is characterized as an error of 'omission.'" Under this standard, the reviewing court must determine whether there is "grave doubt as to the harmlessness of the error." However, according to the concurring opinion of Scalia and Ginsburg, the lead opinion in Roy does not authorize a finding of harmlessness when the jury failed to return a formal verdict finding the defendant guilty of each necessary element of the crime. "To allow the error to be cured in that fashion would be to dispense with trial by jury." (Roy, 519 US at 7 [concurring opinion].)

    On remand in Roy v. Gomez (9th Cir. 1997) 108 F3d 242, 243, the Ninth Circuit concluded, in light of the Supreme Court's reversal, "we must determine if the erroneous jury instruction in this case 'had substantial and injurious effect or influence in determining the jury's verdict.' [Citation.]"

Brecht v. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman and Randy Hertz, The Journal of Criminal Law and Criminology, Northwestern University School of Law,  Vol. 8, No. 4 (1994) pp. 1109-1156.

See Capital Punishment Handbook [1.16.1 Trial Error vs. Structural Error].

See also Capital Punishment Handbook [1.16.2. Direct vs. Collateral Review of Trial Error].

See also Capital Punishment Handbook [1.16.3a. Appellate Review Of Federal Habeas Corpus: General Principles And Authorities].

See also Capital Punishment Handbook [3.1a. Standard Of Collateral Review For Constitutional Trial Errors: General Principles And Authorities].

See also Capital Punishment Handbook [5.1 a. Federal Death Penalty Crimes: General Principles And Authorities].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 15 - CHAPTER 298

PRACTICE NOTE: As to the actual harmless error analysis it should be kept in mind that to obtain a more favorable verdict it is only necessary for one juror to have voted differently. (See People v. Flood (CA 1998) 18 C4th 470 [76 CR2d 180] [question is whether any "rational juror, properly instructed, could have found [in favor of the defendant as to the omitted element]"]; see also Duest v. Singletary (11th Cir. 1993) 997 F2d 1336, 1339 ["the essential question" under the Brecht [ ] standard is whether it was likely that "at least one juror" was influenced].)

See Capital Punishment Handbook [1.16.1 Trial Error vs. Structural Error].

See also Capital Punishment Handbook [1.16.2. Direct vs. Collateral Review of Trial Error].

See also Capital Punishment Handbook [1.16.3a. Appellate Review Of Federal Habeas Corpus: General Principles And Authorities].

See also Capital Punishment Handbook [3.1a. Standard Of Collateral Review For Constitutional Trial Errors: General Principles And Authorities].

See also Capital Punishment Handbook [5.1 a. Federal Death Penalty Crimes: General Principles And Authorities].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 15 - CHAPTER 298

PRACTICE NOTE: The Brecht standard of prejudice for habeas corpus assumes that the state court properly evaluated the error's prejudicial effect on the trial process under Chapman. In such a case, Brecht concluded that "it scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review." (Brecht v. Abrahamson (1993) 507 US 619 [113 SCt 1710; 123 LEd2d 353, 372].) Therefore, if the state court (1) found no error at all; (2) found state law error and used a state law test to prejudice; or (3) found federal constitutional error, but misapplied the Chapman test, the federal habeas court should conduct its own Chapman harmless error analysis. (See Orndorff v. Lockhardt (8th Cir. 1993) 998 F2d 1426, 1430.)

See Capital Punishment Handbook [1.16.1 Trial Error vs. Structural Error].

See also Capital Punishment Handbook [1.16.2. Direct vs. Collateral Review of Trial Error].

See also Capital Punishment Handbook [1.16.3a. Appellate Review Of Federal Habeas Corpus: General Principles And Authorities].

See also Capital Punishment Handbook [3.1a. Standard Of Collateral Review For Constitutional Trial Errors: General Principles And Authorities].

See also Capital Punishment Handbook [5.1 a. Federal Death Penalty Crimes: General Principles And Authorities].

VOLUME 15 - CHAPTER 398

    298.3.4    Standard of Prejudice On Federal Habeas: AEDPA

PRACTICE NOTE:  Under the "contrary to" clause [of the AEDPA], a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on materially indistinguishable facts. "Unreasonable application" means that a federal court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the case. (Williams v. Taylor (2000) 529 US 362, 408-410 [120 SCt 1495, 1521-23; 146 LEd2d 389].)

    For example, ineffective assistance of counsel (IAC) under the 6th Amendment of the federal constitution is cognizable on federal habeas under the Antiterrorism Act because it is contrary to clearly established federal law per Strickland v. Washington (1984) 466 US 668 [104 SCt 2052; 80 LEd2d 674]. (Baylor v. Estelle (9th Cir. 1996) 94 F3d 1321; see also Ayala v. Speckard (2d Cir. 1996) 89 F3d 91.) This interpretation of the revised habeas standard suggests that the "contrary to clearly established federal law" requirement refers to the general nature of the constitutional violation rather than the specific manner in which the constitution was violated.

    If the state court identifies no governing legal principle at all (e.g., a postcard denial of a habeas petition), a federal court must review the record independently, and should grant the writ if that independent review shows the state court's decision is not a reasonable application of controlling U.S. Supreme Court opinions to the facts of the case. (Delgado v. Lewis (9th Cir. 2000) 223 F3d 976, 982; see also Packer v. Hill (9th Cir. 2002) 291 F3d 569, 578 [appellate decision was contrary to clearly established federal law because it failed to apply the totality of circumstances test required by United States Supreme Court precedent]; Lowenfeld v. Phelps (1988) 484 US 231 [108 SCt 546; 98 LEd2d 568]; Jenkins v. United States (1965) 380 US 445 [85 SCt 1059; 13 LEd 2d 957.)

    298.3.5    Standard Of Prejudice On Habeas: Whether Brecht Applies To AEDPA Cases