No. 93-7407
In the Supreme Court of the United States
OCTOBER TERM, 1994
ROBERT O'NEAL, PETITIONER
v.
FRED MCANINCH, WARDEN
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
 BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING RESPONDENT
DREW S. DAYS, III
Solicitor General
JO ANN HARRIS
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the solicitor
General
Department of Justice
Washington, D.C. 20530
(202)514-2217
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QUESTION PRESENTED
Whether the State has the burden of proving a constitu-
tional error to be harmless under Brecht v. Abrahamson,
113 S. Ct. 1710 (1993).
(I)
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TABLE OF CONTENTS
Page
Interest of the United States . . . . 1
Statute involved . . . . 2
Statement . . . . 2
Summary of argument  . . . .
Argument:
A. The habeas petitioner should bear the burden
of proof on the issue of harmlessness . . . . 11
B. Requiring the habeas petitioner to bear the
burden of proof as to harmlessness follows
from this Court's recent cases and comports
with customary procedures in litigating
habeas corpus cases . . . . 17
Conclusion  . . . .
TABLE OF AUTHORITIES
Cases:
Arizona v. Fulminante, 499 U.S. 279 (1991) . . . . 1
Brecht  v. Abrahamson, 113 S. Ct. 1710 (1993) . . . . 2, 9,
10, 12, 16, 17, 20
Chambers v. Maroney, 399 U.S. 42 (1970) . . . . 12
Davis v. United States, 417 U.S. 333 (1974) . . . . 14
Director, Office of Workers' Compensation Pro-
grams v. Green with Collieries, No. 93-744 (June
20,1994) . . . . 12
Engle v. Isaac, 456 U.S. 107 (1982) . . . . 15, 16, 17
Estelle v. McGuire, 112 S. Ct. 475 (1991) . . . . 8
Herrera  v. Collins, 113 S. Ct. 853 (1993) . . . . 17
Hopper v. Evans, 456 U.S. 605 (1982) . . . . 12
Kimmelman v. Morrison, 477 U.S. 365 (1986) . . . . 18
Kirk v. Finkbeiner, 474 U.S. 929 (1985) . . . . 14
Kotteakos v. United States, 328 U.S. 750 (1946) . . . . 10, 12
Kuhlmann v. Wilson, 477 U.S. 436 (1986) . . . . 15, 17
(III)
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IV
Cases - Continued:
Page
Maleng v. Cook, 490 U.S. 488(1989) . . . . 13
McCleskey v. Zant, 499 U.S. 467 (1991) . . . . 15, 16, 19
Milton v. Wainwright, 407 U.S. 371 (1972) . . . . 12
Murray v. Carrier, 477 U.S. 478 (1986) . . . . 17, 20
Pinkerton v. United States, 328 U.S. 640 (1946) . . . .  7
Rose v. Clark, 478 U.S. 570(1986) . . . . 12
Rose v. Mitchell, 443 U.S. 545 (1979) . . . . 17
Rushen v. Spain, 464 U.S. 114(1983) . . . . 12
Sawyer v. Whitley, 112 S. Ct. 2514 (1992) . . . . 17
Teague v. Lane, 489 U.S. 288 (1989) . . . . 15, 17
Texas Dep't of Community Affairs v. Burdine, 450
U.S. 248 (1981 ) . . . . 13
United States v. Frady, 456 U.S. 152 (1982) . . . .  1
United States v. Olano, 113 S. Ct. 1770 (1993) . . . . 16
United States Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711 (1983 ) . . . . 13
Wainwright v. Sykes, 433 U.S. 72 (1977) . . . . 15, 19, 20
Withrow v. Williams, 113 S. Ct. 1745 (1993) . . . . 20
Yates v. Evatt, 500 U.S. 391 (1991) . . . . 12
Constitution and statutes:
U.S. Const.:
Amend. VI (Compulsory Process Clause) . . . . 5
Amend. VI (Confrontation Clause) . . . . 5
Amend. XIV (Due Process Clause) . . . . 5, 6, 8
Administrative Procedure Act, 7(c), 5 U.S.C.
556(d) . . . . 13
28 U.S.C. 2254 . . . . 1
28 U.S.C. 2254(a) . . . . 2, 10, 14
28 U.S.C. 2255 . . . . 1
Miscellaneous:
Henry J. Friendly, Is Innocence Irrelevant? Col-
lateral Attack on Criminal Judgments, 38 U.
Chi. L. Rev. 142 (1970) . . . . 16
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V
Miscellaneous - Continued:
Page
2 McCormick on Evidence (J. Strong ed., 4th ed.
1992) . . . . 13
5 Stuart Speiser, Charles Krause & Alfred Gans,
The American Law of Torts (1988) . . . . 13
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In the Supreme Court of the United States
OCTOBER TERM, 1994
No. 93-7407
ROBERT O'NEAL, PETITIONER
v.
FRED MCANINCH, WARDEN
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
This case presents the question whether the State or
the habeas petitioner bears the burden of proof on the
issue of harmless error in a habeas corpus case, once the
habeas petitioner has established that a constitutional
violation has been committed. The United States has a
substantial interest in the resolution of that question.
Although this case arises from a habeas petition filed by a
state prisoner pursuant to 28 U.S.C. 2254, many of the
standards governing such petitions are similar to those
governing collateral attacks by federal prisoners pursuant
to 28 U.S.C. 2255. See, e.g., United States v. Frady, 456
U.S. 152, 166, 169 & n.17 (1982). Because of its interest in
(1)
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2
the circumstances under which federal prisoners may col-
laterally attack their convictions, the United States par-
ticipated as amicus curiae in Brecht v. Abrahamson, 113
S. Ct. 1710 (1993). This Court's decision in Brecht pro-
vides the predicate for the question presented in this case.
STATUTE INVOLVED
28 U.S. Ct 2254(a) provides:
The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an application
for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
States.
STATEMENT
1. Petitioner was convicted after a jury trial in 1981 of
aggravated murder, aggravated robbery, and kidnapping.
The charges arose out of a scheme to kidnap and murder
Henry Podborny, to steal Podborny's money and valu-
ables, and to plunder his house and place of business.
Henry Podborny and his wife, "Dimple" Podborny,
separated in 1980. Dimple became frightened that Henry
would attempt to hurt her. She got in touch with her
daughter-in-law by a prior marriage, Gail Toney, to see if
Toney could help her obtain protection. Toney developed
a scheme to frighten Dimple Podborny further, and then
to extort money from Dimple for allegedly supplying pro-
tection. Ultimately, Dimple requested that Toney arrange
to kill her estranged husband. J.A. 103-104.
As a result of the scheme, Dimple Podborny arranged
for Henry Podborny to fly from his home in Chicago to
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Cleveland so that he might meet with her to attempt to
reconcile their marital differences. On January 29, 1981,
Henry Podborny flew to Cleveland. Toney met him at the
airport and dropped him off at petitioner's saloon, where
he was told his wife would be waiting for him. He entered
the saloon, but was never again seen alive by anyone other
than petitioner and his co-defendants. J .A. 107-109.
On January 30, 1981, Toney, Dimple Podborny, and
other co-conspirators drove to Chicago. They entered
Henry Podborny's home and stole valuable items. They
also went to Henry Podborny's place of business and
opened the safe, but they did not find any money there.
They then returned to Cleveland. During February and
March, 1981, Toney and others attempted to obtain
money from Henry Podborny's bank account. They also
attempted to conceal his disappearance by writing letters
that purported to be from Henry Podborny and through
other schemes. Henry Podborny's partially decomposed
body was found on April 24, 1981, in a field in Cleveland.
J.A. 109-111.
2. Petitioner and five others were tried before a jury in
state court. Petitioner was convicted of aggravated
murder, aggravated robbery, and kidnapping. Substantial
evidence was introduced against petitioner.
First, Toney testified at trial against petitioner. She
stated that petitioner had been involved in the early stages
of the plan to extort money from Dimple Podborny, and
had made two trips to Chicago for that purpose. J.A. 105,
107. She also testified that she helped develop a plan under
which petitioner would kidnap Henry Podborny and hold
him in petitioner's saloon, while a group of co-conspira-
tors would rob his house and place of business in Chicago.
J .A. 107-108. She testified that a few minutes after she
dropped Henry Podborny off at petitioner's saloon, peti-
tioner came out of the saloon and entered her car, where
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he gave her the victim's wallet, traveler's checks, credit
card, and keys. J.A. 109. Toney testified that, during
February and early March, 1981, petitioner told her that
the victim was alive and that petitioner wanted money in
return for holding the victim. J.A. 110.
Second, physical evidence showed that blood removed
from various places in petitioner's saloon matched the
blood found on the victim's shirt, and other physical evi-
dence linked the murder to petitioner's saloon. Indeed,
petitioner's counsel in closing argument conceded that the
murder had taken place there. J .A. 157.
Third, a police officer testified that both petitioner and
co-conspirator Lloyd Allen told him that they had been
present when the victim had come to petitioner's saloon,
and that petitioner had then gone outside and given the
victim's money and valuables to Toney in her car. J.A.
156.
Fourth, Wilbur Higgins, an acquaintance of peti-
tioner's, testified that, during the winter of 1981, he had
seen petitioner and a co-conspirator parked near Higgins'
house, but that petitioner had asked Higgins to leave
because petitioner claimed he and the co-conspirator had
women in the car with them. Higgins also testified that
petitioner asked him to visit petitioner in jail on April 2,
1981; that petitioner confessed to Higgins that he had
killed a man and put his body in a field near Higgins'
house; and that petitioner asked Higgins to cover the body
so that it would not be found. The body of Henry Podbor-
ny was in fact found in a field near Higgins' house. J.A. 159
Petitioner's theory at trial was that Toney had access to
petitioner's saloon, and that she and others had kidnapped
and murdered the victim. J.A. 160. He denied having been
involved in the murder, he denied having made inculpa-
tory statements to the police, and he denied having told
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Higgins that he had committed the murder. J.A. 160-161.
Higgins himself admitted that he had not told the police of
petitioner's admissions until he was arrested and held in
jail for five hours, and he admitted telling defense counsel
that he signed a statement for the police because they
threatened that he would be charged with murder if he did
not. J.A. 161. Finally, co-conspirator Allen testified that
he was beaten to coerce him to sign a statement inculpat-
ing petitioner and himself. J.A. 160.
Petitioner's convictions were affirmed by the Ohio
Court of Appeals. J.A. 83-98. The Ohio Supreme Court
denied leave to appeal. See J.A. 1.
3. On September 24, 1986, petitioner filed a petition
for a writ of habeas corpus in the United States District
Court for the Southern District of Ohio. The case was re-
ferred to a magistrate, who rejected a number of the
grounds petitioner proffered for habeas relief. See J.A.
111-115 (rejecting petitioner's claim that he had been en-
titled to a trial severance); J.A. 115-121 (rejecting peti-
tioner's Confrontation and Compulsory Process Clause
claims); J.A. 162-167 (rejecting petitioner's claim that the
Ohio appellate court had failed to address one of his
claims).
The magistrate found, however, that the jury instruc-
tions had the effect of relieving the State of its burden of
proof on the element of intent, in violation of the Due
Process Clause. The magistrate explained that, under
Ohio law, a co-conspirator or aider and abettor is liable
for an aggravated felony, if he knew that the felony and
the manner of its accomplishment would be reasonably
likely to produce death. J.A. 126-127. In this case, the ,
magistrate found that the trial court had properly charged
the jury on that theory when it instructed:
[W]here you have an unlawful act contemplated in
the original conspiracy, although not identical with or
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similar to the criminal act charged in the indictment,
if the defendants conspired to commit an unlawful
act, and the manner in which it was performed was
reasonable [sic] or likely to produce the death of
another, then each conspirator, or aider and abettor
is equally guilty as the principal offender of the homi-
cide.
J. A. 127. But the magistrate found that elsewhere the in-
structions referred to the intent of "the defendants and/or
co-conspirators, or aiders and abettors," and thereby (ac-
cording to the magistrate) let the jury believe that it need
only find the necessary intent for one principal in order to
find that all accomplices and co-conspirators were guilty.
See, e.g., J.A. 67, 70, 73, 183.
The magistrate found that the prosecutor had com-
pounded the error in his closing argument by stating:
The State is bound to prove to a jury two things.
First, that the crimes alleged have been committed.
* * * The next thing we're bound to prove to you is
that those accused of the crime participated in a
criminal conduct and engaged in a course of criminal
conduct which eventually led to the commission of
those crimes.
J.A. 58. Petitioner's objection to that statement had been
overruled. The magistrate found that the prosecutor's
statement had the effect of emphasizing the problem in the
jury instructions, so that a reasonable juror could find
petitioner guilty without finding that the State had proven
that he had the necessary intent, as defined by Ohio law.
J.A. 130-131.
The magistrate also found that a number of other errors
had been committed, the cumulative effect of which
amounted to a fundamentally unfair trial, in violation of
the Due Process Clause. Among those errors were the
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admission in evidence of photographs of the decomposed
body of Henry Podborny, the bloodstained clothes the
body was wearing, some skin from the victim's hand
(ostensibly to show the fingerprints and thus identify the
corpse), and a crowbar found in petitioner's bar that was
not shown to have anything to do with the murder. The
magistrate found that all of that evidence (except the
crowbar) was relevant, but that it was unduly prejudicial
and cumulative under Ohio law. See J.A. 132-139. In ad-
dition, the magistrate found that the prosecutor improper-
ly questioned petitioner about a prior homicide, see J.A.
139-148, and that the prosecutor's closing argument was
unduly inflammatory, see J.A. 148-151.
Finally, the magistrate recognized that habeas relief
could be granted only if the above errors were not harm-
less. But he concluded that, taken together, they were not.
J.A. 151-162.
4. The district court initially requested a supplemental
report from the magistrate concerning the relevance, if
any, of the standard federal conspirator liability instruc-
tion, derived from Pinkerton v. United States, 328 U.S.
640 (1946), to the magistrate's conclusion in this case. See
J.A. 191-193. The magistrate issued a supplemental
report, J.A. 201-210, essentially repeating his prior find-
ings and stating that the problem in this case was "that
[petitioner] could be found guilty of the crimes of kidnap-
ping, robbery and murder simply based on his participa-
tion in a conspiracy to obtain money from either Mrs. or
Mr. Podborny that eventually led to the commission of the
offenses." J.A. 206-207. Although the magistrate stated
that the trial court might have dispelled the problem in its
`instruction on aggravated murder, it had not done so in its
instructions on aggravated robbery or kidnapping. J.A.
207-208, Moreover, the magistrate continued to believe
that the trial was fundamentally unfair, in violation of the
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Due Process Clause, because of the various evidentiary
and other errors that he believed had been committed.
J.A. 209-210.
The district court accepted the magistrate's report and
granted the writ, on the grounds of "defective instructions,
the prosecutor's prejudicial misconduct, and the admis-
sion of certain prejudicial evidence," in violation of the
Due Process Clause. J.A. 213-214.
5. The court of appeals reversed. J.A. 217-229. The
court rejected the district court's determination that the
prosecutor's statements during closing argument and the
improper admission of evidence rendered the trial funda-
mentally unfair, concluding that those errors "were at
most errors in the application of state law. " J.A. 228. That
left the allegedly improper jury instructions, coupled with
the prosecutor's reference to accomplice liability in his
closing argument, as the sole basis for the grant of habeas
relief.
The court of appeals stated that the district court had
applied the wrong standard in evaluating the jury instruc-
tions. J.A. 222. The question should not be whether a
reasonable juror "could have interpreted" the instructions
to shift the burden of proof (the standard the district court
applied), but rather "'whether there is a reasonable likeli-
hood that the jury has applied the challenged instruction
in a way' that violates the Constitution." Ibid., quoting
Estelle v. McGuire, 112 S. Ct. 475, 482 & n.4 (1991).
Applying the correct standard, the court held that "the
[trial] court's reference to `defendants or co-defendants or
aiders and abettors' appears to be nothing more than an
unartful boilerplate reiteration that the same individuals
could be found guilty either as principals * * * or as `aiders
and abettors.'" J.A. 224. The court also quoted the por-
tion of the instructions in which the trial court correctly
charged the jury on accomplice liability. J.A. 225-226.
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The court "conclude[d] that petitioner has not demon-
strated a reasonable likelihood that the jury interpreted
the instructions, taken as a whole, to permit petitioner's
conviction without proof that he himself had the requisite
intent to kill." J.A. 226.
The court of appeals then adverted to the prosecutor's
misstatement of the law during closing argument, which
did appear to suggest that the petitioner's own intent was
unimportant. The court stated that the district court's
overruling of the objection to the prosecutor's remark "im-
properly suggested that the prosecution need not make an
independent showing of intent as to each defendant in
order for conspiracy liability to attach." J.A. 227. But, the
court held, "even if this remark, in conjunction with any
confusion engendered by the court's instructions on mens
rea, could be said to have abridged petitioner's constitu-
tional rights," the error was harmless, under the "sub-
stantial and injurious effect or influence in determining the
jury's verdict" standard adopted by this Court in Brecht v.
Abrahamson. J.A. 227-228.
The court had stated earlier in its opinion that petitioner
had the burden, under Brecht, of showing lack of harm-
lessness. J.A. 221. Upon review of the evidence, the court
found that "all of the evidence upon which the jury could
have relied to establish petitioner's guilt pointed to his
guilt as a principal." J.A. 227. Accordingly, the court con-
cluded, even if an error had been committed, it was harm-
less and habeas relief should not be granted. J.A. 228.
SUMMARY OF ARGUMENT
Before a federal court may grant habeas relief on the
ground that the habeas petitioner's trial was tainted by
"trial-type" constitutional error, the court must determine
not only whether the error occurred, but also whether it
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10
was harmless. In Brecht v. Abrahamson, 113 S. Ct. 1710
(1993), this Court clarified that the question of harmless-
ness on collateral review is governed by the standard an-
nounced in Kotteakos v. United States, 328 U.S. 750, 776
(1946): whether the error "had substantial and injurious
effect or influence in determining the jury's verdict." The
question in this case is whether the State or the prisoner
bears the burden of proof on that issue.
In our view, the burden of proof - or, what is the same
in this context, the burden of persuasion - is appropriately
placed on the habeas petitioner. That conclusion follows
naturally from the ordinary rule that the plaintiff in a civil
action bears the burden of persuasion as to every element
of his claim. A habeas petitioner is a civil plaintiff, and the
success of his action depends on a showing that he is "in
custody in violation of the Constitution. " 28 U.S.C.
2254(a). A mere showing that there has been a constitu-
tional violation will thus ordinarily be insufficient; what
must be shown is that there was a link between the peti-
tioner's custody and the violation - i.e., that the violation
was not a mere harmless error. Accordingly, lack of harm-
lessness is appropriately seen as an element of the habeas
petitioner's case, on which the habeas petitioner therefore
bears the burden of persuasion.
That result also follows from fundamental principles
concerning collateral attack on criminal convictions. The
costs of granting habeas relief are high. It disserves the
State's interest in the finality of criminal convictions. It
detracts from the focus on the trial and direct review as the
primary fora for resolving all relevant issues. It denigrates
the ability of the trial and appellate courts to adjudicate
constitutional claims, and perhaps discourages them from
taking seriously their duty to do so. Since there is no time
limit on filing for habeas relief, the retrial that will be
necessary when such relief is granted often will pose a
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substantial risk that a guilty defendant will go free due to
the fading of memory or the unavailability of evidence. In
light of those substantial costs, unless the habeas court can
affirmatively determine that the error did have an effect
on the judgment pursuant to which the prisoner is con-
fined - i.e., unless the court determines the error was not
harmless - habeas relief ought not be granted.
Petitioner's rationale for requiring the State to bear the
burden of persuasion on this issue is unconvincing. Re-
quiring the habeas petitioner to bear the burden of persua-
sion on harmlessness is consistent with other decisions of
this Court that have recognized the important distinctions
between direct review and collateral attack - even where
the issue, as in Brecht and this case, involved harmless er-
ror. Moreover, the rule we advocate comports with the
customary procedures used in habeas cases and does not
render the litigation of such cases unwieldy or unfair.
Regardless of how the burden of persuasion is allocated,
the issue of harmless error will inevitably be litigated in
habeas cases; both parties will inevitably argue their views
of the record to the court; and the court will ultimately be
obliged to review the entire record to make a harmless er-
ror determination. The issue in this case is one of sub-
stance, not procedure: whether the court must grant
habeas relief when, at the end of the litigation, it is in
equipoise on the harmless error issue. There is no reason
to believe that the resolution of that question will have any
effect on the difficulty of adjudicating habeas claims.
ARGUMENT
A. THE HABEAS PETITIONER SHOULD BEAR THE
BURDEN OF PROOF ON THE ISSUE OF HARMLESSNESS
1.  It has long been established that a federal habeas
court may not grant relief to a prisoner on the basis of a
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"trial error," see Arizona v. Fulminante, 499 U.S. 279, 307
(1991), if it finds that the error was harmless. See, e.g.,
Yates v. Evatt, 500 U.S. 391, 402 (1991); Rose v. Clark,
478 U.S. 570 (1986); Rushen v. Spain, 464 U.S. 114,
117-118 & n.2 (1983); Hopper v. Evans, 456 U.S. 605
(1982); Milton v. Wainwright, 407 U.S. 371 (1972);
Chambers v. Maroney, 399 U.S. 42, 52-53 (1970). Thus,
harmless error review is an inescapable part of adjudicat-
ing most types of constitutional claims on collateral attack
of a criminal conviction.
In Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993),
this Court explained that, in the habeas context, the stan-
dard governing the harmless error analysis is the standard
employed by the Court in Kotteakos v. United States, 328
U.S. 750, 776 (1946): whether the error "had substantial"
and injurious effect or influence in determining the jury's
verdict. " The quest ion presented in this case is whether the
State or the habeas petitioner bears the burden of making
that showing.
2. Initially, we note that the question presented in this
case is a narrow one. The term "burden of proof" has been
used to refer to two different concepts. The more common
and more recent use of the term refers to the "burden of
persuasion" - the "notion that if the evidence is evenly
balanced, the party that bears the burden of persuasion
must lose." Director, Office of Workers' Compensation
Programs v. Green with Collieries, No. 93-744 (June 20,
1994), slip op. 5. But it has also been used to refer to the
"burden of production" - "a party's obligation to come
forward with evidence to support its claim." Ibid.
The question presented in this case concerns only the
burden of persuasion. Both parties in a habeas case will, in
the ordinary case, attempt to convince the court that an er-
ror was (or was not) harmless by means of references to
the record and legal argument. But the "evidence" on the
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basis of which a habeas court will decide the harmless er-
ror issue ordinarily consists simply of the record of the
original trial. Since no additional evidence ordinarily need
be introduced - and since the record of the trial will
already have been placed before the habeas court in the
course of litigation concerning whether a constitutional er-
ror was committed - there is no occasion for allocating a
burden of production of evidence concerning harmless er-
ror. Thus, the only burden to allocate with regard to
harmless error is the burden of persuasion - i.e., whether
the State or the prisoner wins in the unusual case in which
a court is in equipoise as to whether the error is harmless.
3. The ordinary rule governing the allocation of the
burden of persuasion is that the plaintiff bears the burden
of persuasion on every issue necessary to make out his
claim. As Dean McCormick explained, that is because "the
plaintiff * * * generally seeks to change the present state
of affairs and * * * therefore naturally should be expected
to bear the risk of failure of proof or presentation." 2 Mc-
Cormick on Evidence 337, at 428 (J. Strong ed., 4th ed.
1992). That rule is applied in areas from tort law, where
the plaintiff bears the burden of persuading the trier of
fact as to both negligence and causation, see, e.g., 5 Stuart
Speiser, Charles Krause & Alfred Gans, The American Law
of Torts 18:41, at 763, 764 (1988), to the law of employ-
ment discrimination, where a long line of this Court's
precedents have established that, regardless of the fact
that burdens of production may shift, the plaintiff at all
times bears the ultimate burden of persuasion. See, e.g.,
United States Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 716 (1983); Texas Dep't of Community Af-
fairs v. Burdine, 450 U.S. 248,256 (1981). Indeed, as this
Court recently explained in Green with Collieries, the Ad-
ministrative Procedure Act codified this principle in Sec-
tion 7(c), 5 U.S.C. 556(d), which provides that "the pro-
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ponent of a rule or order has the burden of proof." See
Green with Collieries, slip op. 9.
A habeas corpus action is a separate proceeding in
which the petitioner is in the position of a plaintiff. The
allegation the habeas petitioner must make in order to ob-
tain relief is provided by 28 U.S.C. 2254(a): federal courts
are given authority by that provision to "entertain an ap-
plication for a writ of habeas corpus" by a state prisoner
"only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States. "
It is only on that basis that a federal court may grant
habeas relief.
That bedrock criterion for habeas relief requires proof
of two facts. First, there must have been a violation of the
Constitution, which is ordinarily the only source of federal
law whose violation in a state criminal proceeding could
warrant exercise of a federal court's habeas jurisdiction.
See Davis v. United States, 417 U.S. 333, 346 (1974)
(habeas relief available only for "a fundamental defect
which inherently results in a miscarriage of justice"). But
cf. Kirk v. Finkbeiner, 474 U.S. 929 (1985) (White, J.,
dissenting from denial of certiorari). Second, the habeas
petitioner must be "in custody." But those facts are linked
in the statutory phrase, rather than entirely separate and
independent. Nor does it satisfy the meaning of the phrase
"in custody in violation of the Constitution" merely to re-
quire that the constitutional violation must have occurred
in the course of the trial that led up to the conviction pur-
suant to which the petitioner is in custody. See, e.g.,
Maleng v. Cook, 490 U.S. 488 (1989) (per curiam). In-
stead, the requirement that the prisoner be "in custody in
violation of the Constitution" requires a link between the
constitutional violation and the custody: the constitutional
error must not merely have occurred at the prisoner's trial,
but it must have resulted in the prisoner's current custody.
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Where an error is harmless - i.e., where it had no
"substantial and injurious" effect on the verdict - it cannot
be said to have resulted in the prisoner's custody. There-
fore, proof of the requisite causal relationship - i.e., proof
of a lack of harmlessness - is most naturally regarded as a
necessary part of the proof of the core statutory criterion
for habeas relief - that the petitioner is in custody in viola-
tion of the Constitution. It follows that the burden of
proving that fact is most naturally placed on the habeas
petitioner.
4. The conclusion that the habeas petitioner bears the
burden of persuasion on the issue of harmlessness is re-
inforced by fundamental principles concerning the nature
of collateral review of criminal convictions. As this Court
has repeatedly emphasized, granting habeas relief imposes
a heavy cost on society. It directly frustrates the public in-
terest in the finality of criminal convictions, which is
essential to the "deterrent effect" of the criminal law, see
Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality opin-
ion), and without which "[n]either innocence nor just
punishment can be vindicated." McCleskey v. Zant, 499
U.S. 467, 491 (1991). "[T]he deterrent force of penal laws
is diminished to the extent that persons contemplating
criminal activity believe there is a possibility that they will
escape punishment through repetitive collateral attacks. "
Kuhlmann v. Wilson, 477 U.S. 436, 452-453 (1986)
(plurality opinion).
Granting habeas relief also "degrades the prominence of
the trial itself," Engle v. Isaac, 456 U.S. 107, 127 (1982), as
the primary forum for resolution of all legal and factual
issues regarding the charges against the defendant. Not
only does it encourage the litigants to focus their attention
away from the "main event" to the collateral proceedings
that may follow, Wainwright v. Sykes, 433 U.S. 72, 90
(1977), but it also denigrates the ability of the original trial
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and appellate courts to enforce the federal constitution.
See, e.g., Brecht, 113 S. Ct. at 1721.
Finally, the belated retrials that result from granting
habeas relief - in this case, a retrial if required would take
place some 14 years after the offense and the original
trial - seriously undermine the capacity of the judicial
system to fulfill its primary, truth-seeking function.
"[W]hen a habeas petitioner succeeds in obtaining a new
trial, the erosion of memory and dispersion of witnesses
that occur with the passage of time * * * prejudice the
government and diminish the chances of a reliable
criminal adjudication. " McCleskey v. Zant, 499 U.S. at
491 (internal citation and quotation marks omitted); Engle
v. Isaac, 456 U.S. at 127-128; Henry J. Friendly, Is In-
nocence Irrelevant? Collateral Attack on Criminal Judg-
ments, 38 U. Chi. L. Rev. 142, 147 (1970).
In light of those costs, this Court has limited the availa-
bility of collateral review and has distinguished between
direct and collateral review in a variety of circumstances.
See Brecht, 113 S. Ct. at 1720 (citing cases). It is appro-
priate to do so in this case as well. The question presented
in this case arises only where the habeas court is in equi-
poise as to whether a constitutional error did or did not af-
fect the verdict at the prisoner's trial. On direct review, it is
reasonable to conclude that in that situation of equipoise a
new trial should be ordered - at least where the defendant
properly raised and preserved the claim of error. See
United States v. Olano 113 S. Ct. 1770, 1778 (1993). But
on habeas, a prisoner who has already had the benefit of
direct review is now bringing an independent action seek-
ing to overturn his conviction. At that stage, if the court is
in equipoise on the issue of harmlessness, it is reasonable
to conclude that the "extraordinary remedy" afforded by
habeas corpus is not available. See Brecht, 113 S. Ct. at
1719. Unless the habeas court can afformatively determine
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that the error did have an effect on the judgment pursuant
to which the prisoner is committed, it does not violate
"fundamental fairness," ibid., quoting Engle v. Isaac, 456
U.S. 107, 126 (1982), to conclude that the prisoner has
failed to establish his entitlement to relief.
B. REQUIRING THE HABEAS PETITIONER TO BEAR THE
BURDEN OF PROOF AS TO HARMLESSNESS FOLLOWS
FROM THIS COURT'S RECENT CASES AND COMPORTS
WITH CUSTOMARY PROCEDURES IN LITIGATING
HABEAS CORPUS CASES
1. Petitioner contends that "the central focus of this
Court's modern habeas jurisprudence is the writ's
assurance that constitutional errors do not cause the con-
viction of an actually innocent person," Pet. Br. 30, and
that placing the burden of persuasion as to harmlessness
on the habeas petitioner would contravene that principle.
Petitioner's premise is mistaken. The touchstone of the
Court's recent habeas jurisprudence is recognition that
"the writ of habeas corpus has historically been regarded
as an extraordinary remedy, a bulwark against convictions
that violate fundamental fairness" as a result of a constitu-
tional error. Brecht, 113 S. Ct. at 1719 (internal quotation
marks omitted); see also Herrera v. Collins, 113 S. Ct. 853
(1993). Where it is fundamentally unfair to continue to
hold a prisoner in confinement - such as "where a consti-
tutional violation has probably resulted in the conviction
of one who is actually innocent ," Murray v. Carrier, 477
U.S. 478, 496 (1986) - the Court has indicated a willing-
ness to relax otherwise applicable rules that may limit the
claims available to a habeas petitioner. See, e.g., Sawyer
v. Whitley, 112 S. Ct. 2514, 2518 (1992); Teague v. Lane,
489 U.S. at 31 1-313; Kuhlmann v. Wilson, 477 U.S. 436,
455 & n. 17 (1986). But this case concerns how a habeas
petition is to be treated in precisely those cases in which
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it cannot be said that the habeas petitioner has shown that
the constitutional error "probably resulted in the convic-
tion of one who is actually innocent ." For the Court's allo-
cation of the burden of persuasion will only affect cases in
which the habeas court is in equipoise as to whether the
verdict would or would not have been affected had the
claimed constitutional error not occurred. By definition,
none of those cases will be ones in which the habeas peti-
tioner has made a showing that, though he was innocent, a
constitutional error probably resulted in his conviction.
Moreover, in light of the variety of interests that are
protected by constitutional rules, there will undoubtedly
be cases in which the harmless error inquiry and the ques-
tion of actual innocence will not be at all parallel. Thus,
there may well be cases in which a constitutional error oc-
curred and was found not to be harmless, but in which the
error casts little doubt on the habeas petitioner's guilt of
the underlying crime. See, e.g., Kimmelman v. Morrison,
477 U.S. 365, 379-380 (1986); Rose v. Mitchell, 443 U.S.
545 (1979). In short, allotting to the habeas petitioner the
burden of persuasion on the issue of harmless error is re-
inforced by this Court's recent cases recognizing the limits
of habeas review, and it is not at all inconsistent with the
Court's recognition of the "actual innocence" exception to
those limits. Indeed, the decision in Brecht to apply a less
rigorous form of harmless error analysis on habeas itself
establishes that conclusion.
2. Petitioner also argues that allocating the burden of
proof as to harmlessness to pro se habeas petitioners
would needlessly complicate the process of resolving their
claims. In this regard, petitioner argues that courts will be
required to "seek out a lay petitioner's facts and arguments
on the harmless error issue," and to create "an incentive,
or even * * * a legal requirement on the part of petitioners
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to demonstrate harm as to every claim in every petition."
Pet. Br. 37.
Petitioner's fears are unfounded. The "evidence" as to
harmlessness, which will ordinarily consist of the record of
the original trial, will be entirely before the court, regard-
less of how the burden of persuasion as to harmlessness is
allocated. Because neither party thus has to introduce any
evidence as to the harmless error issue, arguments about
which party has superior access to the evidence or superior
ability to bring it before the court are entirely beside the
point. Regardless of how this case is decided, in cases in
which the harmless error issue is potentially dispositive,
both parties will have every incentive to argue before the
court for their interpretations of the record and the court,
having heard the argument, will have to review the entire
record and make the ultimate judgment as to harmless-
ness.
Nor is the order of proof in habeas cases likely to be af-
fected by the Court's decision in this case. At present,
habeas courts are free to decide the harmless error issue
prior to deciding the merits if proceeding in that way ap-
pears to be most convenient. Nothing in the allocation of
the burden of persuasion as to harmless error is likely to
change that. Nor is there any reason to believe that the
technical rules of pleading or practice in habeas cases
would be altered by the Court's decision in this. case.
3. Finally, petitioner argues (Pet. Br. 39-42) that allo-
cating the burden of persuasion as to harmlessness to
habeas petitioners would in effect impose the same burden
of "prejudice" on all habeas petitioners as current law im-
poses on habeas petitioners who have procedurally de-
faulted on their claims or who have abused the writ. See
Wainwright v. Sykes, 433 U.S. at 87-89; McCleskey v.
Zant, 499 U.S. at 468.
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Petitioner is mistaken on this point as well. The "preju-
dice" standard that must be satisfied under Sykes or Mc-
Cleskey is substantially more rigorous than the harmless
error standard at issue in this case. To show prejudice that
would sustain a habeas petition containing defaulted or
abusive claims, the petitioner must show "not merely that
the errors at * * * trial created a possibility of prejudice,
but that they worked to his actual and substantial disad-
vantage, infecting his entire trial with error of consti-
tutional dimensions." Murray v. Carrier, 477 U.S. at 494
(internal quotation marks omitted). By contrast, under the
Kotteakos harmless error standard adopted by this Court
in Brecht, an error is not harmless if it "had substantial
and injurious effect or influence in determining the jury's
verdict ." Brecht, 113 S. Ct. at 1722.
An example will illustrate the difference between the
two standards. A habeas petitioner may, depending on the
facts, be able to satisfy the Kotteakos harmless error
standard by showing that a non-Mirandized, though
voluntary and intelligent, confession was admitted at his
trial; if so, the petitioner may obtain habeas relief if his
claim was properly raised and preserved. See Wilhrow v.
Williams, 113 S. Ct. 1745 (1993). But a habeas petitioner
who had defaulted on such a claim probably could not ob-
tain relief under the "prejudice" prong of the Wainwright
v. Sykes standard, for it may not be "fundamentally un-
fair" for his conviction to rest in part on the basis of a
voluntary and intelligent confession.
In any event, even if the harmless error inquiry and the
"prejudice" prong of the Sykes/McCleskey cause and pre-
judice standard were more similar than they are, imposing
the burden of proving harmless error on all habeas peti-
tioners who allege trial error would have little impact on
the incentives for either party to raise claims at the earliest
opportunity. A prisoner of course could always benefit by
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bringing his claim at the first opportunity, because he
would thereby be relieved of the burden of proving
"cause" for his default or abuse and because he would be
likely to want to avoid unnecessary time in confinement.
4. The court of appeals' decision should be affirmed.
The court stated that "[t]he habeas petitioner bears the
burden of establishing" harmless error. J.A. 221. The only
error that the court of appeals identified - and, as we read
the court of appeals' opinion, it merely accepted arguendo
that the error had been committed - was the possibility
that the prosecutor's closing argument, coupled with some
confusion in the court's instructions, may have left the
jury misinformed about the proper standard for ac-
complice liability under Ohio law. See J.A. 227. But the
court found that the alleged error was in any event harm-
less because "all of the evidence upon which the jury could
have relied to establish petitioner's guilt pointed to his
guilt as a principal." Ibid.
In light of the court of appeals' conclusions, even if this
Court were to decide that the State must bear the burden
of persuasion as to harmlessness, there would be a
substantial argument that the State had satisfied that
burden. But that question need not be reached in this case.
Since the court of appeals applied the appropriate stand-
ard for proving harmlessness and correctly placed the
burden of persuasion on the issue on petitioner, the court
of appeals' decision should be upheld.
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CONCLUSION
The judgment of the court of appeals should be af-
firmed.
Respectfully submitted.
DREW S. DAYS, III
Solicitor General
JO ANN HARRIS
Assistant Attorney General
LAWRENCE G. WALLACE
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor
General
JULY 1994
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