Ervine Davenport v. Duncan MacLaren ( 2020 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0307p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ERVINE LEE DAVENPORT, ┐
Petitioner-Appellant, │
│
> No. 17-2267
v. │
│
│
DUNCAN MACLAREN, Warden, │
Respondent-Appellee. │
┘
On Petition for Rehearing En Banc
United States District Court for the Western District of Michigan at Grand Rapids.
No. 1:14-cv-01012—Ellen S. Carmody, Magistrate Judge.
Decided and Filed: September 15, 2020
Before: COLE, Chief Judge; STRANCH and READLER, Circuit Judges.
_________________
COUNSEL
ON PETITION FOR REHEARING EN BANC: Fadwa A. Hammoud, Jared D. Schultz,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON RESPONSE: Tasha J. Bahal, Reuven Dashevsky, WILMER CUTLER PICKERING
HALE AND DORR LLP, Boston, Massachusetts, for Appellant.
The panel issued an order denying the petition for rehearing en banc. STRANCH, J.
(pp. 3–7), delivered a separate opinion concurring in the denial of rehearing en banc, in which
COLE, C.J., and MOORE, CLAY, WHITE, and DONALD, JJ., joined. SUTTON, J. (pp. 8–11),
delivered a separate opinion concurring in the denial of rehearing en banc, in which
KETHLEDGE, J., joined. GRIFFIN, J. (pp.12–14), delivered a separate opinion dissenting from
the denial of rehearing en banc. THAPAR, J. (pp. 15–28), delivered a separate opinion
dissenting from the denial of rehearing en banc, in which BUSH, LARSEN, NALBANDIAN,
READLER, and MURPHY, JJ., joined.
No. 17-2267 Davenport v. MacLaren Page 2
_________________
ORDER
_________________
The court received a petition for rehearing en banc. The original panel has reviewed the
petition for rehearing and concludes that the issues raised in the petition were fully considered
upon the original submission and decision. The petition then was circulated to the full court.
Less than a majority of the judges voted in favor of rehearing en banc.
Therefore, the petition is denied. Judge Readler would grant rehearing for the reasons
stated in his dissent.
No. 17-2267 Davenport v. MacLaren Page 3
_________________
CONCURRENCE
_________________
STRANCH, Circuit Judge, concurring in the denial of rehearing en banc. The en banc
petition and the dissents throughout the case argue that we stand alone in how we assess
harmless error when, in fact, we stand in the company of our sister circuits and follow the
precedent of the Supreme Court. We have long held that an underlying trial error must have had
a “substantial and injurious effect or influence in determining the jury’s verdict” for a habeas
petitioner to survive harmless error review. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Following the Supreme Court,
we have also repeatedly (and uniformly) held that applying Brecht exacts AEDPA deference, in
part because it is so much more onerous on habeas petitioners than the Chapman v. California
standard applied by state courts on direct review, 386 U.S. 18 (1967). The Supreme Court
recently reiterated the propriety of this approach, concluding: “[i]n sum, a prisoner who seeks
federal habeas relief must satisfy Brecht, and if the state court adjudicated his claim on the
merits, the Brecht test subsumes the limitations imposed by AEDPA.” Davis v. Ayala, 576 U.S.
257, 270 (2015). In that scenario, “a federal habeas court need not ‘formal[ly]’ apply both
Brecht and ‘AEDPA/Chapman.’” Id. at 268 (quoting Fry v. Pliler, 551 U.S. 112, 119–20
(2007)). The opinions that accompany the denial of rehearing en banc are mistaken to conclude
that the panel majority did anything more than apply this test, as authorized by the Supreme
Court, to Davenport’s case.
Against the plain language of the Supreme Court, the en banc petition and now the
dissenters argue that courts must be required to apply a separate AEDPA test on top of Brecht.
But that would make our circuit the outlier. The en banc petition and the original and current
dissents, moreover, cannot cite a single case across the circuit courts of appeal in which a habeas
petitioner who prevailed under Brecht’s harmlessness inquiry was then required to pass through
the gauntlet of a second harmlessness test. This is because, as pointed out at length in the
majority opinion, the position advanced in the en banc petition rests on a series of legal errors.
There is no dispute that both Brecht and AEDPA must be satisfied for a habeas petitioner to
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show that a constitutional error was not harmless. The Supreme Court’s teaching in Ayala that
the Brecht test subsumes the limitations imposed by AEDPA and our acknowledgment that the
Brecht test handles the work of both tests show that the test the panel majority applied
accomplishes that principle. Davenport also recognizes that courts may choose to apply
AEDPA/Chapman before turning to Brecht’s more demanding inquiry. In sum, Davenport
merely reiterates the unremarkable tenet that when the state concedes a constitutional trial error,
we can assess harmlessness under Brecht. A closer look at the opinions cited in the en banc
petition and the original dissent reveals a consistent interplay between the tests: if a petitioner
would lose under AEDPA/Chapman, he necessarily would lose under Brecht; if the petitioner
would prevail under Brecht, he necessarily would prevail under AEDPA/Chapman.
The opinions filed with the denial of rehearing en banc either parrot the original dissent,
faltering for the reasons explained at length in the majority opinion, or raise peripheral and
undisputed issues inappropriate for further appellate review in this case. A critical error, from
which others follow, is the notion that our majority decision turns wide of AEDPA’s guardrails
or simply ignores them altogether. Following the original dissent’s call for en banc review,
pages of the majority opinion were devoted to showing that far from ignoring AEDPA, we apply
it—full force—to Davenport’s case. See, e.g., Davenport v. MacLaren, 964 F.3d 448, 458–59
(6th Cir. 2020). The majority also shows that requiring federal habeas tribunals to perform a
two-step harmless error analysis contravenes Sixth Circuit and Supreme Court precedent. Id. at
454–59. The majority decision was not waylaid by Fry’s procedural differences; it instead
shows that Ayala confirmed the application of Brecht to Davenport’s case. See id. at 456, 458
n.8. In addition, the majority demonstrates that though there may have been a historical circuit
split on the standard of review issue, Ayala cleared up the division and specifically authorized
the test applied in this case. Id. at 457. And the majority opinion reveals that many of the circuit
cases cited by the dissent, read carefully, confirm the precise dynamic between Brecht and
AEDPA that the majority applied. See, e.g., Sifuentes v. Brazelton, 825 F.3d 506, 535 (9th Cir.
2016) (citation omitted) (quoting Ayala, 576 U.S. at 270):
In sum, a petitioner “necessarily cannot satisfy” the Brecht requirement of
showing that he was “actually prejudiced” by the state court’s error . . . “if a
fairminded jurist could agree with the [state appellate court] that this procedure
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met the Chapman standard of harmlessness.” By the same token, if a petitioner
does satisfy the Brecht requirement of showing that an error resulted in “actual
prejudice,” then the petitioner necessarily must have shown that the state court’s
determination that the error was harmless was objectively unreasonable.
Nor has there been an intra-circuit split in the Sixth Circuit regarding the test to be
applied to state court harmlessness assessments. Cases like Stewart v. Trierweiler, 867 F.3d 633
(6th Cir. 2017), and Hollman v. Sprader, 803 F. App’x 841 (6th Cir. 2020), merely show that
habeas relief can be denied on AEDPA/Chapman grounds without reaching Brecht—an
analytical approach that, as painstakingly explained in the majority opinion, is consistent with
Davenport. Davenport, 964 F.3d at 455. Both dissenters from denial of rehearing en banc
recently applied the very rule they now decry. Judge Thapar called the harmless error
framework “a choice of prompts,” in which one “option—a shortcut of sorts—is to leapfrog
AEDPA and jump directly to Brecht.” Hollman v. Sprader, 803 F. App’x 841, 843 (6th Cir.
2020) (citing Ayala, 576 U.S. at 268–70). Judge Griffin wrote: “[t]he Supreme Court and this
court have made clear that ‘Brecht is always the test’ for evaluating harmless error on collateral
review, even where AEDPA applies.” Reiner v. Woods, 955 F.3d 549, 556 (6th Cir. 2020)
(quoting Ruelas v. Wolfenbarger, 580 F.3d 403, 412 (6th Cir. 2009)). The majority decision
simply took the unremarkable step of employing our existing circuit standard, which applies
Supreme Court precedent. In sum, federal courts across the nation apply Brecht after Ayala. We
do too.
My dissenting colleagues also express alarm about the facts of this case in which,
different from other cited cases, the Brecht test was satisfied. Admittedly, cases presenting
AEDPA issues by their nature contain concerning facts. That is true here. But the manner or
type of case does not control what legal standards apply. And the constitutional right to a fair
trial cannot depend upon a defendant’s admission to certain underlying—and even egregious—
facts.
A few other points are worth mentioning. The majority opinion did not apply a
“presumption of prejudice,” as the dissents suppose. That language is not in the majority
opinion. Equally misguided is the observation that, notwithstanding the standard of review
dispute, the panel majority extended Supreme Court precedent to reach its disposition. My
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colleagues assert that the majority “relied primarily on Sixth Circuit decisions” in evaluating the
state courts’ harmless error decision, (Sutton Concurring Op. at 3), and that it “rel[ied] upon
circuit precedent to show what a general Supreme Court standard clearly establishes,” (Thapar
Dissenting Op. at 10). True, clearly established law is determined solely by Supreme Court
rulings, Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), not by circuit precedent, Kernan v.
Cuero, 138 S. Ct. 4, 9 (2017). And circuit precedent cannot turn “a general principle of Supreme
Court jurisprudence into a specific legal rule” that has not been stated by the Supreme Court.
Lopez v. Smith, 574 U.S. 1, 7 (2014) (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013)). The
majority decision did not violate these dictates. Instead, “in accordance with its usual law-of-
the-circuit procedures, [it] look[ed] to circuit precedent to ascertain whether it ha[d] already held
that the particular point in issue is clearly established by Supreme Court precedent”—an
approach the Supreme Court has explicitly sanctioned. Marshall, 569 U.S. at 64.
The rule is not that the act of citing a Sixth Circuit precedent in this context automatically
dooms an opinion. None of the majority’s references to Sixth Circuit precedents overstep the
bounds set out by the Supreme Court. The opinion addressed the procedural differences between
Davenport’s case and Deck v. Missouri, 544 U.S. 622 (2005). And it then turned to the Supreme
Court’s admonition that “[t]he law has long forbidden routine use of visible shackles during the
guilt phase” of a criminal trial because “shackling is ‘inherently prejudicial.’” Id. at 626, 635
(quoting Holbrook v. Flynn, 475 U.S. 560, 568 (1986)). Here, the State of Michigan does not
dispute that there was no on-the-record justification for the shackling and therefore it was
unconstitutional. And the majority opinion did not ignore post-trial juror testimony or speculate
about juror bias. Instead, it specifically addressed testimony given by jurors three years after trial
that they still remember that Davenport was shackled during trial, leaving them with the
impression that he was dangerous. In this context, moreover, the Supreme Court has specified
that “[i]f ‘a procedure employed by the State involves such a probability that prejudice will result
that it is deemed inherently lacking in due process,’ little stock need be placed in jurors’ claims
to the contrary.” Holbrook, 475 U.S. at 570 (citation omitted) (quoting Estes v. Texas, 381 U.S.
532, 542–43 (1965)). Nor does application of the Brecht test make it inappropriate to assess
whether shackles branded Davenport as having a violent nature in a case depending on the sharp
distinction drawn by Michigan law between first-degree and second-degree murder, which
No. 17-2267 Davenport v. MacLaren Page 7
requires that “first-degree murder be committed with premeditation and deliberation.” People v.
Morrin, 187 N.W.2d 434, 448–49 (Mich. Ct. App. 1971). In sum, as the majority opinion
explicitly noted, the Supreme Court’s shackling jurisprudence was the exclusive basis for its
reasoning; it directly applied relevant and specific holdings of Holbrook and Deck. Davenport,
964 F.3d at 466–67.
Ultimately, a majority of this court denied en banc review because it recognized that
Davenport is but a recent installment in a chain of Sixth Circuit decisions that follow Supreme
Court precedent and apply Brecht to a state court’s harmless error analysis. For the reasons more
fully set out in the majority opinion, I concur in the conclusion of our full court that this case
does not require en banc review.
No. 17-2267 Davenport v. MacLaren Page 8
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CONCURRENCE
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SUTTON, Circuit Judge, concurring in the denial of rehearing en banc. This en banc
petition implicates a nagging tension between deciding cases correctly and delegating to panels
of three the authority to decide cases on behalf of the full court.
I am skeptical that the panel decided this case correctly. At stake is whether Ervine Lee
Davenport, a Michigan prisoner convicted of first-degree murder for choking Annette White to
death, is entitled to habeas relief for a Fourteenth Amendment Due Process violation caused
when the trial court required him to wear shackles during his trial. On direct appeal, the
Michigan Supreme Court determined that any constitutional violation was harmless and denied
Davenport relief. On collateral review, the Michigan Attorney General’s Office conceded that
the trial court’s shackling decision rose to the level of a constitutional violation but defended the
state supreme court’s decision that it was harmless. The panel granted the habeas petition on the
ground that it was not harmless over a dissent by Judge Readler.
Anyone who has been an Article III judge for five years or more has seen this movie, at
least part of this movie, before. What is the correct way to characterize the showing needed to
obtain habeas relief when it comes to establishing that the state court’s harmlessness ruling
warrants correction after passage of the Antiterrorism and Effective Death Penalty Act of 1996?
Debates over the answer center on two pre-AEDPA decisions. Does the Chapman test—which
requires the government to “prove beyond a reasonable doubt that the error complained of did
not contribute to the verdict”—capture the proper approach together with the AEDPA
requirement that any Chapman ruling must be “unreasonable”? Chapman v. California, 386
U.S. 18, 24 (1967); 28 U.S.C. § 2254(d)(1). Or does the Brecht test—which requires a court on
collateral review to have deep doubt about whether the error “had substantial and injurious effect
or influence in determining the jury’s verdict”—capture the proper approach by itself? Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (quotation omitted). It has never seemed easy to sort out
the difference between these standards, sometimes even to know which one favors whom, and it
does not help matters that they both predate AEDPA. More recently, Davis v. Ayala referred to
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the Brecht formulation, said that it “subsumes” AEDPA, and explained that this language did not
make AEDPA irrelevant to harmless-error decisions by state courts. 576 U.S. 257, 269–270
(2015).
For my part, I would answer the problem this way. On direct review of criminal
convictions, the Chapman harmlessness standard applies. On collateral review, two main
possibilities arise. If the state court issues a ruling on the harmlessness question under Chapman,
then habeas claimants may obtain relief only if they can show that the state court’s Chapman
ruling sank to the level of an “unreasonable application of” “clearly established” federal law
under AEDPA. If the state court does not issue a ruling on the merits of the harmlessness
question, then the Brecht standard applies to our review of the decision. This approach seems to
account for the Court’s view that Brecht “subsumes” AEDPA and its view that AEDPA remains
pertinent to federal court review of state court decisions.
But the standard-of-review question in these sorts of cases—how to capture the ineffable
test and the burden of proof in meeting it, to say nothing of the meaning of “subsumes”—can
become a distraction, prompting lawyers and courts to overlook core process principles that we
must account for under AEDPA before second-guessing state court convictions. The key one
overlooked in this case is that we must measure constitutional challenges by the yardstick of
United States Supreme Court decisions, not the Chancellor’s foot of our own decisions.
Remember the relevant language of AEDPA. It prohibits us from granting a habeas
petition for a claim adjudicated on the merits in state court unless the state court unreasonably
applied “clearly established Federal law, as determined by the Supreme Court[.]” 28 U.S.C.
§ 2254(d)(1). Ayala tells us that a state court’s harmless-error determination constitutes an
adjudication on the merits under AEDPA. 576 U.S. at 269. The state courts held that
Davenport’s shackling was harmless. That requires us to measure the state court’s decision
against holdings of the United States Supreme Court, not holdings of our court. White v.
Woodall, 572 U.S. 415, 419 (2014).
No. 17-2267 Davenport v. MacLaren Page 10
But that’s not what the panel did. In deciding that the state courts clearly erred in their
harmless-error decision, the panel relied primarily on Sixth Circuit decisions. That’s the wrong
benchmark. AEDPA forbids it. And the United States Supreme Court has not been reticent
about correcting lower courts that violate this core measuring stick under AEDPA. See, e.g.,
Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (per curiam); Glebe v. Frost, 574 U.S. 21, 24 (2014) (per
curiam).
That brings me to the second process problem. As to the one Supreme Court decision the
panel did consider, Deck v. Missouri, 544 U.S. 622 (2005), Deck did not offer a holding on the
harmlessness question. While it said that Chapman would apply to any error, see 544 U.S. at
635, it did not provide “clearly established” law about how to apply a harmlessness test to a
shackling violation. It simply left matters at a Mt. Everest-level of generality, whether it’s the
Chapman formulation mentioned there or the Brecht formulation mentioned in Ayala. So the
panel’s reliance on Deck also violates AEDPA and Supreme Court interpretations of it. Nevada
v. Jackson, 569 U.S. 505, 512 (2013) (per curiam). Unlike this case, Deck involved the use of
physical restraints fully visible to the jury. See Davenport v. MacLaren, 964 F.3d 448, 478 (6th
Cir. 2020) (Readler, J., dissenting). And unlike this case, Deck had no reason to apply the
harmlessness test to such a violation. Those are distinctions with plenty of differences. Over
and over, the Supreme Court has admonished us not to frame its holdings at such a lofty level of
generality in deciding what law has been “clearly established.” Lopez v. Smith, 574 U.S. 1, 6
(2014) (per curiam) (quotation omitted); Metrish v. Lancaster, 569 U.S. 351, 367–68 (2013).
These problems with the panel’s decision and its debate over Chapman/Brecht seem to be
recurring ones in our circuit and outside of it, suggesting that there is room for clarification by
the Supreme Court when it comes to federal court review of state court harmless-error decisions
under AEDPA—and the process obligations of lower courts in applying the statute. Just read the
eighteen combined pages devoted to the standard of review by this one panel for evidence. It’s
been five years since the Court’s most recent contribution to the area and of course many
decades since Chapman and Brecht. I suspect every federal judge in the country would welcome
guidance in the area.
No. 17-2267 Davenport v. MacLaren Page 11
One last note. Query whether future panels need to follow one aspect of the panel’s
decision, its use of Sixth Circuit decisions to satisfy AEDPA. That was not a holding of the
court on a matter debated by the parties. The Michigan Attorney General’s Office did not raise
the point, and as a result it was not joined by the parties or for that matter the panel. A panel’s
implicit resolution of an issue that was neither raised by the parties nor engaged by the panel
generally does not bind future panels. See United States v. L.A. Tucker Truck Lines, Inc., 344
U.S. 33, 37–38 (1952); Webster v. Fall, 266 U.S. 507, 511 (1925). Because Michigan never
raised the point, the panel had no occasion to justify its use of circuit precedent to find a clear
violation of federal law. The question thus appears to remain open for future panels to consider
in the first instance.
That aspect of the decision makes me reluctant to grant en banc review in this case. So
does one other consideration. The problem at hand turns mainly on what to make of language in
Supreme Court decisions, particularly the meaning of “subsumes” first mentioned in Fry v.
Pliler, 551 U.S. 112, 120 (2007), and repeated in Ayala. Countless inefficiencies arise when a
full intermediate court debates the meaning of vexing language from the Supreme Court, the
most obvious being this: Not only are we fallible, we are not final either.
No. 17-2267 Davenport v. MacLaren Page 12
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DISSENT
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GRIFFIN, Circuit Judge, dissenting.
I respectfully dissent from the denial of the petition for rehearing en banc.
By the vote of 8–7, our en banc court has denied respondent’s petition for rehearing en
banc. This is most unfortunate for our circuit because the 2–1 panel opinion conflicts with a
previous decision of our court and is clearly wrong on a habeas-corpus issue of exceptional
importance. While some of my colleagues agree, they nevertheless have opposed the petition in
the hope that the Supreme Court will reverse us yet again to clean up our intra-circuit mess.1
This denial of rehearing en banc is reminiscent of CNH Industrial N.V. v. Reese, 138 S. Ct. 761
(2018), wherein we were reversed unanimously by the Supreme Court in a per curiam opinion
and admonished that “the en banc Sixth Circuit has been unwilling (or unable) to reconcile its
precedents.” Id. at n.2.
The Federal Rules of Appellate Procedure provide an important and necessary remedy for
courts of appeals to correct their conflicts and errors of exceptional importance. While en banc
hearings or rehearings are not favored, they are authorized when:
1) en banc consideration is necessary to secure or maintain uniformity of the
court’s decisions; or
2) the proceeding involves a question of exceptional importance.
Fed. R. App. P. 35(a). This case cries out for rehearing en banc by operation of both 35(a)(1)
and 35(a)(2).
First, rehearing en banc is necessary “to secure or maintain uniformity of [our] court’s
decisions.” The majority Davenport v. MacLaren opinion is in direct conflict with our prior
published opinion, Stewart v. Trierweiler, 867 F.3d 633 (6th Cir. 2017). Specifically, in Stewart,
1See, e.g., Int’l Union v. Kelsey-Hayes Co., 872 F.3d 388, 390–93 (6th Cir. 2017) (Griffin, J., dissenting
from the denial of the petition for rehearing en banc).
No. 17-2267 Davenport v. MacLaren Page 13
Judge Sutton, writing for our unanimous court, ruled that the habeas petitioner had not sustained
his burden of proving that a state court’s ruling of harmless error was an “unreasonable
application of clearly established federal law as determined by the Supreme Court of the United
States.” Id. at 636–38. Thus by operation of the Antiterrorism and Effective Death Penalty Act
of 1996, 28 U.S.C. § 2254 (AEDPA), the petitioner in Stewart was not entitled to habeas relief.
867 F.3d at 638; see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“The petitioner carries
the burden of proof” under § 2254(d)).
Opposite to Stewart, the Davenport majority held that respondent Warden had not
sustained his burden of demonstrating that the error was not harmless. Davenport v. MacLaren,
964 F.3d 448, 451 (6th Cir. 2020) (“[T]he State has not met its burden to show the restraints did
not have a substantial and injurious effect or influence in determining the jury’s verdict.”).
Moreover, contrary to Davis v. Ayala, 576 U.S. 257, 268 (2015) (“AEDPA nevertheless
‘sets forth a precondition to the grant of habeas relief’” (emphasis added and citation omitted)),
and in conflict with Stewart, the Davenport panel held that AEDPA does not apply to issues of
harmless error raised in habeas corpus petitions. 964 F.3d at 460–63. Davenport viewed the
standards of Brecht v. Abrahamson, 507 U.S. 619 (1993), and AEDPA as the same. They are
not. While a constitutional error resulting in actual prejudice is sufficient under Brecht, id. at
637, AEPDA requires more.
Specifically, AEDPA requires the petitioner to prove that the error is “an unreasonable
application of [] clearly established Federal law, as determined by the Supreme Court of the
United States.” § 2254(d)(1). This standard is materially different from proving actual
prejudice. As Judge Readler emphasized in his Davenport dissent, while “[i]t may be that a
federal court can deny habeas relief by ‘go[ing] straight to Brecht[,]’” 964 F.3d at 469 (Readler,
J., dissenting) (citations omitted), a court may not grant a writ of habeas corpus unless the
petitioner also sustains his burden under AEDPA of proving that the state court ruling was “an
unreasonable application of[] clearly established Federal law, as determined by the Supreme
Court of the United States.” § 2254(d)(1); see also Johnson v. Acevedo, 572 F.3d 398, 403–04
(7th Cir. 2009).
No. 17-2267 Davenport v. MacLaren Page 14
In addition, because Stewart was an earlier published decision of our court, Stewart
should have been precedentially binding for Davenport. 6 Cir. Rule 32.1(b); Miller v. Caudill,
936 F.3d 442, 447–48 (6th Cir. 2019). However, I also acknowledge that other decisions appear
to conflict with Stewart, see, e.g., O’Neal v. Balcarcel, 933 F.3d 618, 625 (6th Cir. 2019);
McCarley v. Kelly, 801 F.3d 652, 665 (6th Cir. 2015), thus compounding our intra-circuit
conflict.
Second, the issue of harmless error for habeas corpus petitions is of exceptional
importance, particularly for our court because we review habeas corpus death penalty petitions
arising from three of the four states in our circuit. In this regard, the issues of which party has
the burden of persuasion on the issue of harmless error for habeas review and whether AEDPA
applies are fundamental to our judicial system.
I note that our sister courts of appeals are on the other side on these issues. It appears that
we are alone in taking a “straight to Brecht approach” in determining on habeas review whether a
state court’s constitutional error was harmless. See Davenport, 964 F.3d at 475–77 (Readler, J.,
dissenting) (collecting cases).
Finally, the Davenport holding that AEDPA is inapplicable to harmless error rulings by
state courts trammels upon the important federalism principles that undergird AEDPA. See, e.g.,
Woodford v. Garceau, 538 U.S. 202, 206 (2003).
For these reasons, and for those articulated by Judge Readler in his persuasive panel
dissent, I respectfully dissent. Because our litigants, attorneys, and judges need guidance from
our en banc court on these issues of exceptional importance, I would grant respondent’s petition
for rehearing en banc.
No. 17-2267 Davenport v. MacLaren Page 15
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DISSENT
_________________
THAPAR, Circuit Judge, dissenting from the denial of rehearing en banc. Thirteen years
ago, on a cold night in January, Earl Davenport killed Annette White. He closed his hand around
her neck and held it there as she struggled against him. Minutes later, she was dead.
Despite the overwhelming evidence of Davenport’s guilt, a panel majority voted to
vacate his conviction. It did so without even applying AEDPA deference to the state court’s
harmless-error determination.
This tragic case thus presents a fundamental question of habeas jurisprudence: Must a
state court’s harmless-error determination receive AEDPA deference under 28 U.S.C.
§ 2254(d)(1)? The plain text of the statute says that the answer is yes. But the panel majority
held that the answer is no. According to the panel opinion, federal judges can simply ignore
AEDPA’s guardrails whenever they find that a petitioner has suffered actual prejudice under
Brecht v. Abrahamson, 507 U.S. 619 (1993). This holding casts aside AEDPA and misinterprets
Supreme Court precedent. That matters because AEDPA’s procedural rules have bite that Brecht
lacks. The holding also deepens an existing circuit split. And what’s more, the panel opinion
defies Brecht itself, granting habeas relief based on mere speculation and a thin stack of
academic articles, some of which postdate the state court’s decision.
Given these errors and their importance, this case merited the attention of the en banc
court. I respectfully dissent.
I.
A.
At trial, Davenport did not contest that he killed Annette White. Instead, he claimed that
he acted in self-defense. As Davenport tells it, they were both high on crack cocaine that night,
and he was driving her around. They started arguing. He was trying to focus on traffic, and she
pulled out a box cutter. At that point, he grabbed her by the neck and pinned her against the
No. 17-2267 Davenport v. MacLaren Page 16
passenger-side window. He was choking her. She started kicking, and he pushed against her
neck even harder. He says that even though the strangulation “happened quick[ly],” “it seemed
like it took forever.”
It did. According to the medical examiner’s testimony, it would have taken at least four
minutes for Annette to die. She would have passed out much sooner, perhaps after thirty to forty
seconds without oxygen. So maybe at the start, the 6'5", 260-pound Davenport was up against an
angry, argumentative, 5'2" Annette—all one hundred pounds of her. Maybe at the start, she had
a box cutter. But soon he was up against an unconscious Annette: no more anger, no more
knife.
Yet he kept his hand around Annette’s throat. She was unconscious. Seconds passed,
then minutes passed, then she was dead. Davenport claims he was driving this entire time.
He then proceeded to dump Annette’s body in a field. After leaving her face down in the
dirt—wearing a bra and bloodied underwear and one sock—he went to her house. He took some
of her food, stole her stereo, and then met up with friends to smoke more crack. How did he feel
about Annette’s death? “Just a bad situation,” he said. “That’s all. Just a bad situation.”
Davenport was familiar with bad situations. Annette wasn’t even the first person he had
choked that week. Five days before, he found himself annoyed with another woman, so he came
up behind her and circled his hands around her neck. He squeezed, lifting her off the ground.
She bit her tongue and urinated on herself as she blacked out. By a stroke of luck, her boyfriend
walked in. He saw his girlfriend unconscious, feet off the floor, dangling from Davenport’s
hands. Davenport let her go, and she survived. “You know, you’re lucky,” he told her later.
“I wanted to squish you like a bug.”
Strangling, it seems, is how Davenport dealt with problems. He would brag about it,
flexing his hands: He didn’t have to worry about anyone giving him trouble; he’d just “choke
’em up” if it got bad. That’s what happened to Annette. And the jury concluded it was
first-degree murder.
No. 17-2267 Davenport v. MacLaren Page 17
B.
Davenport was partially shackled during trial. His right hand was uncuffed so that he
could write notes to his attorney. And there was a privacy curtain around defense counsel’s
table. Yet the trial court never made on-the-record findings justifying the restraints.
On appeal, the Michigan Supreme Court held that the shackling was unconstitutional. It
remanded for a determination of whether the jury saw the shackles, and if so, whether the
prosecution could show beyond a reasonable doubt that the error did not affect the verdict.
People v. Davenport, 794 N.W.2d 616 (Mich. 2011) (order) (Davenport I).
The trial court then held a two-day evidentiary hearing. All twelve jurors testified. Five
saw the restraints; four never noticed them; two heard about them from other jurors; and one
couldn’t remember either way. The jurors testified that the restraints were never discussed
during deliberations, and that to the extent they thought Davenport was dangerous, it was
because he was on trial for first-degree murder. Thus, the trial court ruled that the prosecution
had proved beyond a reasonable doubt that the shackling did not affect the verdict.
Davenport appealed again, and the Michigan Court of Appeals affirmed. It held that the
trial court “did not err in finding that the prosecution proved beyond a reasonable doubt that the
shackling error did not affect the verdict.” People v. Davenport, No. 306868, 2012 WL
6217134, at *3 (Mich. Ct. App. 2012) (per curiam) (Davenport II).
The Michigan Supreme Court denied leave to appeal. In denying leave to appeal, it said
that Holbrook should have governed the lower court’s harmless-error analysis. People v.
Davenport, 832 N.W.2d 389 (Mich. 2013) (Davenport III) (citing Holbrook v. Flynn, 475 U.S.
560, 570 (1986)). But the result would have been the same either way, the court reasoned,
“given the substantial evidence of guilt presented at trial.” Id. Thus, the case did not merit its
review.
Next, Davenport filed a habeas petition in federal court, which the district court denied.
This court then granted a certificate of appealability, and a three-judge panel reversed over Judge
Readler’s dissent. According to the majority, Davenport’s shackling amounted to actual
No. 17-2267 Davenport v. MacLaren Page 18
prejudice under the Brecht standard. Davenport v. MacLaren, 964 F.3d 448, 468 (6th Cir. 2020)
(Davenport IV). It thus vacated his conviction and ordered Michigan to release or retry
Davenport within 180 days. Id. In throwing out Davenport’s conviction, the majority held that
courts do not have to apply AEDPA deference once they make a finding of actual prejudice
under Brecht. Id. at 457–58. But as Judge Readler’s forceful dissent points out, the majority’s
error has real consequences—both for this case and for many cases to come.
II.
The majority’s opinion suffers from two fatal flaws. First, it refuses to apply AEDPA
deference to the state court’s harmless-error determination, holding that the Brecht standard
obviates any need for doing so. Second, it misapplies Brecht, granting habeas relief based on
little more than speculation. And as a result of those two errors, the panel vacates the conviction
of a Michigan murderer.
A.
The panel majority first erred in holding that AEDPA deference does not apply to state
court harmless-error determinations. See Davenport IV, 964 F.3d at 456–57. In reaching this
erroneous conclusion, the majority misconstrues AEDPA, misapplies Supreme Court precedent,
and deepens an existing circuit split.
1.
To understand how the panel erred in its application of AEDPA, it is important to
understand how a criminal defendant can challenge alleged constitutional violations. First, he
must bring his challenge in state court. And if the state court finds a constitutional violation, it
then analyzes whether that error was “harmless beyond a reasonable doubt.” Chapman v.
California, 386 U.S. 18, 24 (1967).
If the state court finds that the error was harmless beyond a reasonable doubt, the
petitioner can then seek habeas relief in federal court. But even before AEDPA, the Supreme
Court recognized that habeas is an “extraordinary remedy” designed to protect those who have
been “grievously wronged.” Brecht, 507 U.S. at 633–34 (citation omitted). Thus, the Supreme
No. 17-2267 Davenport v. MacLaren Page 19
Court held that a habeas petitioner can only obtain relief when he demonstrates “actual
prejudice.” Id. at 637 (citation omitted). Actual prejudice exists when a judge finds that an error
had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id.
But that wasn’t enough for Congress. So three years after Brecht, Congress passed and
the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996. Under
AEDPA, federal courts can grant habeas relief only when a state court’s adjudication of a federal
claim (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,” or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). Put differently, if “fairminded jurists could disagree on the
correctness of the state court’s decision,” federal courts must deny habeas relief. Harrington v.
Richter, 562 U.S. 86, 101 (2011) (cleaned up). And that remains true even if a court also finds
actual prejudice under Brecht.
2.
This case presents the question whether a state court’s harmless-error determination must
always receive AEDPA deference in accordance with § 2254(d)(1). Under the plain text of
AEDPA, the answer is clear—yes.
Habeas requires us to review the final state court decision. Harrington, 562 U.S. at 98–
99. When that decision rests on the harmlessness of an alleged error (as is the case here), federal
courts must determine whether the state court’s harmless-error determination “was contrary to,
or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1). That is because federal law—namely Chapman—governs the harmless-error
inquiry in state court. Thus, AEDPA’s text requires deference to a state court’s harmless-error
inquiry.
Supreme Court precedent confirms this common-sense reading of the statute. In Davis v.
Ayala, the Court explained that independent of Brecht, “the limitation on federal habeas relief
that § 2254(d) plainly sets out” continues to apply. 576 U.S. 257, 268 (2015). Indeed, the
Supreme Court has squarely held that “habeas relief is appropriate only if [a state court has]
No. 17-2267 Davenport v. MacLaren Page 20
applied harmless-error review in an ‘objectively unreasonable’ manner.” Mitchell v. Esparza,
540 U.S. 12, 18 (2003) (per curiam) (citation omitted). The panel majority ignores that rule here.
Thus, not only does the panel opinion conflict with the plain text of AEDPA, it also violates
controlling Supreme Court precedent.
3.
How does the panel majority avoid AEDPA’s limits? By first misapplying Supreme
Court precedent and then clouding the important differences between Brecht and AEDPA
review.
Start with precedent. The panel’s confusion begins with Fry v. Pliler, 551 U.S. 112
(2007). That case concerned what standard federal courts should apply on collateral review
when a state court finds no constitutional error and thus doesn’t make a harmless-error
determination: Brecht or Chapman? See id. at 120 & n.2. The Supreme Court held that even
when a state court makes no harmless-error determination, federal courts must still apply the
Brecht test rather than Chapman’s lower standard. Id. at 118–19. In this context, the Court
reasoned, Brecht “obviously subsumes” the AEDPA/Chapman test because it requires a higher
showing for prejudice, so it “makes no sense to require formal application of both tests.” Id. at
120. Simply put, Fry stands for the proposition that there is nothing to defer to under AEDPA
when a state court does not make a harmless-error determination. Id. at 119–20; see Johnson v.
Acevedo, 572 F.3d 398, 404 (7th Cir. 2009) (Easterbrook, J.) (adopting this reading of Fry).
The panel takes Fry’s “obviously subsumes” dictum from its case-specific context and
insists that Brecht can always operate as a complete substitute for AEDPA deference. See
Davenport IV, 964 F.3d at 458–59. But this misreads Fry. Indeed, a closer look at Fry reveals
that—far from suggesting that AEDPA’s guardrails are surplusage—the Supreme Court
confirmed that courts must ordinarily apply AEDPA alongside Brecht: “[W]hen a state court
determines that a constitutional violation is harmless, a federal court may not award habeas relief
under § 2254 unless the harmlessness determination itself was unreasonable.” Fry, 551 U.S. at
119 (citing Mitchell, 540 U.S. 12).
No. 17-2267 Davenport v. MacLaren Page 21
If any doubt remains, the Supreme Court’s subsequent decision in Ayala should quash it.
There the Court explained that “[t]he Fry Court did not hold—and would have had no possible
basis for holding—that Brecht somehow abrogates the limitation on federal habeas relief that
§ 2254(d) plainly sets out.” Ayala, 576 U.S. at 268. So while there will be cases in which “a
federal habeas court need not formally apply both Brecht and AEDPA/Chapman, AEDPA
nevertheless sets forth a precondition to the grant of habeas relief.” Id. (cleaned up).
For all of these reasons, state court harmless-error determinations are entitled to AEDPA
deference under § 2254(d).
4.
The panel majority contends that its non-application of AEDPA makes sense because
Brecht imposes a higher bar than Chapman for granting habeas relief. See Davenport IV, 964
F.3d at 458 & n.6. And since Brecht imposes a higher bar than Chapman, the panel reasons that
we can safely ignore AEDPA’s statutory guardrails. But this approach makes little sense from a
first-principles perspective. Why? Because Brecht and AEDPA call for distinct inquiries.
Brecht asks whether a criminal defendant was actually prejudiced by a constitutional
error. 507 U.S. at 637. AEDPA, on the other hand, asks whether a state court decision was
unreasonable based on two factors: (1) clearly established federal law, and (2) evidence
presented in state court proceedings. 28 U.S.C. § 2254(d). So while Brecht might impose a
stricter substantive standard for relief than Chapman standing alone, Brecht and AEDPA ask
different questions and are governed by different procedural rules. It thus makes little sense to
say that a finding of actual prejudice under Brecht obviates any need to apply AEDPA’s clear
rules.
To be sure, if a habeas petitioner has not suffered actual prejudice under Brecht, a state
court’s determination that an error was harmless will always be reasonable under
§ 2254(d). Thus, a court must deny habeas outright when Brecht is not satisfied. See, e.g.,
Hollman v. Sprader, 803 F. App’x 841, 843 (6th Cir. 2020).
No. 17-2267 Davenport v. MacLaren Page 22
But the inverse is not also true: A showing of actual prejudice under Brecht does not
mean that a petitioner has also satisfied AEDPA’s requirements. Taking a closer look at the core
differences between Brecht and AEDPA shows why, even if one accepts the panel’s Brecht
analysis, AEDPA would require that we still affirm the conviction.
First, under the Brecht standard, a petitioner isn’t limited to clearly established Supreme
Court precedent. A petitioner can thus argue for an expansion of Supreme Court precedent when
attempting to show Brecht prejudice (at least absent AEDPA). But under AEDPA, extending
Supreme Court precedent is improper. See White v. Woodall, 572 U.S. 415, 425–26 (2014);
28 U.S.C. § 2254(d)(1).
This case shows why this rule matters. The panel majority rejected Michigan’s
harmless-error determination in part because the state court relied on post-trial testimony from
jurors. Davenport IV, 964 F.3d at 466; id. at 478 (Readler, J., dissenting). The majority
contends that Holbrook bars Michigan’s approach. 475 U.S. 560. But Holbrook concerned
pretrial testimony from prospective jurors during voir dire about what effect uniformed law
enforcement officers might have on their perception of the defendants. Id. at 565. That is a far
cry from post-trial testimony from jurors about how shackling actually affected their
verdict. Thus, the majority had to extend Holbrook to apply it here. Davenport IV, 964 F.3d at
479 (Readler, J., dissenting). And while such extensions might be permissible under Brecht
itself, they are strictly prohibited by AEDPA. Woodall, 572 U.S. at 425–26; see also Virginia v.
LeBlanc, 137 S. Ct. 1726, 1728–29 (2017) (per curiam).
Second, under Brecht, a petitioner arguably could rely upon circuit precedent to show
how Supreme Court cases should be applied. But as the Supreme Court has repeatedly reminded
us in the AEDPA context, we may not rely upon circuit precedent to show what a general
Supreme Court standard clearly establishes. The Supreme Court’s warning speaks for itself:
“As we explained in correcting an identical error by the Sixth Circuit two Terms ago, circuit
precedent does not constitute ‘clearly established Federal law, as determined by the Supreme
Court.’ It therefore cannot form the basis for habeas relief under AEDPA. Nor can the Sixth
Circuit’s reliance on its own precedents be defended in this case on the ground that they merely
No. 17-2267 Davenport v. MacLaren Page 23
reflect what has been clearly established by our cases.” Parker v. Matthews, 567 U.S. 37, 48–49
(2012) (cleaned up).
Again, this case shows why AEDPA’s constraints matter. The majority relies on Sixth
Circuit and Ninth Circuit cases to extend Supreme Court precedent in the shackling (or, as here,
partial-shackling) context. See Davenport IV, 964 F.3d at 465–68 (citing Ruimveld v. Birkett,
404 F.3d 1006, 1018 (6th Cir. 2005); Rhoden v. Rowland, 172 F.3d 633, 637 (9th Cir.
1999)). Based on that caselaw, the majority assumes that a “presumption of prejudice” attaches
any time a juror sees a shackled defendant, and that the “duration of the jury’s deliberations”
matter. See id. Yet Supreme Court caselaw does not require state courts to consider these
factors when conducting a harmless-error analysis. So under AEDPA, the state court cannot be
faulted for unreasonably applying “clearly established Federal law, as determined by the
Supreme Court.” 28 U.S.C. § 2254(d)(1).
Third, under the AEDPA standard, state courts have broad discretion when Supreme
Court precedent speaks at high levels of generality. Renico v. Lett, 559 U.S. 766, 776 (2010)
(“Because AEDPA authorizes federal courts to grant relief only when state courts act
unreasonably, it follows that the more general the rule at issue—and thus the greater the potential
for reasoned disagreement among fair-minded judges—the more leeway state courts have in
reaching outcomes in case-by-case determinations.” (cleaned up)). In the shackling context, the
Supreme Court has told us generally that Chapman applies. But it has not told us specifically
how state courts must conduct their Chapman inquiries. Compare Deck v. Missouri, 544 U.S.
622, 635 (2005) (requiring general harmless-error analysis in the shackling context), with
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (identifying more specific harmless-error
factors in the Confrontation Clause context). Thus, state courts may adopt any reasonable
approach when determining whether shackling the defendant was harmless.
Once more, this case highlights why AEDPA has bite. To determine whether the error
was harmless, the Michigan Supreme Court directed the trial court to hold a hearing concerning
how the shackling had (or had not) affected the verdict. Davenport I, 794 N.W.2d 616. The trial
court then required the jurors to testify at the evidentiary hearing. That legal approach—relying
on the jurors’ own post-trial views—is certainly a reasonable application of Chapman’s general
No. 17-2267 Davenport v. MacLaren Page 24
standard. And if it’s an acceptable approach, there can be no doubt as to the proper outcome in
this case under AEDPA. Then, when denying discretionary review of the trial court’s harmless-
error determination, the Michigan Supreme Court suggested that the trial court should have
focused on the overall evidence of the defendant’s guilt rather than the jurors’ testimony. (It
denied review because the evidence of guilt was overwhelming.) Davenport III, 832 N.W.2d
389. Given Chapman’s general standard, this alternative approach would have also been a
reasonable approach to harmless-error analysis in the shackling context.
But the majority, in determining Brecht prejudice, adopted its own harmless-error test—
asking whether a jury might have convicted the defendant of a lesser included offense (second-
degree murder) instead of his actual crime of conviction (first-degree murder). The majority
identifies no clearly established Supreme Court precedent requiring this approach. Indeed,
Davenport never made this lesser-included-offense argument to the state court. So the majority’s
approach, at least on collateral review, is out of bounds under AEDPA. Thus, even if one were
to accept the majority’s Brecht analysis, AEDPA would again require a different result.
Fourth, the Brecht standard—at least on its face—does not seem to bar habeas petitioners
from presenting evidence outside the state court record (although federalism and comity counsel
against it). But under AEDPA, habeas review is strictly “limited to the record that was before
the state court that adjudicated the prisoner’s claim on the merits.” Greene v. Fisher, 565 U.S.
34, 38 (2011) (citing Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). In this case, for example,
the panel majority relies on social-science studies about “implicit bias” (published as recently as
2019) to support its finding of actual prejudice. See Davenport IV, 964 F.3d at 466 & n.13; id. at
479 (Readler, J., dissenting). But that new evidence is outside the state court record and thus
cannot be considered under AEDPA.
The upshot of all this is that by shifting everything into the Brecht basket, the panel
dodges AEDPA’s clear rules—no looking at non-Supreme Court cases, no extending existing
Supreme Court precedent, and no relying on evidence not presented in state court. Jettisoning
these clear, rule-based requirements will make appellate review in habeas cases more difficult
and unpredictable. See generally Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi.
L. Rev. 1175 (1989). And by affording federal courts the ability to undo state convictions absent
No. 17-2267 Davenport v. MacLaren Page 25
a violation of existing Supreme Court precedent, the panel disrespects the comity and federalism
concerns at the heart of AEDPA.
In conclusion, the differences between Brecht and AEDPA matter. If AEDPA applies,
the panel decision is plainly erroneous since it extends Supreme Court precedent, relies on circuit
precedent, creates a new standard for harmless-error review in the shackling context, and
introduces evidence not presented in the state court proceedings. See Davenport IV, 964 F.3d at
479 (Readler, J., dissenting). Thus, this case presents an ideal vehicle for clarifying the
relationship between Brecht and AEDPA.
5.
This case also highlights a deepening split among the various federal Courts of Appeals.
See Davenport IV, 964 F.3d at 475–77 (Readler, J., dissenting) (discussing this circuit split).
One set of circuits generally holds that courts must apply both Brecht and AEDPA when
reviewing state court harmless-error determinations. See, e.g., Johnson v. Lamas, 850 F.3d 119,
133–34 (3d Cir. 2017); Johnson v. Acevedo, 572 F.3d 398, 404 (7th Cir. 2009); Malone v.
Carpenter, 911 F.3d 1022, 1029–30 (10th Cir. 2018); Mansfield v. Sec’y, Dep’t of Corr.,
679 F.3d 1301, 1307–08 (11th Cir. 2012).
Typical of this approach is the Seventh Circuit’s opinion in Acevedo. There, Judge
Easterbrook explained that Fry controls where a state court fails to conduct a harmless-error
analysis. Acevedo, 572 F.3d at 404. But when a state court does reach harmless error, “the
federal court must decide whether that analysis was a reasonable application of the Chapman
standard.” Id. And only after a finding of unreasonableness does AEDPA drop out of the
picture and allow a federal court to “make an independent decision” about prejudice under
Brecht. Id.
Another set of circuits arguably holds that a finding of actual prejudice under Brecht
obviates the need to apply AEDPA deference to state court harmless-error determinations.
While the panel’s holding charges to the front of the line, at least three other circuits seem to
No. 17-2267 Davenport v. MacLaren Page 26
have taken the same approach. See Connolly v. Roden, 752 F.3d 505, 511 (1st Cir. 2014); Wood
v. Ercole, 644 F.3d 83, 94 (2d Cir. 2011); Deck v. Jenkins, 814 F.3d 954, 985 (9th Cir. 2016).
Of course, neatly dividing the circuits into categories at times proves too much. For the
question presented here has led to both “intracircuit” and “intercircuit” splits. See Deck, 814
F.3d at 973 (Bea, J., dissenting from denial of reh’g en banc). Indeed, my review of the caselaw
reveals subtle (and not so subtle) tension within many circuits. Compare Vazquez v. Sec’y, Fla.
Dep’t of Corr., 807 F. App’x 901, 905 (11th Cir. 2020) (“[F]ederal courts need not formally
apply both the Brecht standard and AEDPA-deference . . . though ultimately both tests must be
met for courts to grant habeas relief.” (citing Mansfield, 679 F.3d at 1307–08)), with Hammonds
v. Comm’r, Ala. Dep’t of Corr., 712 F. App’x 841, 849–50 (11th Cir. 2017) (“[I]f a petitioner
satisfies the Brecht standard, he necessarily also satisfies the AEDPA standard.”); compare also
Lamas, 850 F.3d at 133–34, with Bond v. Beard, 539 F.3d 256, 275–76 (3d Cir. 2008). And as
Judge Griffin’s dissent aptly points out, our circuit’s caselaw reflects the same tension. See ante
at 12–13 (Griffin, J., dissenting from denial of reh’g en banc).
Given the deep confusion within and among the circuits, the question presented here is
ripe for further review.
B.
Even if we cast aside AEDPA and its congressionally mandated guardrails, Davenport is
still not entitled to habeas relief. He cannot show that the shackling resulted in “actual
prejudice.” Brecht, 507 U.S. at 637 (citation omitted). To do so, the shackling must have had a
“substantial and injurious effect or influence [on] the jury’s verdict.” Id.
And here, all twelve jurors testified that the shackling “did not influence the[ir] verdict.”
Davenport II, 2012 WL 6217134, at *1; see Smith v. Phillips, 455 U.S. 209, 217 n.7 (1982)
(noting that a juror is “well qualified to say whether he has an unbiased mind in a certain
matter”). While the Supreme Court has not told us how to undertake the harmless-error analysis
in this context, the jurors’ testimony seems important. What’s more, eleven Michigan judges
concluded the error was harmless. Davenport II, 2012 WL 6217134, at *3, leave to appeal
denied, 832 N.W.2d 389, 390; see also Brecht, 507 U.S. at 636 (“[S]tate courts often occupy a
No. 17-2267 Davenport v. MacLaren Page 27
superior vantage point from which to evaluate the effect of trial error.”). And just in case anyone
thinks that the Michigan judiciary and jurors were out to lunch (they weren’t), a federal
magistrate judge, a district court judge, Judge Readler, and several members of this en banc court
agreed with their conclusion.
But even if we accept Davenport’s asserted harm, he did not suffer actual prejudice.
Davenport strangled Annette’s limp body after she lost consciousness, dumped her half-naked in
an empty field, and then robbed her house. Add to this that another woman testified that
Davenport had choked her earlier in the week. And if that isn’t enough, the jury heard about his
frequent boasts about choking anyone who gave him trouble. Plus, the prosecution repeatedly
impeached Davenport during trial. Simply put, the evidence of guilt was overwhelming. The
evidence that the shackles did not influence the jury is uncontroverted—not one juror said
otherwise. And the evidence that Davenport should go free is non-existent.
So what did two federal appellate judges see that everyone before them missed? The
panel’s conclusion largely rests on speculation about how the shackles must have biased the
jurors. See Davenport IV, 964 F.3d at 464–68. But the record does not support that speculation.
And while the panel also cites a smattering of academic articles about jury bias, those articles
hardly establish that the jurors were biased in this case. Id. at 466 & n.13; see also id. at 479
(Readler, J., dissenting). Rather than heed the Supreme Court’s teaching that trial courts
typically have “a superior vantage point from which to evaluate the effect of trial error,” the
majority casts aside the prior findings in favor of its own guesswork. Brecht, 507 U.S. at 636.
That is error. And given the grave consequences, it is error that should not go unchecked.
***
In sum, the panel erred by holding that a finding of actual prejudice under Brecht
obviates the need to consider AEDPA’s guardrails. AEDPA and Brecht ask different questions
that sometimes demand different answers. Thus, before a federal court may grant habeas relief,
it must find both that a state court’s harmless-error determination violated AEDPA and that
actual prejudice resulted under Brecht. To make matters worse, the panel opinion badly
No. 17-2267 Davenport v. MacLaren Page 28
misapplies Brecht on its own terms, relying on mere speculation to vacate the conviction of a
man who strangled a woman in cold blood.
Because this case warrants further review, I respectfully dissent.
ENTERED BY ORDER OF THE COURT
___________________________________
Deborah S. Hunt, Clerk