Agnew, Gregory v. Leibach, Blair ( 2001 )

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
July 2, 2001
Before
Honorable RICHARD D. CUDAHY, Circuit Judge
Honorable MICHAEL S. KANNE, Circuit Judge
Honorable ILANA DIAMOND ROVNER, Circuit Judge
No. 98-3659
GREGORY AGNEW, ) Appeal from the United States
) District Court for the Northern
Petitioner-Appellant ) District of Illinois, Eastern Division
)
v. ) No. 95 C 3700
)
BLAIR J. LEIBACH, ) Blanche M. Manning, Judge.
)
Respondent-Appellee. )
ORDER
The Opinion issued in the above captioned case, Agnew v. Leibach, No. 98-3659 (7th Cir.
May 21, 2001) is hereby modified as follows. The first paragraph of section II. D. on page 21 of
the slip opinion will be replaced with the following paragraph:
The government finally contends that even if the trial court erred in allowing
Deputy House to testify after he had served as bailiff, the error was harmless. Neither
party briefed the issue of whether this is the type of constitutional error subject to
harmless error analysis, or whether it should be treated as a structural error. In both
Turner and Gonzales, the Supreme Court granted the writ without considering whether
the error was harmless. Nevertheless, we need not decide today whether the error is
structural because we find in any event that it was not harmless. Constitutional error in a
habeas case is not harmless if it “had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under this standard, the
petitioner must show actual prejudice in order to obtain relief based on a trial error.