Brown v. Davenport

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BROWN, ACTING WARDEN v. DAVENPORT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 20–826. Argued October 5, 2021—Decided April 21, 2022
Ervine Davenport was convicted of first-degree murder following a jury
trial where, at times, he sat shackled at a table with a “privacy screen.”
On appeal, he argued that his conviction should be set aside in light of
Deck v. Missouri, 544 U. S. 622, in which this Court held that the Four-
teenth Amendment’s Due Process Clause generally forbids shackling
a criminal defendant at trial absent “a special need.” Id., at 626. Find-
ing no “special need” articulated in the record, the Michigan Supreme
Court agreed that a Deck violation had occurred and remanded the
case to the trial court to determine under Chapman v. California, 386
U. S. 18, whether the prosecution could establish that the Deck error
was harmless beyond a reasonable doubt. On remand, the trial court
conducted an evidentiary hearing at which jurors testified that the
shackles had not affected their verdict and concluded that the State
had carried its burden. Mr. Davenport appealed again, and the Mich-
igan Court of Appeals affirmed the trial court. The Michigan Supreme
Court declined review.
Mr. Davenport petitioned for federal habeas relief. The District
Court found relief unwarranted under the Antiterrorism and Effective
Death Penalty Act of 1996, which limits the power of federal courts to
issue habeas relief to state prisoners. See 28 U. S. C. §2254(d). A di-
vided Sixth Circuit panel reversed, declining to analyze the case under
AEDPA. Instead, the court held that its review was governed only by
Brecht v. Abrahamson, 507 U. S. 619, which held that a state prisoner
seeking to challenge his conviction on the basis of a state court’s Chap-
man error must show that the error had a “ ‘substantial and injurious
effect or influence’ ” on the trial’s outcome, id., at 637. Persuaded that
Mr. Davenport could satisfy Brecht, the Sixth Circuit granted federal
2 BROWN v. DAVENPORT
Syllabus
habeas relief and ordered Michigan either to retry or release Mr. Dav-
enport. This Court granted certiorari to resolve a circuit conflict about
the proper interaction between the tests found in Brecht and AEDPA.
Held: When a state court has ruled on the merits of a state prisoner’s
claim, a federal court cannot grant habeas relief without applying both
the test this Court outlined in Brecht and the one Congress prescribed
in AEDPA; the Sixth Circuit erred in granting habeas relief to Mr.
Davenport based solely on its assessment that he could satisfy the
Brecht standard. Pp. 6–25.
(a) When Congress supplies a constitutionally valid rule of decision,
federal courts must follow it. In AEDPA, Congress instructed that a
federal court “shall not . . . gran[t]” relief with respect to a claim that
has been adjudicated on the merits in state court “unless” certain con-
ditions are met. §2254(d). To be sure, the court below in this case was
required to ensure that petitioner carried his burden under the terms
of Brecht. But satisfying Brecht is only a necessary condition to habeas
relief here; AEDPA must also be satisfied. The Sixth Circuit erred in
holding otherwise. Pp. 6–7.
(b) Since the founding, Congress has authorized federal courts to is-
sue habeas writs to federal custodians, and since the Civil War, Con-
gress has extended that authority to include issuance of writs to state
custodians. All along, Congress’s statutes used permissive rather than
mandatory language; federal courts enjoy the “power to” grant writs of
habeas corpus in certain circumstances. That structure persists today;
federal courts “may” grant habeas relief “as law and justice require.”
28 U. S. C. §§2241, 2243.
Under the traditional understanding of habeas corpus, a prisoner
could not usually use the writ to challenge a final judgment of convic-
tion issued by a court of competent jurisdiction. But by 1953, this
Court had begun to depart from that understanding. In Brown v. Al-
len, 344 U. S. 443, 458, it held that a state-court judgment “is not res
judicata” in federal habeas proceedings with respect to a petitioner’s
federal constitutional claims. After Brown, federal courts struggled
with an exploding caseload of habeas petitions from state prisoners.
Eventually, this Court responded by devising new rules aimed at
separating the meritorious needles from the growing haystack of ha-
beas petitions. The Court’s decision in Brecht—which reasoned that
Chapman’s harmless-error rule for direct appeals was inappropriate
for use in federal habeas review of final state-court judgments, 507
U. S., at 633–634—was part of that effort. Brecht, like this Court’s
other equitable doctrines restricting habeas relief, stems ultimately
from the discretion preserved by Congress’s habeas statutes.
Congress later introduced its own reforms in AEDPA, instructing
Cite as: 596 U. S. ____ (2022) 3
Syllabus
that, if a state court has adjudicated the petitioner’s claim on the mer-
its, a federal court “shall not” grant habeas relief “unless” the state
court’s decision was (1) “contrary to” or an “unreasonable application
of” clearly established federal law, as determined by the decisions of
this Court, or (2) based on an “unreasonable determination of the facts”
presented in the state-court proceeding. 28 U. S. C. §2254(d). AEDPA
thus left intact the equitable discretion invested in federal courts by
earlier federal habeas statutes. Pp. 7–14.
(c) Mr. Davenport’s two arguments in defense of the Sixth Circuit’s
decision lack merit. Pp. 14–21.
(1) Mr. Davenport argues that because the AEDPA inquiry repre-
sents a logical subset of the Brecht test, the Sixth Circuit necessarily
found that he satisfied AEDPA when he satisfied Brecht. That argu-
ment is mistaken. Proof of prejudice under Brecht does not equate to
a successful showing under AEDPA. The inquiries under Brecht and
AEDPA are different. Where AEDPA asks whether every fair-minded
jurist would agree that an error was prejudicial, Brecht asks only
whether a federal habeas court itself harbors grave doubt about the
petitioner’s verdict. The legal materials a court may consult when an-
swering each test also differ. Where AEDPA requires state-court de-
cisions to be measured against this Court’s clearly established hold-
ings, Brecht invites analysis based on the whole body of law. Assuming
that the Sixth Circuit’s analysis was enough to satisfy Brecht, it was
not enough to warrant eligibility for relief under AEDPA. Pp. 14–16.
(2) Mr. Davenport argues that this Court’s precedents in Fry v.
Pliler, 551 U. S. 112, and Davis v. Ayala, 576 U. S. 257, require a rul-
ing in his favor. But the holding in neither case helps Mr. Davenport,
and neither case resolved the question now before the Court. Instead,
Mr. Davenport focuses on a brief passage from Fry, repeated in
Ayala—“it certainly makes no sense to require formal application of
both tests (AEDPA/Chapman and Brecht) when the latter obviously
subsumes the former,” 551 U. S., at 120—that he believes supports the
theory that a court may grant relief without applying AEDPA. It does
not. In any event, this Court has long stressed that “the language of
an opinion is not always to be parsed as though we were dealing with
[the] language of a statute.” Reiter v. Sonotone Corp., 442 U. S. 330.
The Court will not override a lawful congressional command on the
basis of curated snippets extracted from decisions with no reason to
pass on the arguments Mr. Davenport presses here. Pp. 17–21.
(d) Even assuming that Mr. Davenport’s claim can survive Brecht,
he cannot satisfy AEDPA. Mr. Davenport argues the Michigan Court
of Appeals’ disposition of his shackling claim is contrary to, or an un-
reasonable application of, this Court’s decision in Holbrook v. Flynn,
475 U. S. 560. Holbrook rejected the defendant’s claim that he was
4 BROWN v. DAVENPORT
Syllabus
denied a fair trial due to the prejudicial effect of supplemental court-
room security on the jury. Id., at 562. The language in Holbrook Mr.
Davenport highlights casts doubt only on attempts to assess trial prej-
udice based on speculative testimony by prospective jurors. Nothing
in Holbrook is inconsistent with the Michigan Court of Appeals’ reli-
ance on post-trial testimony from actual jurors concerning the effect
on deliberations of security measures at Mr. Davenport’s trial. Nor did
the Michigan court unreasonably apply Chapman when it found that
the prosecution had established Mr. Davenport’s shackling was harm-
less beyond a reasonable doubt. This Court cannot say that every fair-
minded jurist applying Chapman must reach a different conclusion.
Similarly, the Court cannot say that every fairminded court would
have both identified and adopted Mr. Davenport’s forfeited theory that
his shackling might have influenced the jury toward a first-degree, ra-
ther than second-degree, murder conviction. Pp. 21–25.
964 F. 3d 448, reversed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, KAVANAUGH, and BARRETT, JJ., joined. KAGAN,
J., filed a dissenting opinion, in which BREYER and SOTOMAYOR, JJ.,
joined.
Cite as: 596 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–826
_________________
MIKE BROWN, ACTING WARDEN, PETITIONER
v. ERVINE DAVENPORT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 21, 2022]
JUSTICE GORSUCH delivered the opinion of the Court.
After a state court determines that an error at trial did
not prejudice a criminal defendant, may a federal court
grant habeas relief based solely on its independent assess-
ment of the error’s prejudicial effect under Brecht v. Abra-
hamson, 507 U. S. 619 (1993)? Or must a federal court also
evaluate the state court’s decision under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA)? The
Sixth Circuit ruled that an individual who satisfies Brecht
alone is entitled to habeas relief. This was mistaken. When
a state court has ruled on the merits of a state prisoner’s
claim, a federal court cannot grant relief without first ap-
plying both the test this Court outlined in Brecht and the
one Congress prescribed in AEDPA.
I
A
One evening in 2007, Annette White attended a gather-
ing with Ervine Davenport. On the drive home, Mr. Dav-
enport killed Ms. White. At trial, the only questions con-
cerned why and how. Mr. Davenport claimed self-defense
and testified to that effect. On his account, Ms. White grew
2 BROWN v. DAVENPORT
Opinion of the Court
angry during the trip and tried to grab the steering wheel
from him while he was driving. Then she pulled out a box
cutter and cut his arm. Mr. Davenport responded by ex-
tending one arm and pinning Ms. White against the pas-
senger side of the car, with his hand under her chin. Even-
tually, she stopped struggling. On discovering that Ms.
White was no longer breathing, Mr. Davenport panicked
and left her body in a field.
The prosecution offered a very different version of events.
It stressed that Ms. White was 5’2” tall, 103 pounds, and
had a broken wrist, while Mr. Davenport was 6’5” tall and
weighed nearly 300 pounds. The prosecution presented ev-
idence that Mr. Davenport had bragged to others before the
killing that, if he had a problem with someone, he would
choke the person. Days before Ms. White’s death, Mr. Dav-
enport had done just that—strangling another woman until
she lost consciousness and urinated on herself. Nor, on the
prosecution’s account, were Mr. Davenport’s actions after
Ms. White’s death consistent with his claim of self-defense.
Instead of contacting the police, he not only abandoned his
victim’s body. He also fled the scene and later visited Ms.
White’s home where he stole electronics and food. He told
a witness, too, that he “had to off ” Ms. White.
The prosecution offered additional proof. When police
questioned Mr. Davenport, he gave differing accounts and
initially denied any involvement in Ms. White’s death.
While authorities did locate a box cutter in the car, they did
not find it inside the cab of the vehicle but in the trunk and
untainted by blood. Also, a forensic pathologist testified
that Ms. White died of manual strangulation. The
pathologist explained that a victim of strangulation may
lose consciousness after 30 seconds, but that death does not
occur until the victim is without air for at least four to five
minutes. After Mr. Davenport testified that he merely ex-
tended his arm across Ms. White’s neck to keep her from
cutting him, the forensic pathologist offered his view that
Cite as: 596 U. S. ____ (2022) 3
Opinion of the Court
this account was not plausible. Ms. White’s injuries, found
on both sides of her neck, were consistent with strangula-
tion—but inconsistent with the application of broad force
across the front of her neck.
After a 7-day trial, a jury convicted Mr. Davenport of
first-degree murder.
B
On direct appeal in state court, Mr. Davenport sought to
have his conviction set aside in light of Deck v. Missouri,
544 U. S. 622 (2005). In Deck, this Court held that the
Fourteenth Amendment’s Due Process Clause generally
forbids shackling a criminal defendant at trial absent “a
special need.” Id., at 626. Mr. Davenport noted that during
his trial (but not his testimony) officials shackled one of his
hands, his waist, and his ankles. Those shackles may not
have been visible to many in the courtroom because of a
“privacy screen” around the table where Mr. Davenport sat.
But the trial court did not articulate on the record any spe-
cial need for its security measures.
Ultimately, the Michigan Supreme Court agreed that the
trial court’s actions violated Deck. At the same time, the
court sought to apply Chapman v. California, 386 U. S. 18(1967). In Chapman, this Court held that a preserved claim
of constitutional error identified on direct appeal does not
require reversal of a conviction if the prosecution can estab-
lish that the error was harmless beyond a reasonable doubt.
Id., at 24. To answer Chapman’s question, the Michigan
Supreme Court remanded the case to the trial court with
instructions to determine whether “the jury saw the defend-
ant’s shackles” and, if so, “whether the prosecution can
demonstrate beyond a reasonable doubt that the shackling
error did not contribute to the verdict against the defend-
ant.” People v. Davenport, 488 Mich. 1054, 794 N. W. 2d
616 (2011).
On remand, the trial court conducted an evidentiary
4 BROWN v. DAVENPORT
Opinion of the Court
hearing in which it heard from all 12 jurors. Five remem-
bered seeing Mr. Davenport’s restraints; the remaining
seven did not. All 12 testified that Mr. Davenport’s shack-
les did not enter into their deliberations or influence their
unanimous verdict. Based on this evidence, the trial court
found that the State had carried its burden to show harm-
lessness beyond a reasonable doubt.
Again, Mr. Davenport appealed. This time, Michigan’s
appellate courts declined to disturb the judgment. For its
part, the Michigan Court of Appeals held that “the prosecu-
tion proved beyond a reasonable doubt that the shackling
error did not affect the verdict.” People v. Davenport, 2012
WL 6217134, *3 (Dec. 13, 2012) (per curiam). In doing so,
the court relied on both the jurors’ testimony and that “the
evidence at trial overwhelmingly established defendant’s
guilt and belied his contention that he killed the 103-pound
victim in self-defense, a theory that was explicitly disputed
by expert medical testimony.” Id., at *2, n. 2. The Michigan
Supreme Court denied Mr. Davenport’s request for discre-
tionary review. People v. Davenport, 494 Mich. 875, 832
N. W. 2d 389, 390 (2013).
C
Mr. Davenport next sought relief in federal district court,
filing a habeas petition in the Western District of Michigan.
Under AEDPA, however, a federal court may disturb a final
state-court conviction in only narrow circumstances. As rel-
evant here, the statute provides that, when a state court
has already ruled on the merits of the habeas petitioner’s
claim, he must show that decision was either (1) “contrary
to” or an “unreasonable application of ” clearly established
federal law, as determined by the decisions of this Court, or
(2) based on an “unreasonable determination of the facts”
presented in the state-court proceeding. 28 U. S. C.
§ 2254(d).
The District Court found relief unwarranted under this
Cite as: 596 U. S. ____ (2022) 5
Opinion of the Court
standard. The Michigan state courts had ruled on the mer-
its of Mr. Davenport’s claim of error. In doing so, they cor-
rectly identified this Court’s controlling harmless-error rule
from Chapman. And their conclusions involved neither an
unreasonable application of Chapman nor an unreasonable
determination of the facts. To the contrary, the District
Court agreed with a Magistrate Judge’s assessment that
the state-court record contained no evidence “that the ju-
rors were influenced” by his restraints and “overwhelming
evidence of [Mr. Davenport’s] guilt.” Davenport v.
MacLaren, 2016 WL 11262506, *4 (WD Mich., Nov. 7,
2016); see also Davenport v. MacLaren, 2017 WL 4296808,
*1–*2 (WD Mich., Sept. 26, 2017) (citing 28 U. S. C.
§ 2254(d)(1)).
D
After that loss, Mr. Davenport appealed to the Sixth Cir-
cuit, where a divided panel reversed. Davenport v.
MacLaren, 964 F. 3d 448 (2020).
Unlike the District Court, the Sixth Circuit declined to
analyze the case under AEDPA. Instead, it held, only this
Court’s decision in Brecht v. Abrahamson governed its re-
view. Handed down before Congress adopted AEDPA,
Brecht sought to adapt Chapman’s harmless-error rule, de-
veloped for cases on direct appellate review, for use in fed-
eral habeas proceedings. Brecht, 507 U. S., at 633–635.
Citing the need to afford appropriate respect to final state-
court decisions that have already endured direct appeal, in-
cluding potential review in this Court, Brecht effectively in-
verted Chapman’s burden. 507 U. S., at 635. Rather than
require the prosecution to prove that a constitutional trial
error is harmless, Brecht held that a state prisoner seeking
to challenge his conviction in collateral federal proceedings
must show that the error had a “ ‘substantial and injurious
effect or influence’ ” on the outcome of his trial. Id., at 637.
6 BROWN v. DAVENPORT
Opinion of the Court
Persuaded that Mr. Davenport could satisfy his burden un-
der Brecht, the panel majority ordered Michigan to retry or
release him promptly. 964 F. 3d, at 464–468.
Judge Readler dissented. He argued that Brecht and
AEDPA set forth independent tests, and that both must be
satisfied before habeas relief becomes permissible. In
Judge Readler’s view, too, the District Court correctly re-
jected Mr. Davenport’s petition under AEDPA because the
state courts hearing his case had not acted contrary to, or
unreasonably applied, this Court’s decisions. 964 F. 3d, at
469, 478.
The Sixth Circuit denied rehearing en banc by a vote of 8
to 7. Davenport v. MacLaren, 975 F. 3d 537 (2020). Judges
Griffin and Thapar issued dissenting opinions. They ex-
pressed agreement with Judge Readler and observed that
the panel majority’s decision conflicted with those of other
circuits where petitioners are required to satisfy both
Brecht and AEDPA before becoming eligible for habeas re-
lief. 975 F. 3d, at 552 (Thapar, J., dissenting) (citing deci-
sions from the Third, Seventh, Tenth, and Eleventh Cir-
cuits). We granted Michigan’s petition for certiorari to
resolve the conflict in the federal courts of appeals about
the proper interaction between these two tests. 593 U. S.
___ (2021).
II
When Congress supplies a constitutionally valid rule of
decision, federal courts must follow it. In AEDPA, Congress
announced such a rule. It instructed that a federal court
“shall not . . . gran[t]” relief with respect to a claim that has
been adjudicated on the merits in state court “unless” the
state court’s decision was (1) “contrary to” or an “unreason-
able application of ” clearly established federal law, as de-
termined by the decisions of this Court, or (2) based on an
“unreasonable determination of the facts” presented in the
state-court proceeding. § 2254(d) (emphasis added).
Cite as: 596 U. S. ____ (2022) 7
Opinion of the Court
The upshot of these directions for our case is straightfor-
ward. No one questions that a state court’s harmless-error
determination qualifies as an adjudication on the merits
under AEDPA. See Davis v. Ayala, 576 U. S. 257, 269
(2015); Fry v. Pliler, 551 U. S. 112, 119 (2007); Early v.
Packer, 537 U. S. 3, 10–11 (2002) (per curiam). No one dis-
putes that such a decision exists here. Nor does Mr. Dav-
enport pursue any claim to relief under § 2254(d)(2). From
this, it follows that he must satisfy § 2254(d)(1) to secure
federal habeas relief. To be sure, where Brecht is impli-
cated a federal court must also ensure a habeas petitioner
has carried his burden under its terms before granting re-
lief. But in cases like ours satisfying Brecht is only a nec-
essary, not a sufficient, condition to relief. AEDPA too must
be satisfied. The Sixth Circuit erred in holding otherwise.
A
Some background helps explain this arrangement. From
the founding, Congress authorized federal courts to issue
habeas writs to federal custodians. § 14, 1 Stat. 81–82. Af-
ter the Civil War, Congress extended this authority, allow-
ing federal courts to issue habeas writs to state custodians
as well. See Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385.
But these statutes used permissive rather than mandatory
language; federal courts had the “power to” grant writs of
habeas corpus in certain circumstances. That same struc-
ture lives on in contemporary statutes, which provide that
federal courts “may” grant habeas relief “as law and justice
require.” 28 U. S. C. §§ 2241, 2243; Wright v. West, 505
U. S. 277, 285 (1992) (plurality opinion).
Over the centuries, a number of writs of habeas corpus
evolved at common law to serve a number of different func-
tions. See Ex parte Bollman, 4 Cranch 75, 97–98 (1807); 3
W. Blackstone, Commentaries on the Laws of England 129–
131 (1768). But the most notable among these writs was
that of habeas corpus ad subjiciendum, often called the
8 BROWN v. DAVENPORT
Opinion of the Court
“Great Writ.” Id., at 131. When English monarchs jailed
their subjects summarily and indefinitely, common-law
courts employed the writ as a way to compel the crown to
explain its actions—and, if necessary, ensure adequate pro-
cess, such as a trial, before allowing any further detention.
See Petition of Right, 3 Car. 1, ch.1, ¶¶ 5, 8 (1628). The
Great Writ was, in this way, no less than “the instrument
by which due process could be insisted upon.” Hamdi v.
Rumsfeld, 542 U. S. 507, 555 (2004) (Scalia, J., dissenting).
At the same time, even this writ had its limits. Usually,
a prisoner could not use it to challenge a final judgment of
conviction issued by a court of competent jurisdiction. See,
e.g., Opinion on the Writ of Habeas Corpus, Wilm. 77, 88, 97
Eng. Rep. 29, 36 (K. B. 1758). If the point of the writ was
to ensure due process attended an individual’s confinement,
a trial was generally considered proof he had received just
that. See, e.g., Bushell’s Case, Vaugh. 135, 142–143, 124
Eng. Rep. 1006, 1009–1010 (C. P. 1670).
This traditional understanding extended from England
to this country and persisted through much of our history.
Asked to apply the Nation’s first habeas statute to a duly
convicted prisoner, Chief Justice Marshall invoked the
common-law rule that a judgment of conviction after trial
was “conclusive on all the world.” Ex parte Watkins, 3 Pet.
193, 202–203 (1830). Acknowledging that Congress had au-
thorized the Court to “inquire into the sufficiency of ” the
cause of the petitioner’s detention, Marshall asked rhetori-
cally, “is not that judgment in itself sufficient cause?” Id.,
at 202 (emphasis added); see also Ex parte Parks, 93 U. S.
18, 21–22 (1876); P. Bator, Finality in Criminal Law and
Federal Habeas Corpus for State Prisoners, 76 Harv.
L. Rev. 441, 465–469 (1963) (Bator).
If the answer was nearly always yes, an important excep-
tion existed in both English and American law: A habeas
court could grant relief if the court of conviction lacked ju-
risdiction over the defendant or his offense. See Watkins, 3
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Opinion of the Court
Pet., at 202–203; Bator 471–472. A perceived “error in the
judgment or proceedings, under and by virtue of which the
party is imprisoned, constitute[d] no ground for” relief.
Ex parte Siebold, 100 U. S. 371, 375 (1880). Instead, a ha-
beas court could “examin[e] only the power and authority of
the court to act, not the correctness of its conclusions.” Har-
lan v. McGourin, 218 U. S. 442, 448 (1910). To be sure, the
line between mere errors and jurisdictional defects was not
always a “luminous beacon” and it evolved over time. Bator
470; Edwards v. Vannoy, 593 U. S. ___, ___ (2021)
(GORSUCH, J., concurring) (slip op., at 5). But this Court
generally sought to police the doctrine’s boundaries in cases
involving federal and state prisoners alike.1
By 1953, however, federal habeas practice began to take
on a very different shape. That year in Brown v. Allen this
Court held that a state-court judgment “is not res judicata”
in federal habeas proceedings with respect to a petitioner’s
federal constitutional claims. 344 U. S. 443, 458 (1953). A
——————
1 See, e.g., Ex parte Reed, 100 U. S. 13, 23 (1879) (distinguishing be-
tween “erroneous and voidable” and “absolutely void” judgments); see
also Knewel v. Egan, 268 U. S. 442, 445–447 (1925) (“[T]he judgment of
state courts in criminal cases will not be reviewed on habeas corpus
merely because some right under the Constitution . . . is alleged to have
been denied to the person convicted”); Henry v. Henkel, 235 U. S. 219,
228–229 (1914); Glasgow v. Moyer, 225 U. S. 420, 427–429 (1912);
Markuson v. Boucher, 175 U. S. 184, 187 (1899); Tinsley v. Anderson, 171
U. S. 101, 106 (1898); In re Eckart, 166 U. S. 481, 482–483 (1897); Berge-
mann v. Backer, 157 U. S. 655, 658–659 (1895); Andrews v. Swartz, 156
U. S. 272, 276 (1895); In re Jugiro, 140 U. S. 291, 297 (1891); In re Wood,
140 U. S. 278, 286–287 (1891); Ex parte Bigelow, 113 U. S. 328, 330–331
(1885); Ex parte Crouch, 112 U. S. 178, 180 (1884); Ex parte Parks, 93
U. S. 18, 21 (1876); 1 H. Black, Law of Judgments §§ 170, 254 (2d ed.
1902); S. Thompson, Void Sentences, 4 Crim. L. Mag. 797, 798–799
(1883). This Court eventually came to view the “limited” class of void
judgments to include “(i) convictions based on assertedly unconstitu-
tional statutes” and “(ii) detentions based upon an allegedly illegal [suc-
cessive] sentence.” Stone v. Powell, 428 U. S. 465, 476, and n. 8 (1976)
(citing Ex parte Siebold, 100 U. S. 371 (1880); Ex parte Lange, 18 Wall.
163 (1874); Bator 465–474).
10 BROWN v. DAVENPORT
Opinion of the Court
state court may reject the petitioner’s claims after a fair
hearing. No appellate court, including this one, may see fit
to reverse that final judgment. Yet still, Brown suggested,
a federal district court approaching the same case years
later should be free to decide de novo whether the state-
court proceedings “resulted in a satisfactory conclusion”
and to issue habeas relief if that conclusion is found want-
ing. Id., at 463; see also Wright, 505 U. S., at 287–288 (plu-
rality opinion). The traditional distinction between juris-
dictional defects and mere errors in adjudication no longer
restrained federal habeas courts. Full-blown constitutional
error correction became the order of the day.
This shift did not go unnoticed. Concurring only in the
result, Justice Jackson contended that the Court’s decision
“trivializ[ed] . . . the writ” and was inconsistent with the
presumption of finality that traditionally attached to crim-
inal convictions. Brown, 344 U. S., at 536, 543. He warned,
too, that the Court’s ruling threatened “haystack[s]” of new
habeas petitions—and that federal courts would struggle to
identify the meritorious “needle[s]” among them. Id., at
537. Over the ensuing years, that prediction proved presci-
ent: Federal courts struggled with an exploding caseload of
habeas petitions from state prisoners. See, e.g., Schneck-
loth v. Bustamonte, 412 U. S. 218, 274, n. 37 (1973) (Powell,
J., concurring) (“In 1971 . . . state prisoners alone filed
7,949 petitions for habeas in federal district courts, over 14
times the number filed when Mr. Justice Jackson voiced his
misgivings”); B. Garrett & L. Kovarsky, Federal Habeas
Corpus 135–136 (2013) (documenting the rise of habeas fil-
ings by state prisoners).2
——————
2 The dissent does not dispute that habeas courts refused to engage in
full-blown constitutional error correction at the time of the founding. But
it contends the practice became the norm by some (unspecified) point in
the “mid-19th century.” Post, at 2–3 (opinion of KAGAN, J.). The dissent’s
revisionist account contradicts this Court’s understanding. See, e.g.,
Cite as: 596 U. S. ____ (2022) 11
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B
Eventually, this Court responded to the post-Brown ha-
beas boom by devising new rules aimed at separating the
meritorious needles from the growing haystack. The ha-
beas statutes themselves provided the starting place for
these efforts. Recall that Congress invested federal courts
——————
Felker v. Turpin, 518 U. S. 651, 663 (1996) (“[I]t was not until well into
this century that this Court interpreted [habeas statutes] to allow a final
judgment of conviction in a state court to be collaterally attacked”);
Stone, 428 U. S., at 475 (in the 19th century, “[t]he writ was extended to
state prisoners[,] . . . [b]ut the limitation of federal habeas corpus juris-
diction to consideration of the jurisdiction of the sentencing court per-
sisted”); id., at 476 (Brown was a “landmark decision” that “expand[ed]”
habeas); Wright v. West, 505 U. S. 277, 285 (1992) (plurality opinion)
(“[B]efore [Brown], . . . [a]bsent an alleged jurisdictional defect, habeas
corpus would not lie” (internal quotation marks omitted)). The dissent
also claims to understand Brown better than its contemporaries did, ig-
noring Justice Jackson’s critique as well as Professor Hart’s observation
that Brown “manifestly broke new ground.” The Supreme Court 1958
Term—Foreword: The Time Chart of the Justices, 73 Harv. L. Rev. 84,
106 (1959); see also Bator 499–501; W. Duker, A Constitutional History
of Habeas Corpus 257–259 (1980); C. Forsythe, The Historical Origins of
Broad Federal Habeas Review Reconsidered, 70 Notre Dame L. Rev.
1079, 1166–1168 (1999); 1 B. Means, Postconviction Remedies §§ 4:4,
4:10 (2021). To be sure, the “category of claims deemed to be jurisdic-
tional for habeas purposes” “[g]radually . . . expand[ed]” over time.
Wright, 505 U. S., at 285 (plurality opinion). But that hardly proves the
dissent’s ambitious thesis that habeas has, from the mid-19th century,
functioned as plenary review for any “constitutional harms” that might
lurk behind state-court judgments. Post, at 6. In fact, some of the 19th
century cases the dissent cites did not even involve challenges to a court’s
final judgment. See, e.g., Ex parte Wells, 18 How. 307, 309 (1856) (chal-
lenge to custody under a Presidential pardon that supplanted a court’s
sentence); Ex parte Royall, 117 U. S. 241, 252–253 (1886) (challenge to
pretrial custody). Other cases, involving convictions under unconstitu-
tional statutes and successive sentences, treated the judgments at issue
as void. See, e.g., n. 1, supra; In re Medley, 134 U. S. 160, 173 (1890); In
re Nielsen, 131 U. S. 176, 183–185 (1889). And, as we have seen, 19th-
century decisions routinely sought to police the jurisdictional line. Su-
pra, at 9, and n. 1. In any event, what we have said remains true: By
1953, habeas had slipped its traditional moorings.
12 BROWN v. DAVENPORT
Opinion of the Court
with discretion when it comes to supplying habeas relief—
providing that they “may” (not must) grant writs of habeas
corpus, and that they should do so only as “law and justice
require.” 28 U. S. C. §§ 2241, 2243. This language, the
Court recognized, serves as “authorization to adjust the
scope of the writ in accordance with equitable and pruden-
tial considerations.” Danforth v. Minnesota, 552 U. S. 264,
278 (2008); see also Withrow v. Williams, 507 U. S. 680, 716
(1993) (Scalia, J., concurring in part and dissenting in part).
Foremost among those considerations is the States’ “power-
ful and legitimate interest in punishing the guilty.” Calde-
ron v. Thompson, 523 U. S. 538, 556 (1998) (internal quota-
tion marks omitted). Granting habeas relief to a state
prisoner “intrudes on state sovereignty to a degree matched
by few exercises of federal judicial authority.” Harrington
v. Richter, 562 U. S. 86, 103 (2011) (internal quotation
marks omitted).
Exercising its equitable discretion, and informed by these
concerns, the Court began to develop doctrines “aimed at
returning the Great Writ closer to its historic office.” Ed-
wards, 593 U. S., at ___ (GORSUCH, J., concurring) (slip op.,
at 8). The Court established procedural-default standards
to prevent petitioners from evading independent and ade-
quate state-law grounds sustaining their convictions.
Wainwright v. Sykes, 433 U. S. 72, 86–87 (1977). The Court
held that some claims are not cognizable in federal habeas
if state courts provide a mechanism for review. Stone v.
Powell, 428 U. S. 465, 494–495 (1976). The Court also ap-
plied new rules to prevent cycles of repetitive filings.
McCleskey v. Zant, 499 U. S. 467, 486–493 (1991).
Brecht was part of this effort. In Chapman, this Court
held that, when a defendant demonstrates on direct appeal
that a constitutional error occurred at his trial, his convic-
tion cannot stand unless the government proves the error’s
harmlessness “beyond a reasonable doubt.” 386 U. S., at
24. In Brecht, the Court resolved that this same standard
Cite as: 596 U. S. ____ (2022) 13
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was inappropriate for use in federal habeas review of final
state-court judgments. 507 U. S., at 633–634. Instead, the
Court reasoned, a state prisoner should not receive federal
“habeas relief based on trial error unless” he can show the
error had a “substantial and injurious effect or influence”
on the verdict. Id., at 637 (internal quotation marks omit-
ted). In reaching its judgment, the Court stressed that un-
doing a final state-court judgment is an “extraordinary rem-
edy,” reserved for only “ ‘extreme malfunctions in the state
criminal justice system’ ” and different in kind from provid-
ing relief on direct appeal. Id., at 633–634. To allow a fed-
eral habeas court to set aside a conviction based on nothing
more than “speculation that the defendant was prejudiced
by trial error” would be to give short shrift to the State’s
“sovereign interes[t]” in its final judgment. Calderon v.
Coleman, 525 U. S. 141, 146 (1998) (per curiam). Much as
the Court had “filled the gaps of the habeas statute with
respect to other matters,” it found it “necessary to do so”
again, in a by-now familiar exercise of its equitable discre-
tion. Brecht, 507 U. S., at 633.
C
Three years after Brecht, and apparently finding the
Court’s equitable doctrines insufficient, Congress intro-
duced its own reforms in AEDPA.
In many ways, the statute represented a sea change in
federal habeas law. As we have seen, Congress instructed
that, if a state court has adjudicated the petitioner’s claim
on the merits, a federal court “shall not” grant habeas relief
“unless” certain conditions are satisfied. § 2254(d). Some
of these conditions were new to the law at the time of their
adoption; all are demanding. See Richter, 562 U. S., at 102.
Still, Congress did not wash away everything that came
before. While AEDPA announced certain new conditions to
relief, it did not guarantee relief upon their satisfaction.
14 BROWN v. DAVENPORT
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Instead, Congress left intact the equitable discretion tradi-
tionally invested in federal courts by preexisting habeas
statutes. So even a petitioner who prevails under AEDPA
must still today persuade a federal habeas court that “law
and justice require” relief. § 2243. See Fry, 551 U. S., at
119; Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam).
And whatever else those inquiries involve, they continue to
require federal habeas courts to apply this Court’s prece-
dents governing the appropriate exercise of equitable dis-
cretion—including Brecht. See Banks, 536 U. S., at 272;
Johnson v. Acevedo, 572 F. 3d 398, 404 (CA7 2009); see also
Edwards, 593 U. S., at ___, n. 5 (GORSUCH, J., concurring)
(slip op., at 9, n. 5).
Today, then, a federal court must deny relief to a state
habeas petitioner who fails to satisfy either this Court’s eq-
uitable precedents or AEDPA. But to grant relief, a court
must find that the petitioner has cleared both tests. The
Sixth Circuit erred when it held Mr. Davenport to just one
of these burdens. It granted relief after finding for him on
Brecht. But it failed to ask the further question whether he
satisfied AEDPA. In doing so, the court disregarded Con-
gress’s instruction that habeas relief “shall not be granted”
unless AEDPA’s terms are satisfied. § 2254(d).
III
Mr. Davenport advances two arguments—one logical, one
doctrinal—in defense of the Sixth Circuit’s decision. We
consider them in turn.
A
Mr. Davenport first suggests the Sixth Circuit’s failure to
discuss AEDPA amounted to no more than a forgivable pec-
cadillo. On his account, the AEDPA inquiry represents a
logical subset of the Brecht test. So even though the Sixth
Circuit did not formally find that he satisfied AEDPA, it
implicitly did so when it found his case cleared Brecht.
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Opinion of the Court
This theory is mistaken. Proof of prejudice under Brecht
does not equate to a successful showing under AEDPA. In-
stead, the inquiries are “entirely different in kind.”
J. Greabe, The Riddle of Harmless Error Revisited, 54 Hou-
ston L. Rev. 59, 113, n. 297 (2016) (emphasis deleted). They
pose courts with different questions to resolve and require
courts to answer those questions based on different legal
materials.
Take the questions the two tests pose. When a state court
has applied Chapman, § 2254(d)(1) requires a habeas peti-
tioner to prove that the state court’s decision was unreason-
able. Cullen v. Pinholster, 563 U. S. 170, 181 (2011); Fry,
551 U. S., at 119. To accomplish that, a petitioner must
persuade a federal court that no “fairminded juris[t]” could
reach the state court’s conclusion under this Court’s prece-
dents. Ayala, 576 U. S., at 269 (internal quotation marks
omitted). Similarly, if a petitioner alleges the state court’s
decision “was based on an unreasonable determination of
the facts” under § 2254(d)(2), it is not enough to show that
“reasonable minds reviewing the record might disagree
about the finding in question.” Brumfield v. Cain, 576 U. S.
305, 314 (2015) (internal quotation marks and alteration
omitted). By contrast, under Brecht a petitioner may pre-
vail by persuading a federal court that it alone should har-
bor “grave doubt”—not absolute certainty—about whether
the trial error affected the verdict’s outcome. O’Neal v.
McAninch, 513 U. S. 432, 435 (1995). In sum, where
AEDPA asks whether every fairminded jurist would agree
that an error was prejudicial, Brecht asks only whether a
federal habeas court itself harbors grave doubt about the
petitioner’s verdict.
Next, consider the legal materials a court may consult
when applying the two tests. Section 2254(d)(1) limits ha-
beas relief to cases where a state-court decision contravenes
or unreasonably applies “clearly established Federal law, as
determined by the Supreme Court of the United States.” It
16 BROWN v. DAVENPORT
Opinion of the Court
is not enough that the state-court decision offends lower
federal court precedents. See, e.g., Glebe v. Frost, 574 U. S.
21, 24 (2014) (per curiam). This Court’s dicta cannot supply
a ground for relief. See, e.g., White v. Woodall, 572 U. S.
415, 419 (2014). Nor can holdings that speak only at a high
level of generality. See, e.g., Lopez v. Smith, 574 U. S. 1, 6
(2014) (per curiam); Yarborough v. Alvarado, 541 U. S. 652,
664 (2004). Under AEDPA too, “[s]tate-court decisions are
measured against this Court’s precedents as of ‘the time the
state court renders its decision’ ” and cannot be held unrea-
sonable only in light of later decided cases. Pinholster, 563
U. S., at 182 (quoting Lockyer v. Andrade, 538 U. S. 63, 71–
72 (2003)). None of these restrictions applies under Brecht.
There, a federal habeas court may consult and draw on the
whole body of law. So, for example, a petitioner might be
able to prevail under Brecht thanks to favorable circuit case
law but still lose under AEDPA because no comparable
holding exists in this Court’s precedents.
Today’s case illustrates how these differences matter.
The Sixth Circuit granted relief to Mr. Davenport after con-
cluding that it harbored grave doubts about the jury’s ver-
dict. It did not claim that every reasonable jurist would
share its doubts. Nor did it purport to hold that the Michi-
gan state courts had acted contrary to or unreasonably ap-
plied a decision of this Court. Instead, the Sixth Circuit
said only that the state-court decisions in this case could
not be reconciled with a roughly analogous precedent from
the Ninth Circuit. 964 F. 3d, at 467. Even assuming the
Sixth Circuit’s analysis was enough to permit relief under
Brecht, none of its reasoning was enough to warrant relief
under AEDPA. Nor can any of this come as a surprise. As
we have seen, if AEDPA makes winning habeas relief more
difficult, it is because Congress adopted the law to do just
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Opinion of the Court
that.3
B
Failing in his first argument, Mr. Davenport offers an al-
ternative. Even if all we have said is true as a matter of
logic, he suggests, we should rule for him anyway as a mat-
ter of precedent thanks to Fry v. Pliler, 551 U. S. 112, and
Davis v. Ayala, 576 U. S. 257.
Here, too, we cannot agree. Start with Fry. Because no
state court had ruled on the merits of the petitioner’s Chap-
man claim, everyone in Fry agreed that AEDPA did not ap-
ply to his federal habeas petition. Seeking to leverage that
fact to his further advantage, the petitioner argued that
Congress implicitly swept away this Court’s equitable ha-
beas precedents when it adopted AEDPA. 551 U. S., at 119.
The upshot? On the petitioner’s view, this meant a federal
habeas court had to apply Chapman (not Brecht or AEDPA)
to his case. Ultimately, the Court rejected this argument,
confirming instead that our equitable precedents remain
applicable “whether or not” AEDPA applies. 551 U. S., at
——————
3 The dissent attempts to paper over the differences between Brecht
and AEDPA in two strokes. First, it suggests that asking Brecht’s ques-
tion whether one jurist harbors grave doubt about the prejudicial effect
of a trial error is effectively the same thing as asking AEDPA’s question
whether any fairminded jurist could reach the Chapman decision a state
court did. Post, at 12–13. Second, to work its way around the fact that
Brecht and AEDPA require courts to consult different bodies of law, the
dissent argues for the creation of a new version of Brecht in which habeas
courts must “confin[e themselves] to using AEDPA-approved materials.”
Post, at 8. Call it Brecht 2.0. Neither move succeeds. Brecht and AEDPA
ask analytically distinct questions—and AEDPA’s test alone is statuto-
rily mandated. Until today, too, Brecht has permitted courts to consult
the full body of law. Besides, if the dissent really believes Brecht and
AEDPA always lead to the same result, it is unclear why it objects so
strongly to our judgment today. The dissent does not quibble with how
we apply AEDPA to Mr. Davenport’s case. See Part IV, infra. And, man-
ifestly, the Court of Appeals did not confine itself to consulting “AEDPA-
approved materials,” but relied in part on circuit case law to overturn
Mr. Davenport’s conviction. See supra, at 16.
18 BROWN v. DAVENPORT
Opinion of the Court
121.
None of this answers the question we face today. Where
the petitioner in Fry sought to suggest that AEDPA ren-
dered Brecht a dead letter, the petitioner here argues nearly
the opposite. And the Court’s ruling in Fry is, if anything,
affirmatively unhelpful to Mr. Davenport. Not only did Fry
hold that this Court’s equitable precedents like Brecht co-
exist side-by-side with AEDPA, it expressly recognized that
AEDPA “sets forth a precondition to the grant of habeas re-
lief . . . not an entitlement to it.” 551 U. S., at 119–120. Ra-
ther than suggest Brecht duplicates AEDPA or vice versa,
Fry thus stands as a reminder that the two tests impose
analytically distinct preconditions to relief.
Mr. Davenport offers no persuasive reply. Instead, he in-
vites us to overlook all of this and train our attention to a
brief passage at the end of Fry’s relevant analysis. There,
he notes, the Court said this: “[I]t certainly makes no sense
to require formal application of both tests
(AEDPA/Chapman and Brecht) when the latter obviously
subsumes the former.” 551 U. S., at 120. On Mr. Daven-
port’s telling, whatever else Fry did or said, this language
means it adopted his theory that a court applying Brecht
necessarily applies AEDPA along the way.
We do not see how we might read so much into so little.
Doubtless, there are some cases “when” Brecht does “sub-
sum[e]” AEDPA, just as Fry says. 551 U. S., at 120. As we
have seen, and as was the case in Fry, if a state court has
not adjudicated the petitioner’s claim on the merits,
AEDPA falls away. Likewise, if a federal court determines
that a habeas petition fails because of Brecht, there is no
need to prolong the matter by “formal[ly] appl[ying]”
AEDPA as well. 551 U. S., at 120. But none of this means,
and Fry never said, that a Brecht inquiry always subsumes
an AEDPA inquiry. Nor did Fry even have reason to con-
sider the relationship between Brecht and AEDPA in cases
like ours—where a state court has issued a decision on the
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merits of the petitioner’s claim and AEDPA does apply. To
the extent Fry had anything to say about that scenario, all
it said was consistent with what we say today: In such
cases, the Court recognized, relief “may not be granted un-
less the state court’s adjudication” was “unreasonable” un-
der AEDPA. 551 U. S., at 119.4
That leaves Davis v. Ayala, where a similar story unfolds.
There, the California Supreme Court did rule on the merits
of the petitioner’s claim: It determined that any federal
constitutional errors in his trial-court proceedings were
harmless under Chapman. Ayala, 576 U. S., at 263–264.
In later federal habeas proceedings, the Ninth Circuit ap-
plied Brecht, found prejudice, and granted relief without
pausing to consider AEDPA directly. Ayala v. Wong, 756
F. 3d 656, 674 (CA9 2014). Instead, it asserted, much as
Mr. Davenport does, that a favorable finding for a petitioner
under Brecht necessarily answers AEDPA’s distinct in-
quiry. 756 F. 3d, at 674, n. 13. In the end, however, this
Court reversed. We held that the Ninth Circuit misapplied
Brecht and that a proper Brecht analysis precluded relief.
Along the way, we indicated that the petitioner could not
prove eligibility for relief under AEDPA’s demanding stand-
ard either.
——————
4 As it must, the dissent concedes that Fry addressed arguments “dif-
fer[ent] from [Mr.] Davenport’s.” Post, at 9. Even so, the dissent latches
onto Fry’s passing description of AEDPA as “ ‘more liberal’ ” than Brecht
and its statement that the latter “ ‘subsumes’ ” the former. Post, at 1, 10,
11, 12. For reasons we have discussed, however, this dicta does not
transform Fry into a ruling that habeas courts must grant relief upon
satisfaction of Brecht without evaluating the state court’s judgment un-
der AEDPA. But there is still another problem with the dissent’s at-
tempt to invoke Fry as support for its position. Remember, the dissent’s
claim that Brecht duplicates AEDPA depends on a premise wholly alien
to the Fry Court—a new rule (Brecht 2.0) requiring courts applying
Brecht to consult only “AEDPA-approved materials.” See n. 3, supra.
The dissent’s argument thus boils down to an assertion that we should
today rewrite one precedent (Brecht) and then attribute clairvoyance
about our revisions to another past Court (Fry).
20 BROWN v. DAVENPORT
Opinion of the Court
With nothing in this holding to help him, Mr. Davenport
again asks us to focus on a carefully curated snippet. Bor-
rowing language from Fry, Ayala observed that “a prisoner
who seeks federal habeas corpus relief must satisfy Brecht,
and if the state court adjudicated his claim on the merits,
the Brecht test subsumes the limitations imposed by
AEDPA.” Ayala, 576 U. S., at 270 (citing Fry, 551 U. S., at119–120). Again, though, it is hard to see how this much
might carry the day. When a federal court determines, as
we did in Ayala, that a petitioner has failed to carry his
burden under Brecht, that conclusion subsumes (or perhaps
more precisely, obviates the need for) a separate AEDPA
inquiry; relief must be denied. But none of this resolves the
distinct question we face today—whether a petitioner who
can satisfy Brecht also necessarily secures a victory under
AEDPA. The Ayala Court had no occasion to address that
question. And to the extent it spoke to it, it spoke much as
Fry had, taking pains to reject any suggestion “that Brecht
somehow abrogates the limitation on federal habeas relief
that § 2254(d) plainly sets out.” Ayala, 576 U. S., at 268.5
In the end, Mr. Davenport’s appeals to Fry and Ayala
(echoed by the dissent) rest on a misunderstanding of stare
decisis. At its best, that doctrine is a call for judicial humil-
ity. It is a reminder to afford careful consideration to the
work of our forbearers, their experience, and their wisdom.
But respect for past judgments also means respecting their
limits. This Court has long stressed that “the language of
——————
5 If Fry doesn’t seal a win for Mr. Davenport, the dissent argues, Ayala
does the job on its own. Post, at 10–12. But Ayala does no more than
Fry to compel the dissent’s Brecht 2.0 approach. To the contrary, the
Ayala Court reversed a lower court that had overturned a conviction un-
der Brecht “ ‘without regard for the state court’s harmlessness determi-
nation.’ ” Ayala, 756 F. 3d, at 674. It issued a stern reminder that “the
highly deferential AEDPA standard applies.” Ayala, 576 U. S., at 269.
And its harmless-error analysis deferred repeatedly to the state court’s
findings. Id., at 271–285. These are not the actions of a Court that saw
Brecht as a stand-alone gateway to habeas relief.
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an opinion is not always to be parsed as though we were
dealing with [the] language of a statute.” Reiter v. Sonotone
Corp., 442 U. S. 330, 341 (1979). Yet that is exactly what
Mr. Davenport and the dissent ask of us. They would have
us override a lawful congressional command—that no fed-
eral habeas relief should issue “unless” AEDPA’s applicable
conditions are satisfied. § 2254(d). And they would have us
do so on the basis of a handful of sentences extracted from
decisions that had no reason to pass on the argument Mr.
Davenport presents today. We neither expect nor hope that
our successors will comb these pages for stray comments
and stretch them beyond their context—all to justify an out-
come inconsistent with this Court’s reasoning and judg-
ments and with Congress’s instructions. Such an exalted
view of this Court’s every passing remark would turn stare
decisis from a tool of judicial humility into one of judicial
hubris.
IV
Having concluded that the Sixth Circuit erred by failing
to apply AEDPA before granting habeas relief, one question
remains: Assuming Mr. Davenport can satisfy Brecht as
the Sixth Circuit held, can he satisfy AEDPA? The answer
helps illustrate how the two inquiries are distinct and why
a federal court must answer both before overturning a
state-court conviction.
Under the statute’s terms, we assess the reasonableness
of the “last state-court adjudication on the merits of ” the
petitioner’s claim. Greene v. Fisher, 565 U. S. 34, 40 (2011).
In this case, that is the decision of the Michigan Court of
Appeals. To be sure, after that intermediate court ruled
against Mr. Davenport he sought discretionary review in
the Michigan Supreme Court, which denied his request.
See 494 Mich., at 875, 832 N. W. 2d, at 390. But a discre-
tionary denial of leave to appeal does not typically entail an
“adjudication” of the underlying claim’s “merits” under
22 BROWN v. DAVENPORT
Opinion of the Court
AEDPA’s terms. Instead, it usually represents “a decision
by the state supreme court not to hear the appeal—that is,
not to decide at all.” Greene, 565 U. S., at 40; cf. Ylst v.
Nunnemaker, 501 U. S. 797, 805–806 (1991) (“[T]he discre-
tionary denial of review on direct appeal by the California
Supreme Court is not even a ‘judgment’ ”).
In this respect, the Michigan Supreme Court follows a fa-
miliar practice. “The denial of a writ of certiorari” in this
Court “imports no expression of opinion upon the merits of
the case.” United States v. Carver, 260 U. S. 482, 490
(1923). And the Michigan Supreme Court has long de-
scribed its denials of applications for leave to appeal in the
same terms. See, e.g., Malooly v. York Heating & Ventilat-
ing Corp., 270 Mich. 240, 246–247, 258 N. W. 622, 624
(1935); see also Mich. Ct. Rules 7.303(B)(1), 7.305(B)(1)–(3)
(2021). In the past, too, this Court has treated lower Mich-
igan court decisions as the relevant AEDPA adjudication
despite discretionary denials of review by the State Su-
preme Court. Woods v. Donald, 575 U. S. 312, 314–315, 317
(2015) (per curiam); Burt v. Titlow, 571 U. S. 12, 20 (2013);
Lafler v. Cooper, 566 U. S. 156, 161, 173 (2012).
Turning to the decision of the Michigan Court of Appeals,
Mr. Davenport principally argues that it was contrary to or
an unreasonable application of this Court’s decision in
Holbrook v. Flynn, 475 U. S. 560 (1986). But it is hard to
see how that could be the case. For one thing, Holbrook was
a decision about whether a constitutional trial error oc-
curred at all, not whether the alleged error was prejudicial.
For another, Holbrook rejected the defendant’s claim that
he “was denied his constitutional right to a fair trial whe[n]
. . . the customary courtroom security force was supple-
mented by four uniformed state troopers sitting in the first
row of the spectator’s section.” Id., at 562. Nothing in that
analysis is inconsistent with the Michigan Court of Appeals’
disposition of Mr. Davenport’s shackling claim.
Unable to make use of Holbrook’s holding, Mr. Davenport
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Opinion of the Court
once more asks us to turn our attention elsewhere. In par-
ticular, he notes that the trial court in Holbrook asked po-
tential jurors at the outset of trial whether the presence of
state troopers would affect their ability to consider fairly
the defendant’s case; they said no. This Court indicated
that such questions and answers cannot alone “disposi-
tive[ly]” resolve the question whether security measures
prejudice a defendant’s right to a fair trial. Id., at 570. In-
stead, the Court reasoned that “jurors will not necessarily
be fully conscious of the effect [such measures] will have on
their attitude toward the accused. This will be especially
true when jurors are questioned at the very beginning of
the proceedings; at that point, they can only speculate on
how they will feel after being exposed to a practice daily
over the course of a long trial.” Ibid. Mr. Davenport high-
lights that the Court in Deck favorably quoted some of these
passages too. 544 U. S., at 635.
Even bearing all this in mind, however, we cannot see
how the Michigan Court of Appeals acted contrary to or un-
reasonably applied clearly established federal law. The
Michigan court found the shackling in Mr. Davenport’s case
harmless for two reasons—both because of the “over-
whelmin[g]” evidence against him, and because jurors tes-
tified that his shackling did not affect their verdict. 2012
WL 6217134, at *1–*2, and n. 2. Holbrook does not compel
a different ruling on the first score. It addressed a different
evidentiary record and affirmed the defendant’s conviction.
Nor does the decision compel a different ruling on the sec-
ond score. Holbrook cast doubt only on attempts to assess
prejudice based on testimony from prospective jurors spec-
ulating about how the security measures might affect their
perceptions over the course of an upcoming trial. Nothing
in the decision purported to forbid courts from considering
post-trial testimony about how trial security measures ac-
tually affected juror deliberations. Nor may this or any fed-
eral court use an AEDPA case as an opportunity to pass on
24 BROWN v. DAVENPORT
Opinion of the Court
the wisdom of extending old precedents in new ways.
AEDPA permits relief only when a state court acts contrary
to or unreasonably applies this Court’s preexisting and
clearly established rules. See, e.g., Marshall v. Rodgers,
569 U. S. 58, 64 (2013) (per curiam); Woodall, 572 U. S., at
424–426; Lopez, 574 U. S., at 6.
As a backup, Mr. Davenport suggests that the Michigan
Court of Appeals committed an independent error by unrea-
sonably applying Chapman. But Chapman merely an-
nounced the default burden of proof for evaluating consti-
tutional errors on direct appeal: The prosecution must
prove harmlessness beyond a reasonable doubt. 386 U. S.,
at 24. And this Court has repeatedly explained that, when
it comes to AEDPA, “the more general the [federal] rule[,]
. . . the more leeway [state] courts have in reaching out-
comes in case-by-case determinations” before their deci-
sions can be fairly labeled unreasonable. Renico v. Lett, 559
U. S. 766, 776 (2010) (internal quotation marks and altera-
tion omitted).
The case before us does not come close to exceeding that
leeway. The Michigan Court of Appeals properly identified
the controlling standard. 2012 WL 6217134, at *1. It then
proceeded to find that the prosecution had established Mr.
Davenport’s shackling was harmless beyond a reasonable
doubt in light of the jurors’ testimony and the “over-
whelmin[g]” evidence that “established defendant’s guilt
and belied his contention that he killed the 103 pound vic-
tim in self-defense, a theory that was explicitly disputed by
expert medical testimony.” Id., at *1–*2, and n. 2. Even if
some fairminded jurist applying Chapman could reach a
different conclusion, we cannot say that every fairminded
jurist must.
Finally, in a variation on his Chapman argument, Mr.
Davenport faults the Michigan Court of Appeals for unrea-
sonably focusing on a “false choice between first-degree
murder and self-defense.” Brief for Respondent 45. In his
Cite as: 596 U. S. ____ (2022) 25
Opinion of the Court
view, the state court improperly ignored the possibility that
Mr. Davenport’s shackling might have influenced the jury
toward a conviction for first-degree murder rather than
second-degree murder. But Mr. Davenport never presented
this theory to the Michigan Court of Appeals. See Brief for
Appellant in People v. Davenport, No. 306868, pp. 22–24
(arguing only that Mr. Davenport’s shackling influenced ju-
rors’ receptiveness to his self-defense theory). Nor does it
directly respond to what the state court called the “over-
whelmin[g]” record evidence he committed murder in the
first degree. In these circumstances we cannot say that
every fairminded court would have both identified and
adopted Mr. Davenport’s forfeited theory.
*
Even assuming Mr. Davenport met his burden under
Brecht, he cannot do so under AEDPA. And a federal court
cannot grant habeas relief unless a state prisoner like Mr.
Davenport satisfies both this Court’s equitable precedents
and Congress’s statute. The judgment of the Court of Ap-
peals is
Reversed.
Cite as: 596 U. S. ____ (2022) 1
KAGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–826
_________________
MIKE BROWN, ACTING WARDEN, PETITIONER
v. ERVINE DAVENPORT
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[April 21, 2022]
JUSTICE KAGAN, with whom JUSTICE BREYER and
JUSTICE SOTOMAYOR join, dissenting.
Twice in recent years, this Court has addressed how a
federal habeas court is to evaluate whether a state trial er-
ror was harmless. See Fry v. Pliler, 551 U. S. 112, 119–120
(2007); Davis v. Ayala, 576 U. S. 257, 267–270 (2015). And
twice, we have made clear that the habeas court need apply
only the standard prescribed in Brecht v. Abrahamson, 507
U. S. 619 (1993); it need not also run through the test set
out in the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). That is because, we have both times ex-
plained, the Brecht standard “obviously subsumes” the
“more liberal” AEDPA one: If a defendant meets the former,
he will “necessarily” meet the latter too. Fry, 551 U. S., at
120; Ayala, 576 U. S., at 270.
Today, the Court discards those crystal-clear statements,
subscribed to on each occasion by every Justice. The major-
ity reverses the Court of Appeals for following our prior
guidance, allowing the use of the Brecht test alone. And in
declaring Brecht insufficient, the majority consigns future
habeas courts to a regimen of make-work. Now those courts
will have to jump through AEDPA’s hoops as well, even
though that extra analysis will never lead to a different re-
sult. I respectfully dissent from that pointless demand.
2 BROWN v. DAVENPORT
KAGAN, J., dissenting
I
Because the majority begins with some law-chambers
history, see ante, at 7–11, I do too—though fair warning:
My discussion is no more relevant than the majority’s to the
issue before us. Not surprisingly, neither of the parties to
this small and legally mundane case thought it a suitable
occasion for a from-Blackstone-onward theory of habeas
practice. Yet the majority, unprompted, embarks on that
project, perhaps hoping that the seeds it sows now will yield
more succulent fruit in cases to come. In the majority’s
story, post-conviction habeas relief was all but unavailable
until the mid-20th century—when in an instant the Court
in Brown v. Allen, 344 U. S. 443 (1953), upended the rules.
That account repeats the views expressed in a recent con-
currence, authored by the same Justice as today delivers
the majority opinion. See Edwards v. Vannoy, 593 U. S.
___, ___–___ (2021) (GORSUCH, J., concurring) (slip op., at
2–8); id., at ___ (slip op., at 3) (Habeas historically “provided
no recourse for a prisoner confined pursuant to a final judg-
ment of conviction”). But the theory, in its fundamentals,
is wrong. Federal courts long before Brown extended ha-
beas relief to prisoners held in violation of the Constitu-
tion—even after a final conviction.
This Court started reviewing post-conviction constitu-
tional claims under Congress’s first grant of habeas author-
ity, included in the Judiciary Act of 1789. That provision,
applying only to federal prisoners, did not specifically pro-
vide for collateral review of constitutional claims. See Act
of Sept. 24, 1789, §14, 1 Stat. 81–82 (enabling federal courts
to grant habeas writs to “inquir[e] into the cause of [a fed-
eral prisoner’s] commitment”). But even without explicit
permission, the Court in the mid-19th century invoked the
habeas law to adjudicate those claims—including some
from petitioners already convicted and sentenced. See 1 R.
Hertz & J. Liebman, Federal Habeas Corpus Practice and
Procedure §2.4[d][i], p. 51 (7th ed. 2020). In Ex parte Wells,
Cite as: 596 U. S. ____ (2022) 3
KAGAN, J., dissenting
18 How. 307 (1856), for example, only the dissent thought
that the fact of a conviction and sentence precluded grant-
ing habeas relief (as today’s opinion says was the firm rule).
See id., at 330 (Curtis, J., dissenting) (asserting that habeas
could not aid a person “imprisoned under a [circuit court’s]
criminal sentence”). The majority, ignoring that objection,
scrutinized the merits of the claim in detail before deciding
that no constitutional violation had occurred and the appli-
cant should remain in prison. Id., at 315; see id., at 309–
315. And in Ex parte Lange, 18 Wall. 163 (1874), the Court
(again acting under the original habeas law) went further:
It granted relief to a convicted prisoner after finding a vio-
lation of the Double Jeopardy Clause. The Court explained
that it was carrying out a “sacred duty” in declaring that
the prisoner was being held “without authority, and [that]
he should therefore be discharged.” Id., at 178.
When Congress amended the Judiciary Act after the Civil
War, the scope of federal habeas review—including over
post-conviction claims—grew far larger. The text of the
amendment (similar to current law) gave federal courts ex-
pansive power: “to grant writs of habeas corpus in all cases
where any person may be restrained of his or her liberty” in
violation of the Federal Constitution. Act of Feb. 5, 1867,
14 Stat. 385; see 28 U. S. C. §§2241(a), (c)(3). And “any per-
son” in “all cases” meant just that: State prisoners, not just
federal ones, could now apply for habeas relief. Those state
cases of course involved separate sovereigns, acting under
their own laws. But even in that sphere, the Court soon
decided that the federal judiciary’s authority extended to
hearing constitutional challenges to final convictions. Un-
der the new statute, the Court explained, “a single [federal]
judge on habeas corpus” could free “a prisoner, after convic-
tion in a State court,” upon finding him unconstitutionally
restrained. Ex parte Royall, 117 U. S. 241, 253 (1886). Or
as held in another decision, a “party [was] entitled to a [writ
4 BROWN v. DAVENPORT
KAGAN, J., dissenting
of ] habeas corpus,” even after his case “had gone to convic-
tion and sentence,” when the state court “ha[d] no constitu-
tional authority or power to condemn” him. In re Nielsen,
131 U. S. 176, 184 (1889). A leading treatise of the time
summarized the state of the law: A federal court “may, on
habeas corpus, release one who is restrained of his liberty
in violation of the constitution of the United States, though
held under the criminal process of a state court, and either
before or after judgment.” W. Church, Writ of Habeas Cor-
pus §84, p. 117 (2d ed. 1893).
In line with that view, this Court granted habeas relief,
on an assortment of constitutional grounds, to both federal
and state prisoners challenging their convictions or sen-
tences. The Court granted post-conviction relief to protect
habeas applicants’ rights to a grand jury indictment, to a
jury trial, to assistance of counsel, and against self-incrim-
ination. See, e.g., Ex parte Wilson, 114 U. S. 417, 425–426,
429 (1885); Callan v. Wilson, 127 U. S. 540, 547–548, 556–
557 (1888); Counselman v. Hitchcock, 142 U. S. 547, 552,
585–586 (1892); Johnson v. Zerbst, 304 U. S. 458, 467–469
(1938). The Court granted post-conviction relief for viola-
tions of the Equal Protection Clause, the Double Jeopardy
Clause, and the Ex Post Facto Clause. See, e.g., Yick Wo v.
Hopkins, 118 U. S. 356, 373–374 (1886); Nielsen, 131 U. S.,
at 190–191; In re Medley, 134 U. S. 160, 170–173 (1890).
And as due process rights expanded in the first half of the
20th century, the Court held post-conviction habeas relief
proper for those claims too. See, e.g., Moore v. Dempsey, 261
U. S. 86, 90–92 (1923); Waley v. Johnston, 316 U. S. 101,
104–105 (1942) (per curiam); Wade v. Mayo, 334 U. S. 672,
683–684 (1948).
The modern Court has repeatedly acknowledged that his-
tory. “[O]ver the years,” the Court explained (referencing
most of the cases cited above), “the writ of habeas corpus
evolved as a remedy available to effect discharge from any
confinement contrary to the Constitution or fundamental
Cite as: 596 U. S. ____ (2022) 5
KAGAN, J., dissenting
law.” Preiser v. Rodriguez, 411 U. S. 475, 485 (1973). Or
again: Citing Wells and Lange (among others), the Court
described how “judicial decisions [had] expand[ed] the
availability of habeas relief ” to include challenges to final
convictions. Wainwright v. Sykes, 433 U. S. 72, 79 (1977).
Or once more: The Court cited a string of 19th- and early
20th-century cases to illustrate how habeas had expanded
to remedy “convictions obtained under an unconstitutional
statute” or “without adequate procedural protections for the
defendant.” McCleskey v. Zant, 499 U. S. 467, 478 (1991);
see also Schlup v. Delo, 513 U. S. 298, 317–318 (1995) (cit-
ing McCleskey and Wainwright and noting the “broadening
of the scope of the writ” to “encompass review of constitu-
tional error” in criminal proceedings).
The majority tries to cram the many habeas decisions be-
lying its position into a narrow jurisdictional “exception,”
ante, at 8—but its effort does no more than reveal the peril
of looking at history through a 21st-century lens. In the
majority’s view, a habeas court could grant relief only “if the
court of conviction lacked jurisdiction,” not if it committed
“errors in adjudication.” Ante, at 8, 10. But some of the
decisions the majority must contend with made no mention
at all of the convicting (or sentencing) court’s jurisdiction.
See, e.g., Wells, 18 How., at 308–315; Yick Wo, 118 U. S., at365–374. And those that did so often used the word to mean
something different from what it does today. The concept
of “jurisdictional defects” (ante, at 9) could at that time in-
clude—rather than contrast with—constitutional errors of
the kind described above.1 As one legal historian puts the
——————
1 See, e.g., Ex parte Wilson, 114 U. S. 417, 429 (1885) (the lack of a
grand jury indictment meant that the court had “exceeded its jurisdic-
tion”); Callan v. Wilson, 127 U. S. 540, 547, 557 (1888) (a denial of the
jury trial right rendered a conviction “void” and “without jurisdiction”);
In re Nielsen, 131 U. S. 176, 185 (1889) (a sentence violating the Double
Jeopardy Clause was “beyond the jurisdiction of the court,” because “an
6 BROWN v. DAVENPORT
KAGAN, J., dissenting
point: The jurisdictional inquiry was then (though of course
not now) often “merits based.” A. Woolhandler, Demodeling
Habeas, 45 Stan. L. Rev. 575, 630 (1993). That is why this
Court could say in the late 19th century that a court of con-
viction has jurisdiction only “when, in taking custody of the
accused, and in its modes of procedure to the determination
of the question of his guilt or innocence, and in rendering
judgment, the court keeps within the limitations prescribed
by the law.” In re Bonner, 151 U. S. 242, 257 (1894). Or
why a roughly contemporaneous habeas treatise could
state: “[N]o court has jurisdiction to imprison a person or
detain him in custody in violation of the Constitution.” 1
W. Bailey, Law of Habeas Corpus and Special Remedies
§25, p. 67 (1913). So the majority’s supposedly narrow ju-
risdictional exception in fact allowed expansive relief: From
the mid-1800s on, federal courts granted habeas writs to
prisoners, federal and state alike, who on the way to convic-
tion or sentence had suffered serious constitutional harms.2
Contrary to the majority, then, our decision in Brown
built on decades and decades of history. No doubt, Brown
was significant—a landmark of a kind—because it “made
explicit,” and delineated in precise style, the broad scope of
——————
express provision of the Constitution[ ] bounds and limits all jurisdic-
tion”); Johnson v. Zerbst, 304 U. S. 458, 468 (1938) (the denial of the right
to counsel is a “jurisdictional bar to a valid conviction”).
2 A forthcoming article makes much the same point in addressing the
concurrence that anticipated today’s historical musings. See supra, at 2;
Edwards v. Vannoy, 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concur-
ring) (slip op., at 2–8). Professor Jonathan Siegel writes that the concur-
rence “relies on quotations” invoking a court’s jurisdiction “without fully
acknowledging the meaning that they had in their original context. [It]
incorrectly ascribes to these quotations the meaning they might have if
a court wrote them today. One must, however, always remember that
‘the past is a foreign country; they do things differently there.’ Historical
statements must be understood in their historical context.” Habeas, His-
tory, and Hermeneutics, 64 Ariz. L. Rev. (forthcoming 2022) (draft, at 4),
https://ssrn.com/abstract=3899955 (footnote omitted).
Cite as: 596 U. S. ____ (2022) 7
KAGAN, J., dissenting
federal habeas. Wainwright, 433 U. S., at 79. But the de-
cision, as the leading modern treatise on habeas explains,
“worked no revolution.” 1 Hertz & Liebman §2.4[d][viii], at
73. Rather, the principles that Brown “nicely catalogue[d]”
were already “long established, to anyone with the patience
to search them out from among the literally hundreds of in-
dividually unimportant cases in which they lay dispersed.”
1 Hertz & Liebman, at 73–75.3
So the majority should not be so sure that it really wishes
judicially developed habeas doctrines to “return[ ] the Great
Writ closer to its historic office,” ante, at 12—at least if that
office refers to the longstanding practice of the federal
courts under a statute broadly authorizing habeas writs.
The majority might then find itself bound to grant habeas
relief, with more regularity and less compunction than it
would prefer, to address violations of convicted prisoners’
constitutional rights.
But let’s be frank: My view of the history, just like the
majority’s, has precious little—no, has nothing—to do with
resolving this case. Although it is more entertaining to play
——————
3 A mountain of other scholarship confirms the treatise’s account. See,
e.g., J. Siegel, 64 Ariz. L. Rev. (forthcoming 2022) (draft, at 26) (“[T]he
distance between nineteenth century habeas practices and those ap-
proved in Brown v. Allen is much smaller than Justice Gorsuch is pre-
pared to acknowledge”); J. Wert, Habeas Corpus in America: The Politics
of Individual Rights 142 (2011) (Brown “merely formaliz[ed] earlier
rules”); E. Freedman, Habeas Corpus: Rethinking the Great Writ of Lib-
erty 139 (2001) (“[O]ne can characterize Brown as a watershed only by
shutting one’s eyes” to developments “under way long before the case was
decided”); A. Clarke, Habeas Corpus: The Historical Debate, 14
N. Y. L. S. J. Human Rights 375, 433 (1998) (“Far from constituting a sea
change, [Brown] merely modernized the language of the law”); S.
Saltzburg, Habeas Corpus: The Supreme Court and the Congress, 44
Ohio St. L. J. 367, 382 (1983) (“Was [Brown] a departure from prior hold-
ings? The only fair answer is ‘no’ ”); G. Peller, In Defense of Federal Ha-
beas Corpus Relitigation, 16 Harv. Civ. Rights-Civ. Lib. L. Rev. 579, 644
(1982) (Brown “did not break any new ground” respecting “the scope of
federal habeas review of state court determinations of federal law”).
8 BROWN v. DAVENPORT
KAGAN, J., dissenting
amateur historian, it is past time to put in some work on
the technical issue before us: what standard(s) a habeas
court should use to decide whether a state trial court’s con-
stitutional error was harmless.
II
Except that little work is in truth necessary—because we
have already, and unanimously, resolved that question
twice before.
To see how (and why) we have done so, first consider the
two possible answers. As the majority frames it, the choice
is between (1) applying the Brecht standard alone (as Er-
vine Davenport wants) and (2) applying both Brecht and
AEDPA (as the State desires). See ante, at 1, 14. (Trust
me: I will in a moment set out what those standards are.)
That formulation of the choice is appropriate as shorthand;
indeed, I will use it myself. But it remains an oversimplifi-
cation. For in arguing that the Brecht test suffices, Daven-
port does not contend that a federal habeas court may
simply ignore AEDPA. Although the majority veils the
point, Davenport readily acknowledges that a court must
always comply with AEDPA’s limitation on “the legal ma-
terials a court may consult” and “draw on” to justify habeas
relief. Ante, at 15–16; see Brief for Respondent 16–17 (ex-
plaining that a court’s Brecht analysis is sufficient only if it
relies exclusively “on the legal and factual materials al-
lowed” under AEDPA). All Davenport claims is that if the
habeas court confines itself to using AEDPA-approved ma-
terials, then it need only find the Brecht standard met to
grant relief.4 That means (here, finally, is the Brecht stand-
——————
4 That view does not, as the majority recurrently claims, require “re-
writ[ing]” Brecht to make it “Brecht 2.0.” Ante, at 19, n. 4; see ante, at
17, n. 3, 20, n. 5. The question of what materials a court may consider is
of course different from the question of what standard the court must
apply in deciding to grant habeas relief. Brecht addresses the legal
Cite as: 596 U. S. ____ (2022) 9
KAGAN, J., dissenting
ard) the court has to find “actual prejudice”—more specifi-
cally, that there is “grave doubt” about whether an error
had a “substantial and injurious effect or influence” on a
verdict. Brecht, 507 U. S., at 637; O’Neal v. McAninch, 513
U. S. 432, 436 (1995). But no more is required: The court
need not, Davenport says, separately apply the AEDPA
test. Which means it does not have to analyze (here is the
AEDPA test) whether the state appellate court acted “un-
reasonabl[y],” 28 U. S. C. §2254(d), when it decided, under
Chapman v. California, 386 U. S. 18 (1967), that an error
was harmless beyond a reasonable doubt. Is Davenport
right?
This Court (first) made clear in Fry v. Pliler that he is.
The question there was whether a federal habeas court
should assess harmless error under Brecht (rather than
Chapman) even when the state court had failed to make the
harmlessness finding Chapman requires on direct review.
Justice Scalia, speaking for a unanimous Court, explained
why the habeas court should still apply Brecht: Use of the
defendant-friendly Chapman test on habeas would “under-
min[e] the States’ interest in [the] finality” of convictions.
551 U. S., at 117 (quoting Brecht, 507 U. S., at 637). But
Fry raised an objection. In recently enacting AEDPA, he
claimed, Congress had abolished the Brecht test—replacing
it with a new AEDPA/Chapman standard of review. That
argument, of course, differs from Davenport’s. See ante, at
18. But the Court’s reply, in describing the relationship be-
tween Brecht and AEDPA, answers today’s question:
“Given our frequent recognition that AEDPA limited
rather than expanded the availability of habeas relief,
——————
standard alone. So Brecht could not possibly affect AEDPA’s materials
requirement—and Davenport properly recognizes as much. But Brecht
could obviate the need to apply AEDPA’s standard—and as I’ll describe,
this Court has not once but twice made clear that it does.
10 BROWN v. DAVENPORT
KAGAN, J., dissenting
it is implausible that, without saying so, AEDPA re-
placed the Brecht standard of actual prejudice with the
more liberal AEDPA/Chapman standard which re-
quires only that the state court’s harmless-beyond-a-
reasonable-doubt determination be unreasonable.
That said, it certainly makes no sense to require formal
application of both tests (AEDPA/Chapman and
Brecht) when the latter obviously subsumes the for-
mer.” 551 U. S., at 119–120 (citations and internal
quotation marks omitted).
That passage is clear on its face, as Justice Scalia’s opinions
typically are. But because the majority pretends it does not
say what it says, see ante, at 18–19, it is worth going over.
The key points are two. First, the Brecht standard is harder
for a prisoner to meet—i.e., less “liberal”—than the
AEDPA/Chapman standard. And second, because that is
so—because Brecht so “obviously subsumes” AEDPA/
Chapman—it “makes no sense” to require a court to for-
mally apply both. Just apply Brecht and be done with it.
Not in “some cases,” and not in select “scenario[s],” as to-
day’s majority imagines. Ante, at 18–19. But as a rule. Be-
cause if a prisoner can satisfy Brecht, he can “obviously”
satisfy AEDPA/Chapman, and courts should not have to do
needless work.
But we need not take Fry’s word for the point, because
the Court in Davis v. Ayala reaffirmed everything Justice
Scalia said. In Ayala, a federal court held on habeas that a
state trial error caused actual prejudice under Brecht. This
Court disagreed and reversed, but it made clear that the
Brecht test governed. See 576 U. S., at 267 (“In a collateral
proceeding, the test is” Brecht’s “actual prejudice” stand-
ard). After describing that standard (with stress on its
strictness), the Court addressed its relation to AEDPA.
Brecht in no way “abrogates” AEDPA, the Court noted. 576
U. S., at 268. But the Court explained—several times
Cite as: 596 U. S. ____ (2022) 11
KAGAN, J., dissenting
over—that Brecht makes AEDPA functionally immaterial
on matters relating to harmlessness. “In Fry,” the Ayala
Court began, “we held that the Brecht standard ‘subsumes’
the requirements that [AEDPA] imposes when a federal ha-
beas petitioner contests a state court’s determination that
a constitutional error was harmless under Chapman.” 576
U. S., at 268. Because that is so, Ayala continued (again
quoting Fry), “a federal habeas court need not ‘formal[ly]’
apply both Brecht and ‘AEDPA/Chapman.’ ” 576 U. S., at
268 (alteration in original). And if that were not clear
enough, the Court reprised: “In sum, a prisoner who seeks
federal habeas corpus relief must satisfy Brecht, and if the
state court adjudicated his claim on the merits, the Brecht
test subsumes the limitations imposed by AEDPA.” Id., at
270. But still, the Court was not done. In turning to
whether the error at issue had caused Ayala harm, the
Court noted that he “necessarily” would not satisfy Brecht
if he had failed to satisfy AEDPA/Chapman—which is the
flipside of saying he necessarily would satisfy AEDPA/
Chapman if he had satisfied Brecht. 576 U. S., at 270. Both
are a function, once again, of Brecht “obviously sub-
sum[ing]” AEDPA/Chapman.5
Today’s majority contorts Ayala, too, beyond recognition.
The majority insists that only a “carefully curated snippet”
of that decision—one sentence, in fact—cuts against today’s
holding. Ante, at 20. But see all the quotations above.
Ayala repeats the key point favoring Davenport—that a
court applying Brecht need not separately apply AEDPA—
multiple times over a span of more than three pages (with
the rest of that section providing supportive analysis). See
576 U. S., at 267–270. Similarly, the majority asserts that
——————
5 Only the Ayala Court’s application of Brecht provoked a dissenting
opinion. The dissent explained that its disagreement did “not stem from
[the Court’s] discussion of the applicable standard of review”—i.e., the
Brecht standard alone—“which simply restates the holding of Fry.” 576
U. S., at 291 (SOTOMAYOR, J., dissenting).
12 BROWN v. DAVENPORT
KAGAN, J., dissenting
the word “subsumes,” as introduced in Fry and echoed in
Ayala, does not really mean subsumes—which is to say,
fully “encompass[es] as” a “component element.” Merriam-
Webster’s Collegiate Dictionary 1246 (11th ed. 2005). Ra-
ther, when the greatest wordsmith in modern Supreme
Court history used the term to describe the relationship be-
tween two legal tests, he really meant (“more precisely”
meant (!), ante, at 20) that they merely overlapped—so that
sometimes a person meeting one test necessarily meets the
other, but then again, sometimes not. If all this shows “re-
spect for past judgments,” as the majority declares, ibid.,
then that phrase too has an unconventional meaning. What
Ayala held, adhering to Fry, was that anytime a habeas pe-
titioner satisfies Brecht, he of necessity satisfies
AEDPA/Chapman. And because that is so, a habeas court
need not apply both. I hate to assign homework to readers
of Supreme Court opinions, but if you don’t know what to
make of the majority’s and my contrasting descriptions of
Fry and Ayala: well, just go read them.
The majority departs from those two decisions because it
disagrees with what they said. The straightforward basis
of Fry and Ayala, as just described, is that the
AEDPA/Chapman test is “more liberal” than the Brecht
test—i.e., easier for the habeas petitioner to meet. Fry, 551
U. S., at 120. (That is why, Fry explained, the Congress
enacting AEDPA—intent as it was on limiting habeas—
could not have meant to replace Brecht.) The majority here
asserts that this view of the two tests is just not true. Its
theory goes: Whereas AEDPA asks whether “every fair-
minded jurist” would find the requisite prejudice, Brecht
asks only whether “a federal habeas court itself ” would do
so. Ante, at 15 (emphasis in original).
But that description tells only part of the story—and not
the most important part. Consider a fuller description of
what a habeas court addressing the prejudicial effect of an
Cite as: 596 U. S. ____ (2022) 13
KAGAN, J., dissenting
error asks under each standard. See supra, at 8–9. Apply-
ing AEDPA, the court asks whether the state court acted
“unreasonabl[y]” in finding (under Chapman) that the error
was harmless beyond a reasonable doubt—meaning that
there is no “reasonable possibility” it “might have contrib-
uted to the conviction.” 28 U. S. C. §2254(d); Chapman, 386
U. S., at 23–24. Applying Brecht, the court instead asks
whether the error was “actual[ly] prejudic[ial]”—meaning
that there is, at a minimum, “grave doubt” about whether
an error had a “substantial and injurious effect or influ-
ence” on a verdict. Brecht, 507 U. S., at 637; O’Neal, 513
U. S., at 435–436. The majority is quite right to note that
AEDPA’s language of reasonableness directs a court to
think about how all fairminded jurists would approach a
question, while Brecht tells a court to decide a question for
itself. Cf. ante, at 17, n. 3 (somehow still asserting that I
“paper over th[is] difference[]”). But what the majority ob-
scures is that those two questions are starkly different. A
court doing AEDPA puts a reasonableness overlay on the
Chapman question; a court doing Brecht of course asks the
Brecht question. And the Chapman question—see just
above—is far easier for a defendant to prevail on. Accord,
ante, at 12–13. (That is why the Brecht test was created—
to better protect the finality of convictions on habeas. See
Brecht, 507 U. S., at 637–638.) So much easier, indeed, that
Fry thought it self-evident (“obvious”) that even with the
AEDPA overlay, the Chapman inquiry would require the
release of more prisoners. Fry, 551 U. S., at 120.
The relationship between Brecht and AEDPA/Chapman
means that today’s holding will make no difference to ha-
beas outcomes. Consider a court that has found the Brecht
test satisfied: It has, at the least, “grave doubt” about the
error affecting the verdict. Will that same court say that a
reasonable jurist could find no such effect beyond a reason-
able doubt—that the jurist could deny there was even a
“reasonable possibility” of the error mattering? The answer
14 BROWN v. DAVENPORT
KAGAN, J., dissenting
is no. And that is not just what our precedents say. It is
also what the real world shows. Several Circuits formerly
followed the rule the majority announces today: Habeas
courts there could not grant relief before separately apply-
ing Brecht and AEDPA/Chapman. Yet neither the majority
nor the State has come up with a single case (nor have I) in
which a court held that a petitioner satisfied Brecht but not
AEDPA/Chapman. Which for all the reasons Fry, Ayala,
and I have given is no wonder. Apply Brecht alone or apply
both Brecht and AEDPA: The same people will, and will not,
receive habeas relief.6
All today’s holding does going forward is compel habeas
courts, and the parties before them, to spin their wheels.
All it does is what Fry observed “certainly makes no sense”:
require “formal application of [two] tests” when only one—
Brecht—matters. 551 U. S., at 120. Of course, it is not the
worst thing in the world to have to do unnecessary work of
this kind; parties and courts alike will find ways to limit the
inefficiencies involved. But really, why should they have
to? Our prior decisions got the question here right. The
courts that have followed their instructions did everything
needed. Better, by far, to have left it at that.
——————
6 The decision here does not show otherwise, contra the majority’s
claim that it “illustrates” how today’s apply-both-tests directive “mat-
ter[s].” Ante, at 16. The only way that claim could be true is if the ma-
jority believed Davenport’s claim passes the Brecht test (and yet fails
AEDPA/Chapman, as it holds). But the majority believes nothing of the
sort. The majority merely indulges the “assum[ption]” that the Sixth
Circuit could have found Brecht satisfied. Ante, at 16, 25. And the ma-
jority’s analysis shows how far-fetched it thinks that assumption is.
Though under the banner of AEDPA, the majority disagrees at every
turn with the Sixth Circuit’s reasons for granting relief under Brecht—
both the Sixth Circuit’s assessment of the record and its reading of this
Court’s precedent. See ante, at 21–25. No one could read today’s opinion
and think the majority harbors “grave doubt” that the trial error here
affected the verdict.