The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_7358/91_7358.zd1

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SUPREME COURT OF THE UNITED STATES
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No. 91-7358
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TODD A. BRECHT, PETITIONER v. GORDON A.
ABRAHAMSON, SUPERINTENDENT, DODGE
CORRECTIONAL INSTITUTION
on writ of certiorari to the united states court
of appeals for the seventh circuit
[April 21, 1993]

  Justice White, with whom Justice Blackmun joins,
and with whom Justice Souter joins in part, dissenting.
  Assuming that petitioner's conviction was in fact tainted
by a constitutional violation that, while not harmless
beyond a reasonable doubt, did not have -substantial and
injurious effect or influence in determining the jury's
verdict,- Kotteakos v. United States, 328 U. S. 750, 776
(1946), it is undisputed that he would be entitled to
reversal in the state courts on appeal or in this Court on
certiorari review.  If, however, the state courts erroneously
concluded that no violation had occurred or (as is the case
here) that it was harmless beyond a reasonable doubt, and
supposing further that certiorari was either not sought or
not granted, the majority would foreclose relief on federal
habeas review.  As a result of today's decision, in short,
the fate of one in state custody turns on whether the
state courts properly applied the federal Constitution as
then interpreted by decisions of this Court, and on
whether we choose to review his claim on certiorari.
Because neither the federal habeas corpus statute nor our
own precedents can support such illogically disparate
treatment, I dissent.


                            I
                            A
  Chapman v. California, 386 U. S. 18 (1967), established
the federal nature of the harmless-error standard to be
applied when constitutional rights are at stake.  Such
rights, we stated, are -rooted in the Bill of Rights, offered
and championed in the Congress by James Madison, who
told the Congress that the `independent' federal courts
would be the `guardians of those rights.'-  Id., at 21
(footnote omitted).  Thus,
-[w]hether a conviction for crime should stand when
a State has failed to accord federal constitutionally
guaranteed rights is every bit as much of a federal
question as what particular federal constitutional
provisions themselves mean, what they guarantee, and
whether they have been denied.  With faithfulness to
the constitutional union of the States, we cannot leave
to the States the formulation of the authoritative
laws, rules, and remedies designed to protect people
from infractions by the States of federally guaranteed
rights.-  Ibid. (emphasis added).
  Chapman, it is true, never expressly identified the
source of this harmless-error standard.  But, whether the
standard be characterized as a -necessary rule- of federal
law, ibid., or criticized as a quasi-constitutional doctrine,
see id., at 46, 51 (Harlan, J., dissenting), the Court clearly
viewed it as essential to the safeguard of federal constitu-
tional rights.  Otherwise, there would have been no
justification for imposing the rule on state courts.  Com-
pare id., at 48-51 (Harlan, J., dissenting).  As far as I
can tell, the majority does not question Chapman's vitality
on direct review and, therefore, the federal and constitu-
tional underpinnings on which it rests.
  That being so, the majority's conclusion is untenable.
Under Chapman, federal law requires reversal of a state
conviction involving a constitutional violation that is not
harmless beyond a reasonable doubt.  A defendant whose
conviction has been upheld despite the occurrence of such
a violation certainly is -in custody in violation of the
Constitution or laws . . . of the United States,- 28
U. S. C. 2254(a), and therefore is entitled to habeas
relief.  Although we have never explicitly held that this
was the case, our practice before this day plainly supports
this view, as the majority itself acknowledges.  See,
e.g., Rose v. Clark, 478 U. S. 570, 584 (1986); see also
ante, at 9.
                            B
  The Court justifies its decision by asserting that -collat-
eral review is different than direct review,- ante, at 12,
and that -we have applied different standards on habeas
than would be applied on direct review with respect to
matters other than harmless-error analysis.-  Id., at 13.
All told, however, it can only uncover a single example of
a constitutional violation that would entitle a state
prisoner to relief on direct but not on collateral review.
Thus, federal habeas review is not available to a defen-
dant claiming that the conviction rests on evidence seized
in violation of the Fourth Amendment, even though such
claims remain cognizable in state courts.  Stone v. Powell,
428 U. S. 465 (1976).  I have elsewhere stated my reasons
for disagreeing with that holding, id., at 536-537 (White,
J., dissenting), but today's decision cannot be supported
even under Stone's own terms.
  Stone was premised on the view that the exclusionary
rule is not a -personal constitutional right,- id., at 486,
and that it -does not exist to remedy any wrong commit-
ted against the defendant, but rather to deter violations
of the Fourth Amendment by law enforcement personnel.-
Kimmelman v. Morrison, 477 U. S. 365, 392 (1986)
(Powell, J., concurring in judgment).  In other words, one
whose conviction rests on evidence obtained in a search
or seizure that violated the Fourth Amendment is deemed
not to be unconstitutionally detained.  It is no surprise,
then, that the Court of Appeals in this case rested its
decision on an analogy between the rights guaranteed in
Doyle v. Ohio, 426 U. S. 610 (1976), and those at issue
in Stone.  See 944 F. 2d 1363, 1371-1372 (CA7 1991).
Doyle, it concluded, -is . . . a prophylactic rule designed
to protect another prophylactic rule from erosion or
misuse.-  944 F. 2d, at 1370.
  But the Court clearly and, in my view, properly rejects
that view.  Indeed, it repeatedly emphasizes that Doyle
-is rooted in fundamental fairness and due process con-
cerns,- that -due process is violated whenever the prosecu-
tion uses for impeachment purposes a defendant's post-
Miranda silence,- and that it -does not bear the hallmarks
of a prophylactic rule.-  Ante, at 8.  Because the Court
likewise leaves undisturbed the notion that Chapman's
harmless-error standard is required to protect constitu-
tional rights, see supra at 2, its conclusion that a Doyle
violation that fails to meet that standard will not trigger
federal habeas relief is inexplicable.

                           II
  The majority's decision to adopt this novel approach is
far from inconsequential.  Under Chapman, the state must
prove beyond a reasonable doubt that the constitutional
error -did not contribute to the verdict obtained.-
Chapman, supra, at 24.  In contrast, the Court now
invokes Kotteakos v. United States, 328 U. S. 750
(1946)-a case involving a nonconstitutional error of trial
procedure-to impose on the defendant the burden of
establishing that the error -resulted in `actual prejudice.' -
Ante, at 17.  Moreover, although the Court of Appeals
limited its holding to Doyle and other so-called -prophylac-
tic- rules, 944 F. 2d, at 1375, and although the parties'
arguments were similarly focused, see Brief for Respon-
dent 36-37; Brief for United States as Amicus Curiae 16,
19, n. 11, the Court extends its holding to all -constitu-
tional error[s] of the trial type.-  Ante, at 17.  Given that
all such -trial errors- are now subject to harmless-error
analysis, see Arizona v. Fulminante, 499 U. S. __, __
(1991), and that -most constitutional errors- are of this
variety, id., at __, the Court effectively has ousted Chap-
man from habeas review of state convictions.  In other
words, a state court determination that a constitutional
error-even one as fundamental as the admission of a
coerced confession, see Fulminante, supra, at __-is
harmless beyond a reasonable doubt  has in effect become
unreviewable by lower federal courts by way of habeas
corpus.
  I believe this result to be at odds with the role Con-
gress has ascribed to habeas review which is, at least in
part, to deter both prosecutors and courts from disregard-
ing their constitutional responsibilities.  -[T]he threat of
habeas serves as a necessary additional incentive for trial
and appellate courts throughout the land to conduct their
proceedings in a manner consistent with established
constitutional standards.-  Desist v. United States, 394
U. S. 244, 262-263 (1969) (Harlan, J., dissenting); see also
Teague v. Lane, 489 U. S. 288, 306 (1989) (plurality
opinion).  In response, the majority characterizes review
of the Chapman determination by a federal habeas court
as -scarcely . . . logical,- ante, at 15, and, in any event,
sees no evidence that deterrence is needed.  Ibid.  Yet the
logic of such practice is not ours to assess for, as Justice
Frankfurter explained,
      ``Congress could have left the enforcement of federal
constitutional rights governing the administration of
criminal justice in the States exclusively to the State
courts.  These tribunals are under the same duty as
the federal courts to respect rights under the United
States Constitution. . . . But the wisdom of such a
modification in the law is for Congress to consider
. . . .''  Brown v. Allen, 344 U. S. 443, 499-500 (1953)
(opinion of Frankfurter, J.).
-[T]he prior State determination of a claim under the
United States Constitution cannot foreclose consider-
ation of such a claim, else the State court would have
the final say which the Congress . . . provided it
should not have.- Id., at 500.
See also Reed v. Ross, 468 U. S. 1, 10 (1984).  As for the
-empirical evidence- the majority apparently seeks, I
cannot understand its import.  Either state courts are
faithful to federal law, in which case there is no cost in
applying the Chapman as opposed to the Kotteakos
standard on collateral review; or they are not, and it is
precisely the role of habeas corpus to rectify that situa-
tion.
  Ultimately, the central question is whether States may
detain someone whose conviction was tarnished by a
constitutional violation that is not harmless beyond a
reasonable doubt.  Chapman dictates that they may not;
the majority suggests that, so long as direct review has
not corrected this error in time, they may.  If state courts
remain obliged to apply Chapman, and in light of the
infrequency with which we grant certiorari, I fail to see
how this decision can be reconciled with Congress' intent.

                           III
  Our habeas jurisprudence is taking on the appearance
of a confused patchwork in which different constitutional
rights are treated according to their status, and in which
the same constitutional right is treated differently depend-
ing on whether its vindication is sought on direct or
collateral review.  I believe this picture bears scant
resemblance either to Congress' design or to our own
precedents.  The Court of Appeals having yet to apply
Chapman to the facts of this case, I would remand to that
court for determination of whether the Doyle violation was
harmless beyond a reasonable doubt.  I dissent.