Robertson v. Cain

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_____________________

No. 01-31223
_____________________

DONALD RAY ROBERTSON,

Petitioner - Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent - Appellee.

__________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________

March 5, 2003

Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, Petitioner Donald Ray Robertson, a prisoner of

the State of Louisiana, seeks review of a district court order

denying his petition for federal habeas relief. Specifically,

Robertson contends that an erroneous jury instruction deprived him

of his Fourteenth Amendment due process rights. The State of

Louisiana admits that the jury instruction was contrary to clearly

established federal law, but it argues that Robertson is not

entitled to federal habeas relief because the error was harmless.

In order to resolve this appeal, we must decide whether the

standard for harmless error analysis articulated in Brecht v.
Abrahamson, 507 U.S. 619 (1993), remains viable precedent after the

enactment of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. § 2254. We hold that AEDPA’s restrictions on

federal review of state habeas decisions do not alter Brecht’s

mandate for harmless error analysis by federal courts when state

courts have failed to address the question of harmless error. We

further hold that the specific jury instruction on the law of

principals given in this case violated clearly established federal

law by improperly relieving the prosecution of the burden of

proving an essential element of the crime (namely, the defendant’s

specific intent to kill). See Sandstrom v. Montana, 442 U.S. 510

(1979); Flowers v. Blackburn, 779 F.2d 1115 (5th Cir. 1986); State

v. West, 568 So. 2d 1019 (La. 1990). Finally, applying the Brecht

standard to the record in this case, we conclude that the state

trial court’s erroneous jury instruction did have a “substantial

and injurious effect or influence in determining the jury’s

verdict.” Brecht v. Abrahamson, 507 U.S. at 637. Accordingly, we

reverse the district court’s judgment denying federal habeas relief

and remand.

I

Petitioner Donald Ray Robertson is currently serving a life

sentence in the Louisiana State Penitentiary. In January 1987,

Robertson was convicted in state court on two counts of murder in

the first degree for his role in the murders of Clayton Jones and

2
Curtis Hardy.1 On direct appeal, Robertson challenged his

conviction on account of several evidentiary errors at trial and

the insufficiency of the evidence against him, and Robertson’s

conviction was affirmed by the Louisiana Court of Appeal for the

Fourth Circuit. See State v. Robertson, 516 So. 2d 180 (La. App.

1987).

Robertson did not seek direct review of his conviction by the

Louisiana Supreme Court, but he did file three applications for

post-conviction relief in Louisiana state court. Robertson filed

his first application for post-conviction relief with the state

trial court in August 1991. In that first application, Robertson

raised three claims, including ineffective assistance of counsel,

1
Robertson was indicted, along with his alleged co-perpetrators, Gerald Gerrell and
David West, for the first degree murders of Jones and Hardy. The
three defendants were tried separately and each convicted as
principals for the two counts of first degree murder. The jury in
each case received an identically worded instruction on the law of
principals. As discussed more fully, hereafter, that jury
instruction relieved the prosecution of the burden of proving,
beyond a reasonable doubt, each defendant’s specific intent to kill
Jones and Hardy and, therefore, violated the Fourteenth Amendment’s
due process guarantee. West’s conviction was subsequently vacated
on direct appeal by the Louisiana Supreme Court on account of the
constitutionally erroneous jury instruction on the law of
principals given in his case. See State v. West, 568 So. 2d 1019
(La. 1990). The conviction of Gerrell, the apparent triggerman in
the murders, was affirmed on appeal, and Gerrell’s petition for
federal habeas relief was denied because the constitutional error
was believed to be harmless. Gerrell v. Whitley, No. 92-4019(F)(6)
(E.D. La. May 3, 1993) aff’d No. 93-3345 (5th Cir. Sept. 1, 1994)
(per curiam). As explained more fully, hereafter, there are
significant differences between the evidence as it relates to
Gerrell and to Robertson, respectively. In the light of these
differences, we are not inconsistent in granting relief to
Robertson after denying relief to Gerrell.

3
erroneous introduction of hearsay evidence, and denial of

constitutional due process based on an improper jury instruction on

the law of principals. The trial court denied Robertson’s

application without written comment, and the Louisiana Court of

Appeal for the Fourth Circuit affirmed this decision, finding each

of Robertson’s claims to be without merit. See State v. Robertson,

No. 92-KW-0081, slip op. at 1-2 (La. App. Feb. 6, 1992). With

respect to Robertson’s due process claim, the Louisiana Fourth

Circuit specifically held that “the jury instruction on the law of

principals was sufficient for the jury to conclude that the relator

had the requisite specific intent.” Id., slip op. at 1. Robertson

sought review of this decision in the Louisiana Supreme Court, but

it declined Robertson’s writ application. See State v. Robertson,

626 So. 2d 1184 (La. 1993).

In June 1994, Robertson filed a second application for post-

conviction relief, arguing that his conviction was unconstitutional

and that his sentence was, therefore, illegal. This second request

was also denied by the state trial court, by the Louisiana Fourth

Circuit Court of Appeal, and ultimately by the Louisiana Supreme

Court. See State ex rel. Robertson v. Whitley, 683 So. 2d 243

(La. 1996).

In October 1996, in his third and final post-conviction

application in state court, Robertson reiterated his due process

objection to the jury instruction on the law of principals that was

given in his murder trial. This time, the state trial court agreed

4
with Robertson’s claim and granted Robertson a new trial based on

Sandstrom v. Montana, 442 U.S. 510 (1979); Flowers v. Blackburn,

779 F.2d 1115 (5th Cir. 1986); and State v. West, 568 So. 2d 1019

(La. 1990). However, the Louisiana Fourth Circuit Court of Appeal

granted the state’s application for a supervisory writ and reversed

the trial court’s determination, holding Robertson’s post-

conviction application time-barred by Article 930.8 of the

Louisiana Code of Criminal Procedure. See State v. Robertson,

No. 97-K-11523, slip op. at 1-2 (La. App. Dec. 29, 1997). The

Louisiana Supreme Court also denied Robertson’s writ application,

citing Article 930.8. See State ex rel. Robertson v. State, 719

So. 2d 1050 (La. 1998) (citing La. Code Crim. Proc. art. 930.8).

Robertson then filed his instant pro se petition for post-

conviction relief under 28 U.S.C. § 2254 in the Eastern District of

Louisiana. Once again, Robertson argued that the state trial

court’s jury instruction on the law of principals violated the due

process holdings of Sandstrom v. Montana, Flowers v. Blackburn, and

State v. West by relieving the prosecution of its burden of proving

that Robertson had a specific intent to kill. The district court

initially dismissed Robertson’s petition with prejudice on the

grounds that the petition was untimely under 28 U.S.C. §

2244(d)(1)(A), but a panel of this Court reversed that ruling and

remanded Robertson’s case with instructions to the district court

to consider the merits of Robertson’s § 2254 petition. See

Robertson v. Cain, No. 00-30315 (5th Cir. Nov. 20, 2000)

5
(unpublished) (granting Robertson’s request for a certificate of

appealability and reversing the district court’s dismissal with

prejudice based on Smith v. Ward, 209 F.3d 383, 385 (5th Cir.

2000)).

On remand, a magistrate judge recommended that the district

court grant habeas relief on account of the erroneous jury

instruction. In response, the Respondent filed a formal objection

to the magistrate’s report and recommendation, arguing first that

the jury instruction was not as prejudicial as the constitutionally

defective instructions in Flowers and West and second that any

error in the jury instruction was harmless. The district court

sustained the Respondent’s objections and denied Robertson’s § 2254

petition. The district court recognized that the state court’s

jury instruction was contrary to clearly established federal law;

nevertheless, the district court concluded that it should deny

Robertson’s petition for federal habeas relief because Robertson

failed to show that the state court’s constitutionally erroneous

jury instruction was also an “unreasonable application of” clearly

established federal law. In addition, the district court held that

the erroneous jury instruction was “harmless beyond a reasonable

doubt,” applying the harmless error standard in Chapman v.

California, 386 U.S. 18, 23 (1967).

We granted Robertson a certificate of appealability on March

15, 2002.

II

6
 On appeal from the denial of a § 2254 petition, this court

reviews a district court’s findings of fact for clear error, and it

reviews a district court’s conclusions of law de novo, applying the

same standard of review to the state court's decision as the

district court. Donahue v. Cain, 231 F.3d 1000 (5th Cir. 2000).

Mixed questions of law and fact, such as the district court’s

assessment of harmless error, are also reviewed de novo. Jones v.

Cain, 227 F.3d 228, 230 (5th Cir. 2000).

Because Robertson filed his petition for federal habeas relief

in April 1999, our review is under 28 U.S.C. § 2254, as amended by

AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under

AEDPA, a federal court may not grant a writ of habeas corpus on

behalf of a state prisoner unless the adjudication of the

petitioner’s claim in state court “(1) resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States; or (2) resulted in a decision that was based

on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.”

28 U.S.C. § 2254(d)(1)-(2). “A state court’s decision will be

contrary to clearly established federal law when it reaches a legal

conclusion in direct opposition to a prior decision of the United

States Supreme Court or when it reaches a different conclusion than

the United States Supreme Court on a set of materially

indistinguishable facts.” Kutzner v. Johnson, 242 F.3d 605, 608

7
(5th Cir. 2001). Moreover, a state court’s decision will be an

unreasonable application of clearly established federal law

whenever the state court identifies the correct governing legal

principle from the Supreme Court's decisions but applies that

principle to the facts of the prisoner's case in an “objectively

unreasonable” manner. Id. (citing Williams v. Taylor, 529 U.S.

362, 409 (2000) (O’Connor, J., writing for the Court)).

The district court read § 2254(d)(1) to impose a two-fold

requirement on Robertson to show that the state court adjudication

of his jury instruction claim was both “contrary to” clearly

established federal law and an “unreasonable application of”

clearly established federal law. It, therefore, held

simultaneously that the state court decision was “contrary to” but

not an “unreasonable application of” clearly established federal

law. The district court’s reading of § 2254(d)(1) is wrong as a

matter of law as decided by the United States Supreme Court. The

plain language of § 2254(d)(1) is unmistakably disjunctive, and the

Supreme Court has held that independent meaning must be given to

both the statute’s “contrary to” clause and its “unreasonable

application of” clause. See Williams v. Taylor, 529 U.S. at 404-

05, 412-13 (O’Connor, J., for the Court) (noting that the writ of

habeas corpus may issue only if “one” of the two conditions in

§ 2254(d)(1) is satisfied) (emphasis added). Thus, under

§ 2254(d)(1), Robertson should be entitled to federal habeas relief

if he can show that the state court adjudication of his claim was

8
either “contrary to” clearly established federal law “or” an

“unreasonable application” of clearly established federal law, as

determined by the United States Supreme Court. See 28 U.S.C.

§ 2254(d)(1) (emphasis added).

Robertson argues that the Louisiana Fourth Circuit Court of

Appeal’s habeas decision upholding the state trial court’s jury

instruction on the law of principals was contrary to the Fourteenth

Amendment due process guarantees clearly established in In re

Winship, 397 U.S. 358 (1970), and Sandstrom v. Montana, 442 U.S.

510 (1979). In Winship and Sandstrom, the Supreme Court clearly

declared unconstitutional any jury instruction that relieved the

state of its Fourteenth Amendment burden of proving every element

of a criminal offense beyond a reasonable doubt. See Sandstrom,

442 U.S. at 520-24 (citing Winship, 397 U.S. at 364). At the close

of Robertson’s trial for first degree murder, the state court gave

the jury an instruction on the law of principals that falls short

on one of the elements of first degree murder – namely, specific

intent to kill:

Next ladies and gentlemen of the jury,
the court will charge you as to the law as it
pertains to principles [sic]. Our law
provides as follows: All persons concerned in
the commission of a crime whether present or
absent and whether they directly commit the
act constituting the offense aid and abet in
its commission or directly or indirectly
counsel or procure another to commit the
crime, are principles [sic].

In other words to be concerned in the
commission of a crime it must be shown that

9
 the person or persons charged did something
knowingly and intentionally in furtherance of
a common design or to put it another way that
they or he aided, abetted and assisted in the
perpetuation of the offense. All persons
knowing the unlawful intent of the person
committing the crime who are present and
consented thereto in aiding and abetting
either by furnishing the weapons of the
attack, encouraging by words or gestures, or
endeavoring at the time of the commission of
the offense to secure the safety or the
concealment of the offender, are principals
and are equal offenders and are subject to the
same punishment.

To render one guilty as a principle [sic]
he must have committed the offense himself or
in some way participated in the commission of
the crime, or he must have aided, assisted or
abetted the actual perpetratro [sic] of the
deed before it might be said that he was
concerned in the commission of the crime.

State Record 2: 15-16. This jury instruction is virtually

identical to the one that this court found to be unconstitutional

in Flowers v. Blackburn, 779 F.2d at 1117 (decided nine days before

Robertson’s first degree murder convictions), and it violates

Winship and Sandstrom for essentially the same reasons stated in

Flowers. As this court explained in Flowers, under Louisiana state

law, the prosecution must show that a defendant had “‘the specific

intent to kill’” in order to prove murder in the first degree. See

Flowers, 779 F.2d at 1121 (quoting State v. Holmes, 388 So. 2d 722,

276 (La. 1980)). The jury instruction in Robertson’s murder trial,

like the jury instruction in Flowers,“‘plainly relieve[d] the State

of the burden of proof enunciated in Winship on the critical

question of ... state of mind” by telling the jury that the jury

10
could convict “[a]ll persons knowing the unlawful intent of the

person committing the crime who were present” as “equal offenders”

“subject to the same punishment.” See Flowers, 779 F.2d at 1111

(quoting Sandstrom, 442 U.S. at 521). In effect, the jury

instruction relieved the state of the burden of proving Robertson’s

specific intent to kill. See id. Considering the charge as a

whole, a reasonable juror could have concluded that the state

needed to show only that one of the other persons implicated in the

crime had the specific intent to kill in order to convict Robertson

of first degree murder. See id. This result is contrary to the

governing rule established in Winship and its progeny, including

Sandstrom.

In its habeas decision upholding Robertson’s erroneous jury

instruction, the Louisiana Fourth Circuit Court of Appeal did not

refer to the Supreme Court’s decisions in Sandstrom or to this

court’s decision in Flowers v. Blackburn, but, because Robertson

specifically relied on these decisions in his first petition for

state habeas relief, we assume that the state court was aware of

these decisions. See Catalan v. Cockrell, 315 F.3d 491, 493 & n.3

(5th Cir. 2002). However, even if we assume that the state court

“identified” the correct constitutional principles governing this

case, see Williams v. Taylor, 529 U.S. at 407, we must conclude

that the Louisiana Fourth Circuit either disregarded those

principles or applied those principles unreasonably to the jury

11
instruction at hand. The holding of the Louisiana Fourth Circuit

– that “the jury instruction on the law of principals was

sufficient for the jury to conclude that the relator had the

requisite specific intent” – cannot be squared with the

constitutional principles articulated in Winship or Sandstrom for

the reasons articulated by this court in Flowers, 779 F.2d 1121-23,

and by the Louisiana Supreme Court in State v. West, 568 So. 2d

1019, 1022-24 (La. 1990).2 The Louisiana Fourth Circuit should

have recognized that the jury instruction allowed the jury to

convict Robertson of first degree murder based on much less than

what was required by Louisiana law and, therefore, violated the Due

Process Clause of the Fourteenth Amendment. The Fourth Circuit’s

failure to recognize this constitutional failing makes its decision

contrary to Sandstrom. Robertson, therefore, has clearly satisfied

the requirements of 28 U.S.C. § 2254(d)(1) in this case.

2
The Louisiana Fourth Circuit’s habeas decision is
certainly unreasonable (in the general, if not the AEDPA-specific,
sense of the word) in the light of the decision of the Louisiana
Supreme Court in State v. West. As discussed above, in West, the
Louisiana Supreme Court followed our decision in Flowers v.
Blackburn and overturned the first degree murder convictions of
Robertson’s alleged co-perpetrator, David West, on direct appeal on
account of a constitutionally erroneous jury instruction on the law
of principals that was identical to the instruction given in
Robertson’s case. See State v. West, 568 So. 2d at 1022-24.

12
 III

The Respondent does not dispute that Robertson’s jury

instruction violated the constitutional due process holdings of

Winship and Sandstrom; nor does he seriously defend the Louisiana

Court of Appeal’s erroneous ruling upholding the constitutionality

of that jury instruction. The Respondent argues only that federal

habeas relief is unwarranted because the erroneous jury instruction

was a harmless error.3

On direct appeal, when faced with a constitutional violation,

a court must reverse the judgment of the court below unless the

constitutional error is “harmless beyond a reasonable doubt.” See

Chapman v. California, 386 U.S. 18, 24 (1967). However, in Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993), the Supreme Court

3
In Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991),
the Supreme Court recognized two categories of constitutional
violations, “trial error” and “structural defects.” Trial error
occurs “during the presentation of the case to the jury,” and is
amenable to harmless error analysis because it “may ... be
quantitatively assessed in the context of other evidence presented
in order to determine whether its admission was harmless....” Id.
On the other hand, structural defects “‘defy analysis by harmless
error standards’” and require “automatic reversal of the
conviction” because they affect “‘the constitution of the trial
mechanism” and, therefore,“the entire trial process.” Brecht v.
Abrahamson, 507 U.S. 619, 629 (1993) (quoting Fulminante, 499 U.S.
at 308-10). A Sandstrom-type error has been held to be a “trial
error” to which the harmless error rule applies. See Rose v.
Clark, 478 U.S. 570 (1986) (holding harmless error analysis
appropriate for jury instruction that erroneously charged jury on
the element of malice); California v. Roy, 519 U.S. 2 (1996)
(holding that a jury instruction that did not include a statement
informing the jury that they must find intent should be reviewed
for harmless error).

13
articulated a “less onerous” standard for assessing the impact of

a state court’s constitutional error on collateral review. Under

Brecht, a federal court may grant habeas relief on account of

constitutional error only if it determines that the constitutional

error had a “substantial and injurious effect or influence in

determining the jury’s verdict.” See id. at 623 (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). Under this standard,

however, the petitioner should prevail whenever the record is “so

evenly balanced that a conscientious judge is in grave doubt as to

the harmlessness of the error.” O’Neal v. McAninch, 513 U.S. 432,

436 (1995). As this court has explained, “if our minds are ‘in

virtual equipoise as to the harmlessness’ under the Brecht

standard, of the error, then we must conclude that it was harmful.”

Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996) (quoting

O’Neal, 513 U.S. at 435).

In this appeal, however, Robertson argues that, under AEDPA,

the Brecht standard – that is, a separate standard for harmless

error in federal habeas cases – is no longer applicable to

constitutional errors arising in state habeas cases. Robertson

argues that, under AEDPA’s restrictive review of state court

decisions, the federal habeas court is required to review only

whether the state court’s decision is “contrary to” or an

“unreasonable application of” Chapman and grant relief accordingly.

Robertson argues that where, as in this case, the state court has

failed to apply Chapman at all, then the federal courts should do

14
what the state court was required to do, but failed to do, that is,

apply Chapman to determine whether the constitutional error is

harmless.

In past cases under AEDPA, this court has recognized that

there has been some doubt among the federal circuit courts about

whether the Brecht standard for harmless error remains applicable

after AEDPA. See, e.g., Tucker v. Johnson, 242 F.3d 617, 629 n.16

(5th Cir. 2001) (citing cases); Hernandez v. Johnson, 248 F.3d 344,

379 (5th Cir. 2001) (Dennis, J., dissenting) (citing cases). In

Whitmore v. Kemna, 213 F.3d 431 (8th Cir. 2000), the Eighth Circuit

suggested that AEDPA might be interpreted to limit the scope of

collateral federal review of harmless error and thereby abrogate

the requirement that federal courts conduct an independent harmless

error analysis under Brecht, at least in cases where the state

court has already conducted a Chapman-type harmless error review of

the alleged constitutional trial error. See Whitmore, 213 F.3d at

433 (suggesting in dicta that a state court assessment of harmless

error is entitled to the same deference under 28 U.S.C. § 2254 as

any other state court determination of fact or law). Similarly, in

Noble v. Kelly, 246 F.3d 93, 101 n.5 (2d Cir. 2001) (per curiam),

the Second Circuit noted an open question about whether federal

courts should now apply a mixed AEDPA/Chapman standard and examine

“whether the state court’s decision was ‘contrary to, or involved

an unreasonable application of’ Chapman.” See Noble, 246 F.3d at

101 n.5. Since Kenma and Noble, however, the Supreme Court has

15
implicitly acknowledged the vitality of Brecht’s independent

harmless error analysis in federal habeas cases brought under

AEDPA. See Penry v. Johnson, 532 U.S. 782, 795 (2001) (noting that

even if the petitioner could satisfy the requirements of 28 U.S.C.

§ 2254(d)(1), the petitioner would still have to show that the

alleged error “had substantial and injurious effect or influence in

determining the jury’s verdict”) (quoting Brecht, 507 U.S. at 637)

(internal quotations and citations omitted). Moreover, all of the

courts of appeals that have squarely decided the question have

concluded that Brecht’s independent standard for harmless error

continues to be appropriate in federal habeas cases, even after the

enactment of AEDPA. See Herrera v. Lemaster, 301 F.3d 1192 (10th

Cir. 2002) (en banc); Sanna v. DiPaolo, 265 F.3d 1, 14 (1st Cir.

2001); Nevers v. Killinger, 169 F.3d 352, 370 (6th Cir. 1999)

abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th

Cir. 2000). See also Little v. Kern County Superior Court, 294

F.3d 1075, 1083-84 (9th Cir. 2002) (applying Brecht, in addition to

the requirements of AEDPA, without comment).

Our own consideration of Brecht and of AEDPA also persuades us

that Brecht survives AEDPA’s enactment. As other courts have

recognized, Brecht sets forth a standard for harmless error

analysis that was intended to apply to all federal habeas cases

involving constitutional “trial” error. See, e.g., Herrera, 301

F.3d at 1199 (citing Brecht, 507 U.S. at 623 (Rehnquist, J.,

16
writing for the court) and 643 (Stevens, J., concurring)).4 We can

assume that Congress was aware of Brecht when it enacted AEDPA, yet

nothing in the text or the legislative history of AEDPA

specifically or generally alludes to an alteration in the

application of federal harmless error doctrine to a state court

decision. In fact, the plain language of AEDPA says only that

habeas relief “shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the

adjudication of the claim” is either “contrary to” or an

“unreasonable application of” clearly established federal law, as

defined by the Supreme Court, or “based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.” See 28 U.S.C. § 2254(d)(1). The

statutory language itself does not require federal habeas courts to

grant relief reflexively. The words of the statute simply cannot

be read to bar federal courts from further examination and review

of state habeas claims based on additional standards established by

Supreme Court precedent, especially when those standards are not

inconsistent with the language and purpose of AEDPA. It is clear

to us that the principles embodied in AEDPA are fully consistent

with Brecht’s standard for harmless error and with Brecht’s

observations concerning the limited role of the federal courts in

habeas cases. In Brecht the Supreme Court adopted a more lenient

4
See also n.3, supra.

17
harmless error standard in federal review of habeas cases out of

respect for the sovereign states’ interests in the integrity of

their own judicial processes and the finality of convictions that

have survived direct review within the state court systems. See

Brecht, 507 U.S. at 636 (noting that liberal allowance of the writ

“degrades the prominence of the trial itself” and “encourages

petitioners to relitigate their claims on collateral review”)

(citations and quotations omitted). In a similar vein, AEDPA was

enacted, at least in part, to ensure comity, finality, and

deference to state court habeas determinations by limiting the

scope of collateral review and raising the standard for federal

habeas relief, see 28 U.S.C. § 2254(d)(1)-(2); Calderon v.

Thompson, 523 U.S. 538, 554-55 (1998) (noting that judicial limits

on habeas relief generally comport with the purpose of AEDPA);

Williams v. Taylor, 529 U.S. 420, 436 (2000) (noting that Congress

indubitably intended AEDPA to further the principles of comity,

finality, and federalism), and application of the Brecht standard

to state court decisions parallels this congressional intent.

Thus, we hold that, in cases governed by AEDPA, federal habeas

courts should continue to analyze the harmlessness of all state

court decisions involving a constitutional “trial” error according

to the Brecht standard. We therefore proceed with a Brecht

analysis of the harmlessness of the Sandstrom error in this case.5

5
We hold today that the district court erred as a matter
of law when it decided to assess the harmlessness of the Sandstrom

18
 IV

In this case, a jury found Robertson guilty of the first

degree murder of Curtis Hardy and Clayton Jones. The question

before us is whether the state trial court’s erroneous jury

instruction had a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. at

637.

The state established that Hardy and Jones were each shot in

the head at close range and killed sometime late at night on May 9

or early in the morning on May 10, 1985. The victims’ bodies were

discovered by officers of the New Orleans Police Department in an

abandoned brown Chevy Malibu on the morning of May 10.6 The

error in this case under the Chapman “harmless beyond a reasonable
doubt” standard. However, it is worth noting that the erroneously
applied Chapman standard is supposed to be more rigorous and less
deferential to the state court than the Brecht standard that we re-
affirm today. Because the district court ultimately concluded that
the Sandstrom error was “harmless beyond a reasonable doubt” under
Chapman, it may be surprising to some that we conclude that the
error was not harmless under Brecht’s less rigorous standard.
However, after de novo consideration of the harmlessness of the
Sandstrom error at trial, we are convinced that the district court
further erred not only in identifying Chapman as the correct
constitutional standard but also in applying the Chapman standard
to this case. The district court apparently concluded that the
Sandstrom trial error was “harmless beyond a reasonable doubt”
because it believed that the record was sufficient to allow the
jury to infer that Robertson had a specific intent to kill. For
reasons explained more fully hereafter, given the lack of evidence
supporting the conclusion that Robertson had a requisite specific
intent to kill Hardy and Jones, we find the district court’s
harmless error conclusion to be erroneous under either Chapman or
Brecht.
6
State witness Lloyd Davis testified that he owned the
Chevy Malibu in question and that he had loaned it to Curtis Hardy

19
victims were apparently last seen alive at Robertson’s house

between 10:30 and 11:00 p.m. on the night of May 9. Robertson’s

girlfriend, Consuela Marie Washington, testified that, on the

evening in question, she arrived home to learn that Robertson was

apparently meeting with Curtis Hardy in a back room of the house.7

Washington testified that, about an hour later, she saw Hardy

outside her house being led with his hands behind his back from her

yard to a blue car by two men, whom she later identified as David

West and Gerald Gerrell. Washington testified that, at the time

she saw Hardy being taken away, she called Hardy’s girlfriend, Lola

King, and told King what she had seen.8 About an hour later,

around 11:30 p.m. or midnight, Robertson left the house, telling

Washington that he was going to the liquor store.

A voluntary statement that Robertson made to police shortly

after being charged with first degree murder provided the jury with

further evidence about the night in question. In this statement

on the day of the murders. According to Davis, Robertson had never
been inside the car.
7
Robertson and Washington apparently lived together at the
time. Washington testified that she did not actually see Hardy
inside her house but that Robertson told her that Hardy had stopped
by on his way to the house of his girlfriend, Lola King.
8
Washington testified that Robertson and Hardy had some
kind of argument before the night in question but that, on the
night in question, everything between the two men was supposed to
be all right. Washington’s telephone call, however, alarmed Lola
King. King testified at trial that, after Washington called, King
called a friend and the police to report Hardy’s possible
kidnaping.

20
Robertson said that, on the night in question, he had received an

electronic page from Hardy and that they agreed that Hardy would

come to Robertson’s house to buy drugs. While Robertson was

waiting for Hardy, David West and Gerald Gerrell arrived. Although

Robertson did not know Gerrell, Robertson agreed to give Gerrell

drugs in exchange for a reel-to-reel tape player. Eventually,

Hardy arrived with Curtis Jones. Hardy went inside the house to

meet with Robertson, while Jones stayed outside with West and

Gerrell. According to Robertson’s statement, Robertson sold Hardy

drugs and the two discussed possible future drug deals. Then,

Hardy left the house. Robertson said that, a short while later, he

opened his front door and was surprised to see West and Gerrell

still standing on his front porch talking. Robertson said that he

subsequently left the house around midnight to go to the liquor

store to buy beer. On his way back from the liquor store, West and

Gerrell pulled up alongside Robertson in a blue Plymouth Valiant,

and the two men offered to give Robertson a ride home. Robertson

said that when he got into the front passenger seat of the car, he

felt that the seat was wet. Reaching behind him, in the seat,

Robertson discovered a bloody towel and a bloody shirt and saw that

he had blood on his own hands and clothes. Robertson said he asked

what had happened, and Gerrell said that he and West had killed

some people. Robertson said that, after hearing this, he threw the

towel and the shirt out of the car. Robertson then looked down and

saw a gun on the floor.

21
 Shortly after these events described by Robertson, the three

men were stopped by police who were investigating Hardy’s possible

kidnaping. Two separate searches of the blue Plymouth Valiant

revealed a .357 magnum (the gun Robertson said he saw at his feet

in the front seat), live and spent rounds of .357 ammunition, a

pair of bloody jeans (later identified as West’s), several bags of

white powder, and personal items (including several rings, a watch,

a beeper, and a driver’s license) that belonged to either Hardy or

Jones. After taking Robertson and the other defendants into

custody further incriminating physical evidence was found. Police

found blood on Robertson’s shirt, right sock, and right slipper and

confiscated from Robertson two rings that may have belonged to one

of the victims.9 Robertson’s fingerprints were also subsequently

found on the outside of the brown Chevy Malibu in which the bodies

were discovered.10

9
Police Officer Norman McCord testified at Robertson’s criminal trial that Curtis
Hardy’s mother and brother identified the two rings confiscated from Robertson as jewelry that the
victim always wore whenever he went out. However, Hardy’s brother testified at trial that only
one of the two rings was his brother’s and that he had only seen
that ring once before on the day of the murder. Hardy’s brother
said that he thought the other ring might belong to Clayton Jones.
(Hardy’s mother did not testify.) Furthermore, the victim’s
girlfriend, Lola Washington, examined both rings at the time
Robertson was arrested, and did not recognize either one of them as
belonging to the victim.
10
Lloyd Davis, the owner of the car, testified that
Robertson had never been in the car, but Robertson’s alleged co-
perpetrator, David West, testified that he saw Robertson standing
next to the brown Chevy Malibu talking to Curtis Hardy, three days
before the shooting.

22
 There is no doubt that a properly instructed jury could have

found beyond a reasonable doubt that Robertson was present at the

murder of Hardy and Jones based on the physical evidence and on

circumstances surrounding Robertson’s arrest with West and Gerrell

shortly after the time of the murders. However, much of

Robertson’s alibi statement to the police was corroborated at trial

by the testimony of Consuela Washington and Robertson’s alleged co-

perpetrator, David West. According to West, Gerrell was

responsible for kidnaping and killing Hardy and Jones. West

testified that he drove the brown Chevy Malibu to a remote spot, at

Gerrell's direction, while Gerrell followed with Hardy and Jones in

the blue Plymouth Valiant. According to West, when the group

arrived at the designated spot, Gerrell ordered Hardy and Jones

into the brown Chevy Malibu and began questioning them about the

location of the drugs that they had just bought; the men indicated

that Robertson had them. West testified that, at this point, the

victims began to struggle, and Gerrell fired point blank into each

man’s head, killing the men and spattering West’s shirt and blue

jeans with their blood. According to West, Gerrell then said that

he planned to find Robertson and kill him, and Gerrell threatened

to kill West if West did not help him. West testified that he and

Gerrell then moved to the blue Plymouth Valiant, where the two men

changed clothes and attempted to wipe off the victims’ blood with

a towel. West also testified that Gerrell placed some jewelry and

23
other items into the trunk of the blue Valiant, before the men

drove off to find Robertson.

In sum, there was strong evidence on both sides of the case

with regard to Robertson’s specific intent to kill Hardy and Jones,

and the issue of Robertson’s guilt of first degree murder was

sharply contested at trial. Under Brecht, it is not for this court

to decide whether we think the jury’s verdict was correct; instead,

the question for the court is whether we have a “grave doubt” that

the constitutionally erroneous instruction on the element of

specific intent had a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. at 637; O’Neal v. McAninch, 513 U.S. at 436.

In the light of all the evidence and the testimony, we must

say that we have “grave doubt” about the harmlessness of the

Sandstrom error in this case. See O’Neal v. McAninch, 513 U.S. at

436 (holding that, under Brecht, habeas relief should issue

whenever the record is “so evenly balanced that a conscientious

judge is in grave doubt as to the harmlessness of the error”). See

also Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996) (“if

our minds are ‘in virtual equipoise as to the harmlessness’ under

the Brecht standard, of the error, then we must conclude that it

was harmful”) (quoting O’Neal, 513 U.S. at 435). On the one hand,

the prosecution presented no evidence that proved that Robertson

was the triggerman; nor was there any evidence that West or Gerrell

acted to kill Hardy and Jones at Robertson’s request, or with his

24
approval, or as part of some sort of common plan they had with him.

On the other hand, the jury was offered substantial testimony from

West and Washington and a statement from Robertson that could have

allowed the jury to conclude that Robertson did not have any

specific intent to kill Hardy or Jones. However, the erroneous

jury instruction did not merely omit the requirement that the jury

find specific intent to kill; it effectively told the jury that

they could ignore Robertson’s evidence as it related to this point

and convict Robertson of first degree murder without actually

finding that Robertson had a specific intent to kill Hardy and

Jones. Based on our consideration of the record, we seriously

doubt that the jury actually evaluated the evidence with the

purpose of determining whether Robertson had a specific intent to

kill Hardy and Jones. Accordingly, we are left with the conclusion

that the state trial court’s erroneous jury instruction did have a

“substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abrahamson, 507 U.S. at 637.11

11
The Respondent contends that, because Robertson claimed to have nothing to do with
the murders, the jury was not required to assess Robertson’s specific intent. However, the
Respondent’s contention is wrong as a matter of law. As In re Winship and its progeny make clear,
the state must prove – and the jury must find – each element of the crime – including the element of
specific intent to kill – beyond a reasonable doubt. In this case, we have grave doubt
about whether the jury actually considered the evidence with the
purpose of determining whether Robertson had a specific intent to
kill Hardy and Jones. Certainly, the inference of specific intent
was not “inescapable from the evidence produced concerning the
nature of the criminal act,” Garland v. Maggio, 717 F.2d 199, 204
(5th Cir. 1983), considering the exculpatory testimony of Consuela
Washington and David West and the out-of-court statement made by
Robertson that reasonably could have allowed the jury to find that

25
 V

For the foregoing reasons, we conclude that the district court

erred in denying Robertson’s petition for federal habeas relief

pursuant to 28 U.S.C. § 2254. Accordingly, we REVERSE the judgment

of the district court and REMAND.

REVERSED AND REMANDED.

Robertson lacked the requisite specific intent to kill. Compare
State v. West, 568 So. 2d at 1024-25 (finding the jury instruction
not harmless beyond all reasonable doubt under Chapman, based in
part on testimony by West that would have allowed a reasonable jury
to find that West lacked specific intent to kill), with Gerrell v.
Whitley, No. 92-4019(F)(6) (E.D. La. May, 3, 1993) (finding the
same instruction harmless because it played no role in the ultimate
outcome of Gerrell’s case), aff’d, No. 93-3345 (5th Cir. Sept. 1,
1994) (per curiam) (affirming the denial of federal habeas for
essentially the same reasons stated by the district court).

26