Ervine Davenport v. Duncan MacLaren

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0197p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ERVINE LEE DAVENPORT, ┐
Petitioner-Appellant, │
│
> No. 17-2267
v. │
│
│
DUNCAN MACLAREN, Warden, │
Respondent-Appellee. │
┘

Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:14-cv-01012—Ellen S. Carmody, Magistrate Judge.

Argued: May 7, 2019

Decided and Filed: June 30, 2020

Before: COLE, Chief Judge; STRANCH and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Tasha J. Bahal, WILMER CUTLER PICKERING HALE AND DORR LLP,
Boston, Massachusetts, for Appellant. Jared D. Schultz, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Tasha J. Bahal,
Reuven Dashevsky, WILMER CUTLER PICKERING HALE AND DORR LLP, Boston,
Massachusetts, for Appellant. Aaron D. Lindstrom, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

STRANCH, J., delivered the opinion of the court in which COLE, C.J., joined.
READLER, J. (pp. 26–46), delivered a separate dissenting opinion.
 No. 17-2267 Davenport v. MacLaren Page 2

_________________

OPINION
_________________

JANE B. STRANCH, Circuit Judge. Ervine Lee Davenport was convicted of first-degree
murder after a jury trial in Michigan state court. He challenges his conviction in a habeas corpus
petition under 28 U.S.C. § 2254 because he was visibly shackled at the waist, wrist, and ankles
during trial. The State of Michigan admits Davenport’s shackling was unconstitutional but
argues that the habeas petition should be denied because this error was harmless. The district
court agreed it was harmless error and denied the petition. Because “shackling is ‘inherently
prejudicial,’” Deck v. Missouri, 544 U.S. 622, 635 (2005) (quoting Holbrook v. Flynn, 475 U.S.
560, 568 (1986)), and the evidence of premeditation and deliberation necessary to a first-degree
murder conviction was not overwhelming, the State has not met its burden to show the restraints
did not have a “substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). We therefore REVERSE the judgment of the
district court, GRANT Davenport a conditional writ of habeas corpus, and REMAND the case
for further proceedings.

I. BACKGROUND

A. The Trial

Davenport killed Annette White in the early hours of January 13, 2007. At his 2008 trial,
he testified that he had been drinking beer and smoking crack cocaine with White and some
friends when White was asked to leave her friends’ house due to her aggressive behavior.
According to Davenport’s testimony, he tried to calm her down as he drove her home. While he
drove, she was saying that she was hot and taking off her clothes. She demanded that he take her
to a specific apartment building and tried to grab the steering wheel. Each time she tried to grab
the wheel, Davenport pushed her back. She then started yelling and kicking and pulled out a
boxcutter, which she swung at Davenport, cutting his arm. Davenport testified that he was afraid
of the knife and trying to avoid oncoming traffic. As he continued to drive, Davenport pinned
her against the side of the car with his fully extended hand pressed against her neck. Right as he
 No. 17-2267 Davenport v. MacLaren Page 3

was about to let up, she scratched him on the face, and he “pinned her back up against the other
side of the car.” At some point, he noticed that she was no longer struggling; initially, he
thought that she had calmed down or passed out but then he realized she was not breathing. He
panicked and left her partially clothed body in a field. He testified that he was not sure how long
he held White back by the throat but that it “seemed like . . . everything happened fast.”

Some of this testimony was corroborated by other evidence at trial. Medical evidence
established that White had consumed a substantial amount of alcohol and crack cocaine shortly
before her death. An independent witness also testified that he had consumed beer and crack
cocaine with Davenport and White that night. This witness further testified that he asked White
to leave at about 2:30 a.m. that morning because she was acting “agitated” and “getting crazy.”
She was “ranting and raving,” though he would not describe her as “violent.” Other witnesses
testified that White would get angry when she smoked crack cocaine, and that she was “a
spitfire” who had a reputation for fighting.

But medical evidence seemingly contradicted other aspects of Davenport’s testimony. A
forensic pathologist, Dr. Brian Hunter, testified that although it would take 30 seconds to cut
someone’s air off sufficiently to cause them to pass out, it would take at least four to five
minutes to suffocate someone to death. Dr. Hunter also testified in rebuttal that the injuries to
White were not consistent with Davenport’s testimony that he did not choke White and instead
“his hand was flexed and that all he was doing was pushing her against the door.” Dr. Hunter
explained that the injuries to either side of White’s neck, but not the middle, were “more
consistent with choking than . . . broad pressure there.”

The prosecution also presented testimony that Davenport had strangled another woman
until she was unconscious less than a week before White’s death. Another witness testified that
Davenport had told him a couple of times that “if things got out of hand,” he would choke
people. Davenport told this same witness that White “kept coming back at him and it just got out
of hand, and that’s when he offed her.”
 No. 17-2267 Davenport v. MacLaren Page 4

In its closing, the defense argued that this was a case of self-defense. In contrast, after
giving 17 reasons why Davenport’s “‘self-defense’ claim was bogus,”1 the prosecution claimed
that “[t]he only real issue is whether it’s first-degree” or second-degree murder. The only
support for premeditation and deliberation the prosecution gave in its closing statement was the
length of time it would take to choke someone to death. The prosecutor claimed, “[c]learly he
had the opportunity to hesitate, stop, think about what he was doing, and not kill her. I submit to
you there’s more than enough evidence of premeditation and deliberation for first-degree
murder, but at the very least obviously this is second-degree murder.” After deliberating for six
hours over the course of two days, the jury found Davenport guilty of first-degree murder.

During the trial, Davenport had one hand cuffed, as well as shackles around his waist and
ankles. The trial judge allowed “his right hand to be uncuffed so he could write notes to his
counsel.” The judge also noted that there was a privacy curtain around the defense table.
Defense counsel referred to the “[c]ourt’s policy regarding the shackles,” but there was no on-
the-record justification given for the shackling.

B. The State Court Appeals and Evidentiary Hearing

On direct appeal, Davenport raised several issues, including that “he was denied his due
process rights when the trial court required him to wear shackles during the trial.” People v.
Davenport, Docket No. 287767, 2010 WL 3062279, at *1 (Mich. Ct. App. Aug. 5, 2010). The
Michigan Court of Appeals found that this issue was unpreserved. Id. Reviewing it for plain
error, the court found that “it was error for the trial court to order defendant to be restrained
without making the requisite findings,” but that Davenport had “not shown that his restraints
were visible to the jury” and thus had “not demonstrated prejudice.” Id. at *1–2. The Michigan
Supreme Court reversed, finding that this issue was preserved 2 and remanding the case to the
trial court for an evidentiary hearing. People v. Davenport, 794 N.W.2d 616 (Mich. 2011). The

1These reasons included, among others, that Davenport dumped White’s body in the woods instead of
calling 911, initially lied to the police, weighed almost three times as much as the victim, and stole some of White’s
property after killing her.
2During jury selection, defense counsel asked that Davenport’s handcuff be removed because, “given the
circumstances, the testimony, the evidence I believe is going to be presented, I don’t want the jurors to be unduly
influenced and fearful of Mr. Davenport.”
 No. 17-2267 Davenport v. MacLaren Page 5

Michigan Supreme Court directed the trial court to determine whether “the jury saw the
defendant’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 defendant.” Id. (citing
Deck, 544 U.S. at 635).

The trial court subsequently held an evidentiary hearing where all 12 jurors testified.
This evidentiary hearing was held on June 24 and July 29, 2011, approximately three years after
the trial. Five jurors testified that they saw Davenport’s waist chain, handcuffs, or ankle shackles
at some point during jury selection or the trial. Two other jurors testified that they recalled
comments by other jurors about Davenport’s shackles. One juror could not remember whether
she saw the shackles. The remaining four jurors testified that they did not notice or hear about
Davenport’s restraints during the trial.

Several jurors recalled at the evidentiary hearing that they had thought Davenport might
be dangerous when they saw him in shackles. Another juror recalled that she was sitting closest
to Davenport when he testified and a fellow juror had asked her if that made her nervous. She
also recalled that there were more guards when Davenport testified because he was not in
shackles. But the jurors who testified that they saw Davenport’s shackles also all said that they
believed shackling was routine practice given that he was on trial for murder or because he was
in pre-trial incarceration.3 Every juror asked also testified that Davenport’s shackling did not
affect their deliberations.

After this hearing, the trial court issued an opinion ruling that, although some of the
jurors saw Davenport’s shackles, the prosecution had proved beyond a reasonable doubt that the
shackling did not affect the jury’s verdict. The trial court focused on the jurors’ testimony that
Davenport’s shackling was not discussed during deliberations and did not affect their verdict. It
also relied on the jurors’ testimony that they viewed the shackling as a routine security
procedure. The Michigan Court of Appeals affirmed, holding that “[t]he trial court did not err in
finding that the prosecution proved beyond a reasonable doubt that the shackling error did not
affect the verdict.” People v. Davenport, Docket No. 306868, 2012 WL 6217134, at *3 (Mich.

3Davenport wore an orange jail jumpsuit on the first day of trial, during jury selection. He wore dress
clothes for the rest of the trial. He does not raise any issues relating to his attire on appeal.
 No. 17-2267 Davenport v. MacLaren Page 6

Ct. App. Dec. 13, 2012). The Michigan Supreme Court denied leave to appeal. People v.
Davenport, 832 N.W.2d 389, 390 (Mich. 2013). It stated that, although “the Court of Appeals
erroneously failed to consider defendant’s claim in light of the United States Supreme Court
decision in Holbrook v. Flynn . . . , the error was harmless under the facts of this case. Given the
substantial evidence of guilt presented at trial, we cannot conclude that there was an
unacceptable risk of impermissible factors coming into play.” Id.

C. The § 2254 Petition

Davenport next filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254,
raising a single issue—his shackling. After the State of Michigan responded to this § 2254
petition, the magistrate judge issued a Report and Recommendation (R&R) that the petition be
denied. The magistrate judge found that “it was completely reasonable for the jury to reject
Petitioner’s claim of self-defense and to instead find that Petitioner committed first degree
murder.” Thus, the magistrate judge concluded that the state courts’ determination “that the
prosecution had demonstrated beyond a reasonable doubt that [Davenport’s shackling] did not
contribute to the jury’s guilty verdict” was “neither contrary to, nor involve[d] an unreasonable
application of, clearly established federal law.” The district court overruled Davenport’s
objections and adopted the R&R in its entirety, denying the petition and a certificate of
appealability.

Davenport, now proceeding pro se, applied to this court for a certificate of appealability.
We granted him a certificate of appealability and appointed counsel. This appeal followed.

II. ANALYSIS

A. Standard of Review

We “review the decision of a district court to grant or deny a writ of habeas corpus de
novo” and “review factual findings by that court for clear error, except where the district court
has made factual determinations based on its review of . . . court records; in such cases we
review such findings de novo.” Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005).
 No. 17-2267 Davenport v. MacLaren Page 7

There is a dispute, however, about what standard applies on habeas review when
determining whether Davenport’s unconstitutional shackling was harmless error. The State
argues that our review must entail two separate determinations. First, we must find that the state
court’s conclusion that the shackling was harmless beyond a reasonable doubt “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court.” 28 U.S.C. § 2254(d). And, second, we must find that the shackling had a
“substantial and injurious effect or influence in determining the jury’s verdict.” The former is
the familiar test required by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (“[H]abeas relief is appropriate
only if the [state court] applied harmless-error review in an ‘objectively unreasonable’ manner.”
(quoting Lockyer v. Andrade, 538 U.S. 63, 75–77 (2003))). The latter is the prejudice standard
that habeas petitioners complaining of trial error are required to meet. See Brecht, 507 U.S. at
623, 637. Davenport, on the other hand, argues that the only question before this court is
whether the shackling “had substantial and injurious effect or influence in determining the jury’s
verdict,” id. at 637, because the Brecht standard “‘subsumes’” AEDPA’s unreasonableness
inquiry. Davis v. Ayala, 135 S. Ct. 2187, 2198–99 (2015) (citing Fry v. Pliler, 551 U.S. 112,
119–20 (2007)).

Binding precedent resolves the issue. “The answer in this Circuit is that Brecht is always
the test, and there is no reason to ask both whether the state court ‘unreasonably’
applied Chapman4 under the AEDPA and, further, whether the constitutional error had a
‘substantial and injurious’ effect on the jury’s verdict.” Ruelas v. Wolfenbarger, 580 F.3d 403,
412 (6th Cir. 2009). We adopted this conclusion from the Supreme Court’s statement that it
“makes no sense to require formal application of both tests (AEDPA/Chapman and Brecht) when
the latter obviously subsumes the former.” Id. (quoting Fry, 551 U.S. at 120); see Reiner v.
Woods, 955 F.3d 549, 556 (6th Cir. 2020) (“The Supreme Court and this court have made clear
that ‘Brecht is always the test’ for evaluating harmless error on collateral review, even where
AEDPA applies.”).

4Chapman v. California, 386 U.S. 18 (1967) (holding that, on direct appeal, the prosecution has the burden
of proving beyond a reasonable doubt that a federal constitutional error was harmless).
 No. 17-2267 Davenport v. MacLaren Page 8

The dissent suggests that Ruelas and its progeny are called into question by the Supreme
Court’s decision in Davis v. Ayala, 135 S. Ct. 2187. Ayala, however, noted that while a habeas
petitioner’s obligation to meet the Brecht standard “does not mean . . . that a state court’s
harmlessness determination has no significance under Brecht,” it further explained that though
AEDPA remains a precondition to habeas relief, both the Brecht and AEDPA/Chapman tests
need not be applied. Id. at 2198; see also Fry, 551 U.S. at 119–20. The Supreme Court
concluded that applying Brecht alone is appropriate because “the Brecht test subsumes the
limitations imposed by AEDPA.” Id. at 2199 (citing Fry, 551 U.S. at 119–20). Ruelas relied on
that precedential conclusion, explaining that though Brecht “handles the work” of both tests, a
federal “habeas court remains free to, before turning to Brecht, inquire whether the state
court’s Chapman analysis was reasonable. If it was reasonable, the case is over. But . . . a
habeas court may [also] go straight to Brecht with full confidence that the AEDPA’s stringent
standards will also be satisfied.” Ruelas, 580 F.3d at 412–13.

In fact, we have already concluded that Ruelas and Ayala are consistent: “Ruelas, which
has not been affected by Ayala, . . . clearly announc[es] that in the Sixth Circuit on habeas
review we always apply Brecht and need not also apply AEDPA/Chapman.” O’Neal v.
Balcarcel, 933 F.3d 618, 625 (6th Cir. 2019). In Reiner, we explained that while “[t]he state
argues that the Supreme Court’s subsequent decision in Davis v. Ayala changed this dynamic
. . . [t]he problem for the state is that our precedent forecloses this approach.” 955 F.3d at 556–
57; see also McCarley v. Kelly, 801 F.3d 652, 665 (6th Cir. 2015) (citing to both Ruelas and
Ayala for the applicable standard); Sheard v. Klee, 692 F. App’x 780, 786 (6th Cir. 2017)
(“Although Brecht is a pre-AEDPA case, the Supreme Court has subsequently held that
the Brecht test ‘subsumes’ the AEDPA requirements such that a formal application of both tests
is unnecessary.” (quoting Fry, 551 U.S. at 120)). We have again recently said, not that two tests
must be performed, but that the proper test contains “a choice of prompts;” in which one
“option—a shortcut of sorts—is to leapfrog AEDPA and jump directly to Brecht.” Hollman v.
Sprader, 803 F. App’x 841, 843 (6th Cir. 2020) (citing Ayala, 135 S. Ct. at 2198–99).

The dissent supposes that our quotation from Reiner unfairly masks its holding. Dissent
at 34. But Reiner expressly holds that the “Supreme Court and this court have made clear that
 No. 17-2267 Davenport v. MacLaren Page 9

‘Brecht is always the test.’” 955 F.3d at 556. Reiner is merely a recent installment in an
ongoing chain of binding precedent that has sought to provide clarity to the relationship between
AEDPA and Brecht—an issue that has preoccupied appellate courts and caused “consternation”
among the lower courts since AEDPA was passed. Ruelas, 580 F.3d at 412–13; see also 2 R.
Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure § 31.1 (7th ed. 2019).
There is no nefarious ellipsis plot to paint over the Reiner court’s recognition of the State’s
argument. Simply put, where the Supreme Court has stepped in to provide clarity—as it did in
Fry and again in Ayala—we are obliged to follow it. And here that clarifying law includes
Ayala’s holding that where a habeas petitioner can succeed under the more demanding Brecht
test, the state court’s “harmlessness determination itself is unreasonable,” which shows that both
tests are satisfied. 135 S. Ct. at 2199.

Faced with unambiguous precedent from both the Supreme Court and our circuit, the
dissent next turns to challenges to timing, and word-splitting. First it contends that Brecht could
not have functionally subsumed the AEDPA test because AEDPA was “still in the mind’s eye”
when Brecht was decided. Dissent at 35. But, as noted above, the Supreme Court set out its
holding that the Brecht test subsumed AEDPA after AEDPA was enacted. We are bound by its
interpretation of AEDPA’s requirements. The dissent then challenges the meaning of the words
used by the Supreme Court, contending that the Court held the Brecht test “subsumes” the
AEDPA analysis but not that the Brecht test “consumes” the AEDPA analysis. Dissent at 35.
This is word play. Black’s Law Dictionary defines “subsume” as a verb that means “[t]o judge
as a particular instance governed by a general principle; to bring (a case) under a broad rule.”
Subsume, Black’s Law Dictionary (11th ed. 2019). “Consume” is a verb for which Black’s
offers five definitions, none of which apply to the question we face today.5 These definitions
evidence the dissent’s underlying conceptual error. It uses the word “consumes” to assert that
AEDPA’s requirements have been improperly eliminated. But the Supreme Court selects its

5“(1)To destroy the substance of, esp. by fire; to use up or wear out gradually, as by burning or eating . (2) To expend wastefully; to waste; to squander . (3) To use up (time, resources, etc.), whether fruitfully or fruitlessly <45% of the paper we
consume is recycled>. (4) To eat or drink; to devour . (5) To
engage the attention or interest of fully; to obsess .”
Consume, Black’s Law Dictionary (11th ed. 2019).
 No. 17-2267 Davenport v. MacLaren Page 10

words and it chose “subsumes”—a word routinely used in law to describe the interplay between
legal standards—to show that the Brecht test satisfies AEDPA’s requirements, not eliminates
them. We are bound to accept that choice and apply that word here. A habeas petitioner
therefore “must satisfy Brecht, and if the state court adjudicated his claim on the merits,
the Brecht test subsumes the limitations imposed by AEDPA.” Ayala, 135 S. Ct. at 2199. “[A]
federal habeas court need not ‘formal[ly]’ apply both Brecht and “AEDPA/Chapman.” Id. at
2198 (quoting Fry, 551 U.S. at 119–20) (second alteration in original).

The dissent’s assertion that our Brecht-only framework jettisons the required AEDPA test
is based on a misunderstanding—it conflates the habeas test that applies to an underlying
constitutional error with the test that governs the harmlessness of that error. It relies chiefly on
Yarborough v. Alvarado, 541 U.S. 652 (2004) and Mendoza v. Berghuis, 544 F.3d 650, 655 (6th
Cir. 2008) for its failure-to-satisfy AEDPA claim but those cases concerned whether there was
an underlying constitutional error at the petitioners’ trials. That question, of course, requires
asking whether the state court’s constitutional analysis “was contrary to, or involved an
unreasonable application of, clearly established Federal law,” § 2254(d), before turning to
Brecht. Here, however, that question need not be asked because the State concedes that
Davenport’s shackling was constitutional error.

In fact, this concession neatly reveals the crux of the dissent’s confusion. It supposes that
this opinion seeks to lay blame on the State for conceding “away AEDPA review of the
Michigan courts’ harmless error determination.” Dissent at 36. Had the State made that issue-
concluding concession, there would be no need to dispute the review standard. What the State
conceded, unlike the cases on which the dissent relies, is the underlying constitutional error. It
bears repeating—when there is a dispute over whether a constitutional error occurred, of course
we would apply § 2254(d)’s “contrary to or . . . unreasonable application” of federal law test.
But the State here concedes constitutional error. That is what makes this case unusual and is the
reason that we can go straight to Brecht. The dissent’s confusion about what was conceded
undergirds its misunderstanding of this majority opinion.

Providing a list of cases, the dissent asserts that we stand alone in applying a Brecht-only
test and that all other federal circuits addressing the issue “have granted AEDPA deference to a
 No. 17-2267 Davenport v. MacLaren Page 11

state court’s determination that a constitutional error was harmless,” thus applying both Brecht
and AEDPA. Dissent at 36–37. This statement illustrates the dissent’s confusion. Not a single
case on the dissent’s list contains a habeas petitioner who prevailed under Brecht’s harmlessness
inquiry and was then required to pass through the gauntlet of a second harmlessness test.
Orlando v. Nassau Cty. Dist. Attorney’s Office, 915 F.3d 113, 127 (2d Cir. 2019) (no state court
harmlessness determination; Brecht-only applied); Johnson v. Lamas, 850 F.3d 119, 137 (3d
Cir. 2017) (petitioner failed to meet AEDPA test, therefore “necessarily cannot satisfy” Brecht
(quoting Ayala, 135 S. Ct. 2199)); Long v. Pfister, 874 F.3d 544, 547 (7th Cir. 2017) (en banc)
(faulting the original panel for failing to “apply the standard of Brecht” to its finding of
constitutional error but reviewing only the constitutional holding below); Davis v. Grandienard,
828 F.3d 658, 666 (8th Cir. 2016) (petitioner failed to meet AEDPA test, no Brecht analysis);
Rademaker v. Paramo, 835 F.3d 1018, 1024 (9th Cir. 2016) (petitioner failed to meet AEDPA
test, therefore “necessarily cannot satisfy” Brecht (quoting Ayala, 135 S. Ct. 2199)); Malone v.
Carpenter, 911 F.3d 1022, 1030 (10th Cir. 2018) (petitioner failed to meet AEDPA test,
alternatively failed to meet Brecht); Al-Amin v. Warden, 932 F.3d 1291, 1299 (11th Cir. 2019)
(petitioner failed Brecht-only test).

The dissent’s analytical error is perhaps best captured by its parallel citation to Sifuentes
v. Brazelton, for the proposition that the Ninth Circuit rejects our court’s Brecht-only framework.
825 F.3d 506, 534 (9th Cir. 2016). Sifuentes notes that AEDPA applies to the harmlessness
assessment even after Ayala, and then explains how the Ninth Circuit’s harmless error analysis
works—the same way as ours:

In sum, a petitioner “necessarily cannot satisfy” the Brecht requirement of
showing that he was “actually prejudiced” by the state court’s error . . . “if a
fairminded jurist could agree with the [state appellate court] that this procedure
met the Chapman standard of harmlessness.” [Ayala, 135 S. Ct.] at 2199. By the
same token, if a petitioner does satisfy the Brecht requirement of showing that an
error resulted in “actual prejudice,” then the petitioner necessarily must have
shown that the state court’s determination that the error was harmless was
objectively unreasonable.

Id. at 535.
 No. 17-2267 Davenport v. MacLaren Page 12

There is no dispute that both Brecht and AEDPA must be satisfied for a habeas petitioner
to show that a constitutional error was not harmless. The Supreme Court’s statement in Fry that
the Brecht test subsumes the limitations imposed by AEDPA and our acknowledgment in Ruelas
that the Brecht test handles the work of both tests show that our test accomplishes that principle.
The critical point missed in the dissent’s analysis is that in the harmless error context, it is
significantly harder for a habeas petitioner to meet Brecht’s actual prejudice standard than
Chapman’s defendant-friendly standard or, in other words, easier for the State to prevail under
Brecht than under AEDPA/Chapman. So much so that where a state court finds an error
harmless under Chapman and the defendant is later able to surmount the imposing Brecht hurdle,
the state court’s Chapman analysis (even though insulated by AEDPA deference) is necessarily
objectively unreasonable under Harrington v. Richter, 562 U.S. 86, 103 (2011). See Ayala,
135 S. Ct. at 2198–99. The tests of Brecht and AEDPA/Chapman then both seek traces of the
same poison but Brecht’s test covers both because it requires the petitioner to show enough
poison to be fatal under either test.6 This is why the Court in Ayala held that “[i]n 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.” Ayala, 135 S. Ct. at 2199. This standard of review, moreover, was a point of
agreement among the Justices in Ayala.7 As a result, even though Brecht predated AEDPA, a

6This makes sense because Brecht intended to place a higher burden on a habeas petitioner at collateral
review than on direct appeal. 507 U.S. at 637. As the dissent correctly notes, the habeas petitioner in Fry argued for
the AEDPA/Chapman test (instead of Brecht’s) because it would have lowered his burden. Dissent at 31–32. The
dissent is correct that AEDPA did not make relief more available to petitioners, but it overlooks the Fry Court’s
rationale that Brecht is the test because AEDPA did not intend to lower the burden on petitioners and Brecht is
harder on petitioners than AEDPA/Chapman. Fry, 551 U.S. at 119–20. The point stands that the AEDPA/Chapman
test is easier. “[I]t is implausible that, without saying so, AEDPA replaced the Brecht standard . . . with the more
liberal AEDPA/Chapman standard.” Id.
7In her dissent in Ayala, Justice Sotomayor explained:
My disagreement with the Court does not stem from its discussion of the applicable standard of
review, which simply restates the holding of Fry. Fry rejected the argument that [AEDPA]
compels federal courts to apply any standard other than that set forth in Brecht, when assessing the
harmlessness of a constitutional error on habeas review. . . . In addition to confirming
the Brecht standard’s continued vitality, Fry established its exclusivity. Fry expressly held that
federal habeas courts need not first assess whether a state court unreasonably applied Chapman
before deciding whether that error was prejudicial under Brecht. Such a requirement would “make
no sense when the latter standard obviously subsumes the former.” Nothing in the Court’s opinion
today calls into question this aspect of Fry’s holding. If a trial error is prejudicial under Brecht’s
 No. 17-2267 Davenport v. MacLaren Page 13

habeas court may choose to start with Brecht because AEDPA deference may be exacted through
Brecht’s demanding standard. Id. at 2199. Brecht, moreover, not only contains AEDPA’s
stringent commands of deference to state court merit determinations but also its spirit of
federalism, comity, and finality.8 Fry, 551 U.S. at 116. We therefore turn to the question of
whether Davenport’s shackling had a “substantial and injurious effect or influence” on the jury’s
verdict. See Brecht, 507 U.S. at 637.

B. The Law of Shackling

“The law has long forbidden routine use of visible shackles during the guilt phase” of a
criminal trial. Deck, 544 U.S. at 626. After discussing the roots of this precept in the common
law, Deck summarized the near-universal consensus of lower courts and commentators that “a
criminal defendant has a right to remain free of physical restraints that are visible to the jury; that
the right has a constitutional dimension; but that the right may be overcome in a particular
instance by essential state interests such as physical security, escape prevention, or courtroom
decorum.” Id. at 628. The Supreme Court concluded, “the Fifth and Fourteenth Amendments
prohibit the use of physical restraints visible to the jury absent a trial court determination, in the
exercise of its discretion, that they are justified by a state interest specific to a particular trial.”
Id. at 629.

standard, a state court’s determination that the error was harmless beyond a reasonable doubt is
necessarily unreasonable.
Ayala, 135 S. Ct. at 2211 (Sotomayor, J., dissenting) (quoting Fry, 551 U.S. at 120) (brackets and citations omitted).
See also Jimerson v. Payne, 957 F.3d 916, 929–30 (8th Cir. 2020) (adopting Justice Sotomayor’s rule statement for
the harmlessness inquiry). This shows that the presence of the Eighth Circuit on the dissent’s list of circuits that
require application of two tests is another mistaken entry.
8In fact, counter to the dissent’s assertion that Brecht only does the work of AEDPA/Chapman where there
was no Chapman analysis by the state court, dissent at 34–35, Fry held that precisely because Brecht performs the
work of “finality, comity, and federalism. . . . Brecht’s applicability does not turn on whether the state appellate
court recognized the constitutional error and reached the Chapman question.” Fry, 551 U.S. at 117–18 (“[These]
weighty reasons given in Brecht for applying a less onerous standard [on the State] on collateral review . . . hav[e]
nothing to do with whether the state court actually applied Chapman.”). Therefore, “[i]n this Circuit, Brecht is the
standard for reviewing all (non-structural) errors on collateral review; it applies whether or not the state appellate
courts recognized the error.” Ruelas, 580 F.3d at 411. Ayala, moreover, makes clear that Fry’s holding that Brecht
subsumes AEDPA deference, applies even where there is a harmless error determination by the state court. 135 S.
Ct. at 2199.
 No. 17-2267 Davenport v. MacLaren Page 14

This right is rooted in “three fundamental legal principles.” Id. at 630. First is the
presumption of innocence, which “lies at the foundation of the administration of our criminal
law.” Id. (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). “Visible shackling
undermines the presumption of innocence and the related fairness of the factfinding process. It
suggests to the jury that the justice system itself sees a ‘need to separate a defendant from the
community at large.’” Id. (quoting Holbrook, 475 U.S. at 569) (citation omitted). Second is the
right to counsel: “Shackles can interfere with the accused’s ‘ability to communicate with his
lawyer’” and his “ability to participate in his own defense.” Id. at 631 (quoting Illinois v. Allen,
397 U.S. 337, 344 (1970) (citations omitted). Finally, there is the need to preserve the integrity
of the judicial process. Id. “[T]he use of shackles at trial ‘affront[s]’ the ‘dignity and decorum
of judicial proceedings that the judge is seeking to uphold.’” Id. (second alteration in original)
(quoting Allen, 397 U.S. at 344).

For these reasons, “shackling is ‘inherently prejudicial.’” Id. at 635 (quoting Holbrook,
475 U.S. at 568). “Thus, where a court, without adequate justification, orders the defendant to
wear shackles that will be seen by the jury,” the defendant’s due process rights are violated. Id.
Here, the State of Michigan does not dispute that there was no on-the-record justification for the
shackling and therefore it was unconstitutional. The State argues instead that this error was
harmless under the standards applicable on habeas review.

Certainly, Davenport is not entitled to habeas relief simply because he was
unconstitutionally shackled. As noted above, we must also find that the shackling error “had
substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S.
at 637. Habeas petitioners “are not entitled to habeas relief based on trial error unless . . . it
resulted in ‘actual prejudice.’” Id. But “[t]he inquiry cannot be merely whether there was
enough to support the result, apart from the phase affected by the error. It is rather, even so,
whether the error itself had substantial influence [on the jury’s decision]. If so, or if one is left in
grave doubt, the conviction cannot stand.” McCarley, 801 F.3d at 665 (quoting O’Neal,
513 U.S. at 438) (emphasis in original). The State “has the burden of proof in this analysis.”
Stumpf v. Robinson, 722 F.3d 739, 752 (6th Cir. 2013) (en banc); see also Rosencrantz v. Lafler,
568 F.3d 577, 590 (6th Cir. 2009) (Under Brecht, “[t]he state bears responsibility for showing
 No. 17-2267 Davenport v. MacLaren Page 15

that the error had no effect on the verdict.”). “Where things are ‘evenly balanced,’ O’Neal
instructs that the state bears the ‘risk of equipoise.’” Reiner, 955 F.3d at 556 (first quoting
O’Neal, 513 U.S. at 435) (citation omitted).

The high bar of actual prejudice highlights the error in the dissent’s claim that our
Circuit’s Brecht-only framework “pays no respect” to our sister state courts and “sets us apart
from every other circuit court to have addressed” harmless error issues in habeas. Dissent at 39.
The dissent’s inclusion of the Ninth Circuit on its list again illustrates its misunderstanding. The
Ninth Circuit recently held that “[t]he Brecht standard is so stringent that it ‘subsumes’ the
AEDPA/Chapman standard for review of a state court determination of the harmlessness of a
constitutional violation. We need not apply both a Brecht review and an
AEDPA/Chapman review because ‘a determination that the error resulted in ‘actual prejudice’
under Brecht necessarily means that the state court’s harmless error determination was not
merely incorrect, but objectively unreasonable.’” Hall v. Haws, 861 F.3d 977, 992 (9th Cir.
2017) (quoting Deck v. Jenkins, 814 F.3d 954, 985 (9th Cir. 2016) (brackets and citations
omitted)).

Hall shows again that the dissent’s list of circuit cases applying AEDPA/Chapman
merely supports the undisputed conclusion that courts may choose to perform harmless error
analysis under AEDPA/Chapman first, before turning to Brecht’s more onerous inquiry, if
necessary. The list does not support the requirement of “two separate conclusions” that “the
courts of appeals have universally accepted,” dissent at 39, nor does it stand for the separate
proposition that AEDPA requires courts to apply a second analytical framework after applying
Brecht. See Jenkins, 814 F.3d at 985 (discussing Ayala and concluding “[a] separate
AEDPA/Chapman determination is not required”). The dissent, for another instance, also
includes the Third Circuit on its list—and yet that court too applies a Brecht-only framework.
See, e.g., Wharton v. Vaughn, 722 F. App’x 268, 277 (3d Cir. 2018), cert. denied, 139 S. Ct. 594
(2018) (“[A]lthough the District Court reviewed [the state court’s harmlessness assessment]
under § 2254(d), our review here will focus on whether he has met the Brecht standard.”). In
sum, this opinion does not flout AEDPA or misapprehend Supreme Court precedent, dissent at
 No. 17-2267 Davenport v. MacLaren Page 16

39, and it does respect the judgment of our sister circuits, which routinely apply a test
comparable to our own.

Applying Brecht, we turn to cases that analyze harmlessness by assessing the weight of a
shackling error in light of the evidence presented. For example, in Robinson v. Gundy, we held
that the unconstitutional shackling was harmless error because “[t]he evidence against Robinson
was truly overwhelming.” 174 F. App’x 886, 893 (6th Cir. 2006). Similarly, in Lakin v. Stine,
our circuit determined that the shackling error was harmless because “the evidence of guilt is
overwhelming.” 431 F.3d 959, 966 (6th Cir. 2005). These cases were preceded by Ruimveld v.
Birkett, which held that the petitioner proved his entitlement to habeas relief by “showing the
harm to the presumption of innocence that the Supreme Court has found to be inherent in indicia
of guilt such as shackles, by showing that there was no good reason for the shackling, by
showing that his was a close case based on purely circumstantial evidence,” and by noting that
the State had failed to show any factors (other than his imprisonment) that would make the
shackles less prejudicial. 404 F.3d at 1017–18.

Taken together, these cases stand for the proposition that the shackling of a defendant
without justification is highly prejudicial if viewed by the jury because it vitiates the presumption
of innocence and undermines the fairness of the factfinding process. Indeed, the Supreme Court
in Deck instructed that “shackling is ‘inherently prejudicial.’” Deck, 544 U.S. at 635 (quoting
Holbrook, 475 U.S. at 568). The dissent mistakenly views the Supreme Court’s conclusion as
limited to direct review. Dissent at 43. Of course, in Davenport’s habeas case, unlike Deck’s
direct appeal, actual prejudice is a prerequisite to relief. Deck, 544 U.S. at 635. That is precisely
our position in the disagreement with the dissent over the standard of review. But the
“inherently prejudicial” nature of visible shackling, as determined by the Supreme Court, does
not rise and fall with the standard of review. Instead, as the Supreme Court itself explained,
“[t]hat statement is rooted in our belief that the practice will often have negative effects, but—
like ‘the consequences of compelling a defendant to wear prison clothing’ or of forcing him to
stand trial while medicated—those effects ‘cannot be shown from a trial transcript.’” Id.
(quoting Riggins v. Nevada, 504 U.S. 127, 137 (1992)).
 No. 17-2267 Davenport v. MacLaren Page 17

The governing caselaw reveals Brecht’s “actual prejudice” standard in action.
AEDPA/Chapman and Brecht provide two mechanisms for assessing harmless error. Brecht’s is
“broader.” Ruelas, 580 F.3d at 412. While error found under Brecht necessarily means error
under AEDPA/Chapman, the opposite cannot be said. As the Eleventh Circuit (another court
included by the dissent on its list) correctly explained, “if a petitioner satisfies
the Brecht standard, he necessarily also satisfies the AEDPA standard, though the reverse is not
true.” Hammonds v. Comm’r, Alabama Dep’t of Corr., 712 F. App’x 841, 850 (11th Cir.
2017), cert. denied sub nom. Hammonds v. Dunn, 139 S. Ct. 106 (2018) (citation omitted).9 By
this same token, if a petitioner cannot prevail under AEDPA/Chapman, he cannot prevail under
Brecht. Id. This is why courts, including this one—and many on the dissent’s list—often test
the waters under AEDPA/Chapman before turning to Brecht’s more demanding inquiry. See
Stewart v. Trierweiler, 867 F.3d 633, 636–38 (6th Cir. 2017).10

The dissent’s misunderstanding of this point is yet again illustrated by the case it holds up
as “particularly instructive.” Dissent at 37. In Malone v. Carpenter, the Tenth Circuit
interpreted Ayala’s instruction that “although a federal court reviewing a state [court merits
decision under Chapman] need not ‘formally apply both Brecht and AEDPA,’ AEDPA still ‘sets
forth a precondition to the grant of habeas relief.’” 911 F.3d at 1030 (quoting Ayala, 135 S. Ct.
at 2198). The Malone Court continued: “as we understand the Court, satisfaction of the
AEDPA/Chapman standard is a necessary condition for relief (that is, failure to satisfy the
standard requires denial of relief), but satisfaction of the standard is not a sufficient condition for
relief because Brecht must also be satisfied.” Id. (emphasis in original)).

Malone did not say, nor could it, that satisfaction of the Brecht standard (which
incorporates AEDPA/Chapman) is not a sufficient condition for relief. It is. The Supreme Court
has said so. Ayala, 135 S. Ct. at 2198–99. Though courts may choose to apply both, see

9Hammonds also noted: “[t]he majority of the federal courts of appeals directly apply the Brecht test rather
than first determining whether a petitioner meets the AEDPA standard.” Hammonds v. Comm’r, Alabama Dep’t of
Corr., 712 F. App’x 841, 850 (11th Cir. 2017), cert. denied sub nom. Hammonds v. Dunn, 139 S. Ct. 106 (2018).
10The dissent cites Stewart as an emblem of proper harmless error analysis at the habeas stage. But there
the petitioner failed to get past AEDPA/Chapman and we affirmed on that issue; there was no reason to reach
Brecht. Id. at 638. The Brecht-only approach taken here fully accords with Stewart.
 No. 17-2267 Davenport v. MacLaren Page 18

Malone, 911 F.3d at 1037; Ayala, 135 S. Ct. at 2208, it is not necessary. Id. at 2198–99. And
since Malone, the Tenth Circuit has evidenced its agreement with that principle by applying a
Brecht-only framework. In Harmon v. Sharp, for example, it held: “[o]n habeas review, we may
only hold that a constitutional error was not harmless if, after applying de novo review, we
determine that the error ‘had substantial and injurious effect or influence in determining the
jury’s verdict,’” 936 F.3d 1044, 1081 (10th Cir. 2019) (quoting Brecht, 507 U.S. at 637; citing
Ayala, 135 S. Ct. at 2198). And contrary to the position taken by the dissent, Harmon did not
otherwise apply an AEDPA/Chapman test to the harmlessness analysis performed by the state
court. Id.; see also Harmon v. State, 248 P.3d 918, 933 (Okla. Crim. App. 2011) (applying
Chapman). In Coddington v. Sharp, the Tenth Circuit ratified its conclusion that Brecht
necessarily includes an assessment of whether the state court’s “harmlessness determination was
itself unreasonable.” 959 F.3d 947, 953, 957 (10th Cir. 2020) (quoting Ayala, 135 S. Ct. at
2199).

The dissent does not—and cannot—cite a single court of appeals case where a habeas
petitioner would have prevailed under Brecht but then lost under AEDPA/Chapman. The circuit
court cases it cites merely reveal how the application of Brecht satisfies AEDPA/Chapman.
Some of the cases cited by the dissent begin with AEDPA/Chapman, and only get to Brecht if
necessary; others on its list—as specifically authorized by the Supreme Court—go straight to
Brecht. No case on the dissent’s list completes Brecht’s harmless error inquiry only to repeat the
analysis under a different test.

Applying the Brecht standard set out by the Supreme Court and employed in our circuit,
we examine the strength of the evidence against Davenport.

C. Substantial and Injurious Effect or Influence

1. Evidence of Guilt

The State argues that the evidence Davenport committed some degree of murder was
overwhelming. Davenport conceded that he killed White but argued that he did so in self-
defense. Yet unrebutted expert testimony explaining that strangulation requires several minutes
to kill is inconsistent with his self-defense claim. On the other hand, the evidence showing the
 No. 17-2267 Davenport v. MacLaren Page 19

premeditation and deliberation required for first-degree murder is considerably weaker. To
resolve the core dispute in this case, it is necessary to delve briefly into the Michigan caselaw
that governs.

Michigan law draws a sharp distinction between first-degree and second-degree murder.
“First-degree and second-degree murder are separate offenses, carrying vastly different penalties,
distinguished only by the requirement that a homicide punishable as first-degree murder be
committed with premeditation and deliberation.” People v. Morrin, 187 N.W.2d 434, 448–49
(Mich. Ct. App. 1971); see also Mich. Crim. J.I. 16.6 (comparing the elements of first-degree
and second-degree murder).11 For this reason, “premeditation and deliberation must be given
independent meaning in a prosecution for first-degree murder.” Morrin, 187 N.W.2d at 449.
The “legislative classification of murder into two degrees would be meaningless if ‘deliberation’
and ‘premeditation’ were construed as requiring no more reflection than may be involved in the
mere formation of a specific intent to kill.” People v. Hoffmeister, 229 N.W.2d 305, 307 (Mich.
1975) (quoting People v. Anderson, 447 P.2d 942, 948 (Cal. 1968)). On the contrary, the use of
the terms “deliberate” and “premeditated” denotes that first-degree murder requires
“substantially more reflection on and comprehension of the nature of the act than the mere
amount of thought necessary to form the intent to kill.” People v. Plummer, 581 N.W.2d 753,
757 (Mich. Ct. App. 1998).

Michigan caselaw reveals two prerequisites for a finding of premeditation and
deliberation. First, “[w]hile the minimum time necessary to exercise this process is incapable of
exact determination, the interval between initial thought and ultimate action should be long
enough to afford a reasonable man time to subject the nature of his response to a second look.”
People v. Tilley, 273 N.W.2d 471, 473–74 (Mich. 1979) (quoting People v. Vail, 227 N.W.2d
535 (1975)). And, second, there must be evidence that the defendant had—and took—a moment
for calm reflection before the murder: “[W]hen a homicide occurs during a sudden affray . . . it
would be ‘a perversion of terms to apply the term deliberate to any act which is done on a sudden

11Compare Mich. Comp. Laws Ann. § 750.316 (first-degree murder), with id. § 750.317 (second-degree
murder). Though there are other types of first-degree murder under Michigan law, such as felony murder or murder
of a law enforcement officer, Davenport was accused only of first-degree murder involving a “deliberate, and
premeditated killing.” Id. § 750.316(a).
 No. 17-2267 Davenport v. MacLaren Page 20

impulse.’” Id. at 473 (quoting Nye v. People, 35 Mich. 16, 19 (1876)). Thus, “[w]hen the
evidence establishes a fight and then a killing, there must be a showing of ‘a thought process
undisturbed by hot blood’ . . . . The critical inquiry is not only whether the defendant had the
time to premeditate, but also whether he had the capacity to do so.” Plummer, 581 N.W.2d at
757 (quoting Morrin, 187 N.W.2d at 449); accord 3A Gillespie Mich. Crim. L. & Proc. § 91:12
(2d ed. 2020). For these reasons, the Michigan Supreme Court has held that the mere fact that a
defendant repeatedly stabbed the decedent, inflicting “a great many wounds,” was insufficient
evidence of premeditation and deliberation to support a conviction for first-degree murder.
Hoffmeister, 229 N.W.2d at 307–08. The court concluded: “There is no basis on this record for
an inference that between the successive, potentially lethal blows the killer calmly, in a cool state
of mind, ‘measured and evaluated’ and subjected ‘the nature of his response to a second look.’”
Id. (quoting Morrin, 187 N.W.2d at 449).12

In this case, the amount of time the strangling must have taken is the only evidence of
premeditation and deliberation the prosecution pointed to in its closing argument. Certainly, the
duration of the strangling demonstrates the intent to kill—or at least the intent to cause great
bodily harm—required for second-degree murder. See Mich. Crim. J.I. 16.5. But it is not
definitive proof of premeditation or deliberation. “[E]vidence of manual strangulation can be
used as evidence that a defendant had an opportunity to take a ‘second look.’” People v.
Johnson, 597 N.W.2d 73, 79 (Mich. 1999) (quoting People v. Furman, 404 N.W.2d 246, 249–50
(Mich. Ct. App. 1987)). Yet, by itself, it is not conclusive: “[N]either the brutal nature of a
killing nor manual strangulation alone is sufficient to show premeditation . . . .” Id. That is
especially true when, as here, there is substantial evidence that the strangulation occurred in the
course of a fight and thus “the homicide occurred during an affray whose nature would not

12The Michigan Supreme Court recently characterized Hoffmeister as a case where “there was no basis for
the jury to conclude that the defendant had adequate time for a ‘second look’” because “the only evidence presented
was the number of stab wounds.” People v. Oros, 917 N.W.2d 559, 567 (Mich. 2018). In Oros, the court held that
the evidence of deliberate and premeditated first-degree murder was legally sufficient because there was additional
evidence besides the number of stab wounds. Id. at 567–70. Oros distinguished Hoffmeister; it did not overrule it.
See id. at 570 (“Our holding is consistent with Hoffmeister as we do not hold today that the sheer number of stab
wounds alone established the elements of premeditation and deliberation.”). And without regard to Oros,
Hoffmeister was good law at the relevant time—Davenport’s trial was in 2008.
 No. 17-2267 Davenport v. MacLaren Page 21

permit cool and orderly reflection.” Plummer, 581 N.W.2d at 757 (quoting Morrin, 187 N.W.2d
at 450).

The record contains substantial evidence that a fight took place. One witness testified
that he asked White to leave his house at about 2:30 a.m. because she was “agitated” and
“getting crazy” after smoking some crack cocaine. Other witnesses testified that White would
get angry when she smoked crack cocaine and that she was “a spitfire” who had a reputation for
fighting. Even the evidence that the State introduced of Davenport’s admission that he killed
White is consistent with this story: A prosecution witness testified that Davenport told him
White “kept coming back at him and it just got out of hand, and that’s when he offed her.”

Based on the evidence presented, the only time Davenport could have engaged in the
requisite period of calm reflection “undisturbed by hot blood” would have been while he was
strangling White. And the only evidence of premeditation and deliberation the prosecution
pointed to in its closing was the time that strangulation would have taken. Yet, under Michigan
law, evidence of manual strangulation alone is not enough to prove premeditation. Johnson, 597
N.W.2d at 79. The jury easily could have found that this was second-degree murder, not first-
degree murder, because “the homicide occurred during an affray whose nature would not permit
cool and orderly reflection.” Plummer, 581 N.W.2d at 757 (quoting Morrin, 187 N.W.2d at
450). The evidence of premeditation and deliberation was therefore not overwhelming.

The closeness of the case is further demonstrated by the duration of the jury’s
deliberations. In Ruimveld, we observed that the case is not “open-and-shut,” giving as partial
support that “the jury deliberated for over three hours despite the simple facts.” 404 F.3d at
1016. This case was arguably even simpler; given that Davenport admitted killing White, the
only disputed fact at trial was his state of mind, the critical component of first-degree murder.
Yet the jury still deliberated for approximately six hours, through one afternoon and into the next
morning.

As to the merits, the dissent dismisses the analysis of applicable Michigan cases and law
as “generalities.” Dissent at 45. Instead, the dissent wholly frames its argument on the
“strikingly similar” case of People vs. Johnson, dissent at 27, which it says results in “the
 No. 17-2267 Davenport v. MacLaren Page 22

inescapable conclusion” that Johnson brands Davenport’s conduct as premeditated murder,
dissent at 44. As noted above, Johnson does have applicability as part of the full examination of
Michigan law. But employing Johnson requires acknowledging that review by the Michigan
Supreme Court was granted solely to determine whether it was error to deny Johnson’s motion
for directed verdict. The question before that Court was whether there was “sufficient evidence
to justify a rational tryer of fact in finding guilt beyond a reasonable doubt.” Johnson,
597 N.W.2d at 75–76.

That is not the question we ask here. Under Brecht, we ask whether the constitutional
violation of shackling Davenport throughout the trial had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637. It is, of course, possible
that a trial record contains evidence sufficient to convict a defendant of a crime but the jury,
considering that evidence and making the credibility determinations entrusted to it as the trial’s
factfinder, votes to acquit. We are aware of no case in which a habeas petitioner claiming a
constitutional violation at trial has been required to satisfy a directed verdict standard of review
in order to find that the violation was not harmless. We have held that we will not find a
constitutional violation to be harmless simply because the record reflected enough evidence to
support the jury’s verdict. McCarley, 801 F.3d at 665. In fact, “[t]ime and again, the Supreme
Court has emphasized that a harmless-error inquiry is not the same as a review for whether there
was sufficient evidence at trial to support a verdict.” Jensen v. Clements, 800 F.3d 892, 902 (7th
Cir. 2015) (collecting cases). Even if there was “‘ample evidence’ to support the conviction,”
that would be “irrelevant” because “the question before us is not whether there was sufficient
evidence to support the jury’s conclusions, but rather whether the evidence is so strong that a
reviewing court can be assured that the shackling did not affect the jury’s conclusions.”
Ruimveld, 404 F.3d at 1017 n.5. Even if we were to assume that Johnson’s holding dictates a
finding that the State introduced sufficient evidence to support conviction of Davenport, that is
not sufficient to show that the unconstitutional shackling was harmless. Thus, Johnson provides
no “inescapable conclusion” that controls this case. Dissent at 44.
 No. 17-2267 Davenport v. MacLaren Page 23

2. Juror Testimony

In addition to arguing that this is a case of overwhelming evidence, the State tries to meet
its burden of showing that the shackling did not have a substantial and injurious effect or
influence on the jury’s verdict by pointing to the testimony of jurors that the shackling did not
affect their deliberations. The state courts also relied on this testimony in denying Davenport
relief after the evidentiary hearing. But, as Davenport argues, the Supreme Court has made clear
that jurors’ subjective testimony about the effect shackling had on them bears little weight. If a
practice “‘involves such a probability that prejudice will result that it is deemed inherently
lacking in due process,’” like shackling a defendant without case-specific reasons, “little stock
need be placed in jurors’ claims to the contrary. Even though a practice may be inherently
prejudicial, jurors will not necessarily be fully conscious of the effect it will have on their
attitude toward the accused.” Holbrook, 475 U.S. at 570 (quoting Estes v. Texas, 381 U.S. 532,
542–43 (1965) (citations omitted). Since Holbrook was decided, a voluminous body of social-
science research has demonstrated support for Holbrook’s conclusion.13 The dissent finds this
footnoted evidence to be improper on the basis that our review must be guided only by
established Supreme Court law, “not abstract sociology.” Dissent at 42. But it was the Supreme
Court in Holbrook that stated the danger of relying on after-the-fact juror conclusions regarding
“inherently prejudicial” actions such as shackling because jurors may be not fully aware of how
such effects “their attitude toward the accused.” Holbrook, 475 U.S. at 570. This scientific
evidence merely provides further support for the Supreme Court’s determination.

Moreover, two aspects of the jurors’ factual testimony at the evidentiary hearing suggest
that Davenport’s shackling may have prejudiced his trial. First, when questioned three years
after the trial, a majority of jurors still remembered that they either saw his restraints or heard

13See generally Jennifer L. Eberhardt, Biased: Uncovering the Hidden Prejudice that Shapes What We See,
Think, and Do (2019). This research suggests that the shackling of Davenport, a 6’5” tall black man weighing
approximately 300 pounds, would tend to “prime” racialized presumptions of dangerousness and guilt. See, e.g.,
Mark W. Bennett & Victoria C. Plaut, Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial
Features, Skin Tone, and Criminal Justice, 51 U.C. Davis L. Rev. 745, 785 (2018) (“Repeated studies indicate
Blacks with darker skin tones and stronger Afrocentric facial features ‘activate automatic associations with negative
behavioral stereotypes of Black men, such as aggression, violence, and criminality.’” (citations omitted)); Justin D.
Levinson et al., Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim.
L. 187, 207 (2010) (“[W]e found that participants held implicit associations between Black and Guilty. . . . [T]hese
implicit associations were meaningful—they predicted judgments of the probative value of evidence.”).
 No. 17-2267 Davenport v. MacLaren Page 24

another juror remark on his shackles. This suggests the shackles made an impression. Second,
several jurors testified that they thought Davenport might be dangerous when they saw his
restraints. The dissent asserts that there is “little reason to believe” that juror testimony
concerning whether Davenport was dangerous was due to his partial shackling, as opposed to the
“gruesome” killing at issue in this case. Dissent at 45. This statement misreads the record;
those jurors were not making a holistic assessment of whether Davenport was dangerous in light
of all that they knew about him. Rather, the jurors were asked specifically whether Davenport’s
shackling left them with the impression that he was dangerous at the time they observed the
restraints.

Juror James Vanderveen testified as follows:

Q: And given that you saw the restraints at some portions of the trial, did you
think that [Davenport] might be dangerous?
A: Well I would assume that, yes.
Q: Okay. Did you think that he had done something wrong and that is why
he was shackled?
A: Well it was a murder trial, correct?

Similarly, Juror Robert Jankford stated that he noticed the shackles during the trial and
thought that the purpose of the shackles was “[s]ecurity.” Mr. Jankford was then asked, “[d]id
you think that he might be dangerous?” Mr. Jankford replied “[a]bsolutely.” Juror Bradley
Lewis described how, initially, he did not notice the shackles on Davenport, but that a different
juror pointed out the shackles to him and other jurors while the jurors were sitting in the jury box
during the middle of the trial.

The fact that Davenport stood charged with, and was later convicted of, a violent crime
does not provide a reason to write off the jurors’ explanations of their impressions concerning
Davenport’s shackles. If anything, they underscore the due process concerns that
unconstitutional shackling raises. Leaving jurors with an impression that a defendant has already
been determined to be dangerous is particularly troublesome when that defendant is charged with
a crime a jury might expect a dangerous person to commit. Thus, the charges at issue in this case
do not excuse the error created by the unconstitutional shackling, they exacerbate it.
 No. 17-2267 Davenport v. MacLaren Page 25

That these jurors did not attribute great significance to the shackles, does not mean the
shackling had no effect. As the Supreme Court has observed, shackling a defendant “almost
inevitably implies to a jury, as a matter of common sense, that court authorities consider [him] a
danger to the community . . . . [I]t thereby inevitably undermines the jury’s ability to weigh
accurately all relevant considerations . . . .” Deck, 544 U.S. at 633 (discussing the penalty phase
of capital trials). Thus, “common sense” teaches that a defendant in shackles is in peril of being
presumed dangerous rather than presumed innocent.

The Ninth Circuit relied on this logic in granting a habeas petition in a case with
analogous facts. Rhoden v. Rowland was a case where, much like this one, “several of the jurors
actually saw the shackles during the trial” and “[a]t least two jurors remember[ed] other jurors
making comments to them about the shackles.” 172 F.3d 633, 637 (9th Cir. 1999). As in this
case, the defendant “was charged with violent crimes” and the evidence was disputed—indeed,
“the jurors deliberated for over nine hours over three days.” Id. The court concluded, “[b]ecause
at least some of the jurors saw the shackles and because the shackles essentially branded Rhoden
as having a violent nature in a case where his propensity for violence was the crucial issue, the
shackles had ‘substantial and injurious effect or influence in determining the jury’s verdict’ . . . .”
Id. (quoting Brecht, 507 U.S. at 637). The shackling was therefore not harmless error. Id.

Here, similarly, the shackles branded Davenport as having a violent nature in a case
where the crucial point of contention was whether he engaged in deliberate and premeditated
murder. Given the closeness of this question, the number of jurors who observed the restraints,
and the inherently prejudicial nature of shackling, the State has failed to carry its burden to show
that the shackles did not have a “substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 637; see Ruimveld, 404 F.3d at 1018; Rhoden, 172 F.3d at
637.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s denial of Davenport’s
§ 2254 petition, GRANT Davenport a conditional writ of habeas corpus that will result in his
release from prison unless the State of Michigan commences a new trial against him within 180
 No. 17-2267 Davenport v. MacLaren Page 26

days from the date of this opinion and REMAND the case for further proceedings consistent
with this opinion.
 No. 17-2267 Davenport v. MacLaren Page 27

_________________

DISSENT
_________________

CHAD A. READLER, Circuit Judge, dissenting. In the federal courts, it is hard to
imagine a habeas case where AEDPA (more formally known as The Antiterrorism and Effective
Death Penalty Act) does not help guide our review. Enacted by Congress in 1996, AEDPA
brought meaningful change to how habeas claims are treated by the federal courts. Short of
declaring the law unconstitutional, we are bound to enforce it. And we have, all across the
habeas case-law landscape.

But in today’s decision granting habeas relief, AEDPA is conspicuously absent. As we
sit in review of the Michigan courts’ judgment that any error in Davenport’s state court
proceedings was harmless, we would naturally apply 28 U.S.C. § 2254(d)(1), as amended by
AEDPA. Yet the majority opinion fails to ask the fundamental question posed by § 2254(d)(1):
Whether the Michigan courts’ determination “was contrary to, or involved an unreasonable
application of, clearly established Federal law”? Id.

Failing to do so puts us at odds with Davis v. Ayala, 135 S. Ct. 2187 (2015). Ayala
reminds us of the two inquiries a federal habeas court must make when assessing the impact of a
constitutional error in a collateral state court proceeding. One, did the error have a “substantial
and injurious effect or influence in determining the jury’s verdict,” the collateral review standard
announced in Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)? Ayala, 135 S. Ct. at 2198–99
(internal quotation marks omitted). Two, honoring AEDPA, was the state court’s “harmlessness
determination itself” an “unreasonable application of clearly established federal law”? Id.
(emphasis in original). The latter is particularly important here, when the Supreme Court has
neither previously found a constitutional violation in a comparable setting nor held that a state
court may not consider post-trial juror testimony in concluding that a constitutional error was
harmless. See Deck v. Missouri, 544 U.S. 622 (2005) (holding that the routine use of physical
restraints fully visible to the jury violates due process); Holbrook v. Flynn, 475 U.S. 560 (1986)
(addressing whether potential jurors hypothetically would be prejudiced by subsequent
 No. 17-2267 Davenport v. MacLaren Page 28

courtroom security measures). The Brecht inquiry may “subsume” some AEDPA requirements.
Ayala, 135 S. Ct. at 2198. But, Ayala makes clear, it does not consume them altogether.

To my eye, the majority decision entrenches us as the lone circuit to grant habeas relief
from a state court judgment without applying AEDPA deference to that court’s conclusion that a
trial error was harmless. In the wake of Ayala, every other circuit to reach the question has
agreed that a habeas petitioner, before he may be granted habeas relief, must satisfy the distinct
requirements of both Brecht and AEDPA. We have done the same, just not today. See Stewart
v. Trierweiler, 867 F.3d 633, 636–37, 640 (6th Cir. 2017) (applying Ayala and measuring a state
court’s harmless error analysis against the backdrop of both Brecht and AEDPA before holding
that the state court’s harmless error determination was not “so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement”). It may be that a federal court can deny habeas relief by “go[ing]
straight to Brecht.” Ruelas v. Wolfenbarger, 580 F.3d 403, 413 (6th Cir. 2009); see also
Hollman v. Sprader, 803 F. App’x 841, 843–45 (6th Cir. 2020) (denying habeas relief on
AEDPA grounds after observing that a federal habeas court may choose to take a “shortcut” to
Brecht in denying habeas relief). But we stand alone as the only Circuit to award habeas relief
without expressly applying the requirements of both Brecht and AEDPA. Cf. Reiner v. Woods,
955 F.3d 549, 556–57 (6th Cir. 2020) (recognizing a “colorable argument” that Ruelas and its
progeny are incorrect in light of Ayala).

Because the majority opinion fails to employ an AEDPA analysis before granting habeas
relief, because the majority opinion does not cite a Supreme Court decision contrary to the
harmless error determination reached by the Michigan courts, and because the Michigan
Supreme Court previously affirmed a strikingly similar first-degree murder conviction in People
v. Johnson, 597 N.W.2d 73 (Mich. 1999), I respectfully dissent.

I. AEDPA Requires Federal Courts To Show Great Deference To State Court
Adjudications On The Merits, Including Harmless Error Determinations.

1. I start with a point of agreement. In recognition of the deference owed to a state
court’s judgment in a habeas posture, Ayala, the majority opinion, and I all agree that we employ
the “actual prejudice” standard from Brecht in assessing the impact of a constitutional error on a
 No. 17-2267 Davenport v. MacLaren Page 29

habeas petitioner’s state proceeding. Guided by the Brecht standard, we may grant habeas relief
only where there is “grave doubt about whether a trial error of federal law had substantial and
injurious effect or influence in determining the jury’s verdict.” Ayala, 135 S. Ct. at 2198
(quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)) (internal quotation marks omitted). In
the words of Ayala, there “must be more than ‘a reasonable probability’ that the error was
harmful.” Id. (quoting Brecht, 507 U.S. at 637).

But that is not all Ayala had to say. The Supreme Court emphasized that AEDPA’s
requirements are also alive and well when it comes to collateral review of a state court’s
harmless error analysis. AEDPA’s standards are distinct, and they are stringent. Brecht permits
a habeas court to grant relief where any “error of federal law” had a prejudicial effect on the
verdict. AEDPA, on the other hand, permits habeas relief only where the state court reached “a
decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law.” 28 U.S.C. § 2254(d)(1). That is, the rare set of cases for which the “necessity to
apply” an earlier rule recognized by the Supreme Court “[is] beyond doubt.” Yarborough v.
Alvarado, 541 U.S. 652, 666 (2004). And that deferential standard applies both to a state court’s
merits determination as well as its harmless error assessment. Ayala, 135 S. Ct. at 2198–99.
AEDPA could thus foreclose relief even in cases in which Brecht’s harmless error standard is
satisfied—most notably cases in which the purported prejudice is based on a ground for relief not
yet clearly established by the Supreme Court. Yarborough, 541 U.S. at 666. The majority fails
to consider this critical feature of AEDPA.

Compare Ayala to the majority opinion. First Ayala. There, the Supreme Court
considered in a habeas context a state court’s determination that any constitutional error in the
collateral state court proceeding was harmless. In so doing, the Supreme Court disagreed with
the Ninth Circuit’s conclusion that “a state court’s harmlessness determination has no
significance under Brecht.” 135 S. Ct. at 2198. Rather, a habeas petitioner, in addition to
satisfying Brecht, must also satisfy AEDPA, which continues to set forth a precondition on the
grant of habeas relief. Id. Earlier post-AEDPA cases applying Brecht, the Supreme Court
acknowledged, may have muddied the point. See id. (citing Fry v. Pliler, 551 U.S. 112, 120
(2007)). But those decisions, Ayala explained, “would have had no possible basis for holding
 No. 17-2267 Davenport v. MacLaren Page 30

. . . that Brecht somehow abrogates the limitation on federal habeas relief that § 2254(d) plainly
sets out.” 135 S. Ct. at 2198.

Honoring this precondition, Ayala undertook the familiar AEDPA analysis. The
Supreme Court cited the standards set out in § 2254(d) and made clear that a federal court could
not grant relief in this context unless the state court’s decision “was contrary to or involved an
unreasonable application of clearly established federal law.” Id. It re-emphasized that the
“highly deferential AEDPA standard applies,” and noted that, in the harmless error context, a
federal court must determine whether a state court applied Supreme Court precedent “in an
objectively unreasonable manner” in denying relief to the petitioner. Id. at 2198–99 (internal
quotation marks and citations omitted). And it concluded that habeas relief may not issue “under
§ 2254 unless the harmlessness determination itself was unreasonable.” Id. at 2199 (internal
quotation marks and citations omitted).

Now the majority opinion. Virtually all of these AEDPA standards are missing.
In analyzing whether to grant habeas relief, the majority opinion barely mentions the “highly
deferential AEDPA standard,” instead claiming that the Brecht standard does all of the landmark
statute’s work. Invoking that AEDPA-free framework, the majority opinion ultimately pays no
deference to the Michigan courts’ conclusion that any error in Davenport’s case was harmless.
People v. Davenport, 832 N.W.2d 389, 390 (Mich. 2013) (“Given the substantial evidence of
guilt presented at trial, we cannot conclude that there was an unacceptable risk of impermissible
factors coming into play.”); People v. Davenport, No. 306868, 2012 WL 6217134, at *2 (Mich.
Ct. App. Dec. 13, 2012) (per curiam) (finding that the state trial court properly relied on juror
testimony regarding prejudice and concluding that “[a]ll of the evidence indicated that the
shackling did not affect the verdict in any way”). Blatantly disregarding “principles of comity,
finality, and federalism” in this manner is precisely what AEDPA was crafted to avoid.
Woodford v. Garceau, 538 U.S. 202, 206 (2003); see also Williams v. Taylor, 529 U.S. 362, 386
(2000) (Through AEDPA, “Congress intended federal judges to attend with the utmost care to
state-court decisions . . . before concluding that those proceedings were infected by constitutional
error sufficiently serious to warrant issuance of the writ.”).
 No. 17-2267 Davenport v. MacLaren Page 31

Compounding those conspicuous omissions, the majority opinion then fails to ask or
answer whether the state court’s harmless error determination was an “unreasonable application
of clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Ordinarily, we would assess
whether the Michigan courts’ harmless error analysis “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Ayala, 135 S. Ct. at 2199 (quoting Harrington v. Richter, 562 U.S.
86, 103 (2011)). But other than quoting the Michigan Supreme Court’s holding, the majority
ignores the underlying state court decisions altogether—a textbook example of acting as if “a
state court’s harmlessness determination has no significance under Brecht.” Id. at 2198.

2. While Supreme Court precedent leads me ultimately to disagree with my friends in the
majority, the majority opinion’s conclusion is not without its own precedent. But it is mistaken
precedent, in my mind, especially in the aftermath of Ayala. The notion that we need pay no
deference to a state court’s harmless error determination finds its roots in a line of our cases
starting with Ruelas, 580 F.3d at 412. In a nutshell, Ruelas held that federal habeas courts
reviewing state harmless error decisions may push aside AEDPA’s stringent statutory
requirements in favor of applying only Brecht’s “substantial and injurious effect” test. Where,
one might ask, did Ruelas find such sweeping authority to close its eyes to an act of Congress?
From one word in Fry v. Pliler: It “makes no sense to require formal application of both tests
(AEDPA/Chapman and Brecht) when the latter obviously subsumes the former.” Id. (quoting
Fry, 551 U.S. at 120) (emphasis added). See Chapman v. California, 386 U.S. 18, 24 (1967).
Embracing the term “subsumes,” Ruelas concluded that the Brecht test fully accounts for all of
AEDPA’s requirements, effectively reading AEDPA out of existence on collateral harmless error
review. Ruelas, 580 F.3d at 412.

But Ruelas failed to consider Fry in context. Unlike here, and unlike in Ruelas, the
collateral state court decision at issue in Fry had not passed judgment on harmless error, meaning
the Supreme Court was not reviewing a state court’s harmless error analysis. Fry addressed a
different question, namely, how to measure alleged prejudice resulting from a constitutional error
in collateral proceedings when the error is first recognized on federal habeas review. 551 U.S. at
114.
 No. 17-2267 Davenport v. MacLaren Page 32

To answer that question, the Supreme Court had to harmonize its prior decisions in
Chapman and Brecht in the aftermath of AEDPA. See id. Chapman set forth the standard courts
are to use in assessing constitutional error on direct review: “[B]efore a federal constitutional
error can be held harmless, the reviewing court must be able to declare a belief that it was
harmless beyond a reasonable doubt.” 386 U.S. at 24. The burden of meeting this standard rests
with the government. See id. at 23–24. Brecht, by comparison, addressed the prejudice standard
federal courts are to employ after finding (or assuming) constitutional error in collateral
proceedings. It held that federal habeas relief may issue only when a constitutional error actually
prejudiced the defendant, 507 U.S. at 637–38—in stark contrast to the government’s burden to
disprove such prejudice on direct review. Chapman, 386 U.S. at 24.

And how did AEDPA, enacted only three years after the decision in Brecht, impact the
interplay between Chapman and Brecht? The petitioner in Fry asserted that, in the aftermath of
AEDPA, federal courts were to apply in habeas proceedings the direct review standard set forth
in Chapman through the lens of AEDPA. In other words, the petitioner argued, AEDPA in
essence replaced the actual prejudice standard under Brecht with a joint AEDPA/Chapman
standard for claims under § 2254. Adopting that joint standard, however, would have lowered
the bar for state habeas petitioners in a sense by allowing federal courts to grant habeas relief
from state court judgments without finding any actual prejudice to the petitioner. That was so
because Chapman places the burden on the government to disprove prejudice, Chapman, 386
U.S. at 24, rather than requiring an affirmative showing of prejudice, Brecht, 507 U.S. at 637.

What the Fry Court confronted, then, was the counterintuitive notion that AEDPA made
it easier rather than harder for a petitioner to obtain habeas relief when measuring prejudice
arising from a purported error. Rejecting that odd result, the Supreme Court applied the more
restrictive Brecht standard. To hold otherwise would have allowed federal courts to “[overturn]
final and presumptively correct convictions on collateral review because the State cannot prove
that an error is harmless under Chapman.” Id. In other words, Fry was merely heeding Brecht’s
warning about expanding collateral review beyond carefully circumscribed limits.

But that does not mean, contrary to the understanding in Ruelas and today’s majority
opinion, that if the AEDPA/Chapman prejudice standard is less stringent than Brecht, AEDPA
 No. 17-2267 Davenport v. MacLaren Page 33

does nothing at all in the harmless error context. AEDPA, remember, does not simply articulate
a prejudice standard. It also cabins federal habeas review by preventing habeas courts from
extending grounds for relief beyond those explicitly required by Supreme Court precedent,
independent of any prejudice those errors may have caused. In other words, relief under AEDPA
requires more than prejudice. It also requires habeas courts to extract concrete legal rules from
Supreme Court precedent, to apply them to the letter, and not to expand them as we might on
direct review. See Yarborough, 541 U.S. at 666.

This fundamental AEDPA principle was front-and-center in Yarborough. There, the
Supreme Court reviewed the Ninth Circuit’s grant of § 2254 relief based upon a violation of
Miranda v. Arizona, 384 U.S. 436 (1966). In awarding habeas relief, the Ninth Circuit faulted
the state court for failing to consider the petitioner’s age. But age was not a factor the Supreme
Court had explicitly required courts to consider in that context. By requiring the state court to do
so, the Ninth Circuit extended—rather than applied—existing law, a practice wholly inconsistent
with AEDPA: “Section 2254(d)(1) would be undermined if [federal] courts introduced rules not
clearly established under the guise of extensions to existing law.” Yarborough, 541 U.S. at 666.
“Evaluating whether a rule application was unreasonable requires considering the rule’s
specificity,” the Supreme Court explained. Id. at 664. The more general the rule, for example,
“the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. But in
all events, in cases warranting habeas relief, “the necessity to apply the earlier rule will be
beyond doubt.” Id. at 666.

We followed that tailored approach in the analogous setting of Mendoza v. Berghuis,
544 F.3d 650 (6th Cir. 2008). Like here, at issue there was a defendant’s shackling at trial. Id. at
655. And then, as today, the relevant Supreme Court authority, for purposes of § 2254(d)(1),
was Deck, 544 U.S. at 622. In view of the key factual distinctions between Mendoza and Deck,
“it [was] not obvious that Deck should be extended to the particular facts present” in Mendoza.
544 F.3d at 655. AEDPA, moreover, forbids “breaking new ground on unsettled legal issues or
interpreting existing caselaw to decide an open question in our jurisprudence.” Dewald v.
Wriggelsworth, 748 F.3d 295, 300 (6th Cir. 2014) (internal quotations and citations omitted).
Accordingly, we denied habeas relief in Mendoza. 544 F.3d at 655.
 No. 17-2267 Davenport v. MacLaren Page 34

The Brecht standard does not capture this critical feature of AEDPA. AEDPA requires a
federal habeas court to assess whether Supreme Court precedent put a state court on notice of
precise constitutional limitations. See Yarborough, 541 U.S. at 665. Brecht, on the other hand,
writes largely on a clean slate. Unchecked by then-existing Supreme Court precedent, Brecht
simply asks a federal habeas court to assess the prejudice arising from an alleged error. And that
distinction can make all the difference. A habeas claim alleging a deeply prejudicial trial error
may easily clear Brecht’s “actual prejudice” bar. But the claim may nonetheless fail AEDPA’s
comity-inspired requirements if the reviewing court must create new law or extend existing
Supreme Court precedent to find underlying legal error, or that the error was not harmless. Id. at
666.

It follows that before awarding habeas relief today, we must explain why no fairminded
jurist could find that the differences between this case and the Supreme Court’s holdings in Deck
(addressing shackling) and Holbrook (addressing whether potential jurors can fairly predict
whether they will be improperly influenced by courtroom security measures), could justify a
different outcome. See Yarborough, 541 U.S. at 663–66. Yet the majority opinion—tellingly, to
my mind—simply refuses to do so. Rather than engaging in this demanding AEDPA analysis,
the majority opinion brushes it aside, concluding that the AEDPA standard is “subsumed” by
Brecht. Which begs the question: If, as the majority opinion posits, Davenport’s claim passes
the “significantly harder” Brecht test, why does the majority opinion not show its work, as the
state asked us to do, in finding that AEDPA is also satisfied?

3. Any lingering confusion over whether AEDPA also applies alongside Brecht in the
context of reviewing a state court’s harmless error determination was put to rest by Ayala. As
explained above, Ayala repeatedly referenced AEDPA’s standards. It then applied those
standards, in addition to applying the Brecht standard, in collaterally reviewing a state court’s
harmlessness determination. See Ayala, 135 S. Ct. at 2198–99 (noting that habeas relief may not
issue “under § 2254 unless the harmlessness determination itself was unreasonable”) (internal
quotation marks and citations omitted); see also id. at 2207 (“The most that Ayala can establish
is that reasonable minds can disagree about whether the prosecution’s fears were well founded,
 No. 17-2267 Davenport v. MacLaren Page 35

but this does not come close to establishing ‘actual prejudice’ under Brecht. Nor does it meet the
AEDPA standard.”) (emphasis added).

While Ruelas, decided six years before Ayala, might be excused for believing that habeas
courts can dispense with AEDPA in the harmless error context, our cases that follow Ayala
cannot. That starts with McCarley v. Kelley, 801 F.3d 652, 665 (6th Cir. 2015), and extends
through O’Neal v. Balcarcel, 933 F.3d 618, 625 (6th Cir. 2019), and Reiner, 955 F.3d at 556–57,
our most recent published opinions to follow Ruelas. The majority opinion holds out Reiner in
particular as a beacon of light in the continuing post-Ayala march to vindicate Ruelas. But to do
so, the majority opinion must first rewrite Reiner. The majority opinion quotes Reiner as
follows: “The state argues that the Supreme Court’s subsequent decision in Davis v. Ayala
changed this dynamic . . . [t]he problem for the state is that our precedent forecloses this
approach.” 955 F.3d at 556–57. What, one might wonder, has the majority opinion omitted
through its use of ellipsis? Only Reiner’s Ayala-inspired recognition that the state’s position is a
“colorable argument,” but foreclosed by our Circuit precedent. Id. In that sense, Reiner
confesses itself more a prisoner to our past mistakes than a proponent of them.

Confined by earlier flawed precedents, Reiner, like McCarley and O’Neal before it, thus
merely continued our earlier error in Ruelas, citing that decision for the proposition that federal
courts need not engage in an AEDPA analysis of a state court’s harmless error conclusion
because the Brecht test does the job by itself. That collective conclusion, it bears repeating,
overlooks the fact that Fry—from where much of this misunderstanding emanates—was not
reviewing a state court’s harmless error determination, to which AEDPA would plainly apply.
See Fry, 551 U.S. at 114 (determining the applicable standard of review when the state court
“did not review [a trial error] for harmlessness” under Chapman). It also overlooked many
passages from Ayala that undermine Ruelas. In fact, it ignored all of those in favor of one other:
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, 135 S. Ct. at 2199. But that passage is not license to cast aside AEDPA. In
fact, much the opposite. The Supreme Court there was reminding us that while the Brecht test
always applies on collateral review, AEDPA also applies where, unlike in Fry, the state court
 No. 17-2267 Davenport v. MacLaren Page 36

reaches the question of harmless error. And where an underlying state court decision concludes
that any error in the petitioner’s state court proceeding was harmless, the Brecht test, having
subsumed AEDPA, takes on the additional requirements and demands in § 2254(d). Id. While
Brecht in this sense may “subsume” the AEDPA analysis, nowhere has the Supreme Court
declared that Brecht consumes AEDPA, rendering it null and void in the harmless error setting.

Nor, I might add, could the Supreme Court so easily have dispensed with AEDPA’s
requirements even had it desired to do so. AEDPA is a valid act of Congress. It has not been
declared unconstitutional or otherwise unenforceable. It would be quite something, then, for the
Supreme Court to nonetheless make that law disappear by “subsuming” it in the Brecht standard.
Johnson v. Lamas, 850 F.3d 119, 133 (3d Cir. 2017) (“[T]he Fry Court did not hold—and would
have had no possible basis for holding—that Brecht somehow abrogate[d] the limitation on
federal habeas relief that § 2254(d) plainly sets out.”) (quoting Ayala, 135, S. Ct. at 2198); see
also Sifuentes v. Brazelton, 825 F.3d 506, 534 (9th Cir. 2016) (same). That is especially true
when one considers that AEDPA followed Brecht, not the other way around. Functionally,
Brecht could not have subsumed (or consumed) the AEDPA statute when the decision was
announced. At that point, after all, the statute was still in the mind’s eye.

That AEDPA amplifies the Brecht standard is all the more apparent when one considers
that Congress legislates against the backdrop of Supreme Court decisions. See Forest Grove
Sch. Dist. v. T.A., 557 U.S. 230, 239–40 (2009) (internal quotations omitted). Noting the
limitations on federal habeas review already in place following Brecht, Congress, through
AEDPA, imposed “new requirements” on when habeas relief could be granted by a federal court.
Felker v. Turpin, 518 U.S. 651, 662 (1996) (“Title I of the Act has changed the standards
governing our consideration of habeas petitions by imposing new requirements for the granting
of relief to state prisoners.”). Those additional requirements “limited rather than expanded the
availability of habeas relief.” Fry, 551 U.S. at 119. Yet today, they are absent.

Shifting blame to the state for this dubious omission, and perhaps hedging its bets, the
majority opinion contends (in a sentence) that the state conceded away AEDPA review of the
Michigan courts’ harmless error determination. But the state conceded no such thing. Both
Michigan’s brief and its statements at oral argument reflect the state’s repeated contention that
 No. 17-2267 Davenport v. MacLaren Page 37

AEDPA is not merely Brecht’s afterthought. Appellee Br. at 15, 28; Oral Argument at 14:10–
17:34 (Michigan’s counsel citing Ayala and arguing at length that the state court’s harmless error
analysis was not counter to Supreme Court precedent); see also Reiner, 955 F.3d at 556–57
(Michigan advocating that Ayala requires AEDPA review of a harmless error determination).
Nor could the state concede the point away, in the context of AEDPA review. Section
2254(d)(1) requires that we give deference to a state court’s decision on the merits, including any
harmless error determination. And we owe that statutorily mandated deference regardless of
how the state or Davenport might characterize the decision. Langley v. Prince, 926 F.3d 145,
162–63 & n.8 (5th Cir. 2019) (en banc) (citing Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir.
2008), abrogated on other grounds, Cullen v. Pinholster, 563 U.S. 170 (2011)).

4. In view of this legislative and precedential backdrop, it is perhaps no surprise that
every other federal appellate court to take up the issue post-Ayala has agreed that the standards
articulated in both Brecht and AEDPA apply to a habeas court’s review of a state court’s
harmless error analysis. By my count, at least seven other circuits have granted AEDPA
deference to a state court’s determination that a constitutional error was harmless:

• Second Circuit. Orlando v. Nassau County District Attorney’s Office, 915 F.3d
113, 127 (2d Cir. 2019) (“When a state court makes a harmless error
determination on direct appeal, we owe the harmlessness determination itself
deference under [AEDPA].”) (internal quotations and citations omitted);
• Third Circuit. Johnson v. Lamas, 850 F.3d 119, 136 (3d Cir. 2017) (“[W]e cannot
say that the Superior Court’s determination that Slaughter’s
statement was harmless was so lacking in justification that we should refuse to
give it AEDPA deference.”) (internal quotations and citations omitted); Johnson
v. Superintendent Fayette SCI, 949 F.3d 791, 804 (3d Cir. 2020) (reviewing an
“undecided issue of harmless error de novo” under Brecht and observing that a
“different standard of review” augmented by AEDPA applies
under Lamas and Ayala when the state court reached the question of harmlessness
on the merits);
• Seventh Circuit. Long v. Pfister, 874 F.3d 544, 547–48 (7th Cir. 2017) (en banc)
(“The Appellate Court of Illinois ruled that any error was harmless in light of the
other evidence inculpating Long. Davis v. Ayala . . . holds that a harmless-error
decision is one on the merits as § 2254(d) uses that phrase.”) (internal quotations
omitted); see also id. at 556 (Hamilton, Rovner, & Williams, JJ., dissenting)
(finding that habeas relief was warranted where each harmless error inquiry was
 No. 17-2267 Davenport v. MacLaren Page 38

satisfied, including whether the error was harmless under directly on-point
Supreme Court precedent, consistent with AEDPA review);
• Eighth Circuit. Davis v. Grandienard, 828 F.3d 658, 666 (8th Cir. 2016) (“We
fail to find any unreasonable application of clearly-established federal law in the
Minnesota Supreme Court’s decision . . . explaining that any error committed by
the state trial court when it admitted the inadmissible portion of Davis’s statement
was harmless . . . .”);
• Ninth Circuit. Rademaker v. Paramo, 835 F.3d 1018, 1024 (9th Cir. 2016) (“[I]t
was not objectively unreasonable for the state appellate court to conclude that the
evidence supported the jury’s finding . . . thus rendering the charging error
harmless beyond a reasonable doubt.”); see also Sifuentes, 825 F.3d at 534;
• Tenth Circuit. Malone v. Carpenter, 911 F.3d 1022, 1030 (10th Cir. 2018) (“So
which standard prevails—Brecht or § 2254(d)(1)? The Supreme Court has
answered the question by saying that both apply.”);
• Eleventh Circuit. Al-Amin v. Warden, 932 F.3d 1291, 1299 (11th Cir. 2019)
(“Ultimately, for a federal court to grant habeas relief, it must be true both that the
state court’s application of the Chapman harmless beyond a reasonable doubt
standard was objectively unreasonable and that the error had a substantial and
injurious effect or influence on the verdict.”) (emphasis in original) (internal
citations and quotation marks omitted).

Of the many decisions in this uniform line of cases, Malone is particularly instructive.
Assessing on collateral review a state court’s conclusion that a constitutional error was harmless,
the Tenth Circuit observed that “Brecht [] predated” AEDPA, and that AEDPA “limited rather
than expanded the availability of habeas relief.” 911 F.3d at 1029–30 (quoting Fry, 551 U.S. at
119). Notwithstanding the Supreme Court’s observation in Fry that the AEDPA/Chapman
standard may be easier to satisfy than the Brecht standard in some respects, the Supreme Court
“d[id] not exclude the application of AEDPA in the harmless-error context.” Id. at 1030 (citing
Ayala, 135 S. Ct. at 2198). Accordingly, the Tenth Circuit applied AEDPA deference to the
Oklahoma Court of Criminal Appeal’s conclusion that any error in the petitioner’s criminal
proceeding was harmless. And because the petitioner failed to satisfy AEDPA, the Tenth Circuit
denied relief. Id. at 1033 (“The OCCA’s determination that the error in the voluntary-
intoxication instruction was harmless was an eminently reasonable application of Chapman.”).

Against the backdrop of this unbroken line of decisions, the majority opinion cites four
cases for the proposition that other circuits in fact share our “Brecht-only” approach. Two of
 No. 17-2267 Davenport v. MacLaren Page 39

them are unpublished, which says little when stacked next to the just-cited published decisions of
those same courts. Wharton v. Vaughn, 722 F. App’x 268 (3d Cir. 2018); Hammonds v.
Comm’r, Ala. Dep’t of Corr., 712 F. App’x 841 (11th Cir. 2017). And even on their own non-
binding terms, those cases do not stand for the extraordinary proposition that a federal habeas
court may “go straight to Brecht with full confidence that the AEDPA’s stringent standards will
also be satisfied.” Ruelas, 580 F.3d at 413. Both Wharton and Hammonds extensively discuss
the familiar AEDPA standard; they do not sweep it aside.

The same is true of the Seventh Circuit’s en banc decision in Long. After confirming that
the state court’s harmless error decision was entitled to AEDPA deference, the court went on to
deny habeas relief on the basis that there was no threshold constitutional error in the state court
proceeding, meaning the court need not reach the question of harmlessness. 874 F.3d at 547–48.
The en banc Seventh Circuit majority thus said nothing about Brecht consuming AEPDA. Nor,
in fact, did the dissenters. The dissenting opinion, which believed a constitutional error had
occurred, acknowledged three inquiries to assess whether that error was harmless—including
measuring the error against the clearly established constitutional law at the time, the traditional
AEDPA standard. See id. at 556.

That leaves the Ninth Circuit’s decision in Hall v. Haws, 861 F.3d 977 (9th Cir. 2017),
the lone published out-of-circuit decision granting habeas relief that the majority opinion cites to
support its AEDPA-free framework. Yet even there, Judge Pregerson, writing for a fractured
court, begrudgingly performed an AEDPA analysis, finding that the “California Court of
Appeal’s harmless error determination was objectively unreasonable.” Id. at 992. Nor, it bears
adding, does Hall suggest that the Ninth Circuit’s earlier, controlling decisions in Rademaker
and Sifuentes were wrongly decided or otherwise distinguishable.

Other than a misguided line of cases in this Court, then, the courts of appeals have
universally accepted the notion that, before granting habeas relief, a federal court reviewing a
state court’s harmlessness determination must reach two separate conclusions: one, that the
constitutional error had a substantial and injurious effect on the verdict; and two, that the state
court’s harmlessness analysis constituted an unreasonable application of clearly established
federal law. The majority opinion does only the first.
 No. 17-2267 Davenport v. MacLaren Page 40

* * * * *

By my tally, today’s opinion flouts a long-standing federal statute, misapprehends
Supreme Court precedent, and pays no respect to the independent judgment of our sister state
courts—all in reversing a decision in which the magistrate judge and district court properly
applied the correct statutory and precedential requirements. Davenport v. MacLaren, No. 1:14-
cv-1012, 2016 WL 11262506, at *6 (W.D. Mich. Nov. 7, 2016). In so doing, the majority
opinion divides our Circuit on the resolution of harmless error issues in the habeas context.
Stewart, 867 F.3d at 636–37. And it sets us apart from every other circuit to have addressed the
issue. This point bears repeating: No circuit, save for this one, has granted habeas relief without
first finding that the underlying state court decision ran afoul of both Brecht and AEDPA. For
these reasons, I cannot join the majority opinion. And given the recurring nature of this
important question, it is my hope that some court, either our en banc court or beyond, will clarify
the standard we apply in this frequent setting.

II. Application Of The AEDPA And Brecht Standards Forecloses Relief To
Davenport.

Were we to apply AEDPA deference, as Ayala requires, we could not conclude that the
Michigan courts’ determination regarding harmless error constituted an objectively unreasonable
application of clearly established federal law. Likewise, even accepting the majority opinion’s
conclusion that we may ignore AEDPA, the majority opinion fundamentally misapplies the
Brecht standard in granting habeas relief to Davenport.

A. In Faulting The Michigan Supreme Court On Collateral Review, The Majority
Opinion Impermissibly Extends Both Deck and Holbrook.

Because there is no Supreme Court precedent that shows “beyond doubt” that an error
occurred in Davenport’s trial or that any such error was not harmless, Yarborough, 541 U.S. at
666, Davenport’s claim fails to clear AEDPA’s high bar. Stewart, 867 F.3d at 639.

To assess whether the Michigan courts unreasonably applied clearly established federal
law in affirming Davenport’s conviction, the most analogous benchmarks are Deck and
Holbrook. In Deck, the Supreme Court held that the shackling of a criminal defendant at trial, in
 No. 17-2267 Davenport v. MacLaren Page 41

certain circumstances, is an error of constitutional magnitude subject to Chapman review.
544 U.S. at 635. But Deck is unlike today’s case in ways that make the Michigan courts’
decision to deny Davenport relief entirely reasonable. Consider the extreme measures employed
against Deck during his state trial. His hands and feet were shackled throughout trial. The
shackles were visible to the entire jury. And Deck remained shackled even during the
punishment phase—where imposition of the death penalty was quite likely. The state trial court,
moreover, did not hold any kind of evidentiary hearing to probe what effect (if any) the shackles
might have had on the verdict.

Compare that dramatic circumstance to the facts of Davenport’s trial. A significant
concern driving the result in Deck was Deck’s inability to communicate with his counsel. Id. at
631. Not so for Davenport. His right hand remained unshackled throughout trial, meaning he
could write notes to his counsel without impediment. Mendoza, 544 F.3d at 654–55 (citing
Deck, 544 U.S. at 630). Another concern was Deck’s inability to participate in his defense by
testifying on account of the shackles. Id. Davenport testified in his own defense completely
unshackled. Also unlike in Deck, there was a privacy curtain around counsel table to make
Davenport’s shackles less apparent, undercutting Deck’s core requirement for granting relief,
namely, that the shackles be visible to the jury. Id. These same factual distinctions led us to
deny the petitioner’s shackling claim in Mendoza because “it [was] not obvious that Deck should
be extended to the particular facts present.” Id. at 655. So too here.

And in another respect, Davenport’s claim is an even weaker candidate for habeas relief
than was Mendoza’s unsuccessful claim. Back to Deck. There, the state trial court failed to
probe any possible influence Deck’s shackling had on the jury. Not so here. Following the
Michigan Supreme Court’s acknowledgement that Davenport’s partial shackling may have been
an error under Deck, the trial court held an evidentiary hearing to elicit testimony from the jurors
to assess whether shackling had any impact on the trial’s outcome. The court inquired whether
the jurors had seen the shackles and, if so, what effect, if any, the shackles had on each juror’s
deliberation. Less than half the jurors saw the shackles. And each juror affirmatively testified
that the partial shackling had no effect on her verdict.
 No. 17-2267 Davenport v. MacLaren Page 42

So the majority opinion buries the lede. In summarizing the juror interviews that took
place during the evidentiary hearing, the majority opinion starts with the least-revealing aspects.
For instance, the majority notes that one juror asked another whether she was nervous sitting
next to Davenport while he testified, an exchange that apparently reflected juror bias. But any
apprehension over proximity to Davenport on the juror’s part could simply reflect the fact that
Davenport, at the time, was a six-foot-five-inch, 300-pound man accused of violently strangling
a young woman. Only after highlighting this and other largely inconsequential items does the
majority opinion finally mention the conclusive bottom line: No juror’s verdict was influenced
by the partial shackling.

But that bottom-line account cannot be trusted, we are told, in view of the Supreme
Court’s decision in Holbrook. Holbrook, however, is a poor vehicle for undermining this juror
testimony. After all, Holbrook did not deal with shackling. Nor did it address juror reflections
following trial. Rather, it addressed statements made by prospective jurors during voir dire. It
may be the case that a potential juror’s pre-trial statement that she will not be prejudiced by
visible security measures while later sitting as a juror during trial proceedings is inherently
speculative. 475 U.S. at 570 (“[W]hen jurors are questioned at the very beginning of
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.”). But that hardly describes today’s case.
Davenport’s jurors were questioned only after sitting through a lengthy trial where they heard
graphic evidence of a brutal killing. When the jurors were later asked about the effect of the
partial shackling on their deliberations, they were relaying their actual experiences, not
speculating about future events, a distinction aptly recognized by the Michigan Court of Appeals.
Davenport, 2012 WL 6217134, at *2 (“[I]t was proper for the jurors to testify regarding how
viewing the shackles affected their deliberations.”).

Lacking a factual or legal basis to establish an unreasonable application of federal law by
the Michigan courts, the majority opinion turns to legal commentators and public researchers.
These sources, says the majority opinion, also undermine Davenport’s conviction. Why?
Because “social-science research has demonstrated the near-universal existence of implicit and
unconscious bias.” That may be (although the debate can be left for another day). Suffice it to
 No. 17-2267 Davenport v. MacLaren Page 43

say that the majority opinion, if it proves anything, proves too much. After all, if every person to
sit on a jury implicitly is impermissibly biased, seemingly no verdict could ever stand, given the
risk that some purported bias may have tainted the outcome, even in the face of overwhelming
evidence. For today’s purposes, what guides our review is “clearly established Federal law, as
determined by the Supreme Court of the United States,” not abstract sociology. 28 U.S.C. §
2254(d)(1).

Plainly then, Deck and Holbrook’s application to this case was far from “beyond doubt.”
Yarborough, 541 U.S. at 666. To be sure, on direct review, a court might reasonably extend
Deck and Holbrook to cover the facts of this case. But we cannot fault the Michigan courts
today, on collateral review, for failing to anticipate the majority opinion’s extension of Deck and
Holbrook, when the Supreme Court has not done the same.

B. Even If Deck And Holbrook Govern Davenport’s Claim, Davenport Was Not
Actually Prejudiced By His Partial Shackling At Trial.

1. Advancing “straight to Brecht” as the majority opinion does, it short-changes even
that test. The majority opinion misconstrues the Supreme Court’s holding in Deck and our own
precedents to invoke what it calls a “presumption of prejudice.” It then employs that
“presumption” to shift the usual burden on collateral review, requiring a showing of “sufficiently
strong evidence of guilt” to sustain Davenport’s first-degree murder conviction. That unusual
standard surely cannot be gleaned from Deck. Deck, keep in mind, came to the Supreme Court
on direct (not collateral) review, meaning that any language there suggesting that prejudice is
presumed in a shackling case can be chalked up to Deck’s unique procedural posture. Because
of that unique posture, Deck’s invocation of the Chapman standard to measure prejudice is the
inverse of what we apply here.

Nor does a “presumption of prejudice” standard fairly find its footing in our decision in
Ruimveld v. Birkett, 404 F.3d 1006, 1017–18 (6th Cir. 2005). In Ruimveld, a pre-Deck case
involving shackling, we determined that shackling claims generally are subject to harmless error
review (as Deck would later require). Id. at 1013. And we acknowledged the common-sense
notion that strong evidence of guilt may readily show that the defendant’s shackling was
harmless. Id. at 1016. But we did not hold that strong evidence was necessary to do so. In any
 No. 17-2267 Davenport v. MacLaren Page 44

event, to the extent Ruimveld is inconsistent with Deck’s subsequent holding that shackling
errors are subject to ordinary Chapman analysis (and therefore Brecht analysis on collateral
review), Deck carries the day.

Not only is the majority opinion’s standard at odds with precedent, it is similarly at odds
with the traditional understanding of habeas review. By employing a “presumption of prejudice”
standard, the majority opinion engages in what essentially amounts to direct review of the
Michigan Supreme Court’s decision—and a more exacting form of direct review at that—
paradoxically making habeas relief easier to obtain than relief on direct review. Among other
peculiarities, the majority’s approach sets shackling apart from other errors subject to Chapman
analysis. But the Supreme Court has not afforded shackling violations unique treatment. As
with other constitutional errors, the state, on direct review, must prove “beyond a reasonable
doubt that the [shackling] error complained of did not contribute to the verdict obtained.” Deck,
544 U.S. at 635 (alterations and citations omitted). And when a state court concludes that the
government has done so, we apply the ordinary Brecht analysis on collateral review. See 507
U.S. at 623.

Following Brecht, to hold on collateral review that a criminal defendant was prejudiced
by a constitutional error, we must have “grave doubt about whether a trial error of federal law
had ‘substantial and injurious effect or influence in determining the jury’s verdict.’” Ayala,
135 S. Ct. at 2198 (quoting O’Neal, 513 U.S. at 436). This standard, the majority opinion notes,
was satisfied in Ruimveld, “a close case based on purely circumstantial evidence.” 404 F.3d at
1017–18. Davenport’s case was not close. Ample evidence supported his conviction for first-
degree murder. Davenport undisputedly strangled White until she died. To do so, a medical
expert explained to the jury, Davenport had to continue to apply pressure to White’s airway for
more than four minutes after she lost consciousness.

In Michigan, Davenport’s conduct constitutes premeditated murder. See People v.
Johnson, 597 N.W.2d 73, 78–80 (Mich. 1999). That is the inescapable conclusion from
Johnson. There, the Michigan Supreme Court affirmed a first-degree murder conviction
involving strangulation. In addition to the strangulation evidence implicating Johnson, the
record also revealed that Johnson knew the victim, had defensive wounds, and moved the
 No. 17-2267 Davenport v. MacLaren Page 45

victim’s body after the killing. Collectively, this evidence satisfied the elements of first-degree
murder. Id. at 79–80.

Compared to the record in Johnson, the government had evidence to spare in Davenport’s
case. Davenport, the record reveals, had an unfortunate fondness for strangulation. In addition
to strangling White, Davenport had also strangled another woman less than a week earlier,
conduct consistent with what he had told others: that he would choke people if things ever got
out of hand. With respect to whether Davenport had time to take a “second look” before
murdering White, Davenport (like Johnson) had defensive wounds. If all of that was not enough
to prove premeditation, the government also established why Davenport strangled White, and
why he had little remorse for doing so. The two had a pre-existing relationship, Davenport hid
White’s body after killing her, and he stole property from her apartment in the days after the
murder. And what did Davenport have to say when confronted with this evidence while
testifying at trial? “[I]t’s not gonna help me any to tell the truth.”

Measured against Johnson, the “substantial evidence of [Davenport’s] guilt” left the
Michigan courts with the firm conclusion that the government established that any error in
Davenport’s proceeding was harmless. Davenport, 832 N.W.2d at 390 (“Given the substantial
evidence of guilt presented at trial, we cannot conclude that there was an unacceptable risk of
impermissible factors coming into play.”); Davenport, 2012 WL 6217134, at *2 (“All of the
evidence indicated that the shackling did not affect the verdict in any way.”). That should be all
the more true in today’s habeas setting. After all, Ayala requires Davenport to satisfy an even
higher standard on collateral review: that we have “grave doubt” that an error substantially and
injuriously influenced the verdict. 135 S. Ct. at 2197–98.

The majority opinion hardly mentions Johnson. Instead, it emphasizes general
propositions of Michigan law, oddly elevating those generalities over the specific holding in
Johnson. True, as a general proposition in Michigan, evidence that a murder was committed by
manual strangulation, standing alone, is not enough to show premeditation. People v. Furman,
404 N.W.2d 246, 249–50 (Mich. App. 1987) (internal citation omitted). But death by
strangulation helps support a prima facie case of premeditated murder. Id. And that prima facie
case, in turn, can be supplemented by other evidence to show premeditation beyond a reasonable
 No. 17-2267 Davenport v. MacLaren Page 46

doubt, as was the case in Johnson. 597 N.W.2d at 78–80. Here, the supplemental evidence
showing premeditation was plentiful. Indeed, Johnson was the harder case.

2. Which brings me to the evidence regarding Davenport’s partial shackling, the lone
potential ground for distinguishing Johnson. The majority opinion posits that the partial
shackling “branded Davenport as having a violent nature,” so much so that his “presumption of
innocence [was] replaced by a presumption of dangerousness.” All of that, however, belies the
Supreme Court’s clear command that shackling errors are subject to ordinary Chapman (and
therefore Brecht) analysis. Deck, 544 U.S. at 635.

In effect, the majority opinion assumes the jurors in Davenport’s case were influenced in
their verdict by the partial shackling. But why make any assumptions about what was going
through each juror’s mind during deliberations? We have their testimony. And it is conclusive.
Every single juror testified that the shackling had no effect on the verdict.

To be sure, some jurors made statements to the effect that Davenport was dangerous. Of
course, those statements were made after the jurors had heard graphic evidence regarding
Davenport’s strangulation of White—with his bare hands—along with other incriminating
evidence. And, of course, after the jurors had deemed Davenport guilty of first-degree murder.
That leaves little reason to believe the jurors’ judgment of Davenport was due to his partial
shackling (visible to less than half the jurors) rather than his gruesome killing of White.

The record is conclusive. The jury was presented with extensive evidence that Davenport
strangled a woman to death, and that the crime was premeditated. Each juror testified that the
partial shackling had no effect on her verdict. That evidence was enough to satisfy a unanimous
Michigan Court of Appeals, and enough for a unanimous Michigan Supreme Court. It was
enough for the district court and the magistrate judge. And it is enough for me. I respectfully
dissent.