Herrera v. Lemaster

F I L E D
United States Court of Appeals
Tenth Circuit

AUG 23 2002
PUBLISH
PATRICK FISHER
UNITED STATES COURT OF APPEALS Clerk
TENTH CIRCUIT

RUBEN R. HERRERA,

Petitioner - Appellant,

v.
No. 98-2060
TIM LEMASTER, Warden,
New Mexico State Penitentiary;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,

Respondents - Appellees,

ON REHEARING EN BANC
FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-97-542-JP)

Peter Schoenburg of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg &
Frye, LLP, Albuquerque, New Mexico, for the Petitioner-Appellant.

Patricia Gandert, Assistant Attorney General (Patricia A. Madrid, Attorney
General, with her on the brief), Santa Fe, New Mexico, for Respondents-
Appellees.

Before TACHA, Chief Judge, SEYMOUR, EBEL, KELLY, HENRY,
BRISCOE, LUCERO, MURPHY, HARTZ, and O’BRIEN, Circuit Judges.

SEYMOUR, Circuit Judge.
 Ruben Robert Herrera, a state prisoner, brought a petition for habeas corpus

relief under 28 U.S.C. § 2254 claiming that his constitutional rights were violated

by the admission at trial of illegally obtained evidence. The district court denied

relief, holding that the state court’s determination of harmless error was entitled

to a presumption of correctness and, alternatively, that the error was harmless

under Brecht v. Abrahamson, 507 U.S. 619 (1993). A panel of this court

concluded the district court erred in presuming correct the state court’s harmless

error analysis and in reaching its own harmless error determination without

reviewing the entire state court record. See Herrera v. Lemaster, 225 F.3d 1176

(10th Cir. 2000). We directed the district court on remand to assess whether the

constitutional error was harmless under Brecht after an independent review of the

state court record. Mr. Herrera sought en banc review, arguing that the Brecht

harmless error standard does not apply to a habeas action governed by AEDPA 1

when, as here, the state court did not perform its harmless error analysis under

Chapman v. California, 386 U.S. 18 (1967).

We granted rehearing en banc and directed the parties to address the

following question:

After AEDPA, when a state court decides a constitutional issue

1
Mr. Herrera’s federal habeas petition was filed after April 24, 1996, the
effective date of AEDPA, and is therefore governed by its provisions. See Lindh
v. Murphy, 521 U.S. 320 (1997).

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 contrary to Supreme Court authority, or unreasonably applies
Supreme Court authority, should the habeas court on collateral
review apply the harmless error standard of Chapman v. California,
386 U.S. 18 (1967), to assess the constitutional violation, or should it
apply the standard set out in Brecht v. Abrahamson, 507 U.S. 619
(1993).

Herrera v. Lemaster, No. 98-2060 (10th Cir. Feb. 26, 2002) (order granting

rehearing en banc). Upon en banc consideration, we hold that the standard set out

in Brecht is the appropriate one to use in these circumstances.

I

Mr. Herrera was convicted in New Mexico state court of first degree

murder and aggravated assault with a firearm. He was sentenced to life in prison

for the murder, eighteen months for the aggravated assault, and one year for the

firearm enhancement. On direct appeal, Mr. Herrera argued that his residence

was searched and evidence found there was seized under an invalid warrant, and

that the admission of the seized evidence at his trial therefore violated his rights

under the Fourth Amendment. Although the New Mexico Supreme Court held

that the warrant was constitutionally deficient, it concluded the admission of the

illegally seized items was harmless error under State v. Moore, 612 P.2d 1314,

1315 (N.M. 1980). See State v. Herrera, 694 P.2d 510, 513-15 (N.M. 1985).

Mr. Herrera subsequently filed this petition for federal habeas relief,

arguing the state supreme court erred in holding that the admission of the illegally

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seized evidence was harmless. The matter was referred to a magistrate judge,

who issued proposed findings and conclusions recommending that relief be

denied. In so doing, the magistrate conducted no hearings, ordered no briefs,

proceeded without access to the trial record, and issued his proposed disposition

without prior notice to the parties. In reaching his decision, the magistrate gave a

presumption of correctness to the state court’s harmless error determination, and

alternatively concluded the error was harmless under the standard set out in

Brecht.

Mr. Herrera filed objections to the report, contending the state court’s

harmless error determination was entitled to no deference because that court had

not performed its analysis under the standard mandated by the Supreme Court in

Chapman. 2 Mr. Herrera further argued that because application of the Brecht

standard of review is predicated upon a state court evaluation of harmlessness

under Chapman, when the state court failed to apply the correct Chapman

analysis, as here, the federal habeas court should assess harmlessness under

Chapman rather than Brecht. The state filed no response, and the district court

adopted the magistrate’s recommendation that the petition be dismissed with

2
The state has never argued that the New Mexico Supreme Court’s
harmless error analysis satisfied the standards of Chapman v. California, 386 U.S.
18 (1967), and in fact has conceded from the start that it is not consistent with
Chapman. As a consequence, we need not independently assess the constitutional
propriety of the harmless error standard applied by the state court.

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prejudice. Mr. Herrera appealed.

We granted Mr. Herrera a certificate of appealability on his claims that the

admission of the unlawfully seized evidence was not harmless error and that the

district court erred in denying habeas relief without reviewing the state court

record. On appeal, Mr. Herrera argued that Brecht is no longer good law after

AEDPA, and that even if Brecht survives it does not apply when the state court

has not performed a harmless error analysis under Chapman. In so doing, Mr.

Herrera contended that the state court’s failure to apply Chapman was contrary to

clearly established federal law as determined by the Supreme Court, and that the

harmless error issue is therefore a legal question governed by 28 U.S.C. §

2254(d)(1), 3 to which the presumption of correctness does not apply.

The panel opinion agreed with Mr. Herrera in part. It held that under

Williams v. Taylor, 529 U.S. 362 (2000), a state court decision is contrary to

clearly established federal law within the meaning of section 2254(d)(1) if the

state court applies a rule that contradicts the governing law set forth in the

3
AEDPA provides in pertinent part:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States . . . .
28 U.S.C. § 2254(d)(1).

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Supreme Court’s cases. See Herrera, 225 F.3d at 1178 (quoting Williams, 529

U.S. at 405). The panel further agreed that the state court’s failure to assess the

harmlessness of the Fourth Amendment violation under Chapman was contrary to

clearly established federal law under section 2254(d)(1). 4 It also pointed out that

the presumption of correctness provided in AEDPA by 28 U.S.C. § 2254(e)(1) 5

applies only to state court fact findings, and that the harmless error inquiry is a

mixed question of law and fact to which the presumption does not apply.

Accordingly, it held that the district court erred in presuming correct the state

court’s harmless error determination. Although the panel also agreed with Mr.

Herrera that the district court erred in concluding alternatively that the admission

of the illegally seized evidence was harmless without reviewing the entire state

court record, it did not accept the argument that a federal habeas court undertakes

a harmless error review in these circumstances under the Chapman standard. The

4
The panel asked the parties for additional briefing on whether it was
barred by Stone v. Powell, 428 U.S. 465 (1976), from addressing Mr. Herrera’s
Fourth Amendment claim. Under Stone, a state prisoner may only raise a Fourth
Amendment claim on federal habeas if he has not received a full and fair hearing
on the issue in state court. The panel was persuaded that Mr. Herrera was denied
a full and fair opportunity to litigate his Fourth Amendment claim by the state
court’s failure to assess the harmlessness of the constitutional violation under the
Chapman standard.
5
AEDPA provides in pertinent part that “[i]n a proceeding instituted by an
application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual issue made by a State court
shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1).

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panel remanded with directions that the district court make a harmless error

determination under Brecht upon review of the entire state court record.

Mr. Herrera petitioned for rehearing en banc, renewing his arguments that

federal habeas courts should assess the harmlessness of a constitutional error

under Chapman rather than Brecht when the state courts fail to do so, and that the

justification for the Brecht standard has disappeared upon the enactment of

AEDPA. We granted rehearing en banc to address these issues. 6

6
In Brecht itself, the state court found a constitutional violation but
concluded that it was harmless beyond a reasonable doubt under Chapman. See
Brecht, 507 U.S. at 625-26. In the instant case, the state court found
constitutional error and undertook a harmless error analysis under a standard the
state concedes was improper. In other cases, a state court may find no
constitutional violation but do so in a decision that is contrary to clearly
established federal law or involves an unreasonable application of it. In the latter
two circumstances, the habeas petitioner has not received a harmless error review
under Chapman in state court. Mr. Herrera concedes that if Brecht is still viable
after AEDPA, it applies to the first situation, that is, where the state court has
performed a Chapman harmless error analysis. Accordingly, we address on
rehearing whether Brecht is still applicable after AEDPA and, if so, whether a
federal court on habeas review should assess harmlessness under Chapman or
Brecht when the state court has failed to apply Chapman.
The circuits do not speak with one voice on either issue. See Hernandez v.
Johnson, 248 F.3d 344, 379 (5th Cir. 2001) (Dennis, Circuit Judge, dissenting)
(discussing division in circuits as to whether Brecht survives AEDPA); Denny v.
Gudmanson, 252 F.3d 896, 905 n.4 (7th Cir. 2001) (same); Sanna v. DiPaolo, 265
F.3d 1, 14 (1st Cir. 2001) (noting disagreement and reaffirming prior holdings
that Brecht applies after AEDPA); and see Orndorff v. Lockhart, 998 F.2d 1426,
1430 (8th Cir. 1993) (Chapman applies rather than Brecht when state court did
not conduct its own harmless error analysis on direct appeal); Hassine v.
Zimmerman, 160 F.3d 941, 950-53 (3d Cir. 1998) (noting circuit split and
applying Brecht); see also Sanna, 265 F.3d at 14 n.6 (noting circuit controversy
(continued...)

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 II

A.

Before we turn to the en banc question, we address briefly the state’s

argument that no Fourth Amendment violation occurred in this case because the

illegally seized evidence was admissible under the good faith exception to the

exclusionary rule established in United States v. Leon, 468 U.S. 897 (1984). Leon

was decided after the trial in this case and while Mr. Herrera’s direct appeal was

pending. The state filed a supplemental brief with the New Mexico Supreme

Court arguing that the case did not require consideration of the good faith

exception set out in Leon but that it could provide an alternative ground for

sustaining Mr. Herrera’s convictions. See rec. vol. I, doc. 7, exh. H. The court

concluded it need not discuss the issue in view of its determination that the

admission of the illegally seized evidence was harmless. See Herrera, 694 P.2d

at 514 n.1.

The state did not specifically raise the applicability of Leon in federal

district court, either by asserting the issue in its answer or by way of objection to

the magistrate’s report and recommendation. The state did urge the applicability

6
(...continued)
over whether Brecht applies when state court did not perform harmless error
analysis under Chapman and applying Brecht because state court applied standard
essentially equivalent to Chapman).

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of Leon to the panel on appeal as part of its contention that the district court did

not err in applying Brecht. In so doing, the state made the barebones argument

that the affidavit was sufficient to allow the issuing magistrate to conclude the

residence to be scrutinized was Mr. Herrera’s residence.

When an issue has not been properly raised below, we generally do not

address it on appeal. See Proctor & Gamble Co. v. Haugen, 222 F.3d 1262, 1270-

71 (10th Cir. 2000). Although some courts have considered the applicability of

the Leon exception to be a mixed question of fact and law that can be addressed

for the first time on appeal, see United States v. Maggitt, 778 F.2d 1029, 1034

(5th Cir. 1985) (citing cases); United States v. Sager, 743 F.2d 1261, 1265-66

(8th Cir. 1984), we conclude that such consideration is not appropriate here.

For the first time in its brief to the en banc court, the state contended the

affidavit was facially sufficient on the basis of evidence presented at the state

court suppression hearing. We will not consider new assertions presented for the

first time on rehearing en banc, particularly those based on factual allegations.

Accordingly, we decline the state’s invitation to address the applicability of Leon.

B.

In addressing the continued viability and applicability of Brecht after the

enactment of AEDPA, we look first to the text of the decision itself and compare

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the concerns underlying its holding with the purposes Congress intended to

further by enacting AEDPA. In Brecht, the Court held that the harmless error

standard set out in Chapman, 386 U.S. at 24, under which a conviction must be

set aside unless the constitutional error was harmless beyond a reasonable doubt,

does not apply to federal habeas review of state court convictions. Instead, the

Court adopted the harmless error standard set out in Kotteakos v. United States,

328 U.S. 750, 776 (1946), under which relief is granted when the constitutional

error had substantial and injurious effect or influence on the jury’s verdict. The

Court supported its conclusion that a less stringent harmless error standard should

apply on collateral review by looking first “to the considerations underlying our

habeas jurisprudence,” pointing to the primacy of the principal that “collateral

review is different from direct review.” Brecht, 507 U.S. at 633. The Court set

out four concerns that are furthered by applying different standards on habeas

than would be applied on direct review.

The reason most frequently advanced in our cases for
distinguishing between direct and collateral review is the State’s
interest in the finality of convictions that have survived direct review
within the state court system. We have also spoken of comity and
federalism. The States possess primary authority for defining and
enforcing the criminal law. In criminal trials they also hold the
initial responsibility for vindicating constitutional rights. Federal
intrusions into state criminal trials frustrate both the States’
sovereign power to punish offenders and their good-faith attempts to
honor constitutional rights. Finally, we have recognized that [l]iberal
allowance of the writ . . . degrades the prominence of the trial itself,
and at the same time encourages habeas petitioners to relitigate their

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 claims on collateral review.

Id. at 635 (citations and quotations omitted). After assessing the impact of the

Chapman and Kotteakos standards on these interests, the Court concluded that the

latter standard is “better tailored to the nature and purpose of collateral review

and more likely to promote the considerations underlying our recent habeas

cases.” Id. at 638.

We note that while the Brecht standard is less stringent than that in

Chapman, it is still “appropriately demanding.” Brecht, 507 U.S. at 641 (Stevens,

J., concurring). Justice Stevens, whose concurring opinion made the fifth vote for

the majority in Brecht, wrote separately to emphasize this point. Justice Stevens

stressed that the standard adopted in Brecht “places the burden on prosecutors to

explain why those errors were harmless; [7] requires a habeas court to review the

entire record de novo in determining whether the error influenced the jury’s

deliberations; and leaves considerable latitude for the exercise of judgment by

federal courts.” Id. at 640-41. As Justice Stevens observed, while the Brecht

standard is less stringent than that in Chapman, “[g]iven the critical importance of

the faculty of judgment in administering either standard, however, that difference

7
As the Supreme Court subsequently explained in O’Neal v. McAninch, 513
U.S. 432 (1995), Justice Stevens’ view of the Brecht standard as adopting “the
Kotteakos standard in its entirety”commanded a majority of the Court, id. at 439
(emphasis added).

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is less significant than it might seem . . . .” Id. at 643.

The standard in Brecht must also be construed and applied in light of the

Court’s subsequent decision in O’Neal v. McAninch, 513 U.S. 432 (1995). There

the Court held that when a federal habeas judge finds a constitutional error in a

state court trial but the record is evenly balanced such that the judge is in grave

doubt about whether the error is harmless, “the uncertain judge should treat the

error, not as if it were harmless, but as if it affected the verdict (i.e., as if it had a

‘substantial and injurious effect or influence in determining the jury’s verdict.’).”

Id. at 435.

The Court rested its legal conclusion on three considerations. Id. at 437.

First, the Court observed that both Chapman and Kotteakos apply the rule, id. at

437-40, and that it properly takes into account the stakes involved in a habeas

proceeding, in which a person’s custody, not mere civil liability, is at issue, id. at

440. Second, the Court concluded that its rule is consistent with the purposes

underlying habeas relief. Id. at 442. After balancing the interests in protecting

against unconstitutional convictions and in assuring fundamentally fair trials

against the interests in the finality of state court judgments and state-federal

comity, the Court concluded that “[o]n balance, we must doubt that the law of

habeas corpus would hold many people in prison ‘in violation of the

Constitution,’ for fear that otherwise a smaller number, not so held may

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eventually go free.” Id. at 443. Finally the Court pointed out the administrative

virtues of its rule, noting that it “is consistent with the way that courts have long

treated important trial errors.” Id. After weighing the above considerations, the

Court held that “in cases of grave doubt as to harmlessness the petitioner must

win.” Id. at 437.

The concerns that prompted the Court in Brecht to adopt a less stringent

standard for harmless error assessment on collateral review are the same ones that

led Congress to pass AEDPA. See Calderon v. Thompson, 523 U.S. 538, 554-55

(1998) (citing Brecht as example of habeas corpus jurisprudence consistent with

objects of AEDPA). “AEDPA’s purpose [was] to further the principles of comity,

finality, and federalism. There is no doubt Congress intended AEDPA to advance

these doctrines.” Williams v. Taylor, 529 U.S. 420, 436 (2000). In enacting

AEDPA “Congress wished to curb delays, to prevent ‘retrials’ on federal habeas,

and to give effect to state convictions to the extent possible under law.”

Williams, 529 U.S. 362, 404. Accordingly, applying Brecht to cases governed by

AEDPA would not run counter to the Act’s purpose.

On rehearing en banc, Mr. Herrera argues that after AEDPA, he is entitled

to habeas relief without regard to whether the standard in Brecht is met when, as

here, the state court decision was contrary to clearly established law. In essence

he argues that the prerequisites for federal habeas relief set out in section 2254(d)

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replace the Brecht inquiry, contending the Court’s justifications in Brecht for

using a less demanding harmless error standard have disappeared with the

enactment of AEDPA. In Mr. Herrera’s view, if a state court fails to apply

Chapman on direct review, the decision is contrary to Supreme Court authority

under section 2254(d)(1) and the federal habeas court must therefore apply the

proper Chapman standard. If, on the other hand, the state court properly applies

Chapman, the federal habeas court assesses only whether the state court’s

application was unreasonable under section 2254(d)(2). He thus urges that the

Brecht inquiry should have no application in either scenario.

We are not persuaded Congress intended to alter the Supreme Court’s pre-

existing federal habeas jurisprudence on harmless error analysis. As we have

discussed, Congress’ purpose in enacting AEDPA is entirely congruent with the

rationale set out by the Court in Brecht for adopting a less demanding harmless

error standard on collateral review. Congress intended that AEDPA raise the bar

with respect to availability of federal habeas relief, an intent that does not permit

us to construe AEDPA to frustrate that intent by broadening the availability of

habeas relief. Moreover, we “generally assume Congress knows the law and

legislates in light of federal court precedent.” Jurado-Gutierrez v. Greene, 190

F.3d 1135, 1146 (10th Cir. 1999); see also Goodyear Atomic Corp. v. Miller, 486

U.S. 174, 184-85 (1988). We therefore assume Congress was aware of and acted

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in light of the harmless error standard set out in Brecht when it enacted AEDPA.

Mr. Herrera contends that applying the Brecht standard on habeas review

would reduce the constitutional protection provided by established Supreme Court

precedent and defeat the remedial purpose of habeas relief. The Court, however,

has decided otherwise. As discussed above, although the Court narrowed the

availability of habeas relief in Brecht, in O’Neal the Court ameliorated the effect

of Brecht by ruling that when a habeas court is in grave doubt as to the

harmlessness of a constitutional error, the petitioner is entitled to relief. O’Neal,

513 U.S. at 435. In so doing, the Court balanced comity, finality, and deference

to state court criminal proceedings against the need to protect the fundamental

fairness of criminal trials and avoid grievous wrongs. We are not at liberty to

reweigh the balance struck by the Court in establishing the Brecht/O’Neal

standard.

We also are not persuaded by Mr. Herrera’s argument that because the state

court in Brecht had assessed harmlessness under the proper Chapman analysis,

Brecht is only applicable in those circumstances and does not govern habeas

petitions where the state did not apply Chapman. The broad language and the

analysis employed by both the plurality and by Justice Stevens in his concurrence

imply that the standard set out was intended to govern all federal habeas review

of state court decisions. See Brecht, 507 U.S. at 623 (Rehnquist, J., writing for

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the Court) (“The Kotteakos harmless-error standard is better tailored to the nature

and purpose of collateral review than the Chapman standard, and application of a

less onerous harmless-error standard on habeas promotes the considerations

underlying our habeas jurisprudence.”); id. at 643 (Stevens, J., concurring) (“The

Kotteakos standard that will now apply on collateral review is less stringent than

the [Chapman] standard applied on direct review.”).

Moreover, the Supreme Court has subsequently clearly indicated that a

federal habeas court is to apply the Brecht standard to a habeas petition governed

by AEDPA even when the state court has not assessed a constitutional error for

harmlessness under Chapman. See Penry v. Johnson, 532 U.S. 782 (2001). In

Penry, a petitioner convicted of capital murder in state court asserted that

evidence was admitted at trial in violation of his Fifth Amendment privilege

against self-incrimination. The state court on direct review disagreed and

concluded that no constitutional violation had taken place. The petitioner then

brought a proceeding for federal habeas relief, alleging the state court decision

was contrary to or involved an unreasonable application of federal law. Although

the Supreme Court concluded otherwise, the Court alternatively indicated:

Even if our precedent were to establish squarely that the
prosecution’s use of the Peebles report violated Penry’s Fifth
Amendment privilege against self-incrimination, that error would
justify overturning Penry’s sentence only if Penry could establish that
the error “had substantial and injurious effect or influence in
determining the jury’s verdict.”

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Id. at 795 (quoting Brecht, 507 U.S. at 637).

In Penry no harmless error analysis took place in state court because that

court determined that no constitutional error had occurred. Id. at 789-91. Here,

likewise, no proper harmless error analysis took place in state court because that

court did not apply the Chapman standard mandated by the Supreme Court in

conducting its harmless error review. In both instances, however, the result was

the same: the petitioner never received a harmless error analysis under the proper

standard in state court. The Supreme Court in Penry nonetheless stated that the

appropriate standard by which to gauge harmlessness on collateral review was

that supplied by Brecht. Id. at 795. Even though no party in Penry asserted that

Brecht was an inappropriate standard, we are not inclined to disregard this clear

signal from the Court that Brecht applies to an AEDPA case even when no proper

harmless error assessment occurred in state court.

In sum, we conclude that in cases governed by AEDPA, the habeas court is

to apply the harmless error standard set out in Brecht when a state court decides a

constitutional issue contrary to controlling Supreme Court authority or

unreasonably applies that authority. Accordingly, we vacate the district court’s

judgment and remand with directions to assess the harmlessness of the Fourth

Amendment violation under the Brecht standard in light of the entire state court

record. In all other respects the panel opinion is reinstated.

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 REVERSED and REMANDED for further proceedings consistent with

this opinion.

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