IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-31223
_____________________
DONALD RAY ROBERTSON,
Petitioner - Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent - Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
March 5, 2003
Before KING, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.
E. GRADY JOLLY, Circuit Judge:
In this appeal, Petitioner Donald Ray Robertson, a prisoner of
the State of Louisiana, seeks review of a district court order
denying his petition for federal habeas relief. Specifically,
Robertson contends that an erroneous jury instruction deprived him
of his Fourteenth Amendment due process rights. The State of
Louisiana admits that the jury instruction was contrary to clearly
established federal law, but it argues that Robertson is not
entitled to federal habeas relief because the error was harmless.
In order to resolve this appeal, we must decide whether the
standard for harmless error analysis articulated in Brecht v.
Abrahamson, 507 U.S. 619 (1993), remains viable precedent after the
enactment of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254. We hold that AEDPA’s restrictions on
federal review of state habeas decisions do not alter Brecht’s
mandate for harmless error analysis by federal courts when state
courts have failed to address the question of harmless error. We
further hold that the specific jury instruction on the law of
principals given in this case violated clearly established federal
law by improperly relieving the prosecution of the burden of
proving an essential element of the crime (namely, the defendant’s
specific intent to kill). See Sandstrom v. Montana, 442 U.S. 510
(1979); Flowers v. Blackburn, 779 F.2d 1115 (5th Cir. 1986); State
v. West, 568 So. 2d 1019 (La. 1990). Finally, applying the Brecht
standard to the record in this case, we conclude that the state
trial court’s erroneous jury instruction did have a “substantial
and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. at 637. Accordingly, we
reverse the district court’s judgment denying federal habeas relief
and remand.
I
Petitioner Donald Ray Robertson is currently serving a life
sentence in the Louisiana State Penitentiary. In January 1987,
Robertson was convicted in state court on two counts of murder in
the first degree for his role in the murders of Clayton Jones and
2
Curtis Hardy.1 On direct appeal, Robertson challenged his
conviction on account of several evidentiary errors at trial and
the insufficiency of the evidence against him, and Robertson’s
conviction was affirmed by the Louisiana Court of Appeal for the
Fourth Circuit. See State v. Robertson, 516 So. 2d 180 (La. App.
1987).
Robertson did not seek direct review of his conviction by the
Louisiana Supreme Court, but he did file three applications for
post-conviction relief in Louisiana state court. Robertson filed
his first application for post-conviction relief with the state
trial court in August 1991. In that first application, Robertson
raised three claims, including ineffective assistance of counsel,
1
Robertson was indicted, along with his alleged co-perpetrators, Gerald Gerrell and
David West, for the first degree murders of Jones and Hardy. The
three defendants were tried separately and each convicted as
principals for the two counts of first degree murder. The jury in
each case received an identically worded instruction on the law of
principals. As discussed more fully, hereafter, that jury
instruction relieved the prosecution of the burden of proving,
beyond a reasonable doubt, each defendant’s specific intent to kill
Jones and Hardy and, therefore, violated the Fourteenth Amendment’s
due process guarantee. West’s conviction was subsequently vacated
on direct appeal by the Louisiana Supreme Court on account of the
constitutionally erroneous jury instruction on the law of
principals given in his case. See State v. West, 568 So. 2d 1019
(La. 1990). The conviction of Gerrell, the apparent triggerman in
the murders, was affirmed on appeal, and Gerrell’s petition for
federal habeas relief was denied because the constitutional error
was believed to be harmless. Gerrell v. Whitley, No. 92-4019(F)(6)
(E.D. La. May 3, 1993) aff’d No. 93-3345 (5th Cir. Sept. 1, 1994)
(per curiam). As explained more fully, hereafter, there are
significant differences between the evidence as it relates to
Gerrell and to Robertson, respectively. In the light of these
differences, we are not inconsistent in granting relief to
Robertson after denying relief to Gerrell.
3
erroneous introduction of hearsay evidence, and denial of
constitutional due process based on an improper jury instruction on
the law of principals. The trial court denied Robertson’s
application without written comment, and the Louisiana Court of
Appeal for the Fourth Circuit affirmed this decision, finding each
of Robertson’s claims to be without merit. See State v. Robertson,
No. 92-KW-0081, slip op. at 1-2 (La. App. Feb. 6, 1992). With
respect to Robertson’s due process claim, the Louisiana Fourth
Circuit specifically held that “the jury instruction on the law of
principals was sufficient for the jury to conclude that the relator
had the requisite specific intent.” Id., slip op. at 1. Robertson
sought review of this decision in the Louisiana Supreme Court, but
it declined Robertson’s writ application. See State v. Robertson,
626 So. 2d 1184 (La. 1993).
In June 1994, Robertson filed a second application for post-
conviction relief, arguing that his conviction was unconstitutional
and that his sentence was, therefore, illegal. This second request
was also denied by the state trial court, by the Louisiana Fourth
Circuit Court of Appeal, and ultimately by the Louisiana Supreme
Court. See State ex rel. Robertson v. Whitley, 683 So. 2d 243
(La. 1996).
In October 1996, in his third and final post-conviction
application in state court, Robertson reiterated his due process
objection to the jury instruction on the law of principals that was
given in his murder trial. This time, the state trial court agreed
4
with Robertson’s claim and granted Robertson a new trial based on
Sandstrom v. Montana, 442 U.S. 510 (1979); Flowers v. Blackburn,
779 F.2d 1115 (5th Cir. 1986); and State v. West, 568 So. 2d 1019
(La. 1990). However, the Louisiana Fourth Circuit Court of Appeal
granted the state’s application for a supervisory writ and reversed
the trial court’s determination, holding Robertson’s post-
conviction application time-barred by Article 930.8 of the
Louisiana Code of Criminal Procedure. See State v. Robertson,
No. 97-K-11523, slip op. at 1-2 (La. App. Dec. 29, 1997). The
Louisiana Supreme Court also denied Robertson’s writ application,
citing Article 930.8. See State ex rel. Robertson v. State, 719
So. 2d 1050 (La. 1998) (citing La. Code Crim. Proc. art. 930.8).
Robertson then filed his instant pro se petition for post-
conviction relief under 28 U.S.C. § 2254 in the Eastern District of
Louisiana. Once again, Robertson argued that the state trial
court’s jury instruction on the law of principals violated the due
process holdings of Sandstrom v. Montana, Flowers v. Blackburn, and
State v. West by relieving the prosecution of its burden of proving
that Robertson had a specific intent to kill. The district court
initially dismissed Robertson’s petition with prejudice on the
grounds that the petition was untimely under 28 U.S.C. §
2244(d)(1)(A), but a panel of this Court reversed that ruling and
remanded Robertson’s case with instructions to the district court
to consider the merits of Robertson’s § 2254 petition. See
Robertson v. Cain, No. 00-30315 (5th Cir. Nov. 20, 2000)
5
(unpublished) (granting Robertson’s request for a certificate of
appealability and reversing the district court’s dismissal with
prejudice based on Smith v. Ward, 209 F.3d 383, 385 (5th Cir.
2000)).
On remand, a magistrate judge recommended that the district
court grant habeas relief on account of the erroneous jury
instruction. In response, the Respondent filed a formal objection
to the magistrate’s report and recommendation, arguing first that
the jury instruction was not as prejudicial as the constitutionally
defective instructions in Flowers and West and second that any
error in the jury instruction was harmless. The district court
sustained the Respondent’s objections and denied Robertson’s § 2254
petition. The district court recognized that the state court’s
jury instruction was contrary to clearly established federal law;
nevertheless, the district court concluded that it should deny
Robertson’s petition for federal habeas relief because Robertson
failed to show that the state court’s constitutionally erroneous
jury instruction was also an “unreasonable application of” clearly
established federal law. In addition, the district court held that
the erroneous jury instruction was “harmless beyond a reasonable
doubt,” applying the harmless error standard in Chapman v.
California, 386 U.S. 18, 23 (1967).
We granted Robertson a certificate of appealability on March
15, 2002.
II
6
On appeal from the denial of a § 2254 petition, this court
reviews a district court’s findings of fact for clear error, and it
reviews a district court’s conclusions of law de novo, applying the
same standard of review to the state court's decision as the
district court. Donahue v. Cain, 231 F.3d 1000 (5th Cir. 2000).
Mixed questions of law and fact, such as the district court’s
assessment of harmless error, are also reviewed de novo. Jones v.
Cain, 227 F.3d 228, 230 (5th Cir. 2000).
Because Robertson filed his petition for federal habeas relief
in April 1999, our review is under 28 U.S.C. § 2254, as amended by
AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under
AEDPA, a federal court may not grant a writ of habeas corpus on
behalf of a state prisoner unless the adjudication of the
petitioner’s claim in state court “(1) resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.”
28 U.S.C. § 2254(d)(1)-(2). “A state court’s decision will be
contrary to clearly established federal law when it reaches a legal
conclusion in direct opposition to a prior decision of the United
States Supreme Court or when it reaches a different conclusion than
the United States Supreme Court on a set of materially
indistinguishable facts.” Kutzner v. Johnson, 242 F.3d 605, 608
7
(5th Cir. 2001). Moreover, a state court’s decision will be an
unreasonable application of clearly established federal law
whenever the state court identifies the correct governing legal
principle from the Supreme Court's decisions but applies that
principle to the facts of the prisoner's case in an “objectively
unreasonable” manner. Id. (citing Williams v. Taylor, 529 U.S.
362, 409 (2000) (O’Connor, J., writing for the Court)).
The district court read § 2254(d)(1) to impose a two-fold
requirement on Robertson to show that the state court adjudication
of his jury instruction claim was both “contrary to” clearly
established federal law and an “unreasonable application of”
clearly established federal law. It, therefore, held
simultaneously that the state court decision was “contrary to” but
not an “unreasonable application of” clearly established federal
law. The district court’s reading of § 2254(d)(1) is wrong as a
matter of law as decided by the United States Supreme Court. The
plain language of § 2254(d)(1) is unmistakably disjunctive, and the
Supreme Court has held that independent meaning must be given to
both the statute’s “contrary to” clause and its “unreasonable
application of” clause. See Williams v. Taylor, 529 U.S. at 404-
05, 412-13 (O’Connor, J., for the Court) (noting that the writ of
habeas corpus may issue only if “one” of the two conditions in
§ 2254(d)(1) is satisfied) (emphasis added). Thus, under
§ 2254(d)(1), Robertson should be entitled to federal habeas relief
if he can show that the state court adjudication of his claim was
8
either “contrary to” clearly established federal law “or” an
“unreasonable application” of clearly established federal law, as
determined by the United States Supreme Court. See 28 U.S.C.
§ 2254(d)(1) (emphasis added).
Robertson argues that the Louisiana Fourth Circuit Court of
Appeal’s habeas decision upholding the state trial court’s jury
instruction on the law of principals was contrary to the Fourteenth
Amendment due process guarantees clearly established in In re
Winship, 397 U.S. 358 (1970), and Sandstrom v. Montana, 442 U.S.
510 (1979). In Winship and Sandstrom, the Supreme Court clearly
declared unconstitutional any jury instruction that relieved the
state of its Fourteenth Amendment burden of proving every element
of a criminal offense beyond a reasonable doubt. See Sandstrom,
442 U.S. at 520-24 (citing Winship, 397 U.S. at 364). At the close
of Robertson’s trial for first degree murder, the state court gave
the jury an instruction on the law of principals that falls short
on one of the elements of first degree murder – namely, specific
intent to kill:
Next ladies and gentlemen of the jury,
the court will charge you as to the law as it
pertains to principles [sic]. Our law
provides as follows: All persons concerned in
the commission of a crime whether present or
absent and whether they directly commit the
act constituting the offense aid and abet in
its commission or directly or indirectly
counsel or procure another to commit the
crime, are principles [sic].
In other words to be concerned in the
commission of a crime it must be shown that
9
the person or persons charged did something
knowingly and intentionally in furtherance of
a common design or to put it another way that
they or he aided, abetted and assisted in the
perpetuation of the offense. All persons
knowing the unlawful intent of the person
committing the crime who are present and
consented thereto in aiding and abetting
either by furnishing the weapons of the
attack, encouraging by words or gestures, or
endeavoring at the time of the commission of
the offense to secure the safety or the
concealment of the offender, are principals
and are equal offenders and are subject to the
same punishment.
To render one guilty as a principle [sic]
he must have committed the offense himself or
in some way participated in the commission of
the crime, or he must have aided, assisted or
abetted the actual perpetratro [sic] of the
deed before it might be said that he was
concerned in the commission of the crime.
State Record 2: 15-16. This jury instruction is virtually
identical to the one that this court found to be unconstitutional
in Flowers v. Blackburn, 779 F.2d at 1117 (decided nine days before
Robertson’s first degree murder convictions), and it violates
Winship and Sandstrom for essentially the same reasons stated in
Flowers. As this court explained in Flowers, under Louisiana state
law, the prosecution must show that a defendant had “‘the specific
intent to kill’” in order to prove murder in the first degree. See
Flowers, 779 F.2d at 1121 (quoting State v. Holmes, 388 So. 2d 722,
276 (La. 1980)). The jury instruction in Robertson’s murder trial,
like the jury instruction in Flowers,“‘plainly relieve[d] the State
of the burden of proof enunciated in Winship on the critical
question of ... state of mind” by telling the jury that the jury
10
could convict “[a]ll persons knowing the unlawful intent of the
person committing the crime who were present” as “equal offenders”
“subject to the same punishment.” See Flowers, 779 F.2d at 1111
(quoting Sandstrom, 442 U.S. at 521). In effect, the jury
instruction relieved the state of the burden of proving Robertson’s
specific intent to kill. See id. Considering the charge as a
whole, a reasonable juror could have concluded that the state
needed to show only that one of the other persons implicated in the
crime had the specific intent to kill in order to convict Robertson
of first degree murder. See id. This result is contrary to the
governing rule established in Winship and its progeny, including
Sandstrom.
In its habeas decision upholding Robertson’s erroneous jury
instruction, the Louisiana Fourth Circuit Court of Appeal did not
refer to the Supreme Court’s decisions in Sandstrom or to this
court’s decision in Flowers v. Blackburn, but, because Robertson
specifically relied on these decisions in his first petition for
state habeas relief, we assume that the state court was aware of
these decisions. See Catalan v. Cockrell, 315 F.3d 491, 493 & n.3
(5th Cir. 2002). However, even if we assume that the state court
“identified” the correct constitutional principles governing this
case, see Williams v. Taylor, 529 U.S. at 407, we must conclude
that the Louisiana Fourth Circuit either disregarded those
principles or applied those principles unreasonably to the jury
11
instruction at hand. The holding of the Louisiana Fourth Circuit
– that “the jury instruction on the law of principals was
sufficient for the jury to conclude that the relator had the
requisite specific intent” – cannot be squared with the
constitutional principles articulated in Winship or Sandstrom for
the reasons articulated by this court in Flowers, 779 F.2d 1121-23,
and by the Louisiana Supreme Court in State v. West, 568 So. 2d
1019, 1022-24 (La. 1990).2 The Louisiana Fourth Circuit should
have recognized that the jury instruction allowed the jury to
convict Robertson of first degree murder based on much less than
what was required by Louisiana law and, therefore, violated the Due
Process Clause of the Fourteenth Amendment. The Fourth Circuit’s
failure to recognize this constitutional failing makes its decision
contrary to Sandstrom. Robertson, therefore, has clearly satisfied
the requirements of 28 U.S.C. § 2254(d)(1) in this case.
2
The Louisiana Fourth Circuit’s habeas decision is
certainly unreasonable (in the general, if not the AEDPA-specific,
sense of the word) in the light of the decision of the Louisiana
Supreme Court in State v. West. As discussed above, in West, the
Louisiana Supreme Court followed our decision in Flowers v.
Blackburn and overturned the first degree murder convictions of
Robertson’s alleged co-perpetrator, David West, on direct appeal on
account of a constitutionally erroneous jury instruction on the law
of principals that was identical to the instruction given in
Robertson’s case. See State v. West, 568 So. 2d at 1022-24.
12
III
The Respondent does not dispute that Robertson’s jury
instruction violated the constitutional due process holdings of
Winship and Sandstrom; nor does he seriously defend the Louisiana
Court of Appeal’s erroneous ruling upholding the constitutionality
of that jury instruction. The Respondent argues only that federal
habeas relief is unwarranted because the erroneous jury instruction
was a harmless error.3
On direct appeal, when faced with a constitutional violation,
a court must reverse the judgment of the court below unless the
constitutional error is “harmless beyond a reasonable doubt.” See
Chapman v. California, 386 U.S. 18, 24 (1967). However, in Brecht
v. Abrahamson, 507 U.S. 619, 637 (1993), the Supreme Court
3
In Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991),
the Supreme Court recognized two categories of constitutional
violations, “trial error” and “structural defects.” Trial error
occurs “during the presentation of the case to the jury,” and is
amenable to harmless error analysis because it “may ... be
quantitatively assessed in the context of other evidence presented
in order to determine whether its admission was harmless....” Id.
On the other hand, structural defects “‘defy analysis by harmless
error standards’” and require “automatic reversal of the
conviction” because they affect “‘the constitution of the trial
mechanism” and, therefore,“the entire trial process.” Brecht v.
Abrahamson, 507 U.S. 619, 629 (1993) (quoting Fulminante, 499 U.S.
at 308-10). A Sandstrom-type error has been held to be a “trial
error” to which the harmless error rule applies. See Rose v.
Clark, 478 U.S. 570 (1986) (holding harmless error analysis
appropriate for jury instruction that erroneously charged jury on
the element of malice); California v. Roy, 519 U.S. 2 (1996)
(holding that a jury instruction that did not include a statement
informing the jury that they must find intent should be reviewed
for harmless error).
13
articulated a “less onerous” standard for assessing the impact of
a state court’s constitutional error on collateral review. Under
Brecht, a federal court may grant habeas relief on account of
constitutional error only if it determines that the constitutional
error had a “substantial and injurious effect or influence in
determining the jury’s verdict.” See id. at 623 (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946)). Under this standard,
however, the petitioner should prevail whenever the record is “so
evenly balanced that a conscientious judge is in grave doubt as to
the harmlessness of the error.” O’Neal v. McAninch, 513 U.S. 432,
436 (1995). As this court has explained, “if our minds are ‘in
virtual equipoise as to the harmlessness’ under the Brecht
standard, of the error, then we must conclude that it was harmful.”
Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996) (quoting
O’Neal, 513 U.S. at 435).
In this appeal, however, Robertson argues that, under AEDPA,
the Brecht standard – that is, a separate standard for harmless
error in federal habeas cases – is no longer applicable to
constitutional errors arising in state habeas cases. Robertson
argues that, under AEDPA’s restrictive review of state court
decisions, the federal habeas court is required to review only
whether the state court’s decision is “contrary to” or an
“unreasonable application of” Chapman and grant relief accordingly.
Robertson argues that where, as in this case, the state court has
failed to apply Chapman at all, then the federal courts should do
14
what the state court was required to do, but failed to do, that is,
apply Chapman to determine whether the constitutional error is
harmless.
In past cases under AEDPA, this court has recognized that
there has been some doubt among the federal circuit courts about
whether the Brecht standard for harmless error remains applicable
after AEDPA. See, e.g., Tucker v. Johnson, 242 F.3d 617, 629 n.16
(5th Cir. 2001) (citing cases); Hernandez v. Johnson, 248 F.3d 344,
379 (5th Cir. 2001) (Dennis, J., dissenting) (citing cases). In
Whitmore v. Kemna, 213 F.3d 431 (8th Cir. 2000), the Eighth Circuit
suggested that AEDPA might be interpreted to limit the scope of
collateral federal review of harmless error and thereby abrogate
the requirement that federal courts conduct an independent harmless
error analysis under Brecht, at least in cases where the state
court has already conducted a Chapman-type harmless error review of
the alleged constitutional trial error. See Whitmore, 213 F.3d at
433 (suggesting in dicta that a state court assessment of harmless
error is entitled to the same deference under 28 U.S.C. § 2254 as
any other state court determination of fact or law). Similarly, in
Noble v. Kelly, 246 F.3d 93, 101 n.5 (2d Cir. 2001) (per curiam),
the Second Circuit noted an open question about whether federal
courts should now apply a mixed AEDPA/Chapman standard and examine
“whether the state court’s decision was ‘contrary to, or involved
an unreasonable application of’ Chapman.” See Noble, 246 F.3d at
101 n.5. Since Kenma and Noble, however, the Supreme Court has
15
implicitly acknowledged the vitality of Brecht’s independent
harmless error analysis in federal habeas cases brought under
AEDPA. See Penry v. Johnson, 532 U.S. 782, 795 (2001) (noting that
even if the petitioner could satisfy the requirements of 28 U.S.C.
§ 2254(d)(1), the petitioner would still have to show that the
alleged error “had substantial and injurious effect or influence in
determining the jury’s verdict”) (quoting Brecht, 507 U.S. at 637)
(internal quotations and citations omitted). Moreover, all of the
courts of appeals that have squarely decided the question have
concluded that Brecht’s independent standard for harmless error
continues to be appropriate in federal habeas cases, even after the
enactment of AEDPA. See Herrera v. Lemaster, 301 F.3d 1192 (10th
Cir. 2002) (en banc); Sanna v. DiPaolo, 265 F.3d 1, 14 (1st Cir.
2001); Nevers v. Killinger, 169 F.3d 352, 370 (6th Cir. 1999)
abrogated on other grounds by Harris v. Stovall, 212 F.3d 940 (6th
Cir. 2000). See also Little v. Kern County Superior Court, 294
F.3d 1075, 1083-84 (9th Cir. 2002) (applying Brecht, in addition to
the requirements of AEDPA, without comment).
Our own consideration of Brecht and of AEDPA also persuades us
that Brecht survives AEDPA’s enactment. As other courts have
recognized, Brecht sets forth a standard for harmless error
analysis that was intended to apply to all federal habeas cases
involving constitutional “trial” error. See, e.g., Herrera, 301
F.3d at 1199 (citing Brecht, 507 U.S. at 623 (Rehnquist, J.,
16
writing for the court) and 643 (Stevens, J., concurring)).4 We can
assume that Congress was aware of Brecht when it enacted AEDPA, yet
nothing in the text or the legislative history of AEDPA
specifically or generally alludes to an alteration in the
application of federal harmless error doctrine to a state court
decision. In fact, the plain language of AEDPA says only that
habeas relief “shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the
adjudication of the claim” is either “contrary to” or an
“unreasonable application of” clearly established federal law, as
defined by the Supreme Court, or “based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” See 28 U.S.C. § 2254(d)(1). The
statutory language itself does not require federal habeas courts to
grant relief reflexively. The words of the statute simply cannot
be read to bar federal courts from further examination and review
of state habeas claims based on additional standards established by
Supreme Court precedent, especially when those standards are not
inconsistent with the language and purpose of AEDPA. It is clear
to us that the principles embodied in AEDPA are fully consistent
with Brecht’s standard for harmless error and with Brecht’s
observations concerning the limited role of the federal courts in
habeas cases. In Brecht the Supreme Court adopted a more lenient
4
See also n.3, supra.
17
harmless error standard in federal review of habeas cases out of
respect for the sovereign states’ interests in the integrity of
their own judicial processes and the finality of convictions that
have survived direct review within the state court systems. See
Brecht, 507 U.S. at 636 (noting that liberal allowance of the writ
“degrades the prominence of the trial itself” and “encourages
petitioners to relitigate their claims on collateral review”)
(citations and quotations omitted). In a similar vein, AEDPA was
enacted, at least in part, to ensure comity, finality, and
deference to state court habeas determinations by limiting the
scope of collateral review and raising the standard for federal
habeas relief, see 28 U.S.C. § 2254(d)(1)-(2); Calderon v.
Thompson, 523 U.S. 538, 554-55 (1998) (noting that judicial limits
on habeas relief generally comport with the purpose of AEDPA);
Williams v. Taylor, 529 U.S. 420, 436 (2000) (noting that Congress
indubitably intended AEDPA to further the principles of comity,
finality, and federalism), and application of the Brecht standard
to state court decisions parallels this congressional intent.
Thus, we hold that, in cases governed by AEDPA, federal habeas
courts should continue to analyze the harmlessness of all state
court decisions involving a constitutional “trial” error according
to the Brecht standard. We therefore proceed with a Brecht
analysis of the harmlessness of the Sandstrom error in this case.5
5
We hold today that the district court erred as a matter
of law when it decided to assess the harmlessness of the Sandstrom
18
IV
In this case, a jury found Robertson guilty of the first
degree murder of Curtis Hardy and Clayton Jones. The question
before us is whether the state trial court’s erroneous jury
instruction had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. at
637.
The state established that Hardy and Jones were each shot in
the head at close range and killed sometime late at night on May 9
or early in the morning on May 10, 1985. The victims’ bodies were
discovered by officers of the New Orleans Police Department in an
abandoned brown Chevy Malibu on the morning of May 10.6 The
error in this case under the Chapman “harmless beyond a reasonable
doubt” standard. However, it is worth noting that the erroneously
applied Chapman standard is supposed to be more rigorous and less
deferential to the state court than the Brecht standard that we re-
affirm today. Because the district court ultimately concluded that
the Sandstrom error was “harmless beyond a reasonable doubt” under
Chapman, it may be surprising to some that we conclude that the
error was not harmless under Brecht’s less rigorous standard.
However, after de novo consideration of the harmlessness of the
Sandstrom error at trial, we are convinced that the district court
further erred not only in identifying Chapman as the correct
constitutional standard but also in applying the Chapman standard
to this case. The district court apparently concluded that the
Sandstrom trial error was “harmless beyond a reasonable doubt”
because it believed that the record was sufficient to allow the
jury to infer that Robertson had a specific intent to kill. For
reasons explained more fully hereafter, given the lack of evidence
supporting the conclusion that Robertson had a requisite specific
intent to kill Hardy and Jones, we find the district court’s
harmless error conclusion to be erroneous under either Chapman or
Brecht.
6
State witness Lloyd Davis testified that he owned the
Chevy Malibu in question and that he had loaned it to Curtis Hardy
19
victims were apparently last seen alive at Robertson’s house
between 10:30 and 11:00 p.m. on the night of May 9. Robertson’s
girlfriend, Consuela Marie Washington, testified that, on the
evening in question, she arrived home to learn that Robertson was
apparently meeting with Curtis Hardy in a back room of the house.7
Washington testified that, about an hour later, she saw Hardy
outside her house being led with his hands behind his back from her
yard to a blue car by two men, whom she later identified as David
West and Gerald Gerrell. Washington testified that, at the time
she saw Hardy being taken away, she called Hardy’s girlfriend, Lola
King, and told King what she had seen.8 About an hour later,
around 11:30 p.m. or midnight, Robertson left the house, telling
Washington that he was going to the liquor store.
A voluntary statement that Robertson made to police shortly
after being charged with first degree murder provided the jury with
further evidence about the night in question. In this statement
on the day of the murders. According to Davis, Robertson had never
been inside the car.
7
Robertson and Washington apparently lived together at the
time. Washington testified that she did not actually see Hardy
inside her house but that Robertson told her that Hardy had stopped
by on his way to the house of his girlfriend, Lola King.
8
Washington testified that Robertson and Hardy had some
kind of argument before the night in question but that, on the
night in question, everything between the two men was supposed to
be all right. Washington’s telephone call, however, alarmed Lola
King. King testified at trial that, after Washington called, King
called a friend and the police to report Hardy’s possible
kidnaping.
20
Robertson said that, on the night in question, he had received an
electronic page from Hardy and that they agreed that Hardy would
come to Robertson’s house to buy drugs. While Robertson was
waiting for Hardy, David West and Gerald Gerrell arrived. Although
Robertson did not know Gerrell, Robertson agreed to give Gerrell
drugs in exchange for a reel-to-reel tape player. Eventually,
Hardy arrived with Curtis Jones. Hardy went inside the house to
meet with Robertson, while Jones stayed outside with West and
Gerrell. According to Robertson’s statement, Robertson sold Hardy
drugs and the two discussed possible future drug deals. Then,
Hardy left the house. Robertson said that, a short while later, he
opened his front door and was surprised to see West and Gerrell
still standing on his front porch talking. Robertson said that he
subsequently left the house around midnight to go to the liquor
store to buy beer. On his way back from the liquor store, West and
Gerrell pulled up alongside Robertson in a blue Plymouth Valiant,
and the two men offered to give Robertson a ride home. Robertson
said that when he got into the front passenger seat of the car, he
felt that the seat was wet. Reaching behind him, in the seat,
Robertson discovered a bloody towel and a bloody shirt and saw that
he had blood on his own hands and clothes. Robertson said he asked
what had happened, and Gerrell said that he and West had killed
some people. Robertson said that, after hearing this, he threw the
towel and the shirt out of the car. Robertson then looked down and
saw a gun on the floor.
21
Shortly after these events described by Robertson, the three
men were stopped by police who were investigating Hardy’s possible
kidnaping. Two separate searches of the blue Plymouth Valiant
revealed a .357 magnum (the gun Robertson said he saw at his feet
in the front seat), live and spent rounds of .357 ammunition, a
pair of bloody jeans (later identified as West’s), several bags of
white powder, and personal items (including several rings, a watch,
a beeper, and a driver’s license) that belonged to either Hardy or
Jones. After taking Robertson and the other defendants into
custody further incriminating physical evidence was found. Police
found blood on Robertson’s shirt, right sock, and right slipper and
confiscated from Robertson two rings that may have belonged to one
of the victims.9 Robertson’s fingerprints were also subsequently
found on the outside of the brown Chevy Malibu in which the bodies
were discovered.10
9
Police Officer Norman McCord testified at Robertson’s criminal trial that Curtis
Hardy’s mother and brother identified the two rings confiscated from Robertson as jewelry that the
victim always wore whenever he went out. However, Hardy’s brother testified at trial that only
one of the two rings was his brother’s and that he had only seen
that ring once before on the day of the murder. Hardy’s brother
said that he thought the other ring might belong to Clayton Jones.
(Hardy’s mother did not testify.) Furthermore, the victim’s
girlfriend, Lola Washington, examined both rings at the time
Robertson was arrested, and did not recognize either one of them as
belonging to the victim.
10
Lloyd Davis, the owner of the car, testified that
Robertson had never been in the car, but Robertson’s alleged co-
perpetrator, David West, testified that he saw Robertson standing
next to the brown Chevy Malibu talking to Curtis Hardy, three days
before the shooting.
22
There is no doubt that a properly instructed jury could have
found beyond a reasonable doubt that Robertson was present at the
murder of Hardy and Jones based on the physical evidence and on
circumstances surrounding Robertson’s arrest with West and Gerrell
shortly after the time of the murders. However, much of
Robertson’s alibi statement to the police was corroborated at trial
by the testimony of Consuela Washington and Robertson’s alleged co-
perpetrator, David West. According to West, Gerrell was
responsible for kidnaping and killing Hardy and Jones. West
testified that he drove the brown Chevy Malibu to a remote spot, at
Gerrell's direction, while Gerrell followed with Hardy and Jones in
the blue Plymouth Valiant. According to West, when the group
arrived at the designated spot, Gerrell ordered Hardy and Jones
into the brown Chevy Malibu and began questioning them about the
location of the drugs that they had just bought; the men indicated
that Robertson had them. West testified that, at this point, the
victims began to struggle, and Gerrell fired point blank into each
man’s head, killing the men and spattering West’s shirt and blue
jeans with their blood. According to West, Gerrell then said that
he planned to find Robertson and kill him, and Gerrell threatened
to kill West if West did not help him. West testified that he and
Gerrell then moved to the blue Plymouth Valiant, where the two men
changed clothes and attempted to wipe off the victims’ blood with
a towel. West also testified that Gerrell placed some jewelry and
23
other items into the trunk of the blue Valiant, before the men
drove off to find Robertson.
In sum, there was strong evidence on both sides of the case
with regard to Robertson’s specific intent to kill Hardy and Jones,
and the issue of Robertson’s guilt of first degree murder was
sharply contested at trial. Under Brecht, it is not for this court
to decide whether we think the jury’s verdict was correct; instead,
the question for the court is whether we have a “grave doubt” that
the constitutionally erroneous instruction on the element of
specific intent had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. at 637; O’Neal v. McAninch, 513 U.S. at 436.
In the light of all the evidence and the testimony, we must
say that we have “grave doubt” about the harmlessness of the
Sandstrom error in this case. See O’Neal v. McAninch, 513 U.S. at
436 (holding that, under Brecht, habeas relief should issue
whenever the record is “so evenly balanced that a conscientious
judge is in grave doubt as to the harmlessness of the error”). See
also Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir. 1996) (“if
our minds are ‘in virtual equipoise as to the harmlessness’ under
the Brecht standard, of the error, then we must conclude that it
was harmful”) (quoting O’Neal, 513 U.S. at 435). On the one hand,
the prosecution presented no evidence that proved that Robertson
was the triggerman; nor was there any evidence that West or Gerrell
acted to kill Hardy and Jones at Robertson’s request, or with his
24
approval, or as part of some sort of common plan they had with him.
On the other hand, the jury was offered substantial testimony from
West and Washington and a statement from Robertson that could have
allowed the jury to conclude that Robertson did not have any
specific intent to kill Hardy or Jones. However, the erroneous
jury instruction did not merely omit the requirement that the jury
find specific intent to kill; it effectively told the jury that
they could ignore Robertson’s evidence as it related to this point
and convict Robertson of first degree murder without actually
finding that Robertson had a specific intent to kill Hardy and
Jones. Based on our consideration of the record, we seriously
doubt that the jury actually evaluated the evidence with the
purpose of determining whether Robertson had a specific intent to
kill Hardy and Jones. Accordingly, we are left with the conclusion
that the state trial court’s erroneous jury instruction did have a
“substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. at 637.11
11
The Respondent contends that, because Robertson claimed to have nothing to do with
the murders, the jury was not required to assess Robertson’s specific intent. However, the
Respondent’s contention is wrong as a matter of law. As In re Winship and its progeny make clear,
the state must prove – and the jury must find – each element of the crime – including the element of
specific intent to kill – beyond a reasonable doubt. In this case, we have grave doubt
about whether the jury actually considered the evidence with the
purpose of determining whether Robertson had a specific intent to
kill Hardy and Jones. Certainly, the inference of specific intent
was not “inescapable from the evidence produced concerning the
nature of the criminal act,” Garland v. Maggio, 717 F.2d 199, 204
(5th Cir. 1983), considering the exculpatory testimony of Consuela
Washington and David West and the out-of-court statement made by
Robertson that reasonably could have allowed the jury to find that
25
V
For the foregoing reasons, we conclude that the district court
erred in denying Robertson’s petition for federal habeas relief
pursuant to 28 U.S.C. § 2254. Accordingly, we REVERSE the judgment
of the district court and REMAND.
REVERSED AND REMANDED.
Robertson lacked the requisite specific intent to kill. Compare
State v. West, 568 So. 2d at 1024-25 (finding the jury instruction
not harmless beyond all reasonable doubt under Chapman, based in
part on testimony by West that would have allowed a reasonable jury
to find that West lacked specific intent to kill), with Gerrell v.
Whitley, No. 92-4019(F)(6) (E.D. La. May, 3, 1993) (finding the
same instruction harmless because it played no role in the ultimate
outcome of Gerrell’s case), aff’d, No. 93-3345 (5th Cir. Sept. 1,
1994) (per curiam) (affirming the denial of federal habeas for
essentially the same reasons stated by the district court).
26