Summary order today from the Second Circuit:
- Affirming Denial of Habeas (available here)
- Argued: 11/15/10
- Panel: Minor, Straub, Livingston
- Lower Court Info: 04-CV-663, 2009 WL 2983030 (EDNY Sept. 11, 2009) (JS)
- In Circuit: District Court COA
- Issues: Fifth Amendment violation based on references to Petitioner's post-arrest silence
Notes: Slight (but understandable) kick to the groin in this decision. DJ concluded that constitutional error occurred, but error was harmless. Second Circuit refused to acknowledge that a constitutional violation occurred. Rather, it stated that it did not need to decide the issue since, even if there was a constitutional violation, it agreed with the DJ that the error was harmless. From a judicial economy point of view, it makes sense for the court not to address the constitutional violation. Nevertheless, petitioner does not even get the satisfaction from the court that his constitutional rights were violated, something that the DJ acknowledged.
One other note, the Second Circuit continues its unnecessary internal battle over the correct harmless error standard. In a footnote it stated:
As we have noted in a previous case applying harmless error analysis in a habeas context, because Brecht preceded the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), there is some ambiguity as to whether, in order to grant a habeas petition, a court would have to find not just that an error was not harmless under Brecht but also that the state court’s application of the federal harmless error standard, set out in Chapman v. California, 386 U.S. 18, 23 (1967), was “objectively unreasonable.” See Perkins v. Herbert, 596 F.3d 161, 176 (2d Cir. 2010). Because the distinction does not affect the outcome of the analysis in this case, we need not decide the issue.
As I have stated before, I think the Supreme Court has clearly settled this issue -- Brecht always applies. But if the Second Circuit wants to continue to have this academic debate with itself, it can go ahead and do it. I'll just keep linking to my prior post.