The Supreme Court’s recent Brown v. Davenport decision, 142 S. Ct. 1510 (2022), further muddies the already muddy caselaw about the requirements for a habeas corpus petition in federal court.

The caselaw governing habeas corpus litigation is marked by complexity and confusion, primarily due to the lack of clear definitions for essential concepts. Prison inmates, who typically have limited education and below-average intelligence, are expected to follow rules that are so technical and dense that judges struggle to comprehend them. It is an area of law that cries out for clarity, not in the form of additional judicial opinions, but radical simplicity that would, as far as possible, identify the essential elements of a habeas corpus using basic terminology.

Habeas corpus petitions, intricate legal processes, involve several distinct elements, each demanding specific attention. Analogies to tort law provide some analytic clarity.

Rights violation. One element concerns the identification of wrongful error or omission, requiring legal analysis to identify a violation inmate’s constitutional rights. This element is akin to showing a defendant violated a legal duty of care in tort litigation. Just as there are degrees of negligence, simple negligence to gross negligence, there are degrees of wrongfulness. When a state prisoner challenges a state court conviction in federal court, federal law, the AEDPA, requires him to show his constitutional rights were not merely violated, but flagrantly violated.

Harm caused. Another element focuses on causation of harm. This required a causal analysis to understand the direct or indirect consequences of the wrongful conduct. Causal analysis requires examination of facts and comparing the observed outcome to unobserved, potential outcomes (akin to “but for” causation in tort litigation). Wrongful acts and omissions are harmful, but the extent of harm varies. The wrongful act or omission could cause 1 unit of harm, 5 units of harm, or 100 units of harm. Mot discussion of harm centers on how a rights violation affected the probability of conviction, but there is also discussion of how rights violation affect the credibility of trials or a jury’s deliberation.

Tolerance threshold. The determination that harm is intolerable involves a judgment about how fair criminal trials must should be. This is a normative assessment. The harmless error doctrine embodies the belief that some amount of harm should be tolerated. Conceptually, there is a metric system of harmfulness where X units of harm is the legal boiling point. If the the wrongful error or omission caused X or more units of harm, it should not be tolerated; the inmate should get a new trial or be released from custody.

Burden of proof. Finally, another element centers on establishing with certainty that the harm caused is indeed intolerable. This step aligns with the burden of proof. In habeas corpus proceedings, the inmate-petitioner has the burden of proving harm; it is not the state-respondent’s burden to prove harmlessness. It is the inmate-petitioner’s responsibility to prove harmfulness and there are degrees of proof, ranging more more likely than not all the way to absolute certainty. The burden of proof requirement is most clearly addressed by Brecht v. Abrahamson (U.S. 1993). Brecht does not make it altogether clear what degree of proof is required, but it does speak to the petitioner’s burden of proof.

A clearer delineation and understanding of these elements are essential to navigate the complexities and uncertainties inherent in this area of legal practice. I agree with the Brown v. Davenport decision insofar as it holds that an inmate must satisfy the “flagrant error” requirement established by AEDPA as well as carrying his burden of proving harmfulness based on Brecht.

What’s deeply troubling about the Court’s analysis in Brown v. Davenport is the requirements are not treated as distinct elements, but are rather stacked on top of each other to make it virtually impossible for an inmate-petitioner to prevail. According to Justice Gorsuch, it is not enough for petitioner to show harm with certainty, he must also establish wrongfulness of the trial with certainty.

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