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Wrong, But Not En Banc Worthy—2020 Edition

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In June, in Davenport v. MacLaren, a divided panel of the U.S. Court of Appeals for the Sixth Circuit overturned Ervine Lee Davenport’s first-degree murder conviction because “he was visibly shackled at the waist, wrist, and ankles during trial.” Judge Stranch wrote for the court, joined by Chief Judge Cole. Judge Readler dissented.

Today, by a vote of 8-7, the full Sixth Circuit denied the state of Michigan’s petition for rehearing en banc, even though nine of the sixteen judges believe the original panel decision was wrong. Two of the judges on the court, Judges Sutton and Kethledge, concluded that the panel decision was wrong, but not en banc worthy (something these same judges have concluded before).

Judge Stranch wrote an opinion concurring in the denial of rehearing en banc, on the grounds that the panel decision was correct. Judge Stranch’s opinion was joined by Chief Judge Cole and Judges Moore, Clay, White, and Donald.

Judge Thapar dissented from the denial of rehearing en banc, joined by Judges Bush, Larsen, Nalbandian, Readler, and Murphy. Judge Thapar’s opinion begins:

Thirteen years ago, on a cold night in January, Earl Davenport killed Annette White. He closed his hand around her neck and held it there as she struggled against him. Minutes later, she was dead.

Despite the overwhelming evidence of Davenport’s guilt, a panel majority voted to vacate his conviction. It did so without even applying AEDPA deference to the state court’s harmless-error determination.

This tragic case thus presents a fundamental question of habeas jurisprudence: Must a state court’s harmless-error determination receive AEDPA deference under 28 U.S.C. § 2254(d)(1)? The plain text of the statute says that the answer is yes. But the panel majority held that the answer is no. According to the panel opinion, federal judges can simply ignore AEDPA’s guardrails whenever they find that a petitioner has suffered actual prejudice under Brecht v. Abrahamson, 507 U.S. 619 (1993). This holding casts aside AEDPA and misinterprets Supreme Court precedent. That matters because AEDPA’s procedural rules have bite that Brecht lacks. The holding also deepens an existing circuit split. And what’s more, the panel opinion defies Brecht itself, granting habeas relief based on mere speculation and a thin stack of academic articles, some of which postdate the state court’s decision.

Given these errors and their importance, this case merited the attention of the en banc court. I respectfully dissent.

Judge Sutton, joined by Judge Kethledge, agreed that the panel misapplied the law, but nonetheless concurred in the denial of the petition for rehearing en banc. From Judge Sutton’s opinion:

This en banc petition implicates a nagging tension between deciding cases correctly and delegating to panels of three the authority to decide cases on behalf of the full court. . . .

The[] problems with the panel’s decision and its debate over Chapman/Brecht seem to be recurring ones in our circuit and outside of it, suggesting that there is room for clarification by the Supreme Court when it comes to federal court review of state court harmless-error decisions under AEDPA—and the process obligations of lower courts in applying the statute. Just read the eighteen combined pages devoted to the standard of review by this one panel for evidence. It’s been five years since the Court’s most recent contribution to the area and of course many decades since Chapman and Brecht. I suspect every federal judge in the country would welcome guidance in the area. . . .

The problem at hand turns mainly on what to make of language in Supreme Court decisions, . . .  Countless inefficiencies arise when a full intermediate court debates the meaning of vexing language from the Supreme Court, the most obvious being this: Not only are we fallible, we are not final either.

Judge Griffin responded to Judge Sutton in a separate dissent from denial of rehearing en banc, emphasizing the standards for en banc review in the Federal Rules of Appellate Procedure. From his opinion:

By the vote of 8–7, our en banc court has denied respondent’s petition for rehearing en banc. This is most unfortunate for our circuit because the 2–1 panel opinion conflicts with a previous decision of our court and is clearly wrong on a habeas-corpus issue of exceptional importance. While some of my colleagues agree, they nevertheless have opposed the petition in the hope that the Supreme Court will reverse us yet again to clean up our intra-circuit mess. This denial of rehearing en banc is reminiscent of CNH Industrial N.V. v. Reese, 138 S. Ct. 761
(2018), wherein we were reversed unanimously by the Supreme Court in a per curiam opinion and admonished that “the en banc Sixth Circuit has been unwilling (or unable) to reconcile its precedents.” Id. at n.2.

The Federal Rules of Appellate Procedure provide an important and necessary remedy for courts of appeals to correct their conflicts and errors of exceptional importance. . . .

Because our litigants, attorneys, and judges need guidance from our en banc court on these issues of exceptional importance, I would grant respondent’s petition for rehearing en banc.


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About The Author

Jonathan H. Adler

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit

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