Hedgpeth v. Pulido
From ScotusWiki
Authorship: Rebekah Jones
Contents |
[edit] Briefs and Documents
Docket: 07-544
Issue: Whether, on habeas review, the 9th Circuit erred in granting relief by deeming an erroneous jury instruction to constitute structural error requiring reversal because the jury may have relied upon it.
Merit briefs
- Brief for Petitioner Chris Chrones, Warden
- Brief for Respondent Michael Pulido
- Reply Brief for Petitioner Chris Chrones, Warden
Amicus briefs
- Brief for the Criminal Justice Legal Foundation in Support of Petitioner
- Brief for the United States in Support of Petitioner
Oral Argument: Transcript
Opinion: VACATED AND REMANDED Opinion Per Curiam
[edit] Pre-Argument Articles
[edit] Argument Preview
[edit] Background
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas petitioner is entitled to relief only if he can show that the state court decision was contrary to, or an unreasonable application of, clearly established federal law. A state court decision is “contrary to” clearly established federal law if it arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or, if based on materially indistinguishable facts, it decides a case different from the Supreme Court precedent. Moreover, to warrant habeas relief, the state court’s application of clearly established law must be objectively unreasonable, not merely incorrect. The controversy in this case centers around what constitutes “clearly established” federal law for purposes of evaluating an allegedly erroneous jury instruction.
In 1993, Michael Pulido was tried and convicted for his role in the robbery of a gas station during which the cashier on duty was shot and killed. Pulido alleged that his uncle was the shooter and that he was involved in the robbery only after the shooting had taken place. A California jury found Pulido guilty of first-degree murder with a special circumstance finding of robbery felony-murder and sentenced him to life without the possibility of parole. After his conviction was affirmed by both the California Court of Appeals and the California Supreme Court, Pulido filed a pro se habeas petition with the California Supreme Court, claiming prejudicial constitutional error in the jury instructions.
At trial, the jury was given erroneous instructions, such that they could find the defendant guilty of felony-murder even if he was involved in the crime only after the shooting had taken place. California law, however, only allows a felony-murder conviction if the defendant is involved in the robbery prior to the killing. Additionally, one of the robbery special circumstance instructions was also incorrect: a typographical error allowed the jury to convict Pulido for robbery-murder special circumstance even if he was only involved in the robbery after the murder, when he should have been convicted only if he was involved in the robbery contemporaneously with the murder itself.
The California Supreme Court again affirmed the conviction. Citing precedent, the court held that when an instructional error presents the jury with a legally invalid theory of guilt, reversal is not required if other parts of the verdict demonstrate that the jury necessarily found the defendant guilty on a proper theory. In Pulido’s case, the court concluded, the jury’s explicit findings that Pulido was involved in the crime “during the commission of [murder]” and that “the murder was committed while the defendant” was involved in the crime were evidence that they did not rely on the legally erroneous theory. Because the instructional error was therefore harmless, the habeas petition was dismissed.
Pulido next sought federal habeas relief, which the district granted in March 2005 on the ground that the instructional error was prejudicial. The court held that the California Supreme Court’s harmless error finding was “contrary to” and an “unreasonable” application of “clearly established” Supreme Court precedent. The court focused on the typographical error that substituted the word “or” for the word “and” in the jury instructions. The error enlarged the scope of the instruction, removing the requirement that the murder (1) be committed while the robbery was taking place and (2) to advance the robbery. The court observed that this allowed the jury to wrongfully convict based on a theory of the crime whereby Pulido was involved only after the murder had already occurred. Finding that this had a “substantial and injurious” effect on the jury’s verdict under the harmless-error rule set forth in Brecht v. Abramson, the district court granted the writ.
The Ninth Circuit affirmed. It deemed the instructional error structural and therefore not subject to harmless error review. Relying on its decision in Lara v. Ryan, the court held that when a reviewing court cannot determine with absolute certainty whether a defendant was convicted under an erroneous theory, reversal is required. Because the jury instructions in this case left open the possibility that Pulido was convicted on a legally impermissible theory – namely, that he joined the robbery only after the victim was murdered – the court could not be “absolutely certain” that the jury determined Pulido committed the robbery contemporaneously with the murder; thus, reversal was required.
[edit] Petition for Certiorari
In 2007, the State filed a petition for writ of certiorari asking the Court to decide whether harmless error review is available for defective instructions on an alternative theory of criminal liability. The State advanced four main arguments supporting its theory that the Ninth Circuit failed to conform to clearly established federal law when it granted relief. First, the State argued that the rule applied by the Ninth Circuit in this case – viz., that an erroneous alternative legal theory error is structural – is not clearly established federal law. Instead, the State contends, the Ninth Circuit improperly relied on the Supreme Court’s decision in Stromberg v. California (1931), which holds that when “a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground.” However, the State explains, Stromberg “encompasses only convictions for conduct that the State lacks the power to punish as crime,” not convictions – such as Pulido’s – that may or may not be based on an alternative legally erroneous theory of guilt.
Second, the State argued that the Ninth Circuit’s structural error rule conflicts with the Court’s modern harmless-error jurisprudence. Under a line of cases beginning with Rose v. Clark (1986), the Supreme Court has held that there is a “strong presumption that constitutional violations at trial are subject to harmless error analysis,” regardless of how the courts characterize the particular instructional error at hand. Further, the proper analysis for harmless error is not the “absolute certainty” test employed by the Ninth Circuit, but instead is the less stringent form announced in Brecht v. Abrahamson: “whether the error had a substantial and injurious effect or influence in determining the jury’s verdict.” At the very least, the State emphasized, the Rose line of cases demonstrates that the Ninth Circuit’s structural error rule regarding alternative legal theories is not clearly established federal law.
Third, the State argued, the Ninth Circuit’s structural error rule conflicts with the decisions of four other circuits, which have held that harmless-error analysis is available when there is instructional error. In relying on the Rose line of cases, these courts found Stromberg inapplicable.
Fourth, and finally, had the Ninth Circuit correctly applied the Brecht harmless-error analysis, the State argued, no substantial or injurious effect on the jury’s verdict would have been found. Examining the instructions as a whole, the questions raised by the jury during deliberations, and the responses by the court, “the only reasonable conclusion is that the jury interpreted the superficially problematic language in the instruction to mean that [Pulido] had to commit the murder in order to carry out the robbery.”
Opposing certiorari, Pulido advanced four main arguments. First, Pulido maintained that Stromberg is well-settled law and should be followed. Citing two post-Rose opinions applying Stromberg, Pulido argued that it is consistent with recent harmless-error jurisprudence.
Second, Pulido maintained that Stromberg itself should be viewed as an application of the prejudice analysis in which the key inquiry focuses on uncertainty. Submission of an unauthorized legal theory can be harmless when the record establishes that the jurors relied on the valid ground. However, when there is uncertainty as to which theory the verdict was based on, the error is prejudicial and must be reversed. In other words, the uncertainty constitutes a grave doubt as to whether the error had a “substantial and injurious effect or influence in determining the jury’s verdict,” therefore satisfying the Brecht analysis.
Third, Pulido asserted that there is no cert-worthy issue under AEDPA here. In Fry v. Pliler (2007), he explained, the Court held that when a habeas court finds constitutional error, it can proceed directly to its own determination of prejudice under Brecht – a § 2254(1) prejudice analysis is not also required. Further, this case does not pose any doctrinal conflict between the California Supreme Court and the Ninth Circuit, both of which applied similar standards to review the submission of an invalid alternative legal theory, i.e., whether the jury’s other findings cured the misinstruction. The only difference, Pulido continued, was that, in the state court’s view, a tiny snippet in the introductory instructions cured the defect in the substantive special circumstance instructions, whereas the Ninth Circuit disagreed and regarded the state court’s determination as an unreasonable application of law because the state court’s focus on a tiny clause in the introductory instructions, rather than on the entire context in which the jury would understand the substantive instructions, failed to consider the entire record.
Last, Pulido argued that even if the finding of uncertainty under Stromberg was not enough to satisfy Brecht, a full “totality of the circumstances” analysis would have also shown harm. Because the case would have come out the same way regardless of the prejudice analysis applied, the Court should not take the case.
The State made several arguments in its reply brief at the cert. stage. First, the State maintained that certiorari is warranted to decide whether Stromberg is still clear precedent after Rose and its progeny. As the State interprets the cases, Stromberg always requires reversal when a reviewing court cannot know whether a conviction rests on an unconstitutional theory. Rose and its progeny stand for the proposition that reversal is not always required even when a reviewing court does know that a conviction rests on an unconstitutional theory. These are clearly in conflict and need to be clarified.
Second, the State believes that Stromberg is in conflict with modern harmless error doctrine. Error and harm are two separate inquiries. Error occurs when the jury misapplies the law, and harm occurs when a reviewing court cannot conclude that the result would have been the same had the jury not misapplied the law. Stromberg conflates these questions into one, making error tantamount to prejudice. Rose and its progeny keep these inquiries separate. Certiorari is warranted to determine which approach is correct.
[edit] Briefs on the Merits
The State makes two main arguments to support its contention that the state court did not act contrary to clearly established federal law when it reviewed the instructional error for harmlessness. First, under the Court’s modern harmless error jurisprudence, this type of instructional error is deemed trial, not structural, error. Trial errors, the State explains, can be reviewed for harmlessness because the reviewing court can determine from the record whether the jury would have reached the same verdict in the absence of the error. Structural error, on the other hand, deprives a reviewing court of any basis in the record from which to determine harmlessness. The State emphasizes that the Supreme Court has only found structural instructional errors in two circumstances: when the record is devoid of a verdict beyond a reasonable doubt or when there was a directed verdict based on insufficient evidence. The instructional error in this case falls into neither of these categories and was more similar to the trial errors in the Rose line of cases.
Second, Stromberg is inconsistent with the Court’s modern harmless error cases and does not qualify as “clearly established Federal law.” Under Stromberg, reversal is required when (1) one of several possible grounds for conviction is constitutionally impermissible and (2) when the verdict may have rested on that ground. This is no longer sufficient for reversal under the Court’s modern harmless error doctrine, which does not require relief when it can be shown that the jury would have reached the same verdict under proper instructions. The focus of the prejudice question has turned from what the jury could have done with the erroneous instruction, to what the jury would have done without it. The standard in Stromberg, and in turn that employed by the Ninth Circuit, is too stringent and therefore conflicts with the modern harmless error doctrine.
Furthermore, by labeling “alternative legal theory error” as structural, the Ninth Circuit sets the courts up for an onslaught of structural error cases, as almost all cases go to the jury with an alternative legal theory. Labeling each alternative legal theory error as structural error is contrary to the deferential standards of the Court’s harmless error doctrine as well as AEDPA’s requirement of deferential review.
Respondent makes two main arguments in his brief on the merits. First, Respondent argues that Stromberg is still good law and has developed alongside the Court’s harmless error doctrine. He argues that Stromberg is “best understood as defining a rigorous form of harmless error review, analogous to [the] rule that omission of an element cannot be harmless if that element was factually disputed.” Respondent contends that similar to a factual dispute, a case that goes to a jury on multiple theories, at least one of which is legally erroneous, is sufficient to create a “reasonable” or “grave” doubt at the error’s effect on the verdict.
Second, Respondent contends that even if the Ninth Circuit was incorrect in labeling the error a “structural” defect under Stromberg, it still conducted the correct inquiry. He argues that by completing the Stromberg analysis and finding the record inconclusive as to the jury’s finding, the Ninth Circuit actually conducted the exact inquiry it would have under Brecht and should therefore be affirmed.
Petitioner rejects Pulido’s assertion that the Ninth Circuit functionally applied the correct Brecht inquiry, although under the incorrect name. Rather, Petitioner argues that both Pulido and the Ninth Circuit conflate error with harm, which, in application, tests only for error. This is contrary to the courts’ harmless-error jurisprudence and has been rejected in previous cases.
Additionally, Respondent misunderstands the focus of a harmless-error inquiry. Rather than attempting to determine whether the jury actually relied on the correct theory, as the Ninth Circuit did, Brecht requires that a court on collateral review “consider the evidence in light of the jury’s particular findings in order to decide whether the jury would have convicted had it been properly instructed.” Because the Ninth Circuit did not properly employ the Brecht standard, this case should be remanded and subjected to the correct harmless-error analysis.
[edit] Brief for the United States as Amicus Curiae Supporting Petitioner
The United States agrees with petitioner that the Stromberg rule of automatic reversal is in direct conflict with the later-developed harmless-error jurisprudence, which affirms that constitutional errors are presumptively subject to harmless-error review. The instructional error at issue here falls under the Rose line of cases and does not fit into either of the narrow classes of “structural” errors that render a trial fundamentally unfair. Because of this, and because the case arises on collateral review, the instructional error should be reviewed under the Brecht v. Abrahamson standard, pursuant to which an error is harmless unless it had “substantial and injurious effect or influence in determining the jury’s verdict.” As such, the case should be remanded for application of harmless-error review under Brecht.
[edit] Brief Amicus Curiae of the Criminal Justice Legal Foundation in Support of Petitioner
The CJLF also argues that the Brecht v. Abrahamson analysis is the proper standard of review. The instructional error in this case was not structural, but simply a misdescription of an element of the crime, an error that the Court has deemed subject to harmless error analysis.
Applying Brecht to this case, the CJLF argues that the error was harmless because Pulido’s theory of the crime is contradicted by the physical evidence as well as his own statement. Additionally, the jury’s inquiries during deliberations do not indicate confusion regarding Pulido’s “late joiner” theory. As such, the error was harmless under the Brecht analysis.
[edit] Opinion Analysis
Lyle Denniston originally wrote the following for SCOTUSblog.
The Supreme Court ruled Tuesday that a conviction based on jury instructions containing more than one theory of guilt, with one of those theories invalid, is to be judged on whether that was harmless error. That is not to be treated as a “structural error” that undermines the verdict itself, the Court concluded in Hedgpeth v. Pulido (07-544). The Court was unanimous in that part of the ruling, but the decision to send the case back to the Ninth Circuit Court for harmless error analysis drew the dissents of three Justices.
The Court’s opinion was unsigned (that is, it was “Per Curiam,” or “by the Court”), and was announced by Chief Justice John G. Roberts, Jr. It was the only decision of the day.
The case involves Michael Robert Pulido of San Mateo, Calif., who was convicted of first degree murder, robbery, receiving stolen property and auto theft. The jury in his case also returned a special verdict, finding that the robbery was committed during the course of a felony murder. The jury deadlocked on whether Pulido personally did the shooting. He was sentenced to life in prison without possibility of parole for murder “with special circumstances.”
When the case was tried, it was submitted to the jury on three alternative theories: that Pulido personally shot the cashier at a gas station and convenience store in San Mateo in May 1992, that he aided and abetted in the robbery during the shooting, or that he aided in the robbery only after the shooting. During five days of deliberation, the jury sent out numerous questions about aiding-and-abetting liability under a felony murder theory — that is, a murder committed during a felony.
The California Supreme Court ruled in the case that the third theory — aiding in the robbery after the shooting had occurred — would not support a felony murder verdict, since the homicide would have been completed. The state court, however, ruled that, because the jury had found special circumstances, that was an indication that the murder occurred while Pulido was taking part in the robbery.
Pulido then sought to challenge his conviction in federal habeas court, leading to a Ninth Circuit ruling that found a structural error in the erroneous jury instruction. It overturned the jury verdict, because the instructions given had left open the possibility that Pulido had been convicted on an impermissible ground.
California officials appealed to the Supreme Court. As the case developed, both sides agreed that the Circuit Court was wrong in finding structural error. Pulido, however, argued that the Supreme Court should uphold the Ninth Circuit ruling nullifying his conviction because the Ninth Circuit had already engaged in the harmless error analysis, even though it had labeled the error as structural. That is the same position taken Tuesday by the three dissenting Justices: John Paul Stevens, joined by Ruth Bader Ginsburg and David H. Souter.
The Court majority said it would express no view on whether Pulido was entitled to relief. It thus said the Ninth Circuit should examine the harmless error issue directly.
Apparently joining in the opinion were the Chief Justice and Justices Samuel A. Alito, Jr., Stephen G. Breyer, Anthony M. Kennedy, Antonin Scalia and Clarence Thomas.
[edit] Links and further information
[[Category:]]
