Wrong, But Not En Banc Worthy—2020 Edition

Not every erroneous panel decision needs to be reversed by the full Circuit Court, but was Davenport v. MacLaren such a case?


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.

For what it's worth, I have lots of sympathy for Judge Sutton's general point that not every wrong panel decision merits en banc review, and that some questions need to be resolved by the Supreme Court. That said, this case seems to satisfy the traditional requirements for en banc review, particularly given the need for clarity and consistency, and the apparent inconsistencies within the Sixth Circuit's own caselaw.

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  1. This is how defendants wind up dead “resisting arrest” and I’d prefer A trial to no trial….

  2. “In bank” review avoids these problems.

  3. “nagging tension ”

    I would think being right is more important than following correct procedures.

    Now we waste years and a lot of Michigan tax payer dollars. Yeah procedure!

    1. I would think being right is more important than following correct procedures.

      I haven’t seen any evidence from your posting history that you care about either.

    2. But see: your opposition to due process for those accused of terrorism, your support of torture, your endorsement of extrajudicial killings.

      1. Terrorism is an act of war. B-52s inherently lack a due process capability.

      2. Is Bob from Ohio’s position that he thinks these things are substantively wrong but must be tolerated because proper procedure demands it? If not, seems like a non-sequitur.

      3. And how about his reflexive opposition to the noncitizen in any immigration proceeding, even where he or she has a clearly valid legal claim?

    3. Who gets to decide what “being right” is?

      Maybe we should we use the Panties standard.

      If it doesn’t make Bob’s panties crawl up his ass then it’s OK.

      1. In this case, the judges on the Sixth Circuit, a majority of whom agreed that the decision being reviewed was wrong (which it fairly obviously was).

  4. So the court usurping a jurisdiction Congress denied to them is an unfortunate peccadillo, technically illegal but not worth their worrying about.

  5. Online prison records show that Mr. Davenport is 6‘5“ tall and weighs 299 pounds. The offense that he was charged with was killing an adult with his bare hands.

    Under those circumstances, what would be the justification for NOT shackling him?

    1. That you have two summer interns from the U-Mich football team sitting next to him?

    2. He is presumed innocent until proven guilty and the shackling in front of the jury kind of destroys that presumption for them.

    3. re: “what would be the justification for NOT shackling him”

      – The fact that he’s surrounded by armed bailiffs?
      – The principle that he’s presumed innocent until proven guilty?
      – The lack of a judicial finding that extraordinary dangers exist to justify extraordinary measures?

      Other than being born to the wrong parents, there’s nothing he did to make himself 6’5″. Are you saying that it’s okay to put anyone who looks scary in chains? How is that not just as offensive as saying that all black men are dangerous and should be in chains?

  6. From Deck v. Missouri:

    Justice Stephen Breyer delivered the Court’s 7-2 holding that the Constitution forbids the use of visible shackles during both a capital trial’s guilt and penalty phases, unless such shackling is justified by an essential state interest specific to the defendant on trial (such as courtroom security). The majority argued that the law has long forbidden use of visible shackles during a capital trial’s guilt phase, and that the reasons underlying this prohibition (like the possibility shackles will bias the jury) extend this rule to the penalty phase.

    And Michigan ADMITTED they knew shackling Davenport was unconstitutional.

    Since when is it harmless when as state (or any government) knowingly acts in an unconstitutional manner?

    I guess it’s not surprising that the “law and order” people here don’t really care about the law.

    1. The problem is that there are certain laws that mandate courts to basically ignore other laws, even if the ignored laws would seem to be more fundamental to a just system.

    2. Are you actually unfamiliar with the concept of harmless error review?

    3. “Since when is it harmless when as state (or any government) knowingly acts in an unconstitutional manner”

      Since the first “common sense gun control” law was passed?

  7. What exactly does Judge Sutton think that en banc review is for if not resolving recurring questions of interpretation within the circuit? If your panels are consistently reaching different decisions, then you should have an en banc review. If different circuits are reaching different interpretations, then SCOTUS should step in. SCOTUS shouldn’t have to step in because you don’t want to resolve questions in your own house.

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