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Is SCOTUS Getting Ready to Reverse the Sixth Circuit in a Habeas Case Yet Again?

Today's grant of certiorari in Brown v. Davenport suggests we will see yet another Supreme Court reversal of a Sixth Circuit grant of a habeas petition.


This morning the Supreme Court granted certiorari in Brown v. Davenport, in which Michigan sought review of the U.S. Court of Appeals for the Sixth Circuit's decision to grant a writ of habeas corpus to Ervine Lee Davenport. Grants in cases like this are often an indication that a majority of the Court plans to reverse, and that is particularly so when the Court grants certiorari to a habeas decision from the Sixth Circuit.

A divided panel granted Davenport's habeas petition because he was visibly (and unconstitutionally) shackled during his trial for first-degree murder, rejecting the state's arguments that the shackling was not prejudicial and a habeas grant was not authorized under AEDPA. Michigan sought en banc review, and the court split 8-7, with two judges (Sutton and Kethledge) writing that the panel decision was wrong, but not en banc worthy. In other words, a clear majority of the Sixth Circuit concluded the panel was wrong as a matter of law, but only seven sought en banc review.

As I have noted before (most recently last week), the Roberts Court has reversed the Sixth Circuit in habeas cases with some frequency--often unanimously--and with most of those reversals coming in cases (like this one) in which the Sixth Circuit granted the petition. Given this history, and the details of this case, do not be surprised if Brown v. Davenport produces another Sixth Circuit reversal.

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  1. So then what is the remedy?

    If it was unconstitutional to do what they did, but there is no remedy, then the Constitution becomes irrelevant.

    1. Retrial sans shackles?

      1. That's what granting a habeas petition would mean.

        I hate to agree with Dr. Ed, but his question here is right on the button. There are a lot of process errors like shackling where it's extremely difficult to show actual prejudice, but the whole point of the rule is that we all know it's prejudicial.

        My approach would be to reverse a bit more liberally in such situations, if for no other reason to supervise the trial courts and ensure they follow the rules. But I'm not sure that's possible for federal courts to do under AEDPA.

    2. Dr. Ed, when the Constitution was adopted, there was discussion about adding a "right to a remedy" provision, that if someone's Constitutional rights had been violated the courts would give him a remedy. It was decided not to do that; I won't get into the arguments pro and con. But the bottom line is that there is nothing in the Constitution itself that guarantees a remedy if your rights have been violated. That's why Congress later had to pass civil rights laws, the most famous of which is Section 1983.

      Some state constitutions -- Massachusetts, for example; I happen to know this because I once argued a case on it to the Massachusetts Supreme Judicial Court -- do have right to a remedy provisions. But the federal Constitution does not.

      1. "when the Constitution was adopted, there was discussion about adding a “right to a remedy” provision, that if someone’s Constitutional rights had been violated the courts would give him a remedy."

        Was that from when the constitution was adopted, which doesn't actually include any individual rights at all, or from the "Bill Of Rights" amendments, which were adopted later.

        1. Article 1 Section 9 is sometimes called the mini-bill of rights, since it prevents Congress from suspending habeas corpus except for certain circumstances, and passing bills of attainder. Any person subject to either of those two things could have had a "right to a remedy," had such language been ratified.

      2. Do you have a link to where I can read those discussions? That would be interesting to see the thought proccess

      3. I thought so (re MA Constitution) -- all I can say is that I wish I had you six years ago and not the schmuck that I did.

      4. "there is nothing in the Constitution itself that guarantees a remedy if your rights have been violated."

        They should add some language to the effect that the enumeration in the Constitution of certain rights shall not deny or disparage others retained by the people. Would that help?

  2. If you're going to make a post like this you should mention that typically habeus reversals are done without oral argument in a per curium opinion. They may well reverse, but that they are scheduling it for oral argument and presumably a signed opinion suggests the Court sees this case very differently than the run of the mill over step that the Sixth is known for.

    1. Well, IANAL, but if the rule is that "thou shalt not shackle" and thou didst, while thou knew that the rule was that "thou shalt not", then thou is f*cked....

      Reading the facts, I think he is guilty -- if he really went with one arm across the passenger seat and her neck, no matter how strong he is (and how much he's able to brace himself, too), I can't see the victim not turning her head to the right so she'd be able to breathe -- and unless he snapped her neck, she'd be able to.

      And as to her coming at him with a box cutter -- which *is* a lethal weapon at close range -- that doesn't add up either. I'd go for the wrist of the hand holding the box cutter -- I don't like admitting this but it wouldn't be "reasonable" force but "all" force if I thought my life in peril, and if I "outweighed her by 200 lbs", she'd likely have some very serious orthopedic injuries -- but to her wrist and such -- not to her *neck*!

      I don't like admitting this either, but I'd also consider a deliberate crash, knowing that I have a steering wheel to hang onto while she's going through the windshield (assuming neither of us are wearing seat belts) but still -- that, while Machiavellian, doesn't involve choking her. Decapitating her, quite likely, particularly if I could shut off the passenger side airbag, but that would be as a result of her being ejected from the vehicle.

      Let me add that this presumes facts most favorable to the defendant, i.e. a passenger attempting to slash his jugular with a device capable of doing so. That's his claim.

      But still, if the rule says "thou shalt not", then....

      1. "Well, IANAL, but if the rule is that “thou shalt not shackle” and thou didst, while thou knew that the rule was that “thou shalt not”, then thou is f*cked…."

        The rule is not "thou shalt not shackle." It is "thou shalt not *visibly* shackle unless thou hast set out a good enough reason on the record for why." The arguments usually come in whether the reason was good enough, whether the reasons were adequately explained on the record, and whether the shackles were, in fact, visible. Often it's a question of being shackled under the table but after the fact there's a claim the shackles were visible from certain angles. It's not a bright-line rule as you're suggesting.

  3. From reading the question presented, it sounds like there's a split among the federal Courts of Appeal with respect to how much AEDPA limits the ability of federal courts to overturn a state court's determination that a federal constitutional error was harmless. It's not unusual for SCOTUS to grant cert. to resolve circuit splits, and ordinarily the fact that it does so doesn't say much about which way the case will be decided. But here (at least according to petitioner) the 6th Circuit's mode of analysis when it reversed was inconsistent with that of 5 other federal circuits, including the 9th circuit, which in recent years has been more prone to reverse criminal convictions than other circuits. This increases the likelihood that SCOTUS will overturn the 6th circuit's decision.

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