Fourth Circuit weighs in on circuit split; harmless error review in collateral challenge to conviction

In an opinion published today, the U.S. Court of Appeals for the Fourth Circuit announced that, in collateral challenges to federal criminal convictions under § 2255, it would follow the harmless error standard used by most of the other circuit courts of appeal.

The defendant in this case was sentenced to 80 years for federal witness tampering (it involved firebombing). He hoped to cut this down because the U.S. Supreme Court recently narrowed the scope of what may be considered witness tampering under federal law; at trial, the jury was instructed under the old standard. So he filed a collateral challenge to his conviction, citing the Supreme Court’s decision and the incorrect jury instruction.

Finding that the jury instruction was indeed incorrect, the court had to evaluate whether the difference in the instruction was harmless. Here, the court had to decide for the first time what standard to apply in § 2255 cases: the Chapman standard of “harmless beyond a reasonable doubt,” or the Brecht standard of “substantial and injurious effect.” The former is traditionally applied on direct appeals, the latter in habeas proceedings under § 2254. The latter is also harder for a defendant to show.

The court noted that four sister circuits had gone with the Brecht standard (the Sixth, Ninth, Tenth, and Eleventh Circuits, for those keeping score at home; click for opinions). One sister circuit has used the Chapman standard in this context (the Seventh).

The court ultimately joined the majority in applying the Brecht standard. In the Fourth Circuit, harmless error review in § 2255 litigation is now governed by the “substantial and injurious effect” standard. The court wrote that the defendant was unable to satisfy this burden, and affirmed the judgment below which denied his challenge.

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