FRY v. PLILER, WARDEN

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112 OCTOBER TERM, 2006
Syllabus
FRY v. PLILER, WARDEN
certiorari to the united states court of appeals for
the ninth circuit
No. 06–5247. Argued March 20, 2007—Decided June 11, 2007
The trial judge presiding over petitioner’s criminal trial excluded the tes
timony of defense-witness Pamela Maples. After his conviction, peti
tioner argued on appeal, inter alia, that the exclusion of Maples’ testi
mony violated Chambers v. Mississippi, 410 U. S. 284, which held that
a combination of erroneous evidentiary rulings rose to the level of a
due process violation. The California Court of Appeal did not explicitly
address that argument in affirming, but stated, without specifying
which harmless-error standard it was applying, that “no possible preju
dice” could have resulted in light of the cumulative nature of Maples’
testimony. The State Supreme Court denied discretionary review.
Petitioner then filed a federal habeas petition raising the due process
and other claims. The Magistrate Judge found the state appellate
court’s failure to recognize Chambers error an unreasonable application
of clearly established law as set forth by this Court, and disagreed with
the finding of “no possible prejudice,” but concluded there was an insuf
ficient showing that the improper exclusion of Maples’ testimony had a
“substantial and injurious effect” on the jury’s verdict under Brecht v.
Abrahamson, 507 U. S. 619, 631. Agreeing, the District Court denied
relief, and the Ninth Circuit affirmed.
Held: In 28 U. S. C. § 2254 proceedings, a federal court must assess the
prejudicial impact of constitutional error in a state-court criminal trial
under Brecht’s “substantial and injurious effect” standard, whether or
not the state appellate court recognized the error and reviewed it for
harmlessness under the “harmless beyond a reasonable doubt” standard
set forth in Chapman v. California, 386 U. S. 18, 24. Pp. 116–122.
(a) That Brecht applies in § 2254 cases even if the state appellate court
has not found, as did the state appellate court in Brecht, that the error
was harmless under Chapman, is indicated by this Court’s Brecht opin
ion, which did not turn on whether the state court itself conducted
Chapman review, but instead cited concerns about finality, comity, and
federalism as the primary reasons for adopting a less onerous standard
on collateral review. 507 U. S., at 637. Since each of these concerns
applies with equal force whether or not the state court reaches the
Chapman question, it would be illogical to make the standard of review
turn upon that contingency. Brecht, supra, at 636, distinguished.

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Syllabus
Petitioner presents a false analogy in arguing that, if Brecht applies
whether or not the state appellate court conducted Chapman review,
then Brecht would apply even if a State eliminated appellate review
altogether. The Court also rejects petitioner’s contention that, even if
Brecht adopted a categorical rule, post-Brecht developments—the Anti
terrorism and Effective Death Penalty Act of 1996 (AEDPA), as inter
preted in Mitchell v. Esparza, 540 U. S. 12—require a different review
standard. That result is not suggested by Esparza, which had no rea
son to decide the point, nor by AEDPA, which sets forth a precondition,
not an entitlement, to the grant of habeas relief. Pp. 116–120.
(b) Petitioner’s argument that the judgment below must still be re
versed because excluding Maples’ testimony substantially and injuri
ously affected the jury’s verdict is rejected as not fairly encompassed
by the question presented. Pp. 120–122.
Affirmed.
Scalia, J., delivered the opinion for a unanimous Court as to all but
footnote 1 and Part II–B. Roberts, C. J., and Kennedy, Thomas, and
Alito, JJ., joined that opinion in full; Stevens, Souter, and Ginsburg,
JJ., joined it as to all but Part II–B; and Breyer, J., joined as to all but
footnote 1 and Part II–B. Stevens, J., filed an opinion concurring in part
and dissenting in part, in which Souter and Ginsburg, JJ., joined, and
in which Breyer, J., joined in part, post, p. 122. Breyer, J., filed an
opinion concurring in part and dissenting in part, post, p. 126.
Victor S. Haltom, by appointment of the Court, 549 U. S.
1165, argued the cause for petitioner. With him on the
briefs was John R. Duree, Jr.
Ross C. Moody, Deputy Attorney General of California,
argued the cause for respondent. With him on the brief
were Edmund G. Brown, Jr., Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Manuel M.
Medeiros, State Solicitor General, Gerald A. Engler, Senior
Assistant Attorney General, Donald E. de Nicola, Deputy
Solicitor General, and Peggy S. Ruffra, Supervising Deputy
Attorney General.
Patricia A. Millett argued the cause for the United States
as amicus curiae urging affirmance. On the brief were
Solicitor General Clement, Assistant Attorney General

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114 FRY v. PLILER
Opinion of the Court
Fisher, Deputy Solicitor General Dreeben, Jonathan L.
Marcus, and Joel M. Gershowitz.*
Justice Scalia delivered the opinion of the Court.
We decide whether a federal habeas court must assess the
prejudicial impact of constitutional error in a state-court
criminal trial under the “substantial and injurious effect”
standard set forth in Brecht v. Abrahamson, 507 U. S. 619
(1993), when the state appellate court failed to recognize the
error and did not review it for harmlessness under the
“harmless beyond a reasonable doubt” standard set forth in
Chapman v. California, 386 U. S. 18 (1967).
I
After two mistrials on account of hung juries, a third jury
convicted petitioner of the 1992 murders of James and Cyn
thia Bell. At trial, petitioner sought to attribute the mur
ders to one or more other persons. To that end, he offered
testimony of several witnesses who linked one Anthony
Hurtz to the killings. But the trial court excluded the testi
mony of one additional witness, Pamela Maples, who was
*Lori R. E. Ploeger, Maureen P. Alger, and Matthew D. Brown filed a
brief for the Innocence Network as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of
Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri,
James R. Layton, State Solicitor, and Heidi C. Doerhoff and Ronald S.
Ribaudo, Assistant Attorneys General, and by the Attorneys General for
their respective States as follows: Troy King of Alabama, Terry Goddard
of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colorado,
Joseph R. Biden III of Delaware, Mark J. Bennett of Hawaii, Lisa Madi
gan of Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Gregory D.
Stumbo of Kentucky, Michael A. Cox of Michigan, Jim Hood of Mississippi,
Mike McGrath of Montana, Wayne Stenehjem of North Dakota, W. A.
Drew Edmondson of Oklahoma, Henry D. McMaster of South Carolina,
Lawrence E. Long of South Dakota, Greg Abbott of Texas, Mark L. Shurt
leff of Utah, and Darrell V. McGraw, Jr., of West Virginia; and for the
Criminal Justice Legal Foundation by Kent S. Scheidegger.

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prepared to testify that she had heard Hurtz discussing hom
icides bearing some resemblance to the murder of the Bells.
In the trial court’s view, the defense had provided insufficient
evidence to link the incidents described by Hurtz to the mur
ders for which petitioner was charged.
Following his conviction, petitioner appealed to the Cali
fornia Court of Appeal, arguing (among other things) that
the trial court’s exclusion of Maples’ testimony deprived him
of a fair opportunity to defend himself, in violation of Cham
bers v. Mississippi, 410 U. S. 284 (1973) (holding that a com
bination of erroneous evidentiary rulings rose to the level
of a due process violation). Without explicitly addressing
petitioner’s Chambers argument, the state appellate court
held that the trial court had not abused its discretion in ex
cluding Maples’ testimony under California’s evidentiary
rules, adding that “no possible prejudice” could have re
sulted in light of the “merely cumulative” nature of the testi
mony. People v. Fry, No. A072396 (Ct. App. Cal., 1st App.
Dist., Mar. 30, 2000), App. 97, n. 17. The court did not spec
ify which harmless-error standard it was applying in con
cluding that petitioner suffered “no possible prejudice.”
The Supreme Court of California denied discretionary re
view, and petitioner did not then seek a writ of certiorari
from this Court.
Petitioner next filed a petition for writ of habeas corpus in
the United States District Court for the Eastern District
of California, raising the aforementioned due process claim
(among others). The case was initially assigned to a Magis
trate Judge, who ultimately recommended denying relief.
He found the state appellate court’s failure to recognize error
under Chambers to be “an unreasonable application of
clearly established law as set forth by the Supreme Court,”
App. 180, and disagreed with the state appellate court’s find
ing of “no possible prejudice.” But he nevertheless con
cluded that “there ha[d] been an insufficient showing that
the improper exclusion of the testimony of Ms. Maples had a

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substantial and injurious effect on the jury’s verdict” under
the standard set forth in Brecht. App. 181–182. The Dis
trict Court adopted the Magistrate Judge’s findings and rec
ommendations in full, and a divided panel of the United
States Court of Appeals for the Ninth Circuit affirmed. We
granted certiorari. 549 U. S. 1092 (2006).
II
A
In Chapman, supra, a case that reached this Court on di
rect review of a state-court criminal judgment, we held that
a federal constitutional error can be considered harmless
only if a court is “able to declare a belief that it was harmless
beyond a reasonable doubt.” Id., at 24. In Brecht, supra,
we considered whether the Chapman standard of review ap
plies on collateral review of a state-court criminal judgment
under 28 U. S. C. § 2254. Citing concerns about finality, com
ity, and federalism, we rejected the Chapman standard in
favor of the more forgiving standard of review applied to
nonconstitutional errors on direct appeal from federal convic
tions. See Kotteakos v. United States, 328 U. S. 750 (1946).
Under that standard, an error is harmless unless it “ ‘had
substantial and injurious effect or influence in determin
ing the jury’s verdict.’ ” Brecht, supra, at 631 (quoting
Kotteakos, supra, at 776). The question in this case is
whether a federal court must assess the prejudicial impact
of the unconstitutional exclusion of evidence during a state
court criminal trial under Brecht even if the state appellate
court has not found, as the state appellate court in Brecht
had found, that the error was harmless beyond a reasonable
doubt under Chapman.1
1 As this case comes to the Court, we assume (without deciding) that the
state appellate court’s decision affirming the exclusion of Maples’ testi
mony was an unreasonable application of Chambers v. Mississippi, 410
U. S. 284, 302 (1973). We also assume that the state appellate court did
not determine the harmlessness of the error under the Chapman standard,

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We begin with the Court’s opinion in Brecht. The pri
mary reasons it gave for adopting a less onerous standard on
collateral review of state-court criminal judgments did not
turn on whether the state court itself conducted Chapman
review. The opinion explained that application of Chapman
would “undermin[e] the States’ interest in finality,” 507 U. S.,
at 637; would “infring[e] upon [the States’] sovereignty over
criminal matters,” ibid.; would undercut the historic limita
tion of habeas relief to those “ ‘grievously wronged,’ ” ibid.;
and would “impos[e] significant ‘social costs,’ ” ibid. (quoting
United States v. Mechanik, 475 U. S. 66, 72 (1986)). Since
each of these concerns applies with equal force whether or
not the state court reaches the Chapman question, it would
be illogical to make the standard of review turn upon that
contingency.
The opinion in Brecht clearly assumed that the Kotteakos
standard would apply in virtually all § 2254 cases. It sug
gested an exception only for the “unusual case” in which
“a deliberate and especially egregious error of the trial type,
or one that is combined with a pattern of prosecutorial mis
conduct, . . . infect[s] the integrity of the proceeding.” 507
U. S., at 638, n. 9. This, of course, has nothing to do with
whether the state court conducted harmless-error review.
The concurring and dissenting opinions shared the assump
tion that Kotteakos would almost always be the standard on
collateral review. The former stated in categorical terms
that the “Kotteakos standard” “will now apply on collateral
review” of state convictions, 507 U. S., at 643 (Stevens, J.,
concurring). Justice White’s dissent complained that under
the Court’s opinion Kotteakos would apply even where (as in
this case) the state court found that “no violation had oc
curred,” 507 U. S., at 644; and Justice O’Connor’s dissent
stated that Chapman would “no longer appl[y] to any trial
error asserted on habeas,” 507 U. S., at 651. Later cases
notwithstanding its ambiguous conclusion that the exclusion of Maples’
testimony resulted in “no possible prejudice.”

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also assumed that Brecht’s applicability does not turn on
whether the state appellate court recognized the constitu
tional error and reached the Chapman question. See Penry
v. Johnson, 532 U. S. 782, 795 (2001); Calderon v. Coleman,
525 U. S. 141, 145 (1998) (per curiam).
Petitioner’s contrary position misreads (or at least exag
gerates the significance of) a lone passage from our Brecht
opinion. In that passage, the Court explained:
“State courts are fully qualified to identify constitutional
error and evaluate its prejudicial effect on the trial proc
ess under Chapman, and state courts often occupy a su
perior vantage point from which to evaluate the effect
of trial error. For these reasons, it scarcely seems logi
cal to require federal habeas courts to engage in the
identical approach to harmless-error review that Chap
man requires state courts to engage in on direct re
view.” 507 U. S., at 636 (citation omitted).
But the quoted passage does little to advance petitioner’s
position. To say (a) that since state courts are required to
evaluate constitutional error under Chapman it makes no
sense to establish Chapman as the standard for federal ha
beas review is not at all to say (b) that whenever a state
court fails in its responsibility to apply Chapman the federal
habeas standard must change. It would be foolish to equate
the two, in view of the other weighty reasons given in Brecht
for applying a less onerous standard on collateral review—
reasons having nothing to do with whether the state court
actually applied Chapman.
Petitioner argues that, if Brecht applies whether or not
the state appellate court conducted Chapman review, then
Brecht would apply even if a State eliminated appellate re
view altogether. That is not necessarily so. The federal
habeas review rule applied to the class of case in which state
appellate review is available does not have to be the same
rule applied to the class of case where it is not. We have no

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occasion to resolve that hypothetical (and highly unrealistic)
question now. In the case before us petitioner did obtain
appellate review of his constitutional claim; the state court
simply found the underlying claim weak and therefore did
not measure its prejudicial impact under Chapman. The at
tempted analogy—between (1) eliminating appellate review
altogether and (2) providing appellate review but rejecting a
constitutional claim without assessing its prejudicial impact
under Chapman—is a false one.
Petitioner contends that, even if Brecht adopted a categor
ical rule, post-Brecht developments require a different stand
ard of review. Three years after we decided Brecht, Con
gress passed, and the President signed, the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), under
which a habeas petition may not be granted unless the state
court’s adjudication “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly estab
lished Federal law, as determined by the Supreme Court
of the United States . . . .” 28 U. S. C. § 2254(d)(1). In
Mitchell v. Esparza, 540 U. S. 12 (2003) (per curiam), we
held that, when a state court determines that a constitutional
violation is harmless, a federal court may not award ha
beas relief under § 2254 unless the harmlessness determi
nation itself was unreasonable. Petitioner contends that
§ 2254(d)(1), as interpreted in Esparza, eliminates the re
quirement that a petitioner also satisfy Brecht’s standard.
We think not. That conclusion is not suggested by Esparza,
which had no reason to decide the point. Nor is it suggested
by the text of AEDPA, which sets forth a precondition to
the grant of habeas relief (“a writ of habeas corpus . . . shall
not be granted” unless the conditions of § 2254(d) are met),
not an entitlement to it. Given our frequent recognition
that AEDPA limited rather than expanded the availability
of habeas relief, see, e. g., Williams v. Taylor, 529 U. S. 362,
412 (2000), it is implausible that, without saying so, AEDPA
replaced the Brecht standard of “ ‘actual prejudice,’ ” 507

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U. S., at 637 (quoting United States v. Lane, 474 U. S. 438,
449 (1986)), with the more liberal AEDPA/Chapman stand
ard which requires only that the state court’s harmless
beyond-a-reasonable-doubt determination be unreasonable.
That said, it certainly makes no sense to require formal ap
plication of both tests (AEDPA/Chapman and Brecht) when
the latter obviously subsumes the former. Accordingly, the
Ninth Circuit was correct to apply the Brecht standard of
review in assessing the prejudicial impact of federal consti
tutional error in a state-court criminal trial.2
B
Petitioner argues that, even if Brecht provides the stand
ard of review, we must still reverse the judgment below be
cause the exclusion of Maples’ testimony substantially and
injuriously affected the jury’s verdict in this case. That ar
gument, however, is not fairly encompassed within the ques
tion presented. We granted certiorari to decide a question
that has divided the Courts of Appeals—whether Brecht or
Chapman provides the appropriate standard of review when
constitutional error in a state-court trial is first recognized
by a federal court. Compare, e. g., Bains v. Cambra, 204
F. 3d 964, 976–977 (CA9 2000), with Orndorff v. Lockhart,
998 F. 2d 1426, 1429–1430 (CA8 1993). It is true that the
second sentence of the question presented asks: “Does it
matter which harmless error standard is employed?” Pet.
for Cert. I. But to ask whether Brecht makes any real dif
ference is not to ask whether the Ninth Circuit misapplied
2 We do not agree with petitioner’s amicus that Brecht’s concerns re
garding the finality of state-court criminal judgments and the difficulty of
retrying a defendant years after the crime “have been largely alleviated
by [AEDPA],” which “sets strict time limitations on habeas petitions and
limits second or successive petitions as well.” Brief for Innocence Net
work 7. Even cases governed by AEDPA can span a decade, as the nearly
12-year gap between petitioner’s conviction and the issuance of this deci
sion illustrates.

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Brecht in this particular case. Petitioner seems to have un
derstood this. Only in a brief footnote of his petition did he
hint that the Ninth Circuit erred in its application of the
Brecht standard. Pet. for Cert. 23, n. 19.3 Indeed, if appli
cation of the Brecht standard to the facts of this case were
encompassed within the question presented, so too would be
the question of whether there was constitutional error in the
first place. After all, it would not “matter which harmless
error standard is employed” if there were no underlying con
stitutional error. Unlike the dissenting Justices, some of
whom would reverse the decision below on the ground that
the error was harmful under Brecht, and one of whom would
vacate the decision below on the ground that it is unclear
whether there was constitutional error in the first instance,
we read the question presented to avoid these tangential
and factbound questions, and limit our review to the ques
tion whether Chapman or Brecht provides the governing
standard.
* * *
We hold that in § 2254 proceedings a court must assess
the prejudicial impact of constitutional error in a state-court
criminal trial under the “substantial and injurious effect”
standard set forth in Brecht, supra, whether or not the state
3 The question presented included one additional issue: “[I]f the Brecht
standard applies, does the petitioner or the State bear the burden of per
suasion on the question of prejudice?” Pet. for Cert. I. We have pre
viously held that, when a court is “in virtual equipoise as to the harmless
ness of the error” under the Brecht standard, the court should “treat the
error . . . as if it affected the verdict . . . .” O’Neal v. McAninch, 513
U. S. 432, 435 (1995). The majority opinion below did not refer to O’Neal,
presumably because the majority harbored no grave doubt as to the harm
lessness of the error. Neither did the dissenting judge refer to O’Neal,
presumably because she did not think the majority harbored grave doubt
as to the harmlessness of the error. Moreover, the State has conceded
throughout this § 2254 proceeding that it bears the burden of persuasion.
Thus, there is no basis on which to conclude that the court below ignored
O’Neal.

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appellate court recognized the error and reviewed it for
harmlessness under the “harmless beyond a reasonable
doubt” standard set forth in Chapman, 386 U. S. 18. Since
the Ninth Circuit correctly applied the Brecht standard
rather than the Chapman standard, we affirm the judg
ment below.
It is so ordered.
Justice Stevens, with whom Justice Souter and Jus
tice Ginsburg join, and with whom Justice Breyer joins
in part, concurring in part and dissenting in part.
While I join all of the Court’s opinion except Part II–B,
I am persuaded that we should also answer the question
whether the constitutional error was harmless under the
standard announced in Brecht v. Abrahamson, 507 U. S. 619
(1993). The parties and the Solicitor General as amicus cu
riae fully briefed and argued the question, presumably be
cause it appears to fit within the awkwardly drafted question
that we agreed to review.1 Moreover, our answer to the
question whether the error was harmless would emphasize
the important point that the Brecht standard, as more fully
explained in our opinion in Kotteakos v. United States, 328
U. S. 750 (1946), imposes a significant burden of persuasion
on the State.
Both the history of this litigation and the nature of the
constitutional error involved provide powerful support for
the conclusion that if the jurors had heard the testimony of
Pamela Maples, they would at least have had a reasonable
doubt concerning petitioner’s guilt. Petitioner was not
found guilty until after he had been tried three times. The
1 In Brecht itself the application of the standard of Kotteakos v. United
States, 328 U. S. 750 (1946), to the facts of the case was not even arguably
encompassed within the question presented. We nonetheless found it ap
propriate to rule on whether the error was harmless under that standard.
See Brecht, 507 U. S., at 638 (“All that remains to be decided is whether
petitioner is entitled to relief ”).

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first trial ended in a mistrial with the jury deadlocked 6
to 6. App. 121. The second trial also resulted in a mistrial
due to a deadlocked jury, this time 7 to 5 in favor of convic
tion. Ibid. In the third trial, after the jurors had been de
liberating for 11 days, the foreperson advised the judge that
they were split 7 to 5 and “ ‘hopelessly deadlocked.’ ” Id., at
74–75. When the judge instructed the jury to continue its
deliberations, the foreperson requested clarification on the
definition of “reasonable doubt.” Id., at 75. The jury delib
erated for an additional 23 days after that exchange—a total
of five weeks—before finally returning a guilty verdict.2
It is not surprising that some jurors harbored a reasonable
doubt as to petitioner’s guilt weeks into their deliberations.
The only person to offer eyewitness testimony, a disinter
ested truckdriver, described the killer as a man who was 5�7�
to 5�8� tall, weighed about 140 pounds, and had a full head
of hair. Tr. 4574 (Apr. 26, 1995). Petitioner is 6�2� tall,
weighed 300 pounds at the time of the murder, and is bald.
Record, Doc. No. 13, Exh. L (arrest report); ibid., Exh. M
(petitioner’s driver’s license). Seven different witnesses
linked the killings to a man named Anthony Hurtz, some
testifying that Hurtz had admitted to them that he was in
fact the killer. App. 60–64, 179. Each of those witnesses,
unlike the truckdriver, was impeached by evidence of bias,
either against Hurtz or for petitioner. Id., at 61–64, 73,
179–180.
However, Pamela Maples, a cousin of Hurtz’s who was in
all other respects a disinterested witness, did not testify at
2 According to data compiled by the National Center for State Courts,
the average length of jury deliberations for a capital murder trial in Cali
fornia is 12 hours. See Judge and Attorney Survey (California), State of
the States—Survey of Jury Improvement Efforts (2007), online at http://
www.ncsconline.org/D_research/cjs/xls/SOSJAData/CA_JA_State.xls (as
visited June 8, 2007, and available in Clerk of Court’s case file). Three
days before the jury reached a verdict in this noncapital case, the trial
judge speculated that it was perhaps the longest deliberation in the his
tory of Solano County. Tr. 5315 (June 5, 1995).

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either of petitioner’s first two trials. During the third trial,
she testified out of the presence of the jury that she had
overheard statements by Hurtz that he had committed a dou
ble murder strikingly similar to that witnessed by the truck
driver. As the Magistrate Judge found, the exclusion of Ma
ples’ testimony for lack of foundation was clear constitutional
error under Chambers v. Mississippi, 410 U. S. 284 (1973),
and the State does not argue otherwise.3 Cf. Skipper v.
South Carolina, 476 U. S. 1, 8 (1986) (“The testimony of more
disinterested witnesses . . . would quite naturally be given
much greater weight by the jury”).
Chambers error is by nature prejudicial. We have said
that Chambers “does not stand for the proposition that the
defendant is denied a fair opportunity to defend himself
whenever a state or federal rule excludes favorable evi
dence.” United States v. Scheffer, 523 U. S. 303, 316 (1998).
Rather, due process considerations hold sway over state evi
dentiary rules only when the exclusion of evidence “under
mine[s] fundamental elements of the defendant’s defense.”
Id., at 315. Hence, as a matter of law and logical inference,
it is well-nigh impossible for a reviewing court to conclude
that such error “did not influence the jury, or had but very
slight effect” on its verdict. Kotteakos, 328 U. S., at 764; see
also O’Neal v. McAninch, 513 U. S. 432, 445 (1995) (“[W]hen
a habeas court is in grave doubt as to the harmlessness of an
error that affects substantial rights, it should grant relief ”).
It is difficult to imagine a less appropriate case for an ex
ception to that commonsense proposition. We found in Par
ker v. Gladden, 385 U. S. 363 (1966) (per curiam), that 26
hours of juror deliberations in a murder trial “indicat[ed] a
difference among them as to the guilt of petitioner.” Id., at
365. Here, the jury was deprived of significant evidence of
3 As the Magistrate Judge remarked, “[j]ust how many double execution
style homicides involving a female driver shot in the head and a male
passenger also shot in a parked car could there be in a community proxi
mate to the victims’ murder herein?” App. 179.

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third-party guilt, and still we measure the length of delibera
tions by weeks, not hours. In light of the jurors’ evident
uncertainty, the prospect of rebutting the near-conclusive
presumption that the Chambers error did substantial harm
vanishes completely.4
We have not been shy in emphasizing that federal habeas
courts do not lightly find constitutional error. See Carey v.
Musladin, 549 U. S. 70 (2006). It follows that when they do
find an error, they may not lightly discount its significance.
Rather, a harmlessness finding requires “fair assurance,
after pondering all that happened without stripping the erro
neous action from the whole, that the judgment was not sub
stantially swayed by the error.” Kotteakos, 328 U. S., at
765. Given “all that happened” in this case, and given the
nature of the error, I cannot agree with the Ninth Circuit’s
conclusion that the erroneous exclusion of Maples’ testimony
was harmless under that standard.
Accordingly, I would reverse the judgment of the Court
of Appeals.
4 See United States v. Fields, 483 F. 3d 313, 379 (CA5 2007) (Benavides,
J., dissenting from Part II–A–1 and dissenting in part from the judgment)
(“Courts often have been unwilling to find error harmless where the rec
ord, as in this case, affirmatively shows that the jurors struggled with
their verdict”); Kennedy v. Lockyer, 379 F. 3d 1041, 1056, n. 18 (CA9 2004)
(“From the fact that the first trial ended in a mistrial, as well as the fact
that the jury deliberated for a considerable amount of time in the second
trial, we infer that the question as to [the defendant’s] guilt or innocence
was a close one in both trials”); Powell v. Collins, 332 F. 3d 376, 401 (CA6
2003) (finding prejudicial error in a habeas case in part because the jury
at one point told the court that it was “ ‘at a stalemate’ ”); United States
v. Varoudakis, 233 F. 3d 113, 127 (CA1 2000) (noting, in weighing harmless
ness, that “the jury’s ‘impasse’ note reveals uncertainty about [the defend
ant’s] guilt”); United States v. Ottersburg, 76 F. 3d 137, 140 (CA7 1996)
(“The length of the jury’s deliberations makes clear that this case was not
an easy one”); Medina v. Barnes, 71 F. 3d 363, 369 (CA10 1995) (basing
prejudice determination in a habeas case in part on the fact that “at one
point during their deliberations, the jurors indicated that they might be
unable to reach a unanimous verdict”).

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126 FRY v. PLILER
Opinion of Breyer, J.
Justice Breyer, concurring in part and dissenting in
part.
I agree with the Court that Brecht v. Abrahamson, 507
U. S. 619 (1993), sets forth the proper standard of review.
Cf. id., at 643 (Stevens, J., concurring). At the same time,
I agree with Justice Stevens that we should consider the
application of the standard, that the error was not harmless,
and that “Chambers error is by nature prejudicial.” Ante,
at 124 (opinion concurring in part and dissenting in part)
(citing Chambers v. Mississippi, 410 U. S. 284 (1973)).
Cf. Kyles v. Whitley, 514 U. S. 419, 435 (1995) (similar state
ment as to errors under Brady v. Maryland, 373 U. S. 83
(1963)). Nonetheless, I would remand this case rather than
reversing the Court of Appeals.
My reason arises out of the fact that here, for purposes of
deciding whether Chambers error exists, the question of
harm is inextricably tied to other aspects of the trial court’s
determination. The underlying evidentiary judgment at
issue involved a weighing of the probative value of proffered
evidence against, e. g., its cumulative nature, its tendency to
confuse or to prejudice the jury, or the likelihood that it will
simply waste the jury’s time. See App. 96–97; Cal. Evid.
Code Ann. § 352 (West 1995); cf. Fed. Rule Evid. 403. In
this context, to find a Chambers error a court must take
account both of the way in which (and extent to which) the
trial court misweighed the relevant admissibility factors and
of the extent to which doing so harmed the defendant.
Moreover, to find this kind of error harmless, as the Court
of Appeals found it, should preclude the possibility of a
Chambers error; but to find this kind of error harmful does
not guarantee the contrary. A garden-variety nonharmless
misapplication of evidentiary principles normally will not
rise to the level of a constitutional, Chambers, mistake. Cf.,
e. g., United States v. Scheffer, 523 U. S. 303, 308 (1998).
All this, it seems to me, requires reconsideration by the
Court of Appeals of its Chambers determination. I would

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127 Cite as: 551 U. S. 112 (2007)
Opinion of Breyer, J.
not consider the question whether that exclusion of evidence
amounted to Chambers error because that question is not
before us, see ante, at 116–117, n. 1 (opinion of the Court).
But the logically inseparable question of harm is before us;
and that, I believe, is sufficient.
I would remand the case to the Ninth Circuit so that, tak
ing account of the points Justice Stevens raises, ante, at
122–125, it can reconsider whether there was an error of ad
missibility sufficiently serious to violate Chambers. I there
fore join the Court’s opinion except as to footnote 1 and
Part II–B, and I join Justice Stevens’ opinion in part.