On Appeal From the United States District Court For the District of New Jersey (D.C. Civil Action No. 99-cv-03805) District Judge: Honorable William G. Bassler
Before: Alito, Roth and Stapleton, Circuit Judges
The opinion of the court was delivered by: Stapleton, Circuit Judge
In 1990, a New Jersey jury convicted Lester Lewis, the Petitioner in this habeas proceeding, of two counts of first-degree attempted murder, two counts of second-degree aggravated assault, two counts of third-degree aggravated assault with a deadly weapon, and second-degree possession of a firearm with the purpose to use it unlawfully against another. Lewis was sentenced and thereafter exhausted his right to direct appeal in the New Jersey state courts.
In 1994, Lewis's first petition for a writ of habeas corpus to the United States District Court for the District of New Jersey was dismissed for failure to exhaust state remedies. Lewis then petitioned the New Jersey Superior Court for collateral relief. Among other things, Lewis alleged that the state court failed to honor his request that the jury be instructed that it was to draw no adverse inference from Lewis's decision not to testify. The Superior Court denied the petition, finding that the claim should have been raised on direct appeal.
The New Jersey Superior Court, Appellate Division, affirmed the judgment. It first concluded that Lewis was entitled to the requested instruction pursuant to Carter v. Kentucky, 450 U.S. 288 (1981), and that the instruction was not given. The court then noted that the issue had not been raised on direct appeal. It affirmed the denial of relief, however, on the ground that the failure to give the instruction "was not such as to be capable of producing an unjust result." App. at 39. The court observed that Lewis did, in effect, testify at trial because he represented himself and the trial judge gave him wide latitude in presenting his version of events while examining other witnesses and during opening and summation. The court also noted that identity was not a significant issue in this case since Lewis was well known to his victims, who had identified him as their attacker. The New Jersey Supreme Court denied the Appellant's petition for certification.
In 1999, Lewis again unsuccessfully petitioned the United States District Court for the District of New Jersey for habeas corpus relief. Regarding the request for a noadverse-inference instruction, the District Court noted that Lewis was required to fairly present his federal claims in state court in order to satisfy the exhaustion requirement of 28 U.S.C. § 2254. It then concluded that Lewis had only alleged violations of state law. Lewis now appeals the District Court's disposition of his no-adverse-inference claim.
Before us, Respondent contends that Petitioner failed to raise a federal, no-adverse-inference claim in either the state courts or the federal district court. Alternatively, he urges us to conclude that the state court's failure to give the requested instruction was harmless error.
Lewis insists, with some record support, that he raised his federal claim in the state courts as well as in the District Court. The opinion of the New Jersey Superior Court, Appellate Division, can be read as recognizing and resolving a federal claim. That court acknowledged that Lewis was entitled to a no-adverse-inference instruction and cited Carter v. Kentucky in support of that proposition. Carter held that "a state trial judge has the [federal] constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify." 450 U.S. at 305. Additionally, Lewis's petition to the District Court quoted from the portion of the Appellate Division's opinion stating that he had a right to a no-adverse-inference charge under Carter v. Kentucky. He also referenced his "right" to have the judge charge the jury, at his request, that his failure to testify should not be considered a sign of guilt.
We decline to resolve this appeal on exhaustion grounds, deeming it far more efficient to reach the merits of Petitioner's claim and terminate the proceedings on Lewis's Carter claim. If we regard an application for a writ of habeas corpus to be without merit, 28 U.S.C. § 2254(b)(2) affords us the alternative of ignoring any failure to exhaust state remedies and addressing the merits of the petition. Lott v. Coyle, 261 F.3d 594, 608 (6th Cir. 2001). We elect to pursue that course.
"In Carter v. Kentucky, the Court held that the trial court must, at the request of the defendant, instruct the jury that a defendant is not compelled to testify and the fact that he or she does not testify cannot be used as an inference of guilt." United States v. Simmons, 679 F.2d 1042, 1049 (3d Cir. 1982). Neither party disputes that Lewis requested a no-adverse-inference instruction at trial, and that, in violation of Carter, the trial court failed to give such jury instruction. Accordingly, an error of constitutional dimension occurred. Two issues remain, however: (1) was the failure to give a Carter instruction a structural error that requires reversal without regard to its potential for affecting the outcome; and (2) if not, was that failure harmless error in the context of this case.*fn1
In Arizona v. Fulminante, 499 U.S. 279 (1991), the Supreme Court recognized a distinction between structural defects, which require reversal, per se, and trial errors, which require a reviewing court to engage in harmless error analysis. Structural defects are "defects in the constitution of the trial mechanism, which defy analysis by 'harmlesserror' standards." Id. at 309. A structural defect "affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself. Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." Id. at 310 (internal quotations omitted). A trial error, on the other hand, is an "error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." Id. at 307-08. Structural errors have been found in a "very limited class of cases." Johnson v. United States, 520 U.S. 461, 468-69 (1997) (citing precedent finding structural errors for ...