McQuiggin v. Perkins - 12-126 (2013)
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SUPREME COURT OF THE UNITED STATES
GREG McQUIGGIN, WARDEN, PETITIONER v. FLOYD PERKINS
on writ of certiorari to the united states court of appeals for the sixth circuit
[May 28, 2013]
Justice Ginsburg delivered the opinion of the Court.
This case concerns the “actual innocence” gateway to federal habeas review applied in Schlup v. Delo, 513 U. S. 298 (1995) , and further explained in House v. Bell, 547 U. S. 518 (2006) . In those cases, a convincing showing of actual innocence enabled habeas petitioners to overcome a procedural bar to consideration of the merits of their constitutional claims. Here, the question arises in the context of 28 U. S. C. §2244(d)(1), the statute of limitations on federal habeas petitions prescribed in the Antiterrorism and Effective Death Penalty Act of 1996. Specifically, if the petitioner does not file her federal habeas peti- tion, at the latest, within one year of “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” §2244(d)(1)(D), can the time bar be overcome by a convincing showing that she committed no crime?
We hold that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U. S., at 329; see House, 547 U. S., at 538 (emphasizing that the Schlup standard is “demanding” and seldom met). And in making an assessment of the kind Schlup envisioned, “the timing of the [petition]” is a factor bearing on the “reliability of th[e] evidence” purporting to show actual innocence. Schlup, 513 U. S., at 332.
In the instant case, the Sixth Circuit acknowledged that habeas petitioner Perkins (respondent here) had filed his petition after the statute of limitations ran out, and had “failed to diligently pursue his rights.” Order in No. 09–1875, (CA6, Feb. 24, 2010), p. 2 (Certificate of Appealability). Nevertheless, the Court of Appeals reversed the decision of the District Court denying Perkins’ petition, and held that Perkins’ actual-innocence claim allowed him to pursue his habeas petition as if it had been filed on time. 670 F. 3d 665, 670 (2012). The appeals court ap-parently considered a petitioner’s delay irrelevant to ap-praisal of an actual-innocence claim. See ibid.
We vacate the Court of Appeals’ judgment and remand the case. Our opinion clarifies that a federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been re- liably shown. See Brief for Respondent 45 (habeas court “could . . . hold the unjustified delay against the petitioner when making credibility findings as to whether the [actual-innocence] exception has been met”).
On March 4, 1993, respondent Floyd Perkins attended a party in Flint, Michigan, in the company of his friend, Rodney Henderson, and an acquaintance, Damarr Jones. The three men left the party together. Henderson was later discovered on a wooded trail, murdered by stab wounds to his head.
Perkins was charged with the murder of Henderson. At trial, Jones was the key witness for the prosecution. He testified that Perkins alone committed the murder while Jones looked on. App. 55.
Chauncey Vaughn, a friend of Perkins and Henderson, testified that, prior to the murder, Perkins had told him he would kill Henderson, id., at 39, and that Perkins later called Vaughn, confessing to his commission of the crime. Id., at 36–38. A third witness, Torriano Player, also a friend of both Perkins and Henderson, testified that Perkins told him, had he known how Player felt about Henderson, he would not have killed Henderson. Id., at 74.
Perkins, testifying in his own defense, offered a different account of the episode. He testified that he left Hender-son and Jones to purchase cigarettes at a convenience store. When he exited the store, Perkins related, Jones and Henderson were gone. Id., at 84. Perkins said that he then visited his girlfriend. Id., at 87. About an hour later, Perkins recalled, he saw Jones standing under a streetlight with blood on his pants, shoes, and plaid coat. Id., at 90.
The jury convicted Perkins of first-degree murder. He was sentenced to life in prison without the possibility of parole on October 27, 1993. The Michigan Court of Appeals affirmed Perkins’ conviction and sentence, and the Michigan Supreme Court denied Perkins leave to appeal on January 31, 1997. Perkins’ conviction became final on May 5, 1997.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110Stat. 1214, a state prisoner ordinarily has one year to file a federal petition for habeas corpus, starting from “the date on which the judgment became final by the conclusion of direct review or the ex-piration of the time for seeking such review.” 28 U. S. C. §2244(d)(1)(A). If the petition alleges newly discovered evidence, however, the filing deadline is one year from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” §2244(d)(1)(D).
Perkins filed his federal habeas corpus petition on June 13, 2008, more than 11 years after his conviction became final. He alleged, inter alia, ineffective assistance on the part of his trial attorney, depriving him of his Sixth Amendment right to competent counsel. To overcome AEDPA’s time limitations, Perkins asserted newly discovered evidence of actual innocence. He relied on three affidavits, each pointing to Jones, not Perkins, as Henderson’s murderer.
The first affidavit, dated January 30, 1997, was submitted by Perkins’ sister, Ronda Hudson. Hudson stated that she had heard from a third party, Louis Ford, that Jones bragged about stabbing Henderson and had taken his clothes to the cleaners after the murder. App. to Pet. for Cert. 54a–55a. The second affidavit, dated March 16, 1999, was subscribed to by Demond Louis, Chauncey Vaughn’s younger brother. Louis stated that, on the night of the murder, Jones confessed to him that he had just killed Henderson. Louis also described the clothes Jones wore that night, bloodstained orange shoes and orange pants, and a colorful shirt. Id., at 50a–53a. The next day, Louis added, he accompanied Jones, first to a dumpster where Jones disposed of the bloodstained shoes, and then to the cleaners. Finally, Perkins presented the July 16, 2002 affidavit of Linda Fleming, an employee at Pro-Clean Cleaners in 1993. She stated that, on or about March 4, 1993, a man matching Jones’s description entered the shop and asked her whether bloodstains could be removed from the pants and a shirt he brought in. The pants were orange, she recalled, and heavily stained with blood, as was the multicolored shirt left for cleaning along with the pants. Id., at 48a–49a.
The District Court found the affidavits insufficient to entitle Perkins to habeas relief. Characterizing the affidavits as newly discovered evidence was “dubious,” the District Court observed, in light of what Perkins knew about the underlying facts at the time of trial. Id., at 29a. But even assuming qualification of the affidavits as evidence newly discovered, the District Court next explained, “[Perkins’] petition [was] untimely under §2244(d)(1)(D).” Ibid. “[If] the statute of limitations began to run as of the date of the latest of th[e] affidavits, July 16, 2002,” the District Court noted, then “absent tolling, [Perkins] had until July 16, 2003 in which to file his habeas petition.” Ibid. Perkins, however, did not file until nearly five years later, on June 13, 2008.
Under Sixth Circuit precedent, the District Court stated, “a habeas petitioner who demonstrates a credible claim of actual innocence based on new evidence may, in ex-ceptional circumstances, be entitled to equitable tolling of habeas limitations.” Id., at 30a. But Perkins had not established exceptional circumstances, the District Court determined. In any event, the District Court observed, equitable tolling requires diligence and Perkins “ha[d] failed utterly to demonstrate the necessary diligence in exercising his rights.” Id., at 31a. Alternatively, the Dis-trict Court found that Perkins had failed to meet the strict standard by which pleas of actual innocence are mea-sured: He had not shown that, taking account of all the evidence, “it is more likely than not that no reasonable juror would have convicted him,” or even that the evidence was new. Id., at 30a–31a.
Perkins appealed the District Court’s judgment. Al-though recognizing that AEDPA’s statute of limitations had expired and that Perkins had not diligently pursued his rights, the Sixth Circuit granted a certificate of appealability limited to a single question: Is reasonable diligence a precondition to relying on actual innocence as a gateway to adjudication of a federal habeas petition on the merits? Certificate of Appealability 2–3.
On consideration of the certified question, the Court of Appeals reversed the District Court’s judgment. Adhering to Circuit precedent, Souter v. Jones, 395 F. 3d 577, 597–602 (2005), the Sixth Circuit held that Perkins’ gateway actual-innocence allegations allowed him to present his ineffective-assistance-of-counsel claim as if it were filed on time. On remand, the Court of Appeals instructed, “the [D]istrict [C]ourt [should] fully consider whether Perkins assert[ed] a credible claim of actual innocence.” 670 F. 3d, at 676.
We granted certiorari to resolve a Circuit conflict on whether AEDPA’s statute of limitations can be overcome by a showing of actual innocence. 568 U. S. ___ (2012). Compare, e.g., San Martin v. McNeil, 633 F. 3d 1257, 1267–1268 (CA11 2011) (“A court . . . may consider an untimely §2254 petition if, by refusing to consider the petition for untimeliness, the court thereby would endorse a ‘fundamental miscarriage of justice’ because it would require that an individual who is actually innocent remain imprisoned.”), with, e.g., Escamilla v. Jungwirth, 426 F. 3d 868, 871–872 (CA7 2005) (“Prisoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action.”). See also Rivas v. Fischer, 687 F. 3d 514, 548 (CA2 2012) (collecting cases).
In Holland v. Florida, 560 U. S. ___ (2010), this Court addressed the circumstances in which a federal habeas petitioner could invoke the doctrine of “equitable tolling.” Holland held that “a [habeas] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id., at ___ (slip op., at 16–17) (internal quotation marks omitted). As the courts below comprehended, Perkins does not qualify for equitable tolling. In possession of all three affidavits by July 2002, he waited nearly six years to seek federal postconviction relief. “Such a delay falls far short of demonstrating the . . . diligence” required to entitle a petitioner to equitable tolling. App. to Pet. for Cert. 31a (District Court opinion). See also Certificate of Appealability 2.
Perkins, however, asserts not an excuse for filing after the statute of limitations has run. Instead, he maintains that a plea of actual innocence can overcome AEDPA’s one-year statute of limitations. He thus seeks an equi-table exception to §2244(d)(1), not an extension of the time statutorily prescribed. See Rivas, 687 F. 3d, at 547, n. 42 (distinguishing from “equitable tolling” a plea to override the statute of limitations when actual innocence is shown).
Decisions of this Court support Perkins’ view of the significance of a convincing actual-innocence claim. We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence. Herrera v. Collins, 506 U. S. 390 –405 (1993). We have recognized, however, that a prisoner “otherwise subject to defenses of abusive or successive use of the writ [of habeas corpus] may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence.” Id., at 404 (citing Sawyer v. Whitley, 505 U. S. 333 (1992) ). See also Murray v. Carrier, 477 U. S. 478, 496 (1986) (“[W]e think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.”). In other words, a credible showing of actual innocence may allow a prisoner to pursue his constitu-tional claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence of a procedural bar to relief. “This rule, or fundamental miscarriage of justice exception, is grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera, 506 U. S., at 404.
We have applied the miscarriage of justice exception to overcome various procedural defaults. These include “successive” petitions asserting previously rejected claims, see Kuhlmann v. Wilson, 477 U. S. 436, 454 (1986) (plurality opinion), “abusive” petitions asserting in a second petition claims that could have been raised in a first petition, see McCleskey v. Zant, 499 U. S. 467 –495 (1991), failure to develop facts in state court, see Keeney v. Tamayo-Reyes, 504 U. S. 1 –12 (1992), and failure to observe state procedural rules, including filing deadlines, see Coleman v. Thompson, 501 U. S. 722, 750 (1991) ; Carrier, 477 U. S., at 495–496.
The miscarriage of justice exception, our decisions bear out, survived AEDPA’s passage. In Calderon v. Thompson, 523 U. S. 538 (1998) , we applied the exception to hold that a federal court may, consistent with AEDPA, recall its mandate in order to revisit the merits of a decision. Id., at 558 (“The miscarriage of justice standard is altogether consistent . . . with AEDPA’s central concern that the merits of concluded criminal proceedings not be revisited in the absence of a strong showing of actual innocence.”). In Bousley v. United States, 523 U. S. 614, 622 (1998) , we held, in the context of §2255, that actual in-nocence may overcome a prisoner’s failure to raise a constitutional objection on direct review. Most recently, in House, we reiterated that a prisoner’s proof of actual innocence may provide a gateway for federal habeas review of a procedurally defaulted claim of constitutional error. 547 U. S., at 537–538.
These decisions “see[k] to balance the societal interests in finality, comity, and conservation of scarce judicial re-sources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U. S., at 324. Sensitivity to the injustice of incarcerating an innocent individual should not abate when the impediment is AEDPA’s statute of limitations.
As just noted, see supra, at 8, we have held that the miscarriage of justice exception applies to state procedural rules, including filing deadlines. Coleman, 501 U. S., at 750. A federal court may invoke the miscarriage of justice exception to justify consideration of claims defaulted in state court under state timeliness rules. See ibid. The State’s reading of AEDPA’s time prescription would thus accord greater force to a federal deadline than to a simi-larly designed state deadline. It would be passing strange to interpret a statute seeking to promote federalism and comity as requiring stricter enforcement of federal procedural rules than procedural rules established and enforced by the States.
The State ties to §2244(d)’s text its insistence that AEDPA’s statute of limitations precludes courts from considering late-filed actual-innocence gateway claims. “Section 2244(d)(1)(D),” the State contends, “forecloses any argument that a habeas petitioner has unlimited time to present new evidence in support of a constitutional claim.” Brief for Petitioner 17. That is so, the State maintains, because AEDPA prescribes a comprehensive system for determining when its one-year limitations period begins to run. “Included within that system,” the State observes, “is a specific trigger for the precise circumstance presented here: a constitutional claim based on new evidence.” Ibid. Section 2244(d)(1)(D) runs the clock from “the date on which the factual predicate of the claim . . . could have been discovered through the exercise of due diligence.” In light of that provision, the State urges, “there is no need for the courts to act in equity to provide additional time for persons who allege actual innocence as a gateway to their claims of constitutional error.” Ibid. Perkins’ request for an equitable exception to the statute of limitations, the State charges, would “rende[r] superfluous this carefully scripted scheme.” Id., at 18.
The State’s argument in this regard bears blinders. AEDPA’s time limitations apply to the typical case in which no allegation of actual innocence is made. The miscarriage of justice exception, we underscore, applies to a severely confined category: cases in which new evidence shows “it is more likely than not that no reasonable ju- ror would have convicted [the petitioner].” Schlup, 513 U. S., at 329 (internal quotation marks omitted). Section 2244(d)(1)(D) is both modestly more stringent (because it requires diligence) and dramatically less stringent (because it requires no showing of innocence). Many petitions that could not pass through the actual-innocence gateway will be timely or not measured by §2244(d)(1)(D)’s triggering provision. That provision, in short, will hardly be rendered superfluous by recognition of the miscarriage of justice exception.
The State further relies on provisions of AEDPA other than §2244(d)(1)(D), namely, §§2244(b)(2)(B) and 2254(e) (2), to urge that Congress knew how to incorporate the miscarriage of justice exception when it was so minded. Section 2244(b)(2)(B), the State observes, provides that a petitioner whose first federal habeas petition has already been adjudicated when new evidence comes to light may file a second-or-successive petition when, and only when, the facts underlying the new claim would “es-tablish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” §2244(b)(2)(B)(ii). And §2254(e)(2), which generally bars evidentiary hearings in federal habeas proceedings ini-tiated by state prisoners, includes an exception for pris-oners who present new evidence of their innocence. See §§2254(e)(2)(A)(ii), (B) (permitting evidentiary hearings in federal court if “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”).
But Congress did not simply incorporate the miscarriage of justice exception into §§2244(b)(2)(B) and 2254(e)(2). Rather, Congress constrained the application of the exception. Prior to AEDPA’s enactment, a court could grant relief on a second-or-successive petition, then known as an “abusive” petition, if the petitioner could show that “a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey, 499 U. S., at 495. Section 2244(b)(2)(B) limits the exception to cases in which “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and the petitioner can establish that no reasonable factfinder “would have found [her] guilty of the underlying offense” by “clear and convincing evidence.” Congress thus required second-or-successive habeas petitioners attempting to benefit from the miscarriage of justice exception to meet a higher level of proof (“clear and convincing evidence”) and to satisfy a diligence requirement that did not exist prior to AEDPA’s passage.
Likewise, petitioners asserting actual innocence pre-AEDPA could obtain evidentiary hearings in federal court even if they failed to develop facts in state court. See Keeney, 504 U. S., at 12 (“A habeas petitioner’s failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing.”). Under AEDPA, a petitioner seeking an evidentiary hearing must show diligence and, in addition, establish her actual innocence by clear and convincing evidence. §§2254(e)(2)(A)(ii), (B).
Sections 2244(b)(2)(B) and 2254(e)(2) thus reflect Congress’ will to modify the miscarriage of justice exception with respect to second-or-successive petitions and the hold-ing of evidentiary hearings in federal court. These pro-visions do not demonstrate Congress’ intent to preclude courts from applying the exception, unmodified, to “the type of petition at issue here”—an untimely first federal habeas petition alleging a gateway actual-innocence claim. House, 547 U. S., at 539. [ 1 ] The more rational inference to draw from Congress’ incorporation of a modified version of the miscarriage of justice exception in §§2244(b)(2)(B) and 2254(e)(2) is simply this: In a case not governed by those provisions, i.e., a first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA’s passage intact and unrestricted. [ 2 ]
Our reading of the statute is supported by the Court’s opinion in Holland. “[E]quitable principles have traditionally governed the substantive law of habeas corpus,” Holland reminded, and affirmed that “we will not construe a statute to displace courts’ traditional equitable authority absent the clearest command.” 560 U. S., at ___ (slip op., at 13) (internal quotation marks omitted). The text of §2244(d)(1) contains no clear command countering the courts’ equitable authority to invoke the miscarriage of justice exception to overcome expiration of the statute of limitations governing a first federal habeas petition. As we observed in Holland,
“AEDPA seeks to eliminate delays in the federal habeas review process. But AEDPA seeks to do so without undermining basic habeas corpus principles and while seeking to harmonize the new statute with prior law . . . . When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the writ of habeas corpus plays a vital role in protecting constitutional rights.” Id., at ___ (slip op., at 16) (citations
and internal quotation marks omitted). [ 3 ]
Having rejected the State’s argument that §2244(d) (1)(D) precludes a court from entertaining an un- timely first federal habeas petition raising a convincing claim of actual innocence, we turn to the State’s further objection to the Sixth Circuit’s opinion. Even if a habeas petitioner asserting a credible claim of actual innocence may overcome AEDPA’s statute of limitations, the State argues, the Court of Appeals erred in finding that no threshold diligence requirement at all applies to Perkins’ petition.
While formally distinct from its argument that §2244(d)(1)(D)’s text forecloses a late-filed claim alleging actual innocence, the State’s contention makes scant sense. Section 2244(d)(1)(D) requires a habeas petitioner to file a claim within one year of the time in which new evidence “could have been discovered through the exercise of due diligence.” It would be bizarre to hold that a habeas
petitioner who asserts a convincing claim of actual innocence may overcome the statutory time bar §2244(d)(1)(D) erects, yet simultaneously encounter a court-fashioned diligence barrier to pursuit of her petition. See 670 F. 3d, at 673 (“Requiring reasonable diligence effectively makes the concept of the actual innocence gateway redundant, since petitioners . . . seek [an equitable exception only] when they were not reasonably diligent in complying with §2244(d)(1)(D).”).
While we reject the State’s argument that habeas petitioners who assert convincing actual-innocence claims must prove diligence to cross a federal court’s threshold, we hold that the Sixth Circuit erred to the extent that it eliminated timing as a factor relevant in evaluating the reliability of a petitioner’s proof of innocence. To invoke the miscarriage of justice exception to AEDPA’s statute of limitations, we repeat, a petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup, 513 U. S., at 327. Unexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing. Perkins so acknowl-edges. See Brief for Respondent 52 (unjustified delay may figure in determining “whether a petitioner has made a sufficient showing of innocence”). As we stated in Schlup, “[a] court may consider how the timing of the submission and the likely credibility of [a petitioner’s] affiants bear on the probable reliability of . . . evidence [of actual innocence].” 513 U. S., at 332. See also House, 547 U. S., at 537.
Considering a petitioner’s diligence, not discretely, but as part of the assessment whether actual innocence has been convincingly shown, attends to the State’s concern that it will be prejudiced by a prisoner’s untoward delay in proffering new evidence. The State fears that a prisoner might “lie in wait and use stale evidence to collaterally
attack his conviction . . . when an elderly witness has died and cannot appear at a hearing to rebut new evidence.” Brief for Petitioner 25. The timing of such a petition, however, should seriously undermine the credibility of the actual-innocence claim. Moreover, the deceased witness’ prior testimony, which would have been subject to cross-examination, could be introduced in the event of a new trial. See Crawford v. Washington, 541 U. S. 36 –54 (2004) (recognizing exception to the Confrontation Clause where witness is unavailable and the defendant had a prior opportunity for cross-examination). And frivolous petitions should occasion instant dismissal. See 28 U. S. C. §2254 Rule 4. Focusing on the merits of a petitioner’s actual-innocence claim and taking account of delay in that context, rather than treating timeliness as a threshold inquiry, is tuned to the rationale underlying the miscarriage of justice exception—i.e., ensuring “that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera, 506 U. S., at 404. [ 4 ]
We now return to the case at hand. The District Court proceeded properly in first determining that Perkins’ claim was filed well beyond AEDPA’s limitations period and that equitable tolling was unavailable to Perkins because he could demonstrate neither exceptional circumstances nor diligence. See supra, at 5. The District Court then found that Perkins’ alleged newly discovered evidence, i.e., the information contained in the three affidavits, was “substantially available to [Perkins] at trial.”
App. to Pet. for Cert. 31a. Moreover, the proffered evidence, even if “new,” was hardly adequate to show that, had it been presented at trial, no reasonable juror would have convicted Perkins. Id., at 30a–31a.
The Sixth Circuit granted a certificate of appealability limited to the question whether reasonable diligence is a precondition to reliance on actual innocence as a gateway to adjudication of a federal habeas petition on the merits. We have explained that untimeliness, although not an unyielding ground for dismissal of a petition, does bear on the credibility of evidence proffered to show actual innocence. On remand, the District Court’s appraisal of Perkins’ petition as insufficient to meet Schlup’s actual-innocence standard should be dispositive, absent cause, which we do not currently see, for the Sixth Circuit to upset that evaluation. We stress once again that the Schlup standard is demanding. The gateway should open only when a petition presents “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” 513 U. S., at 316.
* * *
For the reasons stated, the judgment of the Sixth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.