446
Thomas, J., dissenting
Where a state prisoner is concerned, a writ of habeas corpus may issue only when that prisoner is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. §§ 2241(c)(3), 2254(a). It is not enough that the habeas petitioner is in custody and that some violation of the Constitution or a federal statute occurred at trial; as amicus curiae the Solicitor General correctly argues, the statute requires a causal link between the violation and the custody. Quite obviously, a habeas petitioner who proves that a trivial ("harmless") error occurred at trial will not secure habeas relief because such an error could not be said to have been a cause of the custody. Notwithstanding the error, the petitioner would have been in custody lawfully and thus relief is unwarranted. Even the majority implicitly agrees that causation is necessary, for otherwise it would have no need to discuss harmful errors as opposed to mere errors.
The habeas petitioner comes to federal court as a plaintiff. Because the plaintiff "seeks to change the present state of affairs," he "naturally should be expected to bear the risk of failure of proof or persuasion." 2 J. Strong, McCormick on Evidence § 337, p. 428 (4th ed. 1992). Part of that burden is the requirement that the plaintiff show that the defendant's actions caused harm. In other areas of the law, the plaintiff almost invariably bears the burden of persuasion with respect to whether the defendant's actions caused harm. See, e. g., Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 669 (1989) (Stevens, J., dissenting) ("In the ordinary civil trial, the plaintiff bears the burden of persuading the trier of fact that the defendant has harmed her"); 2 Restatement (Second) of Torts § 433B(1), p. 441 (1965) ("[T]he burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff"). Establishing causation is thus an essential element of the plaintiff's case in chief. Under the majority's rationale, however, the habeas petitioner need not prove causation at all; once a prisoner
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