Cite as: 507 U. S. 619 (1993)
White, J., dissenting
Allen, 344 U. S. 443, 499-500 (1953) (opinion of Frankfurter, J.). "[T]he prior State determination of a claim under the United States Constitution cannot foreclose consideration of such a claim, else the State court would have the final say which the Congress . . . provided it should not have." Id., at 500.
See also Reed v. Ross, 468 U. S. 1, 10 (1984). As for the "empirical evidence" the majority apparently seeks, I cannot understand its import. Either state courts are faithful to federal law, in which case there is no cost in applying the Chapman as opposed to the Kotteakos standard on collateral review; or they are not, and it is precisely the role of habeas corpus to rectify that situation.
Ultimately, the central question is whether States may detain someone whose conviction was tarnished by a constitutional violation that is not harmless beyond a reasonable doubt. Chapman dictates that they may not; the majority suggests that, so long as direct review has not corrected this error in time, they may. If state courts remain obliged to apply Chapman, and in light of the infrequency with which we grant certiorari, I fail to see how this decision can be reconciled with Congress' intent.
III
Our habeas jurisprudence is taking on the appearance of a confused patchwork in which different constitutional rights are treated according to their status, and in which the same constitutional right is treated differently depending on whether its vindication is sought on direct or collateral review. I believe this picture bears scant resemblance either to Congress' design or to our own precedents. The Court of Appeals having yet to apply Chapman to the facts of this case, I would remand to that court for determination of whether the Doyle violation was harmless beyond a reasonable doubt. I dissent.
649
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