372
Stevens, J., dissenting
ing.2 He did not merely argue that there was no exhaustion because the prisoner had failed to cite the Federal Constitution. Rather, he carefully explained his view that the federal claim differed from the state claim because it was governed by the harmless-error standard in Chapman v. California, 386 U. S. 18 (1967), rather than a California standard similar to Brecht v. Abrahamson, 507 U. S. 619 (1993). I am inclined to believe that the majority had the better of the argument because the Brecht standard would apply in the federal habeas proceeding. But the important point of the dissent is that, like the majority, it correctly perceived the exhaustion question as whether the claim had been fairly presented to the state courts, not whether respondent had attached the correct label.
'trial type' because they 'occurred during the presentation of the case to the jury.' Arizona v. Fulminante, 499 U. S. 279, 307 . . . (1991). Therefore, under the new Brecht harmless error standard, we must inquire whether the testimony had a 'substantial and injurious effect or influence' on the verdict. This standard is similar to the Watson standard used by California courts; under both tests, reversal is required if the error had a significant inculpatory impact. When the California Court of Appeal determined that it was not 'reasonably probable' that Henry would have been acquitted had the Hackett testimony not been introduced (the Watson standard), it effectively determined that the testimony had not had a 'substantial and injurious effect or influence' on the outcome (the Brecht standard).
"Henry has thus made 'essentially the same arguments' before the state and federal courts regarding both the existence of federal constitutional error and the prejudicial impact thereof. We hold that he has exhausted his state post-conviction remedies." 33 F. 3d, at 1040-1042 (footnote omitted).
2 At the end of its opinion, the Court seems to back away from any ironclad labeling requirement by endorsing Judge Brunetti's view that respondent's federal claim was different in important respects from the argument that was presented in state court. If the Court seeks to reverse the Ninth Circuit on these grounds, without overruling the rule of Harless and Picard, much of the language in the Court's opinion is nothing more than unnecessary dicta. The confusion on this critical point is itself a reason to avoid summary disposition of this case.
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