444
Opinion of the Court
to precedent and purpose, would run against the judicial grain.
IV
The State makes one additional argument. It points to language in the habeas corpus statute that says the federal courts
"shall entertain an application for a writ of habeas corpus . . . only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U. S. C. § 2254(a).
See § 2241(c)(3). If a "violation of the Constitution" is harmless, the State adds, then there is no causal connection between "violation" and "custody," and the prisoner is not "in custody in violation of the Constitution." And, by analogy to tort law, the State contends that, because the habeas petitioner is in the position of plaintiff, he must prove this causal connection. Whatever force there may be to this argument is countered by the equally persuasive analogy to affirmative defenses, on which the party in the position of defendant (here the State) bears the risk of equipoise. And, to read the statute as the State suggests would run counter to the principle of Kotteakos that when an error's natural effect is to prejudice substantial rights and the court is in grave doubt about the harmlessness of that error, the error must be treated as if it had a "substantial and injurious effect" on the verdict. See Kotteakos, 328 U. S., at 764-765, 776.
We do not see what in the language of the statute tells a court that it should treat a violation as harmless when it is in grave doubt about its harmlessness. One might as easily infer the opposite—that the statute leaves the matter of harmlessness as a kind of affirmative defense—from the absence, in the Habeas Corpus Rules' form petition, of any space for a "lack of harmlessness" allegation. See 28 U. S. C. § 2254 Rule 2(c) (providing in part that a habeas petition "shall be in substantially the form annexed to these
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