450
Thomas, J., dissenting
that only those challenging "technically" erroneous rulings were so encumbered. See 318 U. S., at 116. Accordingly, most of the Courts of Appeals that have considered the issue place the burden of showing prejudice on the civil appellant, just as Palmer did. See, e. g., Smith v. Wal-Mart Stores (No. 471), 891 F. 2d 1177, 1180 (CA5 1990) (per curiam); United States v. Killough, 848 F. 2d 1523, 1527 (CA11 1988); United States v. Seaboard Surety Co., 817 F. 2d 956, 964 (CA2), cert. denied, 484 U. S. 855 (1987); see also ante, at 440 (citing cases from the Sixth, Eighth, and Tenth Circuits). But see Barth v. Gelb, 2 F. 3d 1180, 1188 (CADC 1993) (quoting the "grave doubt" language of Kotteakos, supra, at 765).
The Court concludes that Palmer and these cases may be disregarded because the federal harmless-error statute, 28 U. S. C. § 2111, makes no distinction between civil and criminal cases; since the rule in the criminal context places the burden of persuasion on the government, the Court decides that the same should be true in the civil context. Ante, at 441-442. But the majority's syllogism could just as easily be turned against the result it reaches. Authority in the civil context assigns the risk of nonpersuasion to the party alleging error, and since the statute draws no distinction between civil and criminal cases, we might just as easily conclude that the civil rule should be followed in the criminal context. The Court's reasoning yields no determinate answer.
As indicated above, however, the harmless-error provisions do not actually apply in habeas cases anyway. We have no occasion to harmonize the harmless-error cases by overruling Palmer and by rejecting the practice that prevails in the majority of the Courts of Appeals that have considered the issue, as the Court does today.
B
The Court's second claim is that its "conclusion is consistent with the basic purposes underlying the writ of habeas corpus." Ante, at 442. As part of its argument, the Court
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