Cite as: 513 U. S. 432 (1995)
Thomas, J., dissenting
a judge, after a thorough review of the record, remains in equipoise. See ante, at 435.
The rule has such limited application that it most likely will have no effect on this case. The majority suggests that O'Neal "might have lost in the Court of Appeals, not because the judges concluded that [any supposed] error was harmless, but because the record of the trial left them in grave doubt about the effect of the error." Ante, at 436. The Sixth Circuit did observe that "[t]he habeas petitioner bears the burden of establishing . . . prejudice." O'Neal v. Morris, 3 F. 3d 143, 145 (1993). But the Court of Appeals did not refer again to this burden and did not appear to rely on it in reaching a decision. See id., at 147. That we chose this case to establish a "grave doubt" rule is telling: Cases in which habeas courts are in equipoise on the issue of harmlessness are astonishingly rare.
Though the question that the Court decides today will have very limited application, I believe that the Court gives the wrong answer to that question.
Accordingly, I respectfully dissent.
453
Page: Index Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22Last modified: October 4, 2007