Whether the preservation rule applies to the State's forfeiture of harmlessness in AEDPA cases

QUESTIONS PRESENTED After unanimously concluding that a clearly established violation of the Confrontation Clause warranted habeas relief, the Fifth Circuit panel reversed its own decision to hold, over a powerful dissent, that the constitutional violation was harmless—an issue that the State conceded it forfeited, having not been raised below or properly briefed on appeal. The panel decided the issue of harmlessness in the first instance without consideration of any extraordinary or compelling circumstances that warrant ignoring the well-established preservation rule, a bedrock principle of our adversary system. Even in AEDPA cases, “a federal court does not have carte blanche to depart from the principle of party preservation basic to our adversary system” and should do so only “when extraordinary circumstances so warrant.” Wood v. Milyard, 566 U.S. 463, 466, 472 (2012) (citing Day v. McDonough, 547 U.S. 198, 201 (2006)). But the Fifth Circuit, contrary to the precedent of this Court and every other circuit that has considered the issue, adopted a categorical, extratextual rule in favor of forgiving state forfeiture of harmlessness in AEDPA cases. The Fifth Circuit then applied standard to this fact-intensive issue, weighing the constitutionally permissible evidence and making credibility determinations, rather than assessing whether the error—the admission of an out-of-court accomplice confession in violation of the Confrontation Clause—“had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1998). The questions presented are: ii Whether, as concluded by every circuit that has considered the issue, the preservation rule applies to the State’s forfeiture of harmlessness in AEDPA cases absent some threshold finding of extraordinary or compelling circumstances. Whether the Fifth Circuit misapplied the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993), when, performing the fact-intensive harmlessness analysis in the first instance and without the benefit of adversary briefing, the court assessed only the sufficiency of the evidence apart from the violative confession rather than the impact of the Confrontation Clause violation itself.