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SG Hammoud to Make History Before SCOTUS

WASHINGTON, D.C. - Michigan Solicitor General Fadwa Hammoud will make history tomorrow as the first Arab-American Muslim woman to argue before the U.S. Supreme Court. She will argue on behalf of the State in Brown v. Davenport.

The case is one of the first the High Court will hear in its October term. A live audio feed will be available on SCOTUS' website tomorrow morning when the argument begins at 10 a.m.

An audio recording will also be available following the argument.

"On a personal level, this is the highlight of my career, and I am deeply honored that the State and the Attorney General have entrusted me with this argument before the highest Court in the land," Hammoud said. "But more importantly, I am passionate about the position the State is asserting-a position that ensures that federal judges, when reviewing a habeas corpus petition, give appropriate respect and deference to our state-court decisions. And here, that means respect and deference, in accordance with congressional intent and Supreme Court precedent, to the eleven Michigan judges who adjudicated Davenport's case."

In addition to this history-making argument, Hammoud became the nation's first Arab-American Muslim Solicitor General when Attorney General Dana Nessel appointed her at the beginning of 2019 to serve as Michigan's 12th Solicitor General.

"I'm incredibly proud to have Solicitor General Fadwa Hammoud appear before the Supreme Court on behalf of my office," Nessel said. "Not just because she's the first Arab-American Muslim woman to argue before the U.S. Supreme Court but also because she's such an effective advocate for the People of Michigan. I look forward to hearing her argument on Tuesday in this watershed case."

Both Hammoud's biography and a headshot is available on the Department of Attorney General's website. Use of the headshot must credit Todd Crespi.

CASE BACKGROUND

In 2007, Ervine Davenport was convicted of murder in Kalamazoo County Circuit Court. He strangled Annette White to death, threw her body in a field, then went to her apartment and stole her property. Davenport later bragged that he "offed" her.

Davenport was shackled at trial and the trial court failed to place on the record the reasons why he was shackled.

The State concedes that was a constitutional error, but it was a harmless error given the evidence of Davenport's guilt was overwhelming.

The case was adjudicated on the merits in state court, which found the shackling error to be harmless beyond a reasonable doubt. Davenport then filed a petition for habeas corpus in the federal district court; that court upheld the state court findings of harmless error in Davenport's case.

Then, in September 2020, a divided panel of the Sixth Circuit Court of Appeals disagreed, reversing the federal district court's denial of habeas corpus relief.

The State filed a petition for certiorari to challenge the Sixth Circuit's decision, arguing that the Sixth Circuit applied the wrong test, and, in doing so, disregarded the standard that Congress embodied in section 2254 of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2254, and that U.S. Supreme Court habeas corpus jurisprudence has underscored: a writ shall not be granted with respect to any claim that was adjudicated on the merits in the state-court proceedings unless the state-court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. The U.S. Supreme Court granted the petition.

The question before the Supreme Court is what the proper test is for a federal habeas court reviewing a constitutional error for harmlessness. The State will explain to the High Court that when a state court has adjudicated a criminal case on the merits, a federal judge on habeas review must give proper deference to the state-court determination prior to granting relief as Congress required when it enacted AEDPA in 1996. The federal judge may not simply substitute his or her own judgment for the judgment of a state court when it is not contrary to or an unreasonable application of federal law.

The State argues that a two-step approach is the proper test: the habeas judge should independently analyze whether the constitutional error at issue had a substantial and injurious effect on the jury verdict, and, in deference to the state court adjudication, must also analyze whether a fair-minded jurist could have agreed that the error was harmless beyond a reasonable doubt. The two tests are distinct, and both are necessary, as supported by U.S. Supreme Court precedent. In this case, contrary to this two-step application, the Sixth Circuit proceeded without giving the necessary deference to our state-court adjudications. The Sixth Circuit did not determine whether a fair-minded jurist could agree with the state courts' conclusions.  And the Sixth Circuit considered its own circuit precedent and extrajudicial sources, which is improper under habeas review.

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