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SG Hammoud Victorious in Argument Before SCOTUS

LANSING – After Michigan Solicitor General Fadwa Hammoud made history last year as the first Arab-American Muslim woman to argue before the U.S. Supreme Court (SCOTUS), the Justices rendered a 6-3 opinion in her favor and in favor of the State’s stance in Brown v. Davenport. 

The opinion was released Thursday morning. The case centers on Ervine Davenport’s 2007 conviction of murder in Kalamazoo County Circuit Court. 

“While this opinion from SCOTUS is a personal and professional achievement of the highest sort for me, it is – more importantly – the proper decision under the law,” Hammoud said. “Today’s Supreme Court decision ensures that state court decisions that determine an error at trial was harmless beyond a reasonable doubt are given the deference and respect they are due – not just in Michigan, but across the country. I remain deeply honored that the State and the Attorney General entrusted me with this argument, and I am humbled by the Justices’ decision.” 

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

“Solicitor General Hammoud remains a critical and effective advocate for our state’s residents and I’m so proud of this victory before SCOTUS,” Nessel said. “Not only does this decision uphold the valid conviction of a murderer and achieve justice for his victims, it also assures that in future cases, our courts’ decisions will be afforded the respect they are entitled to under the law. Congress has forbidden federal courts from substituting their own judgment for the reasonable decisions made by state judges, and this decision reinforces that standard.” 


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 decided 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 Supreme Court of the United States.” The U.S. Supreme Court granted the petition.   

The question before the Supreme Court, which was argued in October, was what the proper test is for a federal habeas court reviewing a constitutional error for harmlessness. Hammoud, on behalf of the State, explained to the High Court that when a state court has decided 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 argued 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. 

In applying the correct standard, the U.S. Supreme Court ruled that the Michigan Court of Appeals did not act unreasonably in finding that the error here was harmless in light of the overwhelming evidence of guilt.

The SCOTUS opinion is available online