Kamathene Adonia COOPER, Petitioner-Appellant, v. P. Douglas TAYLOR, Warden; T. Travis Medlock, The Attorney General of the State of South Carolina, Respondents-Appellees, 103 F.3d 366

Affirmed by published opinion. Judge NIEMEYER wrote the opinion for the court, in which Chief Judge WILKINSON and Judges RUSSELL, WIDENER, HALL, WILKINS, LUTTIG, and WILLIAMS joined. Judge WIDENER wrote a concurring opinion. Judge LUTTIG wrote a concurring opinion, in which Chief Judge WILKINSON and Judges WIDENER and WILLIAMS joined. Judge HAMILTON wrote a dissenting opinion, in which Judge MURNAGHAN joined. Judge MOTZ wrote a dissenting opinion, in which Judges MURNAGHAN, ERVIN, HAMILTON, and MICHAEL joined.

OPINION NIEMEYER, Circuit Judge: Kamathene Adonia Cooper confessed to South Carolina law enforcement officers on three separate occasions that he had murdered Rheupert W. Stewart in Lake City, South Carolina. After conducting a hearing, the South Carolina trial court found those confessions voluntary and otherwise constitutionally sound. Based on those confessions, a jury convicted Cooper, and the court sentenced him to life imprisonment. The Supreme Court of South Carolina affirmed the judgment.

In his petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254, Cooper argued that his confessions were admitted at his state criminal trial in violation of his right to counsel under the Fifth and Fourteenth Amendments. He contended that police took his confessions without honoring his desire to remain silent or his request for an attorney. Cooper’s habeas petition was referred to a magistrate judge who reviewed the entire record and concluded that Cooper’s first two confessions were voluntary and not otherwise constitutionally infirm.

While finding that Cooper’s third confession had been admitted in violation of his right to counsel under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the magistrate judge held that the state trial court’s erroneous admission of that confession was harmless because the confession was cumulative and the jury would have convicted Cooper solely on his first two valid confessions. Accordingly, the magistrate judge recommended that the district court deny the petition for the writ of habeas corpus.

The district court reviewed the matter de novo and agreed with the magistrate judge, concluding that Cooper’s first two confessions were not constitutionally infirm and that the admission of the third confession in violation of Cooper’s right to counsel was harmless. Accordingly, the.district court denied Cooper’s petition.

On appeal, a panel of this court, in a divided opinion, reversed the district court’s judgment, concluding that admission of the third confession was not harmless because it was “impossible to conclude with any fair assurance” that the third confession did not have a ‘“substantial and injurious effect or influence’ on the jury’s verdict.” Cooper v. Taylor, 70 F.3d 1454, 1456 (4th Cir.1995) (citations omitted). The panel ordered that the district court grant Cooper the writ of habeas corpus. In ordering a rehearing en banc, we vacated the panel decision, and now we affirm the judgment of the district court.

I Rheupert Stewart was found murdered in his home on December 1, 1984. The den where his body was found was in disarray, with pieces of a broken chair scattered about his body. The right rear pocket of his pants had been turned out. An autopsy revealed that Stewart had been beaten with a blunt object and stabbed in the head and chest with a knife. The coroner concluded that Stewart had died the day before from a stab wound to his brain. A few days after Stewart’s body was found, the manager of a local department store informed the police that Cooper had cashed a check drawn on Stewart’s account.

Cooper had written his driver’s license number on the back of what appeared to be a forged cheek. Based on that information, a warrant was issued for Cooper’s arrest. After Cooper was arrested for forgery, officers advised him of his Miranda right and then- asked if he had any questions. He responded, ‘Tes, what forgery?” When custody of Cooper was transferred to other officers, they too advised him of his rights.

Although Cooper did not invoke his right to counsel, he indicated that he did not wish “to make any comments.” Cooper was thereafter taken to the Florence County Sheriffs Department and delivered to Agent Vause. Agent Vause read Cooper his rights a third time and asked him if he wished to take a polygraph examination. Cooper responded affirmatively. On the way to Columbia, South Carolina, where Cooper’s polygraph test was to be conducted, the officers stopped in Lake City to drop off an officer.

While the car was stopped in Lake City, Cooper saw Philip Grimsley, an officer of the State Alcoholic Beverage Commission whom Cooper had known for some time. Cooper said, “There goes Phil. I would like to talk to him.” Cooper informed Grimsley that he had been arrested “for stealing a check and cashing it,” but insisted, “I ain’t killed no man.” Grimsley then asked for and obtained permission from Cooper’s custodial officers to talk to Cooper in private. Before proceeding, Grimsley asked the officers whether Cooper had been advised of his Miranda rights.

When informed that he had, Grimsley returned to the room with Cooper and, nevertheless, read Cooper his rights for a fourth time. Grimsley then asked Cooper if he had anything to say. In response, Cooper indicated only that he had cashed a check in Lake City. According to Grimsley’s account, the following then occurred: [Cooper] became upset. He was nervous. Tears came into his eyes. I could tell there was something definitely bothering him. I asked, him if there was something he needed to say. Something he needed to get off his chest, now was the time to do it.

At this time, he reached over and grabbed my hand and held onto it tightly. And he asked me if I did do it, what would happen to me? What would I get. I looked at him. I asked him, I said you don’t want me to lie to you, do you?' If you killed Mr. Stewart and you’re convicted in Court, you could die in the electric chair or you could receive a life sentence. That would strictly be left up to a judge and jury. At this time, he told me, I did it. Upon hearing Cooper’s admission, Grimsley asked Cooper to be more specific so that he could verify Cooper’s statement.

Although Cooper initially expressed reluctance “to go back through it,” he then continued his confession without interruption. Explaining in detail how he had murdered Stewart, Cooper told Grimsley that he had hit Stewart over the head with a chair and stabbed him in the head and chest. Cooper also agreed to make a taped statement in front of other officers. When the officers in whose custody Cooper was traveling were brought into the room, Agent Vause asked Cooper if he understood his rights as read to him by Officer Grimsley and whether he would talk to the other officers.

Cooper responded that he understood his rights and repeated his confession to those officers. Cooper stated that he had visited Stewart’s home to discuss repairs to the house that the Cooper family rented from Stewart. Cooper also indicated that he had asked Stewart for a basketball. As Stewart bent over to pick up the basketball, Cooper took a chair and hit Stewart over the head with it three times. Cooper also admitted taking Stewart’s checkbook and throwing both the checkbook and the knife he had used to kill Stewart behind a Lake City warehouse.

After confessing twice, Cooper was asked to give yet another confession, this time tape-recorded, which described Stewart’s murder in greater detail. At the outset of this confession, Cooper was asked twice whether he wanted a lawyer present.

He responded, “Yeah.” He was then asked whether he wished to answer “these questions without a lawyer,” and again he responded, “Yeah.” Finally, the following question was posed, “Kamathene, [do] you wish to answer these questions without your attorney present, without an attorney present?” Cooper answered, ‘Tes.” The officers then proceeded to question Cooper without a lawyer present, and Cooper gave a yet more detailed account of the murder, which was later transcribed and signed by Cooper.

At trial, the prosecution presented the first two confessions as well as the signed transcript of Cooper’s taped third confession to the jury. The prosecution also played the tape of the third confession in its entirety. The prosecution relied heavily upon the taped confession and referred to it several times during closing argument. Cooper presented no defense, and the jury convicted Cooper of murder and forgery. II Cooper’s petition for habeas corpus relief under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.

No. 104-132, 110 Stat. 1214 (1996) presents us with the question of whether the state trial court’s decision to admit this third confession into evidence at his murder trial unconstitutionally undermined the reliability of his conviction. The process already afforded Cooper by the State of South Carolina deserves mention. South Carolina authorities have arrested, tried, and convicted Cooper, and that state’s highest court has affirmed his conviction.

We must begin, therefore, with a healthy respect for the state courts’ ability to conduct just trials and to ferret out constitutional error, both at the trial and appellate levels. [Habeas corpus jurisdiction] should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution. Rose v.

Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1201-02, 71 L.Ed.2d 379 (1982) (quoting Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868 (1886)). This respect not only enables the federal and state judicial systems to function with a spirit of cooperation and harmony but also conserves their scarce resources. In the context of these principles of federalism, comity, and finality, there remains a limited role conferred upon federal courts by 28 U.S.C. § 2254: to ensure that persons do not remain in custody because of violations of the United States Constitution or its laws and treaties. See Sherman v.

Smith,' 89 F.3d 1134, 1141 (4th Cir.1996). Unless the defendant’s custodial status exists by reason of a violation of the federal constitution or laws or treaties, federal courts must yield to the state judicial process. See Barefoot v. Estelle, 463 U.S. 880, 887-88,103 S.Ct. 3383, 3391-92, 77 L.Ed.2d 1090 (1983). Thus, before granting the writ of habeas corpus to a petitioner whose state custody resulted from a criminal conviction, we must determine whether the petitioner’s trial violated his federal rights and whether that violation was the cause of his detention, i.e., whether the error was harmful.

Our inquiry into the harmlessness of the alleged constitutional error in this case is whether, in light of the record as a whole, Cooper’s third confession had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); see also Tuggle v. Netherland, 79 F.3d 1386, 1388 (4th Cir.1996) (applying Brecht harmless-error standard to improper admission of testimony).

In order for an error to have a “substantial and injurious effect or influence,” it must have “affected the verdict.” O’Neal v. McAninch, 513 U.S. 432,-, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995). Because juries have a limited number of responses to give in a criminal trial — guilty, innocent, or cannot decide — an error is harmless when the error did not substantially sway or substantially influence the response.

See Brecht, 507 U.S. at 637, 113 S.Ct. at 1721-22 (actual prejudice must be shown); Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248 (jury’s judgment must not have been “substantially swayed by the error”); cf. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993) (in context of Fed.R.Crim.P. 52(b), “prejudicial error” means that it must “have affected the outcome”).

Thus, "if the evidence is not merely sufficient, but so powerful, overwhelming, or cumulative that the error simply could not reasonably be said to have substantially swayed the jury’s judgment, then the error is not harmful. See Sherman, 89 F.3d at 1142 (holding that error was harmless “because it was cumulative of the abundant evidence admitted at trial”); Correll v. Thompson, 63 F.3d 1279, 1291 (4th Cir.1995) (holding that admission of confession, if error, was harmless because evidence against defendant was overwhelming), cert. denied, Correll v. Jabe, — U.S.-, 116 S.Ct. 688,133 L.Ed.2d 593 (1996).

On the other hand, if the federal court is “in grave doubt” about whether the trial érror had a “substantial and injurious effect or influence” on the verdict and therefore finds itself “in virtual equipoise” about the issue, the error is not harmless. O’Neal, 513 U.S. at-, 115 S.Ct. at 994. And the determination of whether trial error substantially and injuriously affected the judgment must be made by the court based on its review of the record. Id. In this case we have no grave doubt about the harmlessness of any error in admitting the third confession.

On the contrary, because the record of evidence made in this case is totally one-sided, we conclude without hesitation that the challenged evidence did not affect or influence the jury’s verdict. By analogy, the jury witnessed the government score 14 runs with its evidence and the defense score none. If, for the sake of argument, we were required to invalidate what we would expect Cooper to characterize as a government grand-slam home run, the remaining 10-0 score would still have left the jury’s verdict the same.

In reaching this inevitable conclusion, we do not conduct any independent assessment of the evidence, nor do we weigh it to determine whether it is sufficient to establish guilt. Rather, when viewing the record as a whole, we simply recognize the obvious power of the two other confessions, together with the other overwhelming evidence of guilt, and conclude that the jury’s verdict of guilty could not have more fairly represented the facts of record.

The record shows that Cooper’s two earlier valid confessions accurately presented at trial the position Cooper voluntarily expressed to the police concerning Rheupert Stewart’s murder: “I did it.” These two confessions also revealed the grisly details of the murder: Cooper went to Stewart’s home to discuss fixing the house that he rented from Stewart; he asked Stewart for a basketball; as Stewart leaned over to pick up the basketball, Cooper took á chair and hit him over the head three times; he stabbed Stewart with the knife in the head and chest; and he took Stewart’s checkbook and threw both the checkbook and knife behind a Lake City warehouse.

Moreover, independent indicia in the record buttressed the reliability of these two valid confessions. Testimony revealed that Cooper initiated the first of his confessions after observing a police officer with whom he had a prior acquaintance. It was Cooper, moreover, who first suggested to the officer that anyone had been killed — Cooper was only being held for forgery.

Furthermore, in his first two confessions, Cooper not only described the broken chair and Stewart’s stab wounds without ever having been given information about the murder scene, he also revealed the location of Stewart’s stolen checkbook and the knife used to kill Stewart. Cooper’s handwriting exemplar and driver’s license number on the back of Stewart’s cheek linked Cooper to Stewart and provided a motive. The independent description of the murder scene provided by the officers and the autopsy evidence concerning the cause of Stewart’s death corroborated Cooper’s confessions.

The inescapable conclusion is that Cooper murdered Stewart. Against that evidence, Cooper offered no evidence of his own, either to contend that his confessions were not voluntary or to cast doubt on his culpability. Indeed, the circumstances that caused the district court to conclude that Cooper’s third confession was inadmissible east no doubt on the trustworthiness of his earlier two confessions. By all accounts, Cooper’s third confession was not coerced or otherwise produced by threats, and its substance provides no reason to doubt the trustworthiness of the first and second confessions.

The dissent would apparently adopt a per se rule that if the trial court were to admit tainted evidence that was important, the verdict automatically would become unreliable and the defendant would have to be tried again. It argues that any important evidence ipso facto has an influence on the verdict, and therefore a new trial would be required in every such case. Continuing with our earlier analogy, the dissent would somehow urge that if the grand-slam home run were disqualified and the resulting score were reduced to 10-0, the guilty verdict is per se adversely affected. That, however, is not the law.

As the court in Brecht admonished, habeas petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice: ” 507 U.S. at 637, 113 S.Ct. at 1722 (citations omitted) (emphasis added). The verdict must have been affected. See O’Neal, 513 U.S. at-, 115 S.Ct. at 994; Sherman, 89 F.3d at 1143; Tuggle, 79 F.3d at 1395; Correll, 63 F.3d at 1292. The dissent’s approach overlooks the requirement that the error be prejudicial and have an actual effect on the outcome of the trial.

The dissent would also ignore the inescapable conclusion that the evidence against Cooper was both overwhelming and one-sided. It states that an analysis which considers whether the evidence was overwhelming “disregards 50 years of precedent establishing the approach for harmless error review.” This observation, however, overlooks the very case that established the review standard for habeas eases.

In finding error harmless in Brecht, the Supreme Court observed about the evidence there, “Moreover, the state’s evidence of guilt was if not overwhelming, certainly weighty.” 507 U.S. at 639, 113 S.Ct. at 1722, And our cases have similarly considered the impact on the jury of overwhelming, or even cumulative, evidence actually presented to the jury. See Sherman, 89 F.3d at 1142 (tainted evidence harmless because it was “cumulative”); Correll, 63 F.3d at 1291 (tainted evidence harmless because evidence of guilt was “overwhelming”).

The dissent would brush aside any analysis of the error’s impact on the verdict and needlessly order a new trial at substantial risk and cost to the public. See Brecht, 507 U.S. at 637, 113 S.Ct. at 1721-22 (expressing concern that absence of harmless error analysis undermines state sovereignty and imposes significant social costs). Under the Brecht standard that applies to this case, we readily conclude that any error in admitting Cooper’s third confession was harmless. And once we set aside any state trial court’s constitutional error as harmless, our task ends.

We then must yield to the state judicial system which convicted Cooper of murder and sentenced him to life in prison. The district court’s judgment is AFFIRMED. . While this case was pending on appeal, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996). Title I of the Act limits the scope of federal collateral review of state convictions and sentences.

We need not decide in this case what additional hurdles Cooper might face under the Act, because, even under the more expansive scope of review under the prior Act, Cooper is not entitled to relief. See e.g., Sherman v. Smith, 89 F.3d 1134, 1142 n. 1 (4th Cir.1996) (en banc). . By assuming arguendo that the third confession was admitted in violation of Edwards, we do not decide that an Edwards violation in fact occurred.