## Facts

- A Michigan jury convicted Erwin Harris in 1999 of two counts of armed robbery and two counts of felony-firearm.
- The trial theory and jury instructions permitted Harris’s felony-firearm convictions on an aiding-and-abetting basis.
- At the time, Michigan law (as stated by the Michigan Supreme Court) limited aiding-and-abetting liability for felony-firearm to situations where the defendant assisted the principal in “obtaining” or “retaining” the firearm.
- Harris received concurrent 10–20 year sentences for armed robbery and concurrent 2-year felony-firearm sentences to be served consecutively.
- Harris filed a federal habeas petition under 28 U.S.C. § 2254 raising, among other claims, a due process challenge to the felony-firearm convictions.
- In 2006, the federal court denied Harris’s insufficiency-of-the-evidence claims and dismissed the due process claim without prejudice for state-court exhaustion.
- After exhausting the due process claim in state court, Harris returned to federal court for merits review of that claim.

## Issues

1. Under AEDPA, whether the state courts’ rejection of Harris’s due process claim was contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or rested on an unreasonable factual determination.
2. Whether due process was violated because Harris’s felony-firearm convictions were permitted on an aiding-and-abetting theory broader than state law at the time, resulting in an unforeseeable expansion of criminal liability that deprived him of fair notice.

## Decision

- The district court granted the § 2254 petition on the due process claim.
- The court held that Harris’s felony-firearm convictions were obtained under a theory of liability that impermissibly departed from the controlling state-law limitation governing aiding and abetting felony-firearm.
- The court concluded that the state courts’ handling of the claim satisfied AEDPA’s threshold for federal relief.
- The court issued a conditional writ requiring the state to correct the constitutional error within a specified time or release Harris from custody on the affected convictions.

## Legal Principles

- Under AEDPA, federal habeas relief may be granted only if the state-court decision is contrary to or an unreasonable application of clearly established Supreme Court law, or is based on an unreasonable determination of the facts.
- Due process requires fair notice of what conduct and theories of liability are criminally punishable; a retroactive, unforeseeable judicial expansion of criminal liability violates that requirement.
- A conviction may violate due process if it rests on a theory of guilt that was not authorized by the controlling state-law construction in effect at the time of the offense and trial.
- When state law clearly limits the elements of liability for an offense, jury instructions and prosecutorial theories that broaden those limits can create a federal due process problem if the broader liability was not reasonably foreseeable.

## Conclusion

The court granted habeas relief because Harris’s felony-firearm convictions were based on an aiding-and-abetting theory that extended beyond the controlling state-law limitation in effect at the time, producing an unforeseeable expansion of criminal liability that violated due process fair-notice requirements under clearly established Supreme Court precedent.


Harris v. Booker, 738 F. Supp. 2d 734 (E.D. Mich. 2010)