In Stinn v. United States, No. 25-293 (2d Cir. Aug. 17, 2026) (Walker (writing), Sullivan, Bianco), the Second Circuit affirmed the denial of Bradley Stinn’s petition for a writ of error coram nobis, holding as a matter of first impression that harmless-error review on coram nobis is governed by Kotteakos v. United States, 328 U.S. 750, 776 (1946) — whether the error “had substantial and injurious effect or influence in determining the jury’s verdict” — and not by Chapman v. California, 386 U.S. 18, 24 (1967) — whether the error was “harmless beyond a reasonable doubt.” Judge Walker’s opinion adds (with no reasoning) that “[t]he burden of persuasion is on the petitioner.” Slip op. at 16.

Stinn acknowledges that on a § 2255 motion, rather than coram nobis, both the standard of harmlessness and the burden of persuasion on prejudice are open questions in this circuit. Slip op. 14 n.8. And although Stinn conflates the two questions for coram nobis, practitioners should insist that they are distinct and that under O’Neal v. McAninch, 513 U.S. 432, 435-36 (1995) – holding that an error is not harmless on habeas if “the matter is so evenly balanced that [the judge] feels himself in virtual equipoise as to the harmlessness of the error” – the burden of persuasion effectively falls on the Government (as the beneficiary of the error).

Background

Stinn was CEO of Friedman’s Inc., a nationwide jewelry retailer. An indictment charged him with mail fraud, securities fraud, and conspiracy, 18 U.S.C. §§ 1341, 1348, 1349, alleging that he and others falsified accounting data and misrepresented and inflated the company’s financial condition in public reports.

The district court charged two theories of fraud in the disjunctive. Under the traditional theory, the victim was Friedman’s itself. Stinn “planned to obtain or actually obtained money from Friedman’s by materially fraudulent representations”; that is, by inflating the company’s financial situation, he obtained a $352,000 bonus and a $300,000 raise tied to earnings targets. Under the right-to-control theory, the victims were Friedman’s investors: Stinn “intended that other individuals would make investment decisions . . . based on materially fraudulent misrepresentations.” Slip op. at 5.

The jury returned a general verdict of guilty on all counts, giving no indication which theory it used, along with a forfeiture verdict of $1,019,000 that included the bonus and the raise. Stinn received 144 months, three years of supervised release, and roughly $5.5 million in restitution and forfeiture. He lost on direct appeal and on a § 2255 petition, then completed his sentence and his supervision.

In 2023 the Supreme Court held that “the right-to-control theory is not a valid basis for liability.” Ciminelli v. United States, 598 U.S. 306, 309 (2023). Ten months later Stinn petitioned for coram nobis.

Coram nobis requires three showings: (1) “sound reasons . . . for failure to seek appropriate earlier relief”; (2) continuing “legal consequences from his conviction that may be remedied”; and (3) “circumstances compelling [a grant] to achieve justice.” Slip op. at 6-7; see Foont v. United States, 93 F.3d 76, 79 (2d Cir. 1996). The district court found the first two satisfied and denied the motion on the third, holding the instructional error harmless.

The Panel’s Ruling

On appeal, Stinn argued that the district court erred by applying the collateral-review harmlessness test rather than Chapman.

Neither side disputed the Yates error. Where “the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected,” the verdict is “to be set aside.” Yates v. United States, 354 U.S. 298, 312 (1957); slip op. at 11. Such errors “are not structural and are subject to harmlessness review.” Johnson v. United States, 144 F.4th 133, 142 (2d Cir. 2025).

The question is the standard by which harmlessness is gauged. Calling the choice of standard “a question of first impression,” slip op. at 12, the panel concluded that the standard of Kotteakos governed in coram nobis. See id. 12-16. “[W]e hold that a petitioner seeking coram nobis relief must demonstrate that the error had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’” Id. 16.

The panel immediately added: “The burden of persuasion is on the petitioner.” Slip op. at 16.

The operative question is whether a “properly instructed jury would have found” the petitioner guilty absent the invalid instruction. Id. (quoting Colotti v. United States, 71 F.4th 102, 119 (2d Cir. 2023)). Applying that test, the panel pointed to the Government’s repeated trial references to the bonus and raise and to the forfeiture verdict covering both. “[T]here can be no doubt that a properly instructed jury, without recourse to the right-to-control instruction, would have found” Stinn guilty on the traditional theory. Slip op. at 17.

Practitioner’s Notes

Coram nobis is a rare remedy; Stinn’s resolution of a narrow issue within it is not of wide relevance. Nonetheless, two points are worth noting.

First, Stinn’s burden holding contradicts Johnson v. United States, 144 F.4th 133, 142 (2d Cir. 2025), stating in a coram nobis appeal that “under both Chapman and Kotteakos the government bears the burden of persuasion.” 144 F.4th at 143. Stinn in a footnote consigns that to dictum because Johnson also said that the petitioner there would have prevailed “under either standard.” Slip op. at 12 n.7. But Stinn itself found that there was “no doubt” about harmlessness, slip op. at 17, thus rendering its own burden-allocation discussion dictum as well. Touche.

Second, the harmlessness question on § 2255 review is open, and Stinn does not close it. The panel concedes the Circuit has “not yet” decided “what harmless error standard applies in the context of a [section] 2255 proceeding,” even as panels have “in practice, repeatedly turned to Kotteakos” there. Slip op. at 14 n.8 (quoting Tavarez v. United States, 81 F.4th 234, 240 n.8 (2d Cir. 2023)). And although the panel does not explicitly say, who bears the burden of persuasion on harmlessness on § 2255 remains open as well.

Practitioners should argue that O’Neal v. McAninch, 513 U.S. 432 (1995), supplies the answer. O’Neal held that when the judge considering a habeas motion is in “grave doubt” — “the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error” — the error is not harmless “[a]nd, the petitioner must win.” Id. at 435, 436.

This effectively places the burden on the state, but O’Neal refused to use burden language and “deliberately phrase[d] the issue . . . in terms of a judge’s grave doubt, instead of in terms of ‘burden of proof.'” This is because collateral review “does not involve a judge who shifts a ‘burden’ to help control the presentation of evidence at a trial, but rather involves judges who apply a legal standard (harmlessness) to a record that the presentation of evidence is no longer likely to affect.” Id. at 436. Burdens of persuasion allocate the risk of factual uncertainty among parties who can still produce evidence. On collateral review the record is closed, and no allocation changes what either side can put before the court. And it must decide whether the error affected the judgment “without benefit of such aids as presumptions or allocated burdens of proof that expedite fact-finding at the trial.” Id. at 437.

The practical instruction: don’t litigate this as burden allocation. Ask the district court directly whether it is in virtual equipoise as to whether a properly instructed jury would have convicted — and if it is, “it should grant relief.” Id. at 445.