United States Court of Appeals,

Eleventh Circuit.

No. 94-2772.

Frank Elijah SMITH, Petitioner-Appellee,

v.

Harry K. SINGLETARY, Respondent-Appellant.

Aug. 1, 1995.

Appeal from the United States District Court for the Northern

District of Florida. (No. TCA-90-40035-WS), William Stafford, Chief

Judge.

Before TJOFLAT, Chief Judge, HATCHETT and EDMONDSON, Circuit

Judges.

PER CURIAM:

In this capital case, the sentencing court violated Hitchcock

v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

This appeal requires us to determine whether this error was

harmless under the standard articulated in Brecht v. Abrahamson, --

- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 1710 (1993). We affirm

the district court's determination that the error was not harmless

under the Brecht standard.

FACTS

On December 12, 1978, appellee, Frank Elijah Smith, and two

accomplices, Johnny Copeland and Victor Hall, robbed a convenience

store in Wakulla County, Florida. They also abducted the store

clerk, took her to a motel, and sexually assaulted her. They then

drove the clerk to a wooded area. Smith and Copeland took the

clerk into the woods while Hall waited in the car. While waiting,

Hall heard three gunshots. Copeland and Smith then returned to the

car without the clerk. Two days later, the clerk's body was found
with three bullet wounds in the back of her head.

PROCEDURAL HISTORY

A Florida jury found Smith guilty of first-degree murder and

recommended the death penalty. In accordance with the jury's

recommendation, the court sentenced Smith to death on the basis of

six aggravating factors: (1) that he had two prior convictions for

violent felonies; (2) that he committed the murder in the course

of a kidnapping; (3) that he committed the murder to avoid arrest;

(4) that he committed the murder for pecuniary gain; (5) that the

murder was heinous, atrocious, and cruel; and (6) that the murder

was cold, calculated, and premeditated. The court found only one

mitigating factor: Smith was nineteen years old when he committed

the crime.

Smith's conviction and death sentence were affirmed on direct

appeal, and the United States Supreme Court denied his petition for

a writ of certiorari. Smith v. State, 424 So.2d 726 (Fla.1982),

cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379

(1983). Smith then commenced his first habeas corpus petition,

which was denied in both state and federal court. Smith v. State,

457 So.2d 1380 (Fla.1984); Smith v. Dugger, 840 F.2d 787 (11th

Cir.1988). Smith, however, filed a petition for rehearing with

this court. This court denied Smith's petition without prejudice

so that he could present an unexhausted Hitchcock claim to the

Florida courts. Smith v. Dugger, 888 F.2d 94 (11th Cir.1989).

On July 31, 1989, Smith filed a second habeas corpus petition

in state court. A Florida trial court found all of Smith's claims

to be procedurally barred, with the exception of his Hitchcock
claim, which it denied on the merits. On appeal, the Florida

Supreme Court held that the sentencing court had committed a

Hitchcock error, but that under the standard articulated in Chapman

v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),

the error was harmless. Smith v. State, 556 So.2d 1096 (Fla.1990).

Smith then filed a petition in the district court. The

district court agreed that the sentencing court had committed a

Hitchcock error, but disagreed with the Florida Supreme Court's

determination that the error was harmless; instead, the district

court granted Smith relief on his Hitchcock claim because it found

that the error was not harmless under Chapman. Smith v. Dugger,

758 F.Supp. 688 (N.D.Fla.1990). This court affirmed. Smith v.

Singletary, 970 F.2d 766 (11th Cir.1992).

The state then petitioned for a writ of certiorari. On April

26, 1993, the Supreme Court granted the state's petition and

remanded the case for reconsideration in light of Brecht, which it

had recently decided. Singletary v. Smith, --- U.S. ----, 113

S.Ct. 1940, 123 L.Ed.2d 646 (1993). On remand, the district court,

applying Brecht, again determined that the Hitchcock error was not

harmless. The state now appeals the district court's decision.

ISSUE

The only issue on appeal is whether the sentencing court's

Hitchcock error was harmless under the Brecht standard.

DISCUSSION

"[I]n capital cases, "the sentencer' may not refuse to

consider or "be precluded from considering' any relevant mitigating

evidence." Hitchcock, 481 U.S. at 394, 107 S.Ct. at 1822 (quoting
Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 1671, 90

L.Ed.2d 1 (1986)). The state concedes that the sentencing court

committed a Hitchcock error in this case.

 "Harmless error is a mixed question of law and fact subject

to de novo review." Bonner v. Holt, 26 F.3d 1081, 1083 (11th

Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1328, 131 L.Ed.2d

207 (1995). While this court has plenary review of the ultimate

determination of whether an error is harmless, we will only review

the findings of fact which underlie that determination for clear

error. See Stano v. Butterworth, 51 F.3d 942, 944 (11th Cir.1995)

(" "[U]ltimate' determination of ... a mixed question of law and

fact ... is subject to de novo review[, but "w]e will not disregard

or overturn findings of fact made by the district court unless they

are clearly erroneous.' ") (quoting Jurek v. Estelle, 623 F.2d 929,

932 (5th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68

L.Ed.2d 203 (1981)); Smith v. White, 815 F.2d 1401, 1407 (11th

Cir.) ("[A] federal district court's ultimate legal conclusion ...

is subject to independent review by an appellate court in a habeas

action, although subsidiary factual findings by the district court

are conclusive unless clearly erroneous."), cert. denied, 484 U.S.

863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987).

 In determining whether a Hitchcock error is harmless, a

habeas corpus court must consider both the mitigating evidence

presented at sentencing as well as mitigating evidence that could

have been presented, but which "the state trial court prevented the

petitioner from presenting." Aldridge v. Dugger, 925 F.2d 1320,

1329 (11th Cir.1991). In other words, a habeas corpus court must
consider all potential mitigating evidence that would have been

presented, but for the Hitchcock error. See Booker v. Dugger, 922

F.2d 633, 636 (11th Cir.), cert. denied, 502 U.S. 900, 112 S.Ct.

277, 116 L.Ed.2d 228 (1991). In determining whether potential

mitigating evidence would have been presented, a district court

will usually have to weigh "post-trial affidavits or testimony of

trial counsel and other witnesses and proffers of nonstatutory

mitigating evidence claimed to have been available at the time of

sentencing." Knight v. Dugger, 863 F.2d 705, 708 (11th Cir.1988).

In this case, the state concedes that defense counsel made the

following four arguments to the jury, which did not receive

appropriate consideration due to the Hitchcock violation: "(1) the

defendant did not personally kill the victim, (2) the defendant was

only fifteen years old when he committed his prior robberies, (3)

the defendant had been drinking gin and smoking marijuana the

evening of the crime, and (4) the defendant was influenced by the

dominant personality of his accomplice." Smith, 758 F.Supp. at

693. In addition to these four circumstances, the district court

reviewed the record and various proffers, and found that the

sentencing court precluded the presentation of the following ten

mitigating factors:

[5] Smith tried to dissuade his accomplice, Johnny Copeland,

from killing the girl; [6] Smith was guilty under the felony

murder doctrine; [7] a "cooperating" accomplice, Victor Hall,

was expecting to receive a life sentence, with eligibility for

parole after eight or ten years, even though he too was guilty

of the same three underlying felonies....

... [8] [Smith] had a long-term history of alcohol and

substance abuse; [9] [Smith] suffered from grand mal

epilepsy; [10] [Smith] was, for all practical purposes,

abandoned by his mother and abused by his grandmother; [11]

[Smith] had a history of childhood deprivation including
malnourishment, lack of adequate parenting, inadequate

clothing and shelter, and lack of medication for his medical

needs, especially his epilepsy; [12] [Smith] was mistakenly

incarcerated at an adult institution when he was convicted of

robbery at age 15; [13] [Smith] was known to be non-violent,

meek and soft-spoken; and [14] [Smith] was diagnosed as

having diffuse and long-standing brain damage, consistent with

his history of alcohol abuse and epilepsy disorder.

Smith, 758 F.Supp. at 694. The state argues that the sentencing

court did not prevent Smith's counsel from presenting evidence

concerning these last ten circumstances; instead, counsel

strategically chose not to present such evidence. Therefore, we

should not consider these mitigating factors when conducting our

harmless error review.

 Although not cited, the state's argument resembles the one

made in Bolender v. Singletary, 16 F.3d 1547 (11th Cir.), cert.

denied, --- U.S. ----, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994). In

Bolender, the district court found that the sentencing court did

not preclude the presentation of mitigating background evidence.

Bolender, 16 F.3d at 1566. Relying on the district court's factual

determination, this court concluded that "[t]he decision not to

introduce the background evidence was the product of strategy,"

and, therefore, the sentencing court did not commit a Hitchcock

violation. Bolender, 16 F.3d at 1566. The factual and procedural

posture of Bolender, however, make it distinguishable. Unlike

Bolender, the district court in this case specifically found that

the sentencing court precluded the presentation of the above

mitigating factors, and, as we indicated in our previous decision,

"the record well supports the district court's findings of fact."
 1

In other words, the district court did not clearly err in

making its findings of fact, nor did it commit an abuse of

discretion in denying the state's belated request for an

evidentiary hearing. 

 2We note that the circuits are split as to whether the

Kotteakos standard should be applied if the state courts have not

conducted a harmless error analysis under Chapman. Compare Tyson

v. Trigg, 50 F.3d 436, 446-47 (7th Cir.1995) (federal habeas

corpus courts should apply the Kotteakos standard even if state

courts have not conducted a Chapman analysis); Horsley v. State

of Ala., 45 F.3d 1486, 1492 n. 11 (11th Cir.1995) (same); with

Horsley, 45 F.3d at 1498 n. 3 (Hatchett, J., dissenting) (Chapman

standard applies when a federal habeas corpus court is the first

court to conduct a harmless error analysis); Williams v. Clarke,

40 F.3d 1529, 1540-41 (8th Cir.1994) (same), cert. denied, ---

U.S. ----, 115 S.Ct. 1397, 131 L.Ed.2d 247 (1995); Fields v.

Leapley, 30 F.3d 986, 991 (8th Cir.1994) (same); Starr v.

Lockhart, 23 F.3d 1280, 1291-92 (8th Cir.) (same), cert. denied,

--- U.S. ----, 115 S.Ct. 499, 130 L.Ed.2d 409 (1994); Orndorff

v. Lockhart, 998 F.2d 1426, 1430 (8th Cir.1993) (same), cert.

denied, --- U.S. ----, 114 S.Ct. 1631, 128 L.Ed.2d 354 (1994). 

We are not concerned with this split, however, because the

Florida Supreme Court conducted a Chapman harmless error analysis

in this case. Thus, the Kotteakos standard clearly applies. 

Smith, 970 F.2d at 766.1

 Thus, the Hitchcock error in this case

included the improper consideration of mitigating evidence that was

in fact presented as well as the preclusion of other potential

mitigating evidence. As a result, in conducting our harmless error

analysis, we must consider all of the fourteen mitigating

circumstances listed above (the four that were presented and the

ten that were precluded from presentation).

 When reviewing trial errors for harmlessness, federal habeas

corpus courts no longer utilize the Chapman "harmless beyond a

reasonable doubt" standard; instead, they must apply the less

onerous standard described in Kotteakos v. United States, 328 U.S.

750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). See Brecht, --- U.S. at

----, ----, 113 S.Ct. at 1714, 1722.2

 "Hitchcock errors are "trial

errors' governed by Brecht." Horsley, 45 F.3d at 1492; see also
Bolender, 16 F.3d at 1567. Therefore, we must decide whether the

Hitchcock error in this case "had substantial and injurious effect

or influence in determining" Smith's death sentence. Brecht, ---

U.S. at ----, 113 S.Ct. at 1712 (quoting Kotteakos, 328 U.S. at

776, 66 S.Ct. at 1253).

 The Supreme Court has recently clarified that "[w]hen a

federal judge in a habeas proceeding is in grave doubt about

whether a trial error of federal law had "substantial and injurious

effect or influence in determining the jury's verdict,' that error

is not harmless. And, the petitioner must win." O'Neal v.

McAninch, --- U.S. ----, ----, 115 S.Ct. 992, 994, 130 L.Ed.2d 947

(1995). Thus, Smith points out that if we have grave doubt as to

whether the Hitchcock error was harmless, we must rule in his

favor. Given the district court's factual determinations

concerning the wealth of mitigating evidence that was both

presented and precluded, we can only conclude that the Hitchcock

error in this case had a substantial effect on the outcome of

Smith's sentence.

CONCLUSION

Accordingly, we affirm the district court's order granting

Smith habeas corpus relief because the Hitchcock error committed at

his sentencing was not harmless under the Brecht standard.

AFFIRMED.