United States Court of Appeals,

Eleventh Circuit.

No. 94-2536.

Stephen Todd BOOKER, Petitioner-Appellee,

v.

Harry K. SINGLETARY, Jr., Respondent-Appellant.

July 17, 1996.

Appeal from the United States District Court for the Northern

District of Florida. (No. 88-40228-MMP), Maurice Mitchell Paul,

Chief Judge.

Before TJOFLAT, Chief Judge, and HATCHETT and DUBINA, Circuit

Judges.

TJOFLAT, Chief Judge:

I.

In the previous appeal in this case, we affirmed the district

court's issuance of a writ of habeas corpus, pursuant to 28 U.S.C.

§ 2254 (1994), setting aside the death sentence that the petitioner

received following his conviction for first degree murder in

Florida state court. Booker v. Dugger, 922 F.2d 633 (11th Cir.),

cert. denied, 502 U.S. 900, 112 S.Ct. 277, 116 L.Ed.2d 228 (1991).

The writ issued because petitioner's sentence had been imposed in

violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95

L.Ed.2d 347 (1987) (applying Lockett v. Ohio, 438 U.S. 586, 98

S.Ct. 2954, 57 L.Ed.2d 973 (1978)); petitioner's sentencers—the

jury, which made the sentencing recommendation, and the trial

judge, who fashioned and imposed petitioner's sentence—gave no

weight to certain mitigating evidence that may have counselled the

imposition of a sentence of life imprisonment instead of death.

According to the trial judge (in his instructions to the jury and,
later, in imposing sentence) and the prosecutor (in his summation

at the close of the penalty phase of petitioner's trial), the

evidence was entitled to no weight because it did not establish any

of the mitigating circumstances prescribed by Florida statute. See

Fla.Stat. ch. 921.141(6) (1995). Other mitigating evidence was not

presented to the judge and the jury because petitioner's counsel

believed that it would have been disregarded as irrelevant.

The State objected to the issuance of the writ on the ground

that, under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967), the Hitchcock error was harmless beyond a

reasonable doubt. In other words, the State argued that the

aggravating circumstances in the case were such that none of the

nonstatutory mitigating evidence the petitioner presented (or could

have presented) would have affected the outcome of the case; the

jury still would have recommended and the trial court still would

have imposed the death sentence. On review, we were "not able to

speculate as to the effect this substantial [nonstatutory

mitigating] evidence would have had on the sentencing body" and

therefore we could not "find the error harmless, regardless of the

... aggravating circumstances that may have been found." Booker,

922 F.2d at 636.

Following our affirmance of the district court's decision, the

State petitioned the Supreme Court for a writ of certiorari. The

Supreme Court denied the State's petition on October 7, 1991.

Singletary v. Booker, 502 U.S. 900, 112 S.Ct. 277, 116 L.Ed.2d 228.

The State, still in pursuit of the death penalty, moved the trial

court to set the sentencing phase of petitioner's case for trial.
A trial date was set, but the proceedings were stayed indefinitely.

II.

On April 21, 1993, the Supreme Court decided Brecht v.

Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

In Brecht, the Court held that Chapman's standard of "harmless

beyond a reasonable doubt" was inapplicable to habeas corpus

review. Id. at 622-23, 113 S.Ct. at 1713-14. In place of Chapman,

the Court substituted the standard established by Kotteakos v.

United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946),

for resolving the harmless error issue on the direct review of a

criminal conviction. Brecht, 507 U.S. at 623, 113 S.Ct. at 1714.

The Kotteakos standard asks whether the error "had substantial and

injurious effect or influence in determining the jury's verdict."

Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253. By substituting

Kotteakos' standard for Chapman's, the Court in Brecht made it

easier for a state to show that a constitutional violation did not

prejudice an habeas petitioner's case. See Duest v. Singletary,

997 F.2d 1336, 1337 (11th Cir.1993), cert. denied, --- U.S. ----,

114 S.Ct. 1107, 127 L.Ed.2d 418, and cert. denied, --- U.S. ----,

114 S.Ct. 1126, 127 L.Ed.2d 434 (1994).

With the less stringent Brecht standard in hand, the State

moved the district court to vacate its judgment setting aside

petitioner's death sentence in accordance with Fed.R.Civ.P.

60(b)(6). Rule 60(b)(6) authorizes a district court, in the

exercise of its discretion, to relieve a party from the operation

of a final judgment for "any ... reason justifying relief." The

State argued that the district court should vacate its judgment and
reinstate the petitioner's death sentence because the Hitchcock

error that permeated the sentencing phase of petitioner's case was

harmless under the Kotteakos test.

 The vacation of a judgment under Rule 60(b)(6) is an

extraordinary remedy. See Ritter v. Smith, 811 F.2d 1398, 1400

(11th Cir.), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97

L.Ed.2d 747 (1987). The State submits that this extraordinary

remedy is called for in this case because there has been a change

in the law: a lessening of the State's burden of demonstrating

that a constitutional violation is excusable. "[S]omething more

than a "mere' change in the law is necessary[, however,] to provide

the grounds for Rule 60(b)(6) relief." Ritter, 811 F.2d at 1401.

In addition to citing a change in the law, a Rule 60(b)(6) movant

"must persuade [the court] that the circumstances are sufficiently

extraordinary to warrant relief." Id. Even then, whether to grant

the requested relief is, as noted above, a matter for the district

court's sound discretion.

 The district court denied the State relief under Rule

60(b)(6) because the State had not demonstrated the "extraordinary

circumstances" required by Ritter. We find no abuse of discretion

in this decision.

III.

 Even if we were to revisit the district court's grant of

habeas relief under the correct standard—as we were required to do

on remand from the Supreme Court in Duest v. Singletary—we would

still hold that the State has failed to carry its burden of
 1

In Duest, also a capital case from Florida, we reversed the

district court's refusal to issue a writ of habeas corpus setting

aside the petitioner's death sentence. Duest v. Singletary, 967

F.2d 472 (11th Cir.1992). We did so because (1) the petitioner's

jury had based its recommendation of death upon consideration of

a prior criminal conviction which was subsequently vacated—a

constitutional error under Johnson v. Mississippi, 486 U.S. 578,

108 S.Ct. 1981, 100 L.Ed.2d 575 (1988)—and (2) the State had not

shown that the error was harmless under the Chapman standard. 

Duest, 967 F.2d at 481-82. The Supreme Court, on certiorari,

vacated our judgment and remanded the case "for further

consideration in light of Brecht." Singletary v. Duest, 507 U.S.

1048, 1049, 113 S.Ct. 1940, 1941, 123 L.Ed.2d 647 (1993). 

excusing the constitutional error.1 In affirming the district

court's decision setting aside petitioner's death sentence, we

observed:

In petitioner's case it is clear beyond cavil that

significant nonstatutory mitigating factors were excluded from

the jury's consideration by the erroneous jury charge. Booker

was the only defense witness at the sentencing phase of the

trial, and he testified that he had been hospitalized for

psychiatric reasons nine times beginning at age 13, that he

had severe problems with alcohol and drugs and had experienced

blackouts, and that he was honorably discharged from the Army.

He said he could not remember the crime, but that if he did it

he felt remorseful.... Although no psychiatric testimony was

presented during sentencing, Booker did call one psychiatrist

during the guilt phase of his trial; the testimony adduced

showed that, although Booker was not insane, his records from

Walter Reed Army Medical Center indicated that Booker suffered

from an organic brain disorder as a result of drug use. The

psychiatrist also testified that there were indications of

paranoid schizophrenia. The police officer who took Booker's

confession testified that Booker seemed to have a split

personality when he confessed. Booker assumed the identity of

"Aniel"; he said that "Steve" committed the murder; he

clenched his teeth so hard they cracked; and he laughed and

cried uncontrollably. The officer stated that he did not

think Booker was faking. There was also evidence that Booker

was cooperative with the police, and that he may have made the

anonymous phone call reporting the murder.

Booker, 922 F.2d at 635 (footnote omitted). After summarizing this

evidence in the record, we observed that at the sentencing hearing

subsequently held by the trial judge, other nonstatutory mitigating

evidence was presented.
This evidence included the report of a court-appointed

psychiatrist. This report concluded that Booker had above

normal intelligence but was impulsive and had difficulty

postponing gratification. It also noted that Booker had had

little supervision as a child, that he began drinking and

using drugs as a teenager, and that he had experienced

hallucinations. The psychiatrist concluded that Booker was

not under extreme emotional duress or the domination of

another at the time of the crime. But due in part to

intoxicants he had consumed, Booker was "most probably ...

less able than the average individual to conform his conduct

to the requirements of the law."

Id. Due to the Hitchcock violation, however, neither the jury nor

the sentencing judge considered whether any of this evidence

counselled against the imposition of the death penalty. In

addition, because Booker's attorney believed that Florida law did

not permit these sentencers to consider nonstatutory mitigating

circumstances, other available mitigating evidence was not

presented. See id. at 636 n. 3. Because we were unable to

speculate as to the effect the mitigating evidence would have had

on the judge or jury, we could not find the error to be harmless.

See id. at 636. We therefore affirmed the district court's grant

of habeas relief.

When reevaluating the case in Duest v. Singletary under the

Brecht standard, we posed the question as follows: "Did the

constitutional error "substantially influence' the verdict, or, at

least, does a "grave doubt' exist as to whether it did? If so,

then the petitioner is entitled to habeas relief." Duest, 997 F.2d

at 1339 (citations omitted). As the Supreme Court instructed in

O'Neal v. McAninch, --- U.S. ----, ----, 115 S.Ct. 992, 994, 130

L.Ed.2d 947 (1995), which was decided eighteen months after the

panel's decision in Duest:

When 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.

When, in Booker, 922 F.2d at 636, we said that we were unable to

speculate as to the effect the disregarded "substantial

[mitigating] evidence would have had on the sentencing body," we

were in essence answering in the affirmative the second part of the

question posed in Duest.

AFFIRMED.