United States Court of Appeals

Fifth Circuit 

## FILED

February 12, 1998

Charles R. Fulbruge III

Clerk REVISED, March 31, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 97-60243

________________________

JAMES E. BILLIOT,

Petitioner-Appellee,

versus

STEVE W. PUCKETT, Commissioner,

Mississippi Department of Corrections, and

JAMES V. ANDERSON, Superintendent,

Mississippi State Penitentiary,

Respondents-Appellants.

_________________________________________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

________________________________________________________________________________

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Respondents appeal the district court’s order granting appellee’s petition for a writ of habeas

corpus as to his sentence of death. For the reasons set forth below, we REVERSE and REMAND

for further proceedings.

I.

On January 29, 1982, petitioner, James E. Billiot, w as indict ed for capital murder by a

Hancock County, Mississi ppi grand jury. The indictment charged that, on November 26, 1981,

Thanksgiving Day, Billiot, using an eight-pound sledgehammer, bludgeoned to death his step-father,

mo t her, and fourteen-year old step-sister. In addition, the indictment alleged that the murder of

Billiot’s step-father, Wallace Croll, Jr., occurred contemporaneously with a robbery upon him. After- 2 -

Billiot’s motion for a change of venue was granted, he was tried and convicted of capital murder and

sentenced to death by a jury on December 2, 1982, in Harrison County, Mississippi. With respect

to the death sentence, the jury returned the following verdict:

We, the jury, unanimously find that the aggravating circumstances of

(1) capital murder was committed while the Defendant, James Billiott [sic], was engaged in

the commission of the crime of robbery.

(2) James Billiot committed the capital murder in an especially heinous, atroci ous and cruel

manner,

sufficient to impose the death penalty, and that there are insufficient mitigating circumstances

to outweight [sic] the aggravating circumstances, and we unanimously find that the Defendant

should suffer death.

Tr. Vol . VII, at 1134-35.

In 1984, the Mississippi Supreme Court, on direct appeal, affirmed both Billiot’s conviction

and death sentence and denied his request for a rehearing. B illio t v. State

, 454 So.2d 445 (Miss.

1985). Subsequently, on February 18, 1985, the United States Supreme Court denied Billiot’s

petition for a writ of certiorari. B illio t v. Mississippi

, 469 U.S. 1230, 105 S. Ct. 1232, reh’g denied

,

470 U.S. 1089, 105 S. Ct. 1858 (1985). The Mississippi Supreme Court, upon motion by the State,

then set Billiot’s execution for May 15, 1985. On April 16, 1985, however, the Mississippi Supreme

Court stayed the execution to allow Billio t to file state post-conviction papers. On October 30, 1985,

the Mississippi Supreme Court denied petitioner’s request for post-conviction relief, Billio t v. State

,

478 So.2d 1043 (Miss. 1985), and, on December 4, 1985, denied his petition for rehearing. After the

United States Supreme Court denied certiorari, Billio t v. Mississippi

, 475 U.S. 1098, 106 S. Ct. 1501

(1986), the Mississippi Supreme Court, upon motion by the State, set Billiot’s execution date for May

7, 1986.

On April 28, 1986, Billio t filed his original petition for a writ of habeas corpus in the United

States District Court for the Southern District of Mississippi. Among other things, Billiot claimed

that he was presently insane and therefore incompetent to be executed. On September 10, 1986, in

light of the Supreme Court’s decision in Ford v. Wainwright

, 477 U.S. 399, 106 S. Ct. 2595 (1986),

the district court ordered that the petition be held in abeyance until Billio t refiled his petition for state

post-conviction relief and thereby exhausted his insanity claim. Billiot then filed a second petition for1 On August 19, 1996, the district court granted petitioner’s motion for leave to file an amended and

supplemental petition. In his amended petition, Billiot sought not only to update his present insanity claim but also

to delete claims that were no longer viable. Respondents opposed the motion to amend, contending, among other

things, that, if the amendment were allowed, the district court should treat the petition as “the filing of a new petition”

and therefore subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The

district court rejected the respondents’ argument and allowed Billiot to amend. The respondents have not appealed

this decision.

2 Specifically, the district court set forth Billiot’s claims as follows:

A. The Present Insanity Claim and Proceedings

1. Petitioner is currently insane so that to execute him would violate the Eighth Amendment

by inflicting upon him cruel and unusual punishment;

2. To execute petitioner would violate the Fifth and Fourteenth Amendments by denying him

the right to due process of law, because:

a. The State’s procedure for determining his competence to be executed was inadequate;

b. Medicating petitioner in preparation for the state court hearing on his claim of

present insanity

, without his consent or notice to his counsel or the court, violated

his due process rights and directly affected his presentation to the state court trier

of fact;

- 3 - state post-conviction relief. On review, the Mississippi Supreme Court, sitting en banc , found that

Billio t was entitled to an evidentiary hearing before the circuit court of the First Judicial District of

Harrison County on the limit ed issue of his claimed present insanit y. B illio t v. State

, 515 So.2d 1234,

1235 (1987).

On November 14 and 15, 1988, the circuit court held an evidentiary hearing on B illio t ’s

insanity claim, and, on May 16, 1989, the court issued its findings of fact and conclusions of law, in

which it found Billiot presently sane under the standards set forth in Mississippi Code Annotated §

99-19-57(2)(a) & (b), and Ford v. Wainwright

. In May 1991, the circuit court denied Billiot’s motion

to alter and amend the judgment. On February 16, 1995, the Mississippi Supreme Court affirmed the

decision of the circuit court. Billio t v. State

, 655 So.2d 1 (Miss. 1995). Finally, on January 22, 1996,

the United States Supreme Court denied certiorari. B illio t v. Mississippi

, -- U.S.

--, 116 S. Ct. 818

(1996).

Having, at long last, exhausted his state law claims, Billiot’s petit io n for a writ of habeas

corpus was once again before the district court. In his amended and supplemental petition, 1 Billio t

asserted multiple claims related to his original conviction and sentence, as well as claims related to

the state proceedings on his alleged present insanity. 23. The Mississippi Supreme Court’s findin g of waiver is not based on an independent and

adequate state procedural ground;

4, The evidence presented at the insanity hearing was evaluated und er incorrect legal

standards:

a. The trial court erred in applying a legal presumption that petitioner is competent

to be executed;

b. The state court’s interpretation of present insanity is constitutionally flawed;

5. De novo review of the finding of present insanity is essential to protect the constitutional

issue at stake;

6. The evidence does not support the finding that the petitioner is competent to be executed;

7. Petitioner’s mental state has further deteriorated since the 1988 hearing and he should be

given a hearing on his present insanity claim;

B. The Claims Relating to Petitioner’s Trial and Sentencing

1. Petitioner was denied effective assistance of counsel in violation of his Sixth Amendment

right to counsel, in that his counsel:

a. Failed to reasonably investigate or discover the existence of mitigating evidence,

and failed to present mitigating evidence;

b. Failed to object to Jury Instruction C-01 at the guilt/innocence phase, and failed

during the sentencing phase to object to erroneous jury instructions relating to mitigating factors or to offer additional instructions on mitigating circumstances;

c. Fa iled to offer evidence in support of the post-trial motion for a new trial based

upon newly discovered evidence;

2. Petitioner’s due process rights under the Fifth and Fourteenth Amendments were violated

by:

a. The jury’s finding of the “especially heinous, atrocious, and cruel” aggravating

circumstance;

b. Prosecutorial misconduct during the closing argument on the guilt/innocence

phase;

c. The use, as an “aggravating circumstance,” that the murder was committed during

the commission of a felony, to justify the imposition of the death s entence, w as itself a necessary element of the underlying crime of capital murder.

d. Miss. Code Ann. § 97-3-19(2)(e) (Rev. Ed. 1994) was improperly applied because

the state never proved the petitioner’s intent to commit robbery;

e. The statute and instruction at the sentencing phase shifted the burden of proof to petitioner and contained no standards for weighing;

f. The prosecution’s use of statements made by petitioner duri ng a court-ordered

psy chiatric examination on the issue of his compet ence to stand trial, where

petitioner was not first advised by the psy chiatrist of his right to remain silent;

3. The Mississippi Supreme Court misunderstood the psychological testimony in enunciating

its decision relative to a “majority report” and “minority report”;

4. Petitioner was subjected to double jeo pardy in violation of the Fifth and Fourteenth

Amendment for the felony and robbery underlying his capital conviction;

5. The trial court’s denial of petitioner’s motion for a change of venue abridged his Sixth and

Fourteenth Amendment rights to an impartial jury ;

6. Petitioner was denied his right to a fair and impartial trial because:

a. His request for individual voir dire of potential jurors was denied and his voir dire

of potential jurors was limited;

b. The court refused to excuse certain jurors for cause and denied petitioner

additional peremptory

challenges; and

c. The court refused to provide special venire.

- 4 - In reviewing Billiot’s petition, the district court first addressed Billiot’s claim that his death

sentence should be vacated because the “cruel, heinous, and atro c ious” aggravating circumstance,

as given, was constitutionally infirm. The district court agreed and, relying on W iley v. Puckett

, 9693 This state prohibition against reweighing or conducting a harmless error analy sis was superseded by statute

in 1994. Miss. Code Ann. §§ 99-19-105(3)(d) & (5)(b). Accordingly , the Mississippi Supreme Court has held that

only those whose convictions were final before August 23, 1994, are automatically entitled to a new sentencing hearing.

See Cole v. State , 666 So.2d 767 (Miss. 1995).

4 Likewise, although unstated, we assume that the district court declined to address Billiot’s claims relating

to his present sanity claim for similar reasons. In short, there was no reason to address whether Billiot was sufficiently

sane to be executed in light of the fact that the death sentence had been vacated.

- 5 - F.2d 86, 94 (5th Cir. 1992), held that “the writ is due to be issued unless the State of Mississippi

initiates the appropriate proceedings in state court within a reasonable time after the issuance of this

opinion.” In the alternative, the district court held that Billio t was entitled to relief on this ground

even if Wiley did not apply because the error was not harmless under either Chapman v. California

,

386 U.S. 18, 87 S. Ct. 824 (1967), or Brecht v. Abrahamson

, 507 U.S. 619, 113 S. Ct. 1710 (1993).

Recognizing “the strong possibility that the Mississippi Supreme Court [would] remand petitioner’s

cause for resentencing,” se e Wilcher v. State , 635 So.2d 789, 791 (Miss. 1993) (remanding for

resentencing after noting that, as a matter of state law, it lacked the authority to either reweigh the

aggravating and mitigating circumstances or conduct harmless error analysis), 3 the distri ct court

declined to reach Billiot’s other claims relating to the sentencing phase of his trial. 4 The district court

did, however, address the claims relating to the guilt phase of Billiot’s trial, all of which were denied.

Because Billio t has not appealed the district court’s denial of his claims relating to the guilt phase,

the sole issue before this court is whether the district court properly co ncluded that Billiot was

entitled to habeas relief because the “cruel, heinous, and atrocious” aggr a vating circumstance was

constitutionally infirm.

II.

In death penalty lexicon, Mississippi is known as a weighing state. In such a state, in order

for a jury to return a sentence of d eat h, it must find that the applicable statutory aggravating

circumstances outweigh any applicable statutory or non-statutory mitigating circumstances. S tringer

v. Black

, 503 U.S. 222, 229-30, 112 S. Ct. 1130, 1136 (1992). In part, this weighing process- 6 -

furthe r s the important Eighth Amendment purpose of ensuring that the defendant receives an

individualized sentence. I d. at 230, 112 S. Ct. at 1136. When a jury in a weighing state relies on an

invalid aggravating circumstance in deciding to impose the death penalty, however, the sentencing

process violates the Eighth Amendment because it “creates the possibility not only of randomness but

also of bias in favor of the death penalty.” I d. at 235 -36, 112 S. Ct. at 1139; a ccord Clemons v.

Mississippi

, 494 U.S. 738, 752, 110 S. Ct. 1441, 1450 (1990). Nonetheless, the Supreme Court has

held that the state courts can cure such an error either by reweighing the aggravating and mitigating

circumstances or by performing constitutional harmless error analysis. S tringer

, 503 U.S. at 232, 112

S. Ct. at 1137.

In this case, the jury found that two statutory aggravating circumstances existed, one of which

was that the murder was committed in an “especially heinous, atrocious, or cruel manner.” As the

State concedes, the “heinous, atrocious, and cruel” aggravating circumstance, as given, was

unconstitutionall y vague. S ee Stringer

, 503 U.S. 222 (1992); Clemons

, 494 U.S. 738 (1990);

Maynard v. Cartwright

, 486 U.S. 356, 108 S. Ct. 1853 (1988). The State further concedes that the

Mississippi Supreme Court failed to cure the error on direct appeal. It nonetheless argues that under

Brecht v. Abrahamson

, 507 U.S. 619, 113 S. Ct. 1710 (1993), the di stri ct court had both the

authority and the obligation to conduct its own harmless error analysis before granting habeas relief.

As we have noted in numerous opinions, in Brecht

, the Supreme Court, relying on the principles of

comity, federalism, and finality, held that trial type error will not serve as a basis for federal habeas

relief unless the error “had a substantial and injurious effect or influence in determin ing the jury’s

verdict.” I d. at 636-38, 113 S. Ct. at 1721-22; e.g.

, Shaw v. Co llins

, 5 F.3d 128, 132 (5th Cir. 1993).

Because the error occasioned by the sentencer’s consideration of a vague aggravating circumstance

is trial type error, see Clemons

, 494 U.S. at 752, 110 S. Ct. at 1450, we agree wi th the State that

Brecht should control the analysis in this case.

Billiot, however, relying on Wiley v. Puckett

, 969 F.2d 86, 94 (1992), contends that this court

may not consider whether the giving of the “heinous, atrocious, and cruel” aggravating circumstance5 Although we recognize that many courts have used the expression, we note that a federal habeas court

cannot “remand” a case to the state courts. If the writ is granted, or even conditionally granted, the state, pursuant to

available state procedures, may then take whatever action it deems necessary, in cluding reinitiating state court

proceedings. Thus, although the case may ultimately find its way back to the state courts as a result of a federal habeas

action, the case is by no means “remanded” to the state courts.

- 7 - constituted harmless error but, instead, must “remand” the case to the state court for a decision on

that question. 5 In Wiley , this court held that the Supreme Court was “quite clear” in both Clemons

and Stringer that only the state courts can perform such harmless error analysis. W iley

, 969 F.2d at

94 n.8. Billiot further argues that in light of this court’s application of W iley after Brecht in King v.

Puckett

, 1 F.3d 280 (5th Cir. 1993), this court is precluded from applying Brecht under this circuit’s

rules governing intra-circuit stare decisis. Alternatively, in the event that this court determines that

it is not bound to follow K ing and Wiley , Billiot argues that B recht does not apply to errors

occasioned by the sentencer’s weighing of a vague aggravating circumstance in deciding to impose

the death penalty.

We first address Billiot’s argument that we are bound to follow King and Wiley by the rules

of i nt ra-circuit stare decisis. As a general rule, one panel may not overrule the decision of a prior

panel, right or wrong, in the absence of an intervening contrary or superseding decision by this court

sitting en banc or by the United States Supreme Court. P ruitt v. Levi Strauss & Co.

, 932 F.2d 458,

465 (5th Cir. 1991). Although we recognize that K ing was decided over three months after Brecht

,

and that we would normally be obligated to follow its de cision, even though the K ing court

apparently did not consider the impact of Brecht on Wiley

, see Broussard v. Southern Pac. Trans.

Co.

, 665 F.2d 1387, 1389-90 (5th Cir. 1982), we are equally mindful of the rule that “where two

previous holdings or lines or precedent conflict, ‘the earlier opinion controls an d is t he binding

precedent in the circuit.’” S ociety of Separationists, Inc. v. Herman

, 939 F.2d 1207, 1211 (5th Cir.

1991) (quoting Boyd v. Puckett , 905 F.2d 895, 897 (5th Cir. 1990)). In this respect, we note that

in the interim between Brecht and King

, this court recognized the primacy of Brecht in at least four

cases. For example, in P emberton v. Co llins

, 991 F.2d 1218 (5th Cir. 1993), we cited Brecht for the

proposition that “federal habeas corpus relief will not be granted unless the error ‘had a substantial6 We do note, however, that the Court in B recht left open the possibility that in “an unusual case, a deliberate

and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial mis conduct,

might so infect the integrity of the proceeding as to warrant the grant of habeas relief, even if it did not substantially

influence the jury’s verdict.” Brecht , 507 U.S. at 638 n.9, 113 S. Ct. at 1722 n.9.

7 Billiot also seeks to rely on the “history” of the Willy Smith case in support of his position that we are bound

by Wiley

. In addition, the reasons set forth with respect to K ing

, a short review of the history of the Willy Smith case reveals that Billiot’s reliance on this history is misplaced. Before Stringer v. Black , 403 U.S. 222 (1992), this court

denied Smith’s Clemons claim. S mith v. Black

, 904 F.2d 950 (5th Cir. 1990) ( Smith I ). After S tringer was decided,

the Supreme Court then remanded Smith’s case for further consideration. S mith v. Black

, 503 U.S. 930 (1992) ( Smith

II ). On remand, and before the Supreme Court’s decision in B recht

, this court applied Wiley and directed the district

court “to issue the writ unless the State of Mississippi initiates appropriate proceedings in state court within a

reasonable time after the issuance of our mandate.” S mith v. Black

, 970 F.2d 1383, 1388 (5th Cir. 1992) ( Smith III ).

After the State of Mississippi failed to initiate proceedings in state court, the district court then ordered that Smith be

sentenced to life imprisonment. The State appealed, arguing that this order exceeded the scope of this court’s mandate

in Smith III

. This court agreed and continued to endorse the mandate of S mith III

. S mith v. Lucas

, 9 F.3d 359, 367-68

(5th Cir. 1993) ( Smith IV ).

Billiot argues that, because Smith IV was decided almost eight months after Brecht

, Smith IV should be read

as another post- Brecht application of Wiley

. We disagree. The more appropriate reading of S mith IV is that this court

was merely reaffirming its previous mandate, which was issued before the Supreme Court’s decision in Brecht

. Thus,

Billiot’s argument is unavailing.

- 8 - and injurious effect or influence in determining the jury’s verdict.’” I d. at 1226. Likewise, in N ethery

v. Co llins

, 993 F.2d 1154 (5th Cir. 1993), we again cited Brecht for the proposition that “‘trial type

error’ will serve as a basis for habeas relief only if it ‘had a substantial and injurious effect or influence

in determining the jury’s verdict.’” I d. at 1159 n.15 (quoting Brecht ); see also Vanderbilt v. Co llins

,

994 F.2d 189, 198-99 (5th Cir. 1993 ); Lo wery v. Collins , 996 F.2d 770, 772 (5th Cir. 1993).

Although we recognize that none of these cases involved the specific trial error at issue in either

Wiley or King , we nonetheless recognized in both Pemberton and Nethery

that Brecht is a limit on

the authority of a federal habeas court to grant habeas relief in general. 6 Thus, we conclude that K ing

conflicts not only with Brecht but, more importantly, in terms of intra-circuit stare decisis, with this

court’s earlier decisions in Pemberton and Nethery

. Accordingly, we conclude that we are not bound

by the King court’s application of Wiley

. 7

We next turn to Billiot’s argument that Brecht does not apply to trial error occasioned by the

sentencing jury’s weighing of an unconstitutionally vague aggravating circumstance. In support of

this position, Billio t relies primarily on the fact that the Supreme Court opinions authorizing harmless

error review of a vague aggravating circumstance expressly refer only to state appellate courts. S ee,

e.g.

, Richmond v. Lewis , 506 U.S. 40, 48-49, 113 S. Ct. 528, 535 (“[O]nly constitutional harmless- 9 -

error analysis or reweighing a t t he t rial or appellate level suffices to guarantee that the defendant

received an individualized sentence. Where the death sentence has been infected by a vague or

otherwise constitutionally invalid a ggravating factor, the state appel l ate court or som e other state

sentencer must actually perform a new sentencing calculus, if the sentence is to stand.”); Stringer

, 503

U.S. at 237, 112 S. Ct. at 1140 (“Use of a vague or imprecise aggravating fa ctor in the weighi ng

process invalidates the sentence and at the very least requires constitutional harmless-error analysis

or reweighing in the state judicial system.”). According to Billiot, we should interpret the Supreme

Court’s silence in these cases with respect to federal habeas courts as an affirmative statement that

federal habeas courts are not authori zed to conduct such an analysis. As two of our sister circuits

have recognized, however, Billio t has read too much into this sile nce. S ee Williams v. Clarke

, 40

F.3d 1529 (8th Cir.), cert. denied

, 514 U.S. 1033, 115 S. Ct. 1397 (1995); Smith v. Dixon

, 14 F.3d

956 (4th Cir.), cert. denied , 513 U.S. 841, 115 S. Ct. 129 (1994).

For example, in Williams

, the Eighth Circuit noted that “[i]n authorizing state appellate courts

to either reweigh the aggravating an d mit igat ing circumstances or to engage in a constitutional

h armless error analysis, the Court has in no way forbidden federal habeas courts from engaging i n

their usual constitutional harmless error analysis.” 40 F.3d at 1540. Indeed, this silence is not

surprising given the procedural posture of these cases before the Supreme Court:

The Supreme Court cases thus far have arisen either in the context of a direct appeal from a

state appellate co urt where the Court naturally is explaining what avenues of analysis are

avail able to the state appel l ate courts, s ee Clemons

, 494 U.S. at 741, 110 S.Ct. at 1444;

Sochor

, 504 U.S. at ----, 112 S.Ct. at 2117; or in the context of a habeas action where

harmlessness was not at issue, see Stringer

, 503 U.S. at ----, 112 S.Ct. at 1140 (at issue was

whether a federal habeas petitioner sentenced before Clemons could rely on the principle set

forth therein); Richmond

, 506 U.S. at ----, 113 S.Ct. at 535 (respondent did not claim that

the error was harmless; only the reweighing process was at issue).

Clarke , 40 F.3d at 1540 n.5.

Similarly, the Fo urt h Circuit in S mith noted that “none of the opinions containing this

language were ones in which a lower federal court had conducted, or refused to conduct, harmless

error review. Thus, no ne of the opinions actually addressed the issue that is presently before the

court.” 14 F.3d at 977. The Fourth Circuit further noted that “careful scrutiny of these opinions8 The Tenth Circuit, rely ing on S mith and Williams

, has also concluded that a federal habeas court has the

authority to review errors occasioned by the sentencer’s consideration of a vague aggravating circumstance. S ee Davis

v. Executive Director of Dep’t of Corrections , 100 F.3d 750, 768 n.18 (10th Cir. 1996), cert. denied

, -- U.S. --, 117

S. Ct. 1703 (1997).

9 As set forth below in Part III, however, we do disagree with the Eighth Circuit as to the appropriate standard

of review in these cases.

1 0 B illiot also argues that we should grant habeas relief due to the unique state constitutional principles

associated with Mississippi capital sentencing system. As noted above, s ee supra note 3, under Mississippi law, a capital felon who was sentenced bef ore August 23, 1994, has a statutory right to be sentenced by a jury . The

Mississippi Supreme Court has interpreted this right as precluding it from either reweighing or conducting harmless

error analy sis in these cases. According to Billiot, therefore, the State’s reliance on B recht is a naked attempt to make

an end run around the Mississippi Supreme Court’s int erpretation of the Mississippi Constitution. In making this

argument, however, Billiot forgets that federal habeas is not designed to vindicate state constitutional rights.

Accordingly , Billiot’s argument is unavailing.

- 10 - upon which [Billiot] relies does not indicate that the Court disapproves of federal habeas courts

conducting harmless error analysis with respect to this error.” Smith , 14 F.3d at 977. We find the

Smith court’s extensive discussion of these cases persuasive and adopt its reasoning. S ee id. at 977-

78.

In sum, therefore, consistent with the positions of each of the circ uit courts that have

addressed this issue, 8 we decline Billiot’s invitation to carve out an exception to the rule of general

applicability announced in Brecht for trial erro r s occasioned by the sentencer’s consideration of a

vague aggravating circumstance. 9 We therefore hold that before a federal habeas court can grant

relief on a trial error, including an err o r o ccasioned by the sentencer’s weighing of a vague

aggravating circumstance, the habeas court must review the alleged error for harmlessness. 10 To the

extent that Wiley and King hold otherwise, we conclude that they are not the controlling law of this

circuit.

III.

Having determined that a federal habeas court must conduct a harmless error analysis of all

trial errors, including those occasioned by t he sent encer’s weighing of a vague aggravating

circumstance, before granting habeas relief, we mus t next determine the appropriate standard of

review for determining harmlessness in these cases. Billiot, relying on a number of decisions from- 11 -

the Eighth Circuit, see, e.g.

, Williams

, 40 F.3d at 1540-41, argue s t hat t he “harmless beyond a

reasonably doubt” standard of Chapman v. California , 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967),

should apply, rather than the more lenient standard set forth in Brecht

, because no Mississippi Court

has ever reviewed this claim under the C hapman standard. In other words, Bi l l i ot argues that a

federal habeas court should apply the more lenient Brecht standard only when the state courts have

first reviewed the claim under the more stringent Chapman standard. This argument, however, was

recently rejected, in an alternative holding, by another panel of this court, Hogue v. Johnson , 1997

WL 768631 at *21-22 (5th Cir. December 12, 1997) (relying on cases from the Fourth, Seventh,

Tenth, and Eleventh Circuits). Accordingly, adopting the reasoning of H ogue

, we will apply Brecht

.

As noted above, in Brecht

, the Supreme Court held that a federal habeas court may not grant

relief unless the petitioner demonstrates that the e rro r “had a substantial and injurious effect or

influence in determining the jury’s verdict.” We have interpreted this standard in the fo llowing

manner:

[U]nder Brecht

, a constitutional trial error is not so harmful as to entitle a defendant to habeas

relief unless there is more than a mere reasonable possibility that it contributed to the verdict.

It must have had a substantial effect or influence in determining the verdict. We recognize,

however, that if our minds are "in virtual equipoise as to the harmlessness," under the Brecht

standard, of the error, then we must conclude that it was

harmful. O 'Neal v. McAninch

, 513 U.S. 432,

----, 115 S.Ct. 9 92, 994, 130 L.Ed.2d 947

(1995).

Woods v. Johnson

, 75 F.3d 1017, 1026-27 (5th Cir. 1996). Applying this general standard to the

specific review of a vague aggravating circumstance, we note that the error is harmless if the court

concludes that either: (1) the sentence would have been the same had the unconstitutionally vague

aggravating circumstance not been submitted to the jury at all; or (2) the sentence would have been

the same had the unconstitutionally vague aggravating circumstance been prop e rly defined in the

instructions. See Clemons , 494 U.S. at 753-54, 110 S. Ct. at 1450-51.

In its alternate holding, the district court found that it was not convinced that the error did

not have “a substantial and injurious effect or influence in determining the jury’s verdict.” It appears,

however, that the district court considered only whether the sentence would have been the same had- 12 -

the unconstitutionally vague aggravating circumstance not been submitted to the jury at all. Although

we agree with the district court that such a conclusion would be difficult given the emphasis that the

State placed on the “heinous, atrocious, and cruel” nature o f the crime, s ee Clemons

, 494 U.S. at

753-54, 110 S. Ct. at 1451, because the constitutional defect may be cured by eit her of the two

methods, we find that the district court erred in not making the second inquiry. Accordingly, we now

address whether the sentence would have been the same had the vague aggravating circumstance been

properly defined in the instructions to the jury.

In Coleman v. State , 378 So.2d 640 (Miss. 1979), the Mississippi Supreme Court, quoting

Spinkellink v. Wainwright

, 578 F.2d 582, 611 (5th Cir. 1 9 78), adopted the following limit ing

construction of the “heinous, atrocious, and cruel” aggravating circumstance:

What is intended to be included are those capital crimes where the actual commission of the

capital felony was accompanied by such additional acts a s to set the cri m e apart from

the

norm of capital felonies

-- the conscienceless or pitiless crime which is unnecessarily torturous

to the victim.

378 So.2d at 648. This construction was approved by the Supreme Court in C lemons , 494 U.S. at

750, 110 S. Ct. at 1449. The State argues that had this limit ing instruction been given to the jury,

the jury would have concluded that the murders were especially heinous, atrocious, and cruel, and

would have decided to impose the death penalty given the facts of this case. According to the State,

therefore, the unconstitutionally vague instruction did not have a substantial and injurious effect on

the verdict reached by the jury. After reviewing the evidence introduced at trial, we agree.

The evidence introduced at trial showed that on Thanksgiving Day in 1981, Billio t hitched

a ride to his mother and step-father’s house from Leo Jones, an acquaintance of Billiot. Rather than

allowing Jone s t o dro p him off in front of his mother’s house, however, Billiot insisted that Jones

drop him off i n a field near the house. According to Jones, Billiot told him that “he was going to

walk through the field, that he had some sho o t ing to do . . . .” Another acquaintance of Billiot

testified that, almost three weeks before the murders, Billio t told him he was going to kill his mother

and step-father.

Shortly after arriving at the house, Billiot, using an eight-pound sledgehammer, bludgeoned- 13 -

to death his step-father (Wallace Croll), his mother, and his fourteen-year old step-sister. The

evidence sho wed that Billiot hit Mr. Croll in the head at least two to three times with the

sledgehammer, resulting in mult iple fractures and massive trauma to the head. One witness testified

that Mr. Croll’s “head was beat into a mush, and there was blood and brains laying all over the floor.”

Mr. Croll, ho wever, did not die quickly; instead, he struggled to survive for over two hours.

Witnesses at the crime scene testified that there “was still a little life in him” when they arrived at the

h o use, and they attempted mouth-to-mouth resuscitation in a futile attempt to save him. Before

fleeing in his step- fat her’s car, Billiot removed Mr. Croll’s wallet from his person and stole

approximately $60.

Billiot’s mother and fourteen-year old step-sister were also found in the house, murdered in

the same manner. Billiot’s mother was fo und on her knees, leaning over a couch, bludgeoned to

death in the living room, which, according to witnesses, is visible from the kitchen where Mr. Croll

was found. Billiot’s step-sister was also found bludgeoned to death in the living room, a short

distance from her mother.

Billio t nonetheless argues that we cannot conclude that the error was harmless under Brecht

given the mitigating evidence introd uced at t he t rial. Specifically, Billiot argues that a properly

limit ed instruction would have directed the jury that in order to find the aggravating factor, the jury

would have had to have found that Billio t acted “without pity or conscience,” suggesting that Billio t

must have acted with a certain mens rea. According to Billiot, in light of the extensive evidence

introduced as to his diminished mental capacity, the jury would not have found that the crime was

heinous, atrocious, and cruel had the limit ing instruction bee n given. After reviewing the record,

however, we conclude that even had the jury been properly instructed, it wou ld have nonetheless

found that Billiot’s murder of his step-father, mother, and step-sister was espec i ally heinous,

atrocious, and cruel. Moreover, we conclude, without hesitation, given the facts of this case, that

even had the jury been properly instructed, the jury would nonetheless have sentenced Billio t to death.

Consequently, we hold that the constitutional error that resulted from the jury’s consideration of the- 14 -

unconstitutionally vague aggravating circumstance did not have a substantial and injurious effect or

influence on the jury’s verdict.

IV.

In sum, we hold that pursuant to Brecht v. Abrahamson

, a federal habeas court must conduct

a harmless error analysis of all trial errors, including those occasioned by the sentencer’s weighing

of an invalid aggravating circumstance, before granting habeas relief. Applying Brecht to the facts

of this case, we find that the error occasioned by the jury’s consideration of the vague aggravating

circumstance was harmless because it did not have a substantial and injurious effect or influence on

the jury’s verdi ct . Accordingly, we REVERSE the decision of the district court on this ground.

Because the district court declined to address Billiot’s remaining arguments related to his sentencing,

however, we REMAND for a determination on these issues.