FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 JUNE 16, 2003 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 01-11621

 

D. C. Docket No. 97-00051 CV-3-JTC

ROBERT KARL HICKS,

Petitioner-Appellant,

versus

FREDERICK J. HEAD, Warden,

Georgia Diagnostic and Classification Prison,

Respondent-Appellee.

 

Appeal from the United States District Court

for the Northern District of Georgia

 

(June 16, 2003)

Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.

DUBINA, Circuit Judge:
1

 See 28 U.S.C. § 2253.

2

Petitioner Robert Karl Hicks (“Hicks”), a death row inmate, appeals the

district court’s order denying him federal habeas relief pursuant to 28 U.S.C. §

2254. We granted Hicks’s motion for a Certificate of Appealability (“COA”)1

 on a 

question of first impression for our circuit: whether violations of Ake v. Oklahoma,

470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), are subject to harmless error

analysis and, if so, whether the trial court’s denial of psychiatric assistance until a

few days before trial, in violation of Ake, constitutes harmless error. Joining

several other circuits, we hold that Ake violations are amenable to harmless error

analysis, and we conclude that the Ake violation in this case was harmless. 

Accordingly, we affirm the judgment of the district court denying habeas relief.

I. BACKGROUND

A. Facts

The facts are taken verbatim from the Georgia Supreme Court’s decision in

Hicks’s direct appeal:

Early in the evening of July 13, 1985, the victim, Toni Rivers,

drove to an area on Rawls Road to meet a friend with whom she

planned to visit Callaway Gardens. When the friend arrived, the

victim’s automobile was there, but the victim was not.
3

At about 8:00 pm that evening, a resident of Blanton Mill Road

heard a loud scream from a nearby pasture area, and then a woman’s

voice saying, “Don’t do that.” He saw a car parked near the end of

his driveway and walked to it. From there, he looked over a fence,

through a gap in the woods, and into the pasture, where he saw

someone lying on the ground and saw someone else “jump from the

other side [and then] hunker down.”

He flagged down two men driving by in a pickup and told them

to call the police, that something was going on in the pasture. The

two men, Robbie McCune and Charles Garner, heard screams

themselves, and, looking toward the pasture, saw a shirtless man with

blond hair and a black beard bending over and making stabbing

motions. Garner testified that as the man straightened up, he wiped

something off and put it into his pocket.

Garner and McCune got the license number of the car parked

by the side of the road and drove away to find a telephone. As they

did, they saw the blond male exit the woods, get into his car, drive a

few yards up the road, and stop. (The car had run out of gas.)

Garner and McCune found a telephone at the first house down

the road, called the sheriff, and returned just in time to see the blond

male climb into the back of a black pickup that had stopped to give

him a ride. A deputy sheriff approached the area and McCune

flagged him down. He told the deputy that the man he had called

about was in the back of the other pickup. Meanwhile, Garner got out

and ran to the pasture to find the woman.

Sheriff’s deputy Chuck Hudson testified that Garner and

McCune “flagged me down and told me that the guy sitting in the

back of the [pickup] I had just passed was the one they had seen . . .

in the wooded area where . . . all the screaming and all had taken

place . . . [W]hen they told me that, I turned around and went back

and stopped the black pickup truck.” Hudson was informed by the

driver, whom he knew, that the man in the back had asked for a ride

to a gas station.
4

Hudson asked the man, whom he later identified as the

defendant, if he knew anything about a girl or if he had heard

anything in the area. The defendant answered negatively. Hudson

offered to help the defendant with his car problems, and told him that

if “everything was all right, I’d help him get some gas and get his car

going.” Then, Hudson testified, “Mr. Hicks came down off the truck

and started to get in the back of my patrol car, and I made him stop,

and I searched him.” Hudson found a “folding pocket knife” in the

defendant’s right front pocket, that was covered in a “dark red

substance that appeared to be blood – fresh blood.”

Meanwhile, Garner had found the victim, nude from the waist

down and covered with blood. She told him she was dying. When

Hudson and another deputy arrived at the scene, she begged for help,

saying she could not breathe. She clawed at the ground making

choking noises until just before the EMT’s arrived, when she stopped

moving. She soon died.

The victim had “five large, gaping lacerations of the throat . . .,

an open gash on the abdomen . . . and eight stab wounds.” She died

from a near-total loss of blood.

Inside the defendant’s automobile, deputy Hudson discovered a

pair of women’s shorts, a bloody pair of men’s socks, a pair of

sandals, and a key ring with the initials “T.R.”

Blood on the seat of the car, and on the defendant’s pants,

socks and knife, was identified as being consistent with that of the

victim.

Hicks v. State, 352 S.E.2d 762, 767-68 (Ga. 1987) (alterations in original).

B. Procedural History

On June 13, 1985, a jury in Spalding County, Georgia, found Hicks guilty of

the malice murder of Toni Rivers and recommended that the court impose a death
5

sentence. The jury found three statutory aggravating circumstances: the offense of

murder was committed by a person with a prior record of conviction for a capital

felony, rape; the offense was committed while the offender was engaged in the

commission of the offense of aggravated battery; and the offense of murder was

outrageously or wantonly vile, horrible, or inhuman in that it involved an

aggravated battery to the victim. See Ga. Code Ann. § 17-10-30(b)(1), (b)(2) and

(b)(7) (1997). The Supreme Court of Georgia affirmed Hicks’s conviction and

sentence. Hicks, 352 S.E.2d at 779. The United States Supreme Court denied

certiorari on June 15, 1987. Hicks v. State, 482 U.S. 931, 107 S. Ct. 3220, 96 L.

Ed. 2d 706 (1987).

Hicks filed his first state habeas petition in the Superior Court of Butts

County, Georgia. Following an evidentiary hearing, the state court denied relief. 

The Supreme Court of Georgia denied Hicks’s application for a certificate of

probable cause to appeal, and the United States Supreme Court denied certiorari. 

Hicks v. Kemp, 494 U.S. 1074, 110 S. Ct. 1797, 108 L. Ed. 2d 798 (1990). Hicks

then filed a federal habeas petition, and the State moved to dismiss the petition for

lack of exhaustion. The district court entered judgment dismissing the petition

without prejudice. Hicks filed a second state habeas petition, and the State moved

to dismiss the petition as successive under state procedural rules. After
6

conducting a hearing on the motion to dismiss, the state court dismissed the

petition. The Georgia Supreme Court denied Hicks’s application for probable

cause to appeal, and the United States Supreme Court denied certiorari review.

Hicks filed his second federal habeas petition on April 24, 1997, and filed

an amended petition on June 8, 1998. The district court denied him any relief on

the claims he raised. The district court specifically found that Hicks’s Ake claim

was subject to harmless error analysis and that under the Brecht v. Abrahamson

harmless error standard, the constitutional violation did not have a “‘substantial

and injurious effect or influence in determining the jury’s verdict.’” 507 U.S. 619,

637-38, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993) (quoting Kotteakos v.

United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 2d 1557 (1946)). 

The district court denied Hicks’s motion to alter or amend the judgment, stating

that Hicks had failed to make a substantial showing of the denial of a

constitutional right. In a separate order, the district court specifically denied

Hicks’s application for a COA. Hicks filed a notice of appeal and application for a

COA in this court. We granted the COA on the sole issue of whether Ake

violations are subject to harmless error analysis and, if so, whether the trial court’s

denial of a mental health expert until shortly before trial constitutes harmless error.
2

 The state court concluded that the appointment of Dr. Andrea Bradford (“Dr. Bradford”)

just days before the trial satisfied Ake. Specifically, the Georgia Supreme Court concluded that the

trial court did not err in denying Hicks’s motion for a continuance and request for additional funds

for neurological testing. The Georgia Supreme Court’s determination that the denial of Hicks’s

motion for a continuance did not violate Ake was considered by the district court to be an

unreasonable application of the clearly established Supreme Court precedent. 

7

II. STANDARD OF REVIEW

We give deference to state courts’ merits-adjudication of constitutional

questions unless the decisions are “contrary to” or an “unreasonable application of

. . . clearly established” United States Supreme Court precedent. Williams v.

Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). See

also 28 U.S.C. § 2254(d).

III. DISCUSSION

A. Whether Ake violations are subject to harmless error analysis.

We will assume, without deciding, that the state court’s determination of no

Ake error was an unreasonable application of clearly established Supreme Court 

precedent.2

 In Ake, the Court held that “when a defendant has made a preliminary

showing that his sanity at the time of the offense is likely to be a significant factor

at trial, the Constitution requires that a State provide access to a psychiatrist’s

assistance on this issue if the defendant cannot otherwise afford one.” 470 U.S. at
8

74, 105 S. Ct. at 1091-92. The constitutional right recognized in Ake provides a

criminal defendant the assistance of a psychiatrist in two general circumstances:

“when [the] defendant demonstrates to the trial judge that his sanity at the time of

the offense is to be a significant factor at trial, . . . . [and] when the State presents

psychiatric evidence of the defendant’s future dangerousness” during a capital

sentencing hearing. Ake, 470 U.S. at 83, 105 S. Ct. at 1096. 

To date, we have not addressed the question whether Ake error is amenable

to harmless error analysis. The question whether a particular constitutional error

is subject to harmless error analysis depends upon whether the error is properly

characterized as trial error or structural error. Trial error is error that “occur[s]

during the presentation of the case to the jury.” Arizona v. Fulminante, 499 U.S.

279, 307-08, 111 S. Ct. 1246, 1264, 113 L. Ed. 2d 302 (1991). Such error “is

amenable to harmless-error analysis because it may . . . be quantitatively assessed

in the context of other evidence presented in order to determine [the effect it had

on the trial].” Brecht, 507 U.S. at 629, 113 S. Ct. at 1717 (alterations in original)

(internal quotations omitted). In contrast, structural error is error “affecting the

framework within which the trial proceeds, rather than simply an error in the trial

process itself.” Arizona, 499 U.S. at 310, 111 S. Ct. at 1265. By its very nature,

structural error “def[ies] analysis by ‘harmless-error’ standards.” Id., 499 U.S. at
3

 Georgia law provides two defenses to the offense of murder: insanity and delusional

compulsion. The insanity defense provides that “[a] person shall not be found guilty of a crime if,

at the time of the act, omission, or negligence constituting the crime, the person did not have mental

capacity to distinguish between right and wrong in relation to such act, omission, or negligence.”

Ga. Code Ann. § 16-3-2 (1999). Delusional compulsion provides that a person shall not be guilty

of a crime if, at the time of the offense, “the person, because of mental disease, injury, or congenital

deficiency, acted as he did because of a delusional compulsion as to such act which overmastered

his will to resist committing the crime.” Ga. Code Ann. § 16-3-3 (1999). See Fulghum v. Ford, 850

9

310, 111 S. Ct. at 1265. The Supreme Court has observed that classification of an

error as structural and, therefore, not subject to harmless error review, is the

“exception and not the rule.” Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101,

3106, 92 L. Ed. 2d 460 (1986). “[I]f the defendant had counsel and was tried by

an impartial adjudicator, there is a strong presumption that any other errors that

may have occurred are subject to harmless-error analysis.” Id., 478 U.S. at 579,

106 S. Ct. at 3106.

Hicks made a request for psychiatric assistance in order to bolster his

insanity defense. The trial court granted the request. At the time the trial court

ruled on the motion for a continuance, the psychiatrist, Dr. Bradford, had met

with Hicks and performed an evaluation to assist in his defense. Dr. Bradford’s

preliminary diagnosis of Hicks was intermittent explosive disorder, which,

according to Dr. Bradford, rendered Hicks unable to control his impulses. This

disorder did not fit within the legal definition of insanity under Georgia law and,

therefore, proof of this disorder would not alleviate Hicks’s guilt.3 
F.2d 1529, 1532 (11th Cir. 1988); Stevens v. State, 350 S.E.2d 21, 22 (Ga. 1986) (noting that to

support a claim of delusional compulsion, it must appear that (1) the defendant was laboring under

a delusion; (2) the criminal act was connected to the delusion; and (3) the delusion was as to a fact

which, if true, would have justified the act).

10

“[A] right to which a defendant is not entitled absent some threshold

showing [cannot] fairly be defined as basic to the structure of a constitutional

trial.” Starr v. Lockhart, 23 F.3d 1280, 1291 (8th Cir. 1994). Thus, we conclude

that an Ake error is trial error. Assuming that the trial court’s delay in granting

psychiatric assistance and its denial of Hicks’s motion for a continuance was an

Ake error, it constitutes trial error because the court must quantitatively assess the

error in the context of other evidence presented in order to determine the effect it

had on the trial. Fulminate, 499 U.S. at 307-08, 111 S. Ct. at 1264. In holding

that Ake error is trial error, we join several of our sister circuits. See White v.

Johnson, 153 F.3d 197, 201 (5th Cir. 1998); Tuggle v. Netherland, 79 F.3d 1386,

1388 (4th Cir. 1996); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995);

Starr, 23 F.3d 1280, 1291. Because an Ake error is a trial error, it is subject to

harmless error analysis. See Brecht, 507 U.S. at 629, 113 S. Ct. at 1717. 

B. Which harmless error analysis applies to Ake violations.

Based on the foregoing analysis, we must next consider which harmless

error standard applies to Ake violations. Hicks urges the court to apply the
11

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

standard that provides for habeas relief on the basis of a constitutional error unless

the respondent can demonstrate that the error was harmless beyond a reasonable

doubt. Under the Chapman standard, a constitutional error may not be declared

harmless if a “reasonable possibility” exists that the “error contributed to the

verdict.” Brecht, 507 U.S. at 637, 113 S. Ct. at 1721. Hicks contends that this

standard applies to his case because the state courts never applied the Chapman

standard during his state post-conviction proceedings. See Starr, 23 F.3d at 1292.

Contrary to Hicks’s argument, the Supreme Court in Brecht directed the

federal courts, on habeas review, to apply the harmless error standard set forth in

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

and determine whether the error “‘had substantial and injurious effect or influence

in determining the jury’s verdict.’” Brecht, 507 U.S. at 623, 113 S. Ct. at 1714

(quoting Kotteakos, 328 U.S. at 776, 66 S. Ct. at 1253). The Brecht Court opined

that “[o]verturning final and presumptively correct convictions on collateral

review because the State cannot prove that an error is harmless under Chapman

undermines the States’ interest in finality and infringes upon their sovereignty

over criminal matters.” 507 U.S. at 637, 113 S. Ct. at 1721. The Court noted that

granting federal collateral relief upon a mere “reasonable possibility” that the error
4

 Dr. Bradford assisted in Hicks’s defense and testified at both the guilt and sentencing

phases of his trial. At trial, Dr. Bradford testified that her examination of Hicks revealed evidence

of a major psychiatric disorder and possible organic difficulties. (R. Exh. 5 at 773). Dr. Bradford

further stated that “[t]he primary major psychiatric illness is an intermittent explosive disorder. I

suspect there also may be some neurologic disease. There has not been an opportunity to confirm

that hypothesis.” (Id. at 775). Although Dr. Bradford testified that Hicks could not resist his actions

12

contributed to the verdict would be inconsistent with the historic purpose of

habeas review which is “to afford relief to those whom society has ‘grievously

wronged.’” Id. The Court concluded that because “[t]he Kotteakos standard is

thus better tailored to the nature and purpose of collateral review and more likely

to promote the considerations underlying . . . habeas cases,” the Kotteakos

harmless error standard would be applicable to constitutional errors of the trial

type. Id., 507 U.S. at 637-38, 113 S. Ct. at 1722.

C. Whether the Ake violation in this case was harmless.

A comprehensive review of the record demonstrates that if the trial court’s 

denial of Hicks’s motion for a continuance to seek additional evidence regarding

his mental condition was an Ake error, then it was harmless. At his first state

habeas proceeding, and after having the benefit of over two years to develop

expert analysis of his sanity, Hicks presented expert evidence regarding his mental

condition. During the hearing, Hicks introduced Dr. Bradford’s affidavit

containing her opinions with respect to Hicks’s mental condition after further

examination.4 Hicks also presented the affidavit opinions of neurologist Dr.
that day due to this disorder, she did state that people with this disorder understand the difference

between right and wrong. (Id. at 808-09). Furthermore, at the sentencing phase, Dr. Bradford

testified that nothing changed her diagnosis of intermittent explosive disorder and noted that it did

not fit the test for legal insanity under Georgia law. (R. Exh. 6 at 1125). She reiterated that, in her

opinion, Hicks could not control the actions that constituted the crime in this case, and she expressed

her opinion that the jury should spare Hicks’s life. (Id. at 1143-44).

13

Jonathan Pincus, licensed clinical social worker C. Winter Giddings, and licensed

psychologist Dennis A. Bagarozzi regarding Hicks’s mental condition. These

opinions provide a thorough picture of Hicks’s childhood and adolescence and the

family dynamics allegedly responsible for the development of Hicks’s intermittent

explosive disorder. These opinions referred to specific violent and abusive

incidents in Hicks’s past to which Hicks’s family testified at the sentencing phase. 

Further, Dr. Pincus opined that Hicks suffers from a neurological impairment of

organic brain disorder that may be responsible for Hicks’s inability to control his

explosive behavior. None of the experts’ opinions, however, contradicted the

evidence presented at trial that Hicks understood the difference between right and

wrong at the time that he stabbed the victim and slashed her throat.

Rather than demonstrate a different or more viable insanity defense, these

expert opinions relate to the same impulse control disorder testified to by Dr.

Bradford at trial. Although the post-conviction expert evidence is more complete,

the evidence is identical in kind to the testimony offered by Dr. Bradford at both

the guilt and sentencing phases. Indeed, to form her diagnosis of intermittent
14

explosive disorder, Dr. Bradford relied upon the same critical violent incidents in

Hicks’s history as did the later experts. Accordingly, we conclude that any alleged

Ake error did not have a “substantial and injurious effect” on the guilty verdict or

the death sentence.

IV. CONCLUSION

We join several of our sister circuits and hold that Ake violations are subject

to harmless error analysis under the Brecht harmless error standard. Applying the

Brecht standard to the present case, we conclude that the alleged Ake error did not

have a “substantial and injurious effect” on the outcome of Hicks’s trial and

sentencing. Accordingly, we affirm the judgment of the district court denying

Hicks habeas relief.

AFFIRMED.