### 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-Appel lant,

versus FREDERICK J. HEAD, W arden, Georgia Diagnosti

c and Classificati

on Prison, Respondent-Appellee.

Appeal from the United States District Court for the Northern D

istrict of Georgia

(June 16, 2003)

Before EDMON

DSON, Chief Judge, BIRCH and DUBINA, Ci

rcuit Judges. DUBINA, Circuit Judge:1 See28 U.S.C. § 2253. 2

Petitioner Robert Karl Hicks (“ Hicks”), a deat

h row inmate,

appeals the district court’s orde r denying him federal habeas rel ief 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), a re subject to har

mless error analysis and, i

f so, whether the

trial court’s de

nial of psychiat

ric assistance until

a few days before trial, in violation of Ake , constitutes harm less error. Joinin

g several other cir

cuits, we hold that Ake violations are am enable to harm

less error analysis, and we conclude that the Ake violation in thi s case was harmless. Accordingly, we affirm the judgm ent of the district court denying habeas relief.

I. BACKGROUND A. Facts The facts are ta

ken verbatim f

rom the Georg

ia Supreme Co

urt’s decision in Hicks’s direct appeal:

Early in the e

vening of July 13,

1985, the victim

, Toni Rivers, drove to an area on R

awls Road to me

et a friend with w

hom she planned to visit Calla

way Gardens . When the frie nd arrived, the victim’s aut

omobile was the

re, but the victim

was not.3 At about 8:00 pm that evening, a resident of Blanton Mill Road heard a lou d scream from a nea rby pasture a rea, and the n a woman’s voice saying, “

Don’t do that.” He saw a car pa rked 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 lyin

g 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 w

as going on in the pasture . The two men , Robb ie McC une an d Char les Ga rner, heard screa ms themselves, a

nd, looking toward the

pasture, saw a sh

irtless man wi

th blond hair and a black

beard bending over a

nd making stabbing motions. Garner testified that as the man straightened up, he wiped something off an

d 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 st op. (The car had run out o f gas.) Garner and McCune found a telephone at the firs t house down the road, called t

he sheriff, and r

eturned just in tim

e to see the blond male clim b into the back of a bla

ck pickup that had stoppe d to give him a ride. A

deputy sheriff

approached the are

a 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, Ga rner got out and ran to the pasture

to find the woma

n. Sheriff’s deput

y Chuck Hudson te stified that Garne r and McCune “flagg

ed me down and told me that the guy sitting in the back of the [pickup ] I had just passed was the o ne they had seen . . . in the wooded area where . . . all the screaming and all had taken place . . . [W]hen they told m e that, I turned around and went back and stopped the black pi

ckup truck.” Hudson

was informed

by the driver, whom

he knew, that the m

an in the back had aske

d for a ride to a gas station.4 Hudson asked the m

an, whom he la

ter identified as th

e defendant, if he knew anything about a girl or if he had heard anything in the ar

ea. The defenda

nt answered negati

vely. Hudson offered to help the defendant with his car problems, and told him that if “everything was all right, I’d help him get som e gas and get his car going.” Then, Hudson testified, “Mr. Hicks came down off the truck and started to get in t

he back of my

patrol car, and I

made him st

op, 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 app eared to be blood – fre sh blood.” Meanwhile, Gar

ner had found the vict

im, nude from

the waist down and covered with blood. She told him she was dying. When Hudson and another de

puty arrived at

the scene, she begg

ed for help, saying she could not

breathe. She cl

awed at the ground m

aking choking noises until just before the EMT’s arrived, when she stopped moving. She soon

died. The victim had “five large, gapin g lacerations of the t hroat . . ., 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 di scovered a pair of women ’s shorts, a bloody pair of men’ s socks, a pair of sandals, and a key ring wit h the initials “T.R.” Blood on the seat of the

car, and on the def

endant’s pants, socks and knife, wa

s identified as being c

onsistent with that of

the victi m. Hicks v. State , 352 S.E.2d 762, 767-68 (Ga. 1987) (alterations in original). B. Procedural History On June 13, 1985, a j ury in Spalding Co unty, Georgia

, found Hicks guilty

of the malice m

urder of Toni Rive

rs and recomm

ended that the court i

mpose a death5

sentence. The j ury found three statutory aggra vating circumst

ances: the offense

of murder was committed by a person with a prior record of conviction for a capital felony, rape ; the offense was c ommitted w

hile the offender w

as engaged in the commission of the offense of aggravated battery; and the offense of m urder was outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to th e victim. See Ga. Code Ann. § 17-10-30(b)(1), ( b)(2) and (b)(7) (1997). T

he Supreme Co

urt of Georgia af

firmed 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. 322 0, 96 L. Ed. 2d 706 (1987). Hicks filed his fir

st state habeas peti

tion in the Superior Court of Butts County, Georgia. Following an evidentiary hearing, t he state court denie d relief. The Supreme

Court of Georgia d

enied Hicks’s ap

plication for a cer

tificate of probable cause to ap

peal, and the Unite

d States Suprem

e Court denied certiorari

. Hicks v. Kemp , 494 U.S. 1074, 110 S. Ct. 1797, 108

L. Ed. 2d 798 (1990

). Hicks then filed a feder

al habeas petition,

and the State m

oved to dismiss the

petition for lack of exhaustion. The district court entered judgm

ent 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. After6

conducting a hearing o

n the motion to dism

iss, the state cour

t dismissed the petition. The Ge

orgia Supreme

Court denied Hicks’ s application for pro bable cause to appeal, a

nd the United State s Supreme Cour t denied certiorari

review. Hicks filed his second federal habeas petition on April 24, 1997, and filed an amended peti

tion on June 8, 1998. T

he district court de

nied him any

relief on the claims he r

aised. The distri

ct court specifica

lly found that Hi

cks’s Ake claim was subject to harmless error analysis and that under the Brecht v. Abraham son harmless error standard, the constitutional violation did not have a “‘substantial and injurious effe

ct or influence in de

termining the j ury’s verdic t.’” 507 U.S.

619, 637-38, 113 S. Ct. 1710, 1722, 123 L. E d. 2d 353 (1993) (quoting Kotteakos v. United States , 328 U.S. 750, 776, 66 S. Ct. 1 239, 1253, 90 L. Ed. 2d 15 57 (1946)). The district court

denied Hicks’s m

otion to alter or am

end the judgme

nt, 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 violatio ns are subje ct to harmles s error anal ysis and, if s o, whether t he trial co urt’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. Bradfor d”) just days before the trial satisfied Ake. Specifically , the Georgia Su

preme 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 Sup rem e Court’s determination that the denial of Hicks’s motion for a continuance did n ot vio late Akewas considered by the district court to be an unreasonable application of the clearly established Supreme Court prec edent. 7 II. STANDARD OF REVIEW We give deference to state courts’ merits-adjudication of constitutional questions unless the dec

isions are “con

trary to” or a

n “unreasonable

application of . . . clearly established” Unite d States Supreme Court preced ent. 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 vi

olations are subject to ha rmless error analysis. We will assum

e, without deciding , that the state cou rt’s determ

ination of no Ake error was an unre

asonable application

of clearly es

tablished Suprem

e Court precedent. 2 In Ake , the Court held that “when a defendant has made a preliminar y showing that his sanity

at the time of t

he offense is likely

to be a significant f

actor at trial, th e Constit ution req uires that a State prov ide access to a psychia trist’s assistance on this issue if the defendant cannot otherwise afford one.” 470 U.S. at8

74, 105 S. Ct. at 1 091-92. The constit utional right recogni

zed in Ake provides a criminal defe

ndant the assistance

of a psychiatri st in two general ci rcumstances: “when [the] defendant demo nstrates to the tria

l judge that his sanit

y at the tim

e of the offense is to be a

significant factor

at trial, . . .. [and] when th e State presents psychiatric evidence of the defendant’s future dangerousness” during a capital sentencing hearin g. Ake , 470 U.S. at 83, 105 S. Ct. at 10 96. To date, we have not addressed the question whether Ake error is ame nable to harmless er

ror analysis.The question whethe r a particular con

stitutional error is subject to harm

less error analy

sis depends upon whethe r the error is prope

rly characterized a

s trial error or st

ructural error.Trial error is e rror that “occur[s] during the presentation of the case to the jury.” Arizona v. Fulmi nante , 499 U.S. 279, 307-08, 111 S. C

t. 1246, 1264, 113 L.

Ed. 2d 302 (1991). S

uch error “is amenable to harmless-error analysis because it m ay . . . 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 171 7 (alterations in or iginal) (internal quotations omitted). In contrast, structur al error is error

“affecting t

he 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. at3 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 capaci ty t o distinguish between right and wrong in relation to such act, omission, or negligence.” Ga. Code Ann. § 16-3-2 (1999). Delusional compuls ion 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 defi cie ncy, 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. Fo rd , 850 9 310, 111 S. Ct. at 1265. The Supreme Court has observed that classification of an

error as structur

al and, therefor

e, not subject to ha

rmless 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 defenda

nt had counsel and wa

s tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harm less-error analysis.” Id. , 478 U.S. at 579 , 106 S. Ct. at 3106. Hicks made a r

equest for psych

iatric assistance

in order to bolster hi s 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 m et with Hicks and perfor med an evalua tion to as sist in hi s defense. Dr . Bradford’s preliminary

diagnosis of Hicks w

as intermitten

t explosive disorder,

which, according to Dr. Bradford, rende red Hicks unable to c

ontrol his impulse s. This disorder did not fit w

ithin the legal defini

tion of insanity und

er Georgia law and, therefore, proof

of this disorder woul

d not alleviate Hic

ks’s guilt. 3F.2d

1529, 1532 (11th Cir

. 1988); Stevens v. State

, 35 0 S.E.2d 21, 22 (Ga.

1986) (noting tha

t to support a claim of delusional compulsion, it must appear that (1) the defendant was laboring under a delusion; (2) the c

riminal act was c

onnected 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 defendan

t 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). T hus, we conclude that an Ake error is trial er ror. Assumin

g that the trial cour

t’s delay in gr

anting psychiatric assistance and its denial of Hicks’s motion for a continuance was an Ake error, it constit

utes trial error b ecause the court m ust quantitatively

assess the error in the context

of other evidence pr

esented in order to de

termine the ef

fect it had on the trial. Fulminate , 499 U.S. at 307 -08, 111 S. Ct. a t 1264. In holding that Ake error is trial error, we join s everal of our sister ci rcuits. See White v. Johnson , 153 F.3d 197, 201 (5 th Cir. 1998); Tuggle v. Netherla nd , 79 F.3d 1386, 1388 (4th Cir. 1996); Brewer v. Rey nolds , 51 F.3d 1519, 1529 (10th Cir. 1995); Starr , 23 F.3d 1280, 1291.Because an Ake error is a trial e rror, it is subje

ct to harmless error analysis. See Brecht , 507 U.S. at 629, 113 S. Ct. at 1 717. B. Which harmless er

ror analysis applies to A ke violations. Based on the foregoi

ng analysis, w

e must next consid

er which harm

less error standard app

lies to Ake violations. Hicks ur ges the court to apply

the11

Chapman v. Californi

a , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), standard that provide s for habeas relief on the basis of a con stitutional error unl

ess the respondent can de

monstrate that

the error was ha

rmless bey

ond a reasonable doubt. Under the Chapman standard, a constitutional error may not be declared harmless if a “reasonable po ssibility” exists that the “err or contributed to the verdict.” Brecht , 507 U.S. at 637 , 113 S. Ct. at 172 1. Hicks contends th at this standard applies to his case because the state courts never applied the Chapman standard during h is state post-conv iction proceeding s. See Starr , 23 F.3d at 1292. Contrary to Hi

cks’s argume

nt, the Suprem

e Court in Brecht

directed the federal courts,

on habeas review,

to apply the harm

less error standar

d 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 171 4 (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 S

tates’ interest

in finality and in

fringes upon their sove

reignty 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 possibilit

y” that the err

or4 Dr. B radford 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 ma jor psychiatric disorder and possible organic difficulties. (R. Exh. 5 at 773). Dr. Bra dford furt her stated that “[t]he primary major psychiatric illness is an intermittent explosive disorder. I suspect there also may be some neurologic disease. Ther e 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 ver

dict would be inconsist

ent with the historic

purpose of habeas review w

hich is “to aff

ord relief to those w

hom society has ‘grievously wronged.’” Id. The Court concluded that because “[t]he Kotteakosstandard is thus better tailore

d to the nature and pur

pose of collateral

review and mo

re 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. a t 1722. C. Whether the Ake

violation in this case w

as harmless. A comprehensi

ve review of the r

ecord demonstr

ates that if the tri

al court’s denial of Hicks’ s motion for a co ntinuance to seek addi

tional evidence reg

arding his mental condit

ion was an Ake error, then it w as harmless. At his first state habeas proceeding,

and after having the

benefit of over tw

o years to devel

op expert analysis of his sanity, Hicks presented expert evidence regarding his mental condition. During the

hearing, Hicks int

roduced Dr. Bra

dford’s affidav

it 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, a t the sen tencing phase, Dr. Bradford testified that nothing changed her diagnosis of intermittent explosive disorder and noted that it did notfit 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 Denn

is A. Bagarozzi

regarding Hicks’ s mental conditio n. These opinions provide a thorou gh picture of Hicks’ s childhood and adolesce nce and the family dy namics allege

dly responsible f

or the developme

nt of Hicks’s inte

rmittent explosive disorder.These opinions ref erred to specific

violent and abusive incidents in Hicks ’s past to which Hicks’s family testi fied at the sentencin g phase. Further, Dr. Pincus opined that Hi cks suffers from

a neurological im

pairment of organic brain disorde

r that may

be responsible for H

icks’s inability

to control his explosive behavior. None of the expert s’ opinions, howev

er, contradicte

d the evidence presente

d at trial that Hic

ks understood the diffe

rence between r

ight and wrong at the tim

e that he stabbed the victim and slashe d her throat. Rather than dem

onstrate a differ

ent or more via

ble insanity def

ense, 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 ident

ical in kind to the test

imony offe

red by Dr. B

radford at both the guilt and sentenci

ng phases. Indeed,

to form her dia

gnosis of intermi

ttent14

explosive disorder,

Dr. Bradford r

elied upon the sam

e critical violent i

ncidents in Hicks’s history as did the later experts. Accordingly, we conclude that any alleged Ake error did not have a

“substantial an

d injurious effec

t” on the guilty ve

rdict or the death sentence.

IV. CONCLUSION We join severa

l of our sister circ

uits and hold that Ake violations are subject to harmless error analysis under the Brecht harmless err

or standard. Apply

ing the Brecht standard to the prese

nt case, we conc

lude that the alleged Ake error did not have a “substant

ial and injurious ef

fect” on the outcom

e of Hicks’s tri

al and sentencing. Acco

rdingly, we a

ffirm the j udgment of the dis trict court deny

ing Hicks habeas relief. AFFIRMED.