Smith v. Dixon

SPEOUSE, Senior Circuit Judge,

dissenting:

I respectfully dissent.

As the majority points out, there is no dispute that the trial court’s instruction to the jury, regarding whether the murder was “especially heinous, atrocious or cruel,” was unconstitutionally vague. The State, on appeal, urges and the majority holds, however, that Smith’s challenge to the constitutional error is procedurally barred under the principles of Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), and Coleman v. Thompson, -U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The majority also agrees with the State that even if consideration of the issue were not procedurally barred in this case, a federal court, faced with the conceded constitutional error, can consider whether the constitutional error was harmless. While I agree with much of the majority’s holding, I dissent because, in my view, consideration of the vagueness issue is not procedurally barred and, furthermore, a federal habeas court lacks the power to conduct a harmless error analysis when confronted with a state court’s constitutional error in a capital sentencing proceeding.

I

The standard for determining whether a federal court is procedurally barred from granting habeas relief to remedy a federal constitutional error made at a defendant’s state trial is set out in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), and Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Edüd 640 (1991). In Harris, the Supreme Court held that “a procedural default does not bar consideration of a federal claim on ... habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly states that its judgment rests on a state procedural bar.” Id. 489 U.S. at 263, 109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985)).1

Coleman modified Harris. It held that the Harris presumption (that the state judgment did not rest on independent and adequate state grounds and, therefore, that there is no procedural bar) “applies only when it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court had good reason to question whether there is an independent and adequate state ground for the decision.” Coleman, — U.S. at -, 111 S.Ct. at 2559. But “[i]n the absence of a clear indication that a state court rested its decision on federal law,” the claim is proee-durally barred. Id.; accord Ylst v. Nunnemaker, — U.S. -, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).

Thus, resolution of the procedural bar issue rests on a determination of whether the North Carolina Superior Court’s denial of Smith’s vagueness claim fairly appears to rest primarily on federal law or to be interwoven with federal law (i.e., the merits of his constitutional claims). If so, then the Harris presumption applies, and the claim is not procedurally barred. If not (i.e., if the denial was based on procedural default), the Harris presumption does not apply and the claim is procedurally barred.2 The rule is easy to *984state but not always easy to apply, because state court opinions are frequently unclear concerning the basis of their rulings. Coleman, — U.S. at -, 111 S.Ct. at 2555. This case is further proof of that problem. The majority has written skillfully and exhaustively to support its holding that the North Carolina trial court based its denial of Smith’s “Motion for Appropriate Relief’ on North Carolina state procedural grounds. While I admire the tenacious craftsmanship of my colleague’s opinion, I cannot agree with either its premise or its conclusion that special circumstances distinguish this ease from our holding in Nickerson v. Lee, 971 F.2d 1125 (4th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993).

In its order denying Smith’s Motion for Appropriate Relief, the North Carolina trial court did not include a plain statement either that its decision rested on procedural grounds or that it rested on the merits. It simply stated: “The court has read the pa-perwriting and considered the arguments in support of the claims set out therein. The court finds as a fact that Claims No. I, II, III, and IV [including the vagueness challenge], set forth no probable grounds for relief.” In my view, proper application of the principles announced in Coleman requires a holding in this case that the North Carolina trial court’s ruling was based primarily on federal law or interwoven with federal law. This result is dictated first by the differences in the circumstances surrounding the issuance of the ruling by the Virginia Supreme Court in Coleman and those surrounding the ruling by the North Carolina trial court on Smith’s motion. Second, our decision in Nickerson, where the facts resemble this case and closely parallel the differences from Coleman, mandates the conclusion we must reach.

In Coleman, the United States Supreme Court concluded that the Virginia Supreme Court’s ruling was based on state procedural grounds. It determined that the Virginia court’s order dismissing the defendant’s late notice of appeal was grounded on independent state law, even though the order lacked a plain statement of the reason for the dismissal, because the surrounding circumstances supported that conclusion. Coleman, — U.S. at -, 111 S.Ct. at 2561. In Coleman, the Virginia Supreme Court clearly granted the Commonwealth’s motion to dismiss on procedural grounds: “That motion was based solely on Coleman’s failure to meet the Supreme Court’s time require-ments_ Coleman concedes that the Virginia Supreme Court dismissed his habeas corpus appeal as untimely, applying a state procedural rule.” Id. - U.S. at -, 111 S.Ct. at 2551. In that situation, the only issue was timeliness — purely a state procedural issue. As we recognized in Nickerson, “the Commonwealth had filed a motion to dismiss on the grounds of procedural default. Therefore, when the court granted Virginia’s motion to dismiss, it was apparent that the court’s judgment rested on independent and adequate state grounds.” Nickerson, 971 F.2d at 1129.

In Nickerson, a panel of this court reviewed a vague North Carolina trial court’s order denying a defendant’s motion, which was similar to Smith’s motion for appropriate relief under N.C.Gen.Stat. § 15A-1419 (1988) in this case. That order, which was issued by the Person County Superior Court, read as follows:

This cause coming on to be heard before the undersigned Judge presiding in the Person County Courthouse on January 3, 1990, pursuant to the petitioner’s Motion for Appropriate Relief which was filed in the office of the Person County Clerk of Superior Court on September 8, 1989, the Court upon review of the motion and the file in the case finds that the petitioner has set forth no grounds for which he is entitled to a motion for appropriate relief.
The Court further finds that the petitioner has previously had a motion for appropriate relief denied on July 15, 1986, by the Honorable Henry W. Hight, Jr., and that the petitioner has taken his case on appeal to the North Carolina Supreme Court. The North Carolina Supreme Court found “no error” in the petitioner’s trial.
WHEREFORE, IT IS ORDERED BY THE COURT that the petitioner’s Motion *985for Appropriate Relief is denied and dismissed.

Nickerson, 971 F.2d at 1128.

In finding erroneous the federal habeas court’s holding that the defendant’s federal habeas claim was proeedurally barred, Judge Luttig, writing for the panel, said:

[I]t appears that the motion could have been denied on the ground of procedural default. We do not believe, however, that it was denied on this alternative ground. Cf. Caldwell v. Mississippi [472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985) ] (“The mere existence of a basis for a state procedural bar does not deprive this Court of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the ease”).

Id. Judge Luttig went on to explain why the circumstances surrounding the issuance of the order failed to indicate that the ruling was based on state procedural grounds and how the Nickerson circumstances differed from those in Coleman:

The first paragraph of the order states the court’s conclusion, ... that Nickerson “has set forth no grounds for which he is entitled to ... relief.” J.A. at 265. This paragraph implies that the court reached and reviewed the merits of each of Nicker-son’s claims and concluded that he would not be entitled to relief on any of these claims....
The court neither mentions procedural default (or any synonymous term) nor cites any relevant North Carolina statutory or decisional law. It does not even note that the claims raised by Nickerson in the underlying motion Lad not been raised in his previous direct and collateral appeals.

Id. at 1128-29.

The “finding” language by the trial court in this case is almost identical to that in Nickerson. In Nickerson, the state court found that Nickerson had “set forth no ground for which he is entitled to ... relief.” Id. In Smith, the state court found “as a fact that claims 1, 2, 3, and 4 set forth no probable grounds for relief.” In Nickerson, we held that this language “implies that the court reached and reviewed the merits of each of Nickerson’s claims and concluded that he would not be entitled to relief on any of these claims.” Id. at 1129. The Nicker-son court found it significant that the state court neither mentioned procedural default, recited relevant North Carolina law, nor even noted that Nickerson’s claims had been raised in the previous appeal. Id. The state trial court’s order denying Smith’s motion in this case is characterized by these same negative factors indicating that Smith’s motion was not turned down for state procedural grounds. In fact, in this case, as in Nicker-son, North Carolina did not respond in state court to the Motion for Appropriate Relief. It is difficult to imagine more parallel decisive circumstances.

The majority, in my view, understates the controlling force of Nickerson and overstates or mischaracterizes the circumstances which it believes bring the state court’s action on the motion in Smith within the ambit of the Supreme Court’s ruling in Coleman. In my view, these suggested distinctions are evanescent.

The majority first postulates that section 15A-1419(a)3 is mandatory and that since all *986of the issues raised by Smith were raised or could have been raised on appeal, the state court was required to deny his motion based on either section 15A-1419(a)(2) or (a)(3). The majority thus concludes that North Carolina trial courts, in considering Smith’s motion under section 15A-1419, could not have considered any of the grounds advanced in the motion on the merits. This might be at least an arguable interpretation of the statute, lacking any previous North Carolina interpretation. The problem with that argument is, however, that the North Carolina Supreme Court has spoken on the issue.

In State v. Price, 331 N.C. 620, 418 S.E.2d 169 (1992), vacated on other grounds, — U.S. -, 113 S.Ct. 955, 122 L.Ed.2d 113 (1993), the North Carolina Supreme Court considered a defendant’s arguments based on section 15A-1419 and, considering them on the merits, found them unpersuasive. It stated: Id. 418 S.E.2d at 174-75 (quoting State v. Fowler, 270 N.C. 468, 469, 155 S.E.2d 83, 84 (1967)). In other words, the North Carolina Supreme Court stated that it frequently considers the merits of contentions raised on section 15A-1419(a) motions. In Price, as here, some of those contentions were federal constitutional claims.

[T]he arguments now raised by the defendant in the motion for appropriate relief could have been raised in his original appeal. Therefore, defendant’s motion for appropriate relief is subject to being dismissed.
We have nevertheless elected to review defendant’s contentions raised in his motion for appropriate relief in the interests of both judicial economy and thorough scrutiny of this capital case. “[I]t is the uniform practice of this Court in every case in which a death sentence has been pronounced to examine and review the record with minute care to the end it may affirmatively appear that all proper safeguards have been vouchsafed the unfortunate accused before his life is taken by the State.”

In contrast to the majority, I do not read the Price opinion as one relying on section 15A-1419(b). While it is true that the defendant “noted” the provisions of section 15A-1419(b), the North Carolina Supreme Court did not discuss section 15A-1419(b), nor did it mention good cause. In its consideration of the merits of Price’s claims, the court reviewed the ease in order to further judicial economy and in light of the thorough and appropriate scrutiny to be given to “this capital case.” The North Carolina Supreme Court also announced its practice as one utilized in every death sentence case. Id. 418 S.E.2d at 175.

Similarly (and in contrast to the view of the majority), section 15A-1420(c)(l) sheds no light on the question of whether the state trial court considered the merits of Smith’s federal constitutional arguments. That provision merely requires a hearing unless a movant’s arguments are completely without merit. A reviewing court can certainly consider an issue “on the merits” and decide, without a hearing, that it is meritless. Presumably on this rationale, the state court in Nickerson denied the defendant’s motion.

Of the forty-three grounds that Smith raised in claims 1 through 4 of his motion for appropriate relief, nine of them raised non-constitutional issues that had been raised on direct appeal.4 The majority concludes that *987the North Carolina Supreme Court’s consideration of the nine claimed nonconstitutional errors is a circumstance indicating that in dismissing Smith’s motion for appropriate relief, the trial court could not have considered the claims of constitutional error not raised on appeal. In my opinion, and in light of Price, that conclusion is simply not deducible from a plain reading of section 15A-1419.

The majority, continuing its discussion of the circumstances differentiating the court’s action in this case from that in Nickerson, relies on the fact that the state trial court drew no distinction between those issues it was required to deny under section 15A-1419(a)(2), because they had previously been decided by the Supreme Court in North Carolina, and those subject to denial under section 15A-1419(a)(3), because they could have been, but were not, raised in Smith’s direct appeal. It emphasizes that the trial court denied all of the claims with the same three sentences. I submit that this circumstance does not support the majority’s thesis, but that, instead, it supports a finding that the state trial court did not act upon state procedural grounds. As the Nickerson court said, “The court neither mentions procedural default (or any synonymous term) nor cites any relevant North Carolina statutory or deci-sional law. It does not even note that the claims raised by Nickerson in the underlying motion had not been raised in his previous direct and collateral appeals.” Nickerson, 971 F.2d at 1129.

Also not probative on the principal issue is the different treatment afforded claims 1 through 4 as contrasted to claim 5, i.e., a determination of claims 1 through 4 without a hearing and a determination of the issue in claim 5 only after a fairly extensive hearing. A simple explanation for this is that all of the facts needed for the trial court’s decision concerning claims 1 through 4 were already in the record, whereas claims of ineffective assistance of counsel of the type involved in claim 5, almost without exception, require a record developed by a separate hearing.

For these reasons, I am convinced that the procedural default issue here is controlled squarely by Nickerson. The same circumstances that distinguished Nickerson from Coleman exist here. There is some ambiguity in all three cases, but in Coleman, the motion was based solely on timeliness, a state procedural ground, and was granted in that context.

There is no doubt that the Virginia Supreme Court’s “consideration” of all filed papers adds some ambiguity, but we simply cannot read it as overriding the court’s explicit grant of a dismissal motion based solely on procedural grounds. Those grounds are independent of federal law.

Coleman, — U.S. at -, 111 S.Ct. at 2561.

In contrast, here, as in Nickerson, not only was there no procedural motion, there was no response to the defendant’s motion for relief on the merits. The state, knowing that the motion was for relief on the merits, failed *988to respond. The circumstances that resolved the ambiguity in Coleman quite simply are not present here. While it is true that the Coleman court declined to require a state court to explicitly state that its decisions rest on state procedural grounds, it emphasized its belief that state courts should and would do so. In the absence of any such indication, it would be improper to decline review in this case based on the existence of an adequate and independent state ground.

II

I also disagree with the conclusion of the majority that federal habeas courts in cases like this one may undertake dispositive harmless error analysis. It is true, as the majority notes, that in Clemons v. Mississippi 494 U.S. 738, 752, 110 S.Ct. 1441, 1450, 108 L.Ed.2d 725 (1990), and Satterwhite v. Texas, 486 U.S. 249, 258, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988), the Supreme Court held that a harmless error analysis in the sentencing phase of death penalty cases is appropriate. Clemons, however, was before the Court on direct review and said only that the Mississippi Supreme Court could conduct a harmless error analysis in reviewing a capital sentence issued in that state’s courts. Satterwhite was likewise before the Court on direct review. The Court, therefore, did not address whether a district court, in considering a petition for a writ of habeas corpus, had the power to conduct harmless error analysis of a state sentencing proceeding.5

Nor do the holdings in Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), and Cabana v. Bullock, 474 U.S. 376, 391 n. 6, 106 S.Ct. 689, 700 n. 6, 88 L.Ed.2d 704 (1986), cited by the majority shed any light on our inquiry. These cases certainly demonstrate that a federal habeas court may conduct harmless error analysis in phases of state capital murder trials that do not implicate procedures used to determine how some defendants are selected for the death penalty while others escape it. An entire division of Eighth Amendment jurisprudence, however, has been devoted to establishing the difference between reviewing the procedures by which defendants are singled out for the death penalty and reviewing other criminal proceedings, including sentencing and non-sentencing phases of capital murder cases.

Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court has made it clear that states may impose the death sentence only if they shape their laws to assure that some guilty capital murder defendants are not separated from others such that the death sentence is imposed on a few guilty defendants in an arbitrary manner. That principle, discussed generally in Furman, was expressly articulated in Godfrey v. Georgia, where a plurality of the Court decreed:

A capital sentencing scheme must, in short, provide a “meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.”

Godfrey v. Georgia, 446 U.S. 420, 427-28,100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980) (quoting Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). The plurality went on to say:

This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbi*989trary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates “standardless [sentencing] discretion.” Gregg v. Georgia, supra, [428 U.S.] at 196, n. 47 [96 S.Ct. at 2936 n. 47]. See also Proffitt v. Florida, 428 U.S. 242 [96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)]; Jurek v. Texas, 428 U.S. 262 [96 S.Ct. 2950, 49 L.Ed.2d 929 (1976)]. It must channel the sentencer’s discretion by “clear and objective standards” that provide “specific and detailed guidance,” and that “make rationally reviewable the process for imposing a sentence of death.”

Godfrey 446 U.S. at 428, 100 S.Ct. at 1764-65 (footnotes omitted).

While the language in Godfrey reflected the views of three justices, two years before, a majority of the Court, in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), considered the constitutionality of the Ohio death sentencing procedures and expressed the need to implement special safeguards in capital sentencing proceedings: “Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital eases.” Id. at 605, 98 S.Ct. at 2965. The Court reiterated this position in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982):

By requiring that the sentencer be permitted to focus “on the characteristics of the person who committed the crime,” Gregg v. Georgia, supra, [428 U.S.] at 197 [96 S.Ct. at 2936], the rule in Lockett recognizes that “justice ... requires ... that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania v. Ashe, 302 U.S. 51, 55 [58 S.Ct. 59, 61, 82 L.Ed. 43] (1937).

Eddings, 455 U.S. at 112, 102 S.Ct. at 875 (emphasis supplied).

In Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), the Supreme Court again reviewed Georgia’s sentencing scheme to determine whether it satisfied the edicts set forth in the above cases. It described the role played by a state court in narrowing the class of capital defendants who can be sentenced to death and stated:

This conclusion [the Gregg court’s approval of the Georgia sentencing scheme] rested, of course, on the fundamental requirement that each statutory aggravating circumstance must satisfy a constitutional standard derived from the principles of Fur-man itself. For a system “could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” To avoid this constitutional flaw, an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. ...
What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.

Zant at 876-77, 879, 103 S.Ct. at 2742, 2744 (emphasis supplied) (citations and footnotes omitted).

Two things are abundantly clear from these cases: (1) the Eighth Amendment imposes an underlying requirement on states to individualize capital sentencing proceedings to eliminate arbitrary imposition of the death penalty and (2) state capital sentencing procedures, so long as they comply with the Eighth Amendment, are grounded on state law and are the responsibilities of states. In its review of state capital sentencing schemes, the Supreme Court has left to the states the development of specific procedures and rules that will guide each state’s capital sentencing scheme so long as there is compliance with the requirements of Furman and its progeny.

For example, the Supreme Court in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), held that the statutory aggravating circumstances of “especially heinous, atrocious, or cruel” was un*990constitutionally vague. In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), however, the Court held that a state appellate court could cure the unconstitutional vagueness by reweighing factors in a way that would satisfy the requirements of individualized consideration in selecting defendants of that class for the death penalty. The Court thus recognized that a state may have a number of avenues by which it can fulfill its responsibilities to “tailor and apply its laws in a manner that avoid the arbitrary and capricious infliction of the death penalty which ‘obviates stan-dardless sentencing discretion.’” Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764 (quoting Gregg v. Georgia, 428 U.S. at 196 n. 47, 96 S.Ct. at 2936 n. 47). The Court’s holding was obviously restricted to the discrete spectrum of death sentencing selection criteria in capital cases.6

In considering harmless error analysis in this discrete area of Eighth Amendment law, a state court would be using another tool, recognized by the United States Supreme Court, to reshape its sentencing laws so as to bring them in line with the federal Constitution. Federal habeas courts can only review harmless error analyses to determine if they do, in reality, bring the state’s sentencing scheme in line with the federal Constitution.

Against this background, the Court decided Stringer v. Black, — U.S. -, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992); Sochor v. Florida, — U.S. -, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992); and Richmond v. Lewis, — U.S. -, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992). These decisions, in my view, demonstrate the -underlying principle that a state court, conducting a harmless error analysis in the sentencing phase of capital cases, is performing a different function from that of a federal court conducting a straightforward constitutional harmless error analysis. Broadly stated, whether a capital sentence would have been imposed absent the constitutional error requires an interpretation of state law, and development of that law should be left to the states.

*991In Stringer v. Black, — U.S. -, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), the Supreme Court reviewed a habeas judgment rendered by a federal district court. The habeas court had considered the petition of a Mississippi defendant sentenced to death for committing a double murder during a robbery. Killing in the course of a robbery was included in the definition of capital murder, for which a jury could impose a death sentence after finding at least one of eight statutory aggravating factors which were not outweighed by mitigating circumstances. One of the aggravating factors found by the jury was “that the capital murder was especially heinous, atrocious, or cruel,” and the trial court’s instruction did not further define the meaning of that factor. The district court denied the petitioner’s habeas claim, and the Fifth Circuit affirmed.

In reversing, the Supreme Court discussed the role of state appellate courts in capital cases and said:

[W]hen the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale. When the weighing process itself has been skewed, only constitutional harmless error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence.

Id. — U.S. at -, 112 S.Ct. at 1137 (emphasis supplied).

In the same opinion, the Supreme Court indicated that the Fifth Circuit should not have ignored the Mississippi Supreme Court’s characterization of its law and indicated its deference to state courts in applying their sentencing laws and procedures by stating: “What is dispositive is the fact that the Mississippi Supreme Court, which is the final authority on the meaning of Mississippi law, has at all times viewed its sentencing scheme as one in which aggravating factors are critical in the jury’s determination whether to impose the death penalty.” Id. — U.S. at -, 112 S.Ct. at 1139 (emphasis supplied).

While the preceding statement does not directly address the issue in this case, the Court’s treatment of the merits in Stringer commands the result we adopt. In recognizing the role of Mississippi’s courts, the Supreme Court stated: “It will be a strange rule of federalism that ignores the view of the highest court of a state as to the meaning of its own law.” Id. Thus, the Supreme Court recognized the necessity of allowing state courts to develop state law.

Later that term, in Sochor v. Florida, — U.S. -, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), the Supreme Court considered a case in which the trial judge had relied in part on a “coldness” factor in sentencing the defendant to death. The Florida Supreme Court had held that even though that factor was unconstitutionally vague, the other factors properly considered were sufficient to make the sentence constitutionally valid. On direct review, the United States Supreme Court reversed, reasoning:

While federal law does not require the state appellate court to remand for resen-tencing, [the state] must, short of remand, either itself reweigh without the invalid aggravating factor or determine that weighing the invalid factor was harmless error.

Id. — U.S. at -, 112 S.Ct. at 2116 (emphasis supplied). Sochor thus teaches that while the Constitution requires individualized sentencing determinations in capital cases, states which seek to apply the death penalty bear the responsibility of shaping their laws so as to comply with the Eighth Amendment.

Finally, in Richmond v. Lewis, — U.S. -, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), before the Court on review of a federal district court’s denial of habeas relief, a divided Supreme Court of Arizona had affirmed a death sentence reached after application of aggravating factors, but the Arizona justices differed as to their individual reasons for affirmance. The United States Supreme Court, in remanding the case, repeated the Stringer language and said:

[N]or can a court “cure” the error without deciding itself that the valid aggravating factors are weightier than the mitigating factors. “Only constitutional harmless error analysis or reweighing at the trial or *992appellate level suffices to guarantee that the defendant received an individualized sentence.”

Id. — U.S. at -, 118 S.Ct. at 535 (emphasis supplied). The Richmond court then went on to specify who should perform such a constitutional analysis:

Where the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state appellate court or some other state sentencer must actually perform a new sentencing calculus, if the sentence is to stand.

Id. (emphasis supplied). Importantly, the Court remanded to the district court to grant the writ unless the State of Arizona corrected the unconstitutional failure to perform a sentencing calculus without the invalid factor.

It is also important to note that the Stringer/Sochor/Richmond line of cases does not represent a departure from established Supreme Court precedent. In Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), the Supreme Court laid out the distinct roles played by federal and state courts in this area. In that case, the Court reviewed a death sentence imposed under a Florida statute which required the state trial court, in imposing the sentence, to set forth in writing its findings concerning the aggravating and mitigating circumstances. The statute also provided for automatic review by the Supreme Court of Florida but did not limit this review to any specific form. This statute had been found constitutional in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), and the Florida Supreme Court has complemented its meaning with a number of decisions. In Barclay, although the trial judge had considered improper aggravating circumstances, the United States Supreme Court held that the Florida Supreme Court had properly narrowed the overly broad application of the heinousness instruction by the state trial court. The plurality first noted that whether the sentence should be vacated hinged on interpretation of Florida law. Id. 463 U.S. at 951, 103 S.Ct. at 3425. Second, then-justice Rehnquist stated that the Florida Supreme Court’s manner of reviewing constitutional errors at the trial level brings Florida law within the requirements of the Eighth Amendment:

[T]he Florida Supreme Court does not apply its harmless error analysis in an automatic or mechanical fashion, but rather upholds death sentences on the basis of this analysis only when it actually finds that the error is harmless. There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance. “What is important ... is an individualized determination on the basis of the character of the individual and the circumstances of the crime.”

Barclay, 463 U.S. at 958, 103 S.Ct. at 3429 (quoting Zant 462 U.S. at 879, 103 S.Ct. at 2744 (emphasis in original)).

The Barclay plurality steadfastly refused to delve into an interpretation of the particularities of Florida’s capital sentencing law. The defendant had raised questions about the Florida Supreme Court’s interpretation of its cases on aggravating factors. The plurality responded: “The obvious answer to this question ..is that mere errors of state law are not the concern of this Court, unless they rise for some other reason to the level of a denial of rights protected by the United States Constitution.” Id. 463 U.S. at 957-58, 103 S.Ct. at 3429. The question here is whether, under state law, inclusion of the invalid aggravating factor was harmless error.

The Stringer/Richmond line of cases requires individualized sentencing procedures but leaves implementation of those procedures to state courts. As the Supreme Court stated in Richmond: ‘Where the death sentence has been infected by a vague or otherwise constitutionally invalid aggravating factor, the state appellate court or some other state sentencer must actually perform a new sentencing calculus, if the sentence is to stand.” Richmond, — U.S. at -, 113 S.Ct. at 535 (emphasis supplied). No amount of grammatical parsing alters the clear instruction that the required harmless error *993analysis must be conducted in the state judicial system.7

While the Supreme Court has never been directly confronted with the issue presented in this case, it has, in cases starting with Furman v. Georgia, defined as a basic constitutional principle a state’s responsibility for individualizing sentencing determinations in death penalty cases, and it has enunciated the principles of how this must be achieved:

[I]f a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates “standardless [sentencing] discretion.”

Godfrey, 446 U.S. at 427-28, 100 S.Ct. at 1764 (citations and footnotes omitted).

Thus, when the Supreme Court in Stringer, Sochor, and Richmond added state harmless error analysis to the corrective formulations of Furman’s, progenies, it merely approved one more avenue by which a state judicial system could satisfy the state’s obligation to tailor and apply its laws in a constitutional manner. A federal court, under principles of constitutional federalism, may not intrude or even assist in that function. It may not perform those tasks for a state system any more than it could rewrite state legislation in order to shape it to fit it to the federal Constitution.

. Although the North Carolina Supreme Court denied certiorari following the Superior Court's decision on Smith’s motion, the Fourth Circuit has held that the last state court judgment for Harris purposes is the Superior Court’s denial of the Motion for Appropriate Relief, not the North Carolina Supreme Court’s denial of certiorari. Felton v. Barnett, 912 F.2d 92, 95-96 (4th Cir.1990), cert. denied, 498 U.S. 1032, 111 S.Ct. 693, 112 L.Ed.2d 683 (1991).

. It is barred unless Smith "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, - U.S. at -, 111 S.Ct. at 2565. Since, in my view, the issue was not procedurally barred, it is not necessary to address this prong of the rule.

. Section 15A-1419 provides:

(a) The following are grounds for the denial of a motion for appropriate relief:
(1)Upon a previous motion made pursuant to this Article, the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so. This subdivision does not apply to a motion based upon deprivation of the right to counsel at trial or upon failure of the trial court to advise the defendant of such right. This subsection does not apply when the previous motion was made within 10 days after entry of judgment.
(2) The ground or issue underlying the motion was previously determined on the merits upon an appeal from the judgment or upon a previous motion or proceeding in the courts of this State or a federal court, unless since the time of such previous determination there has been a retroactively effective change in the law controlling such issue.
(3) Upon a previous appeal the defendant was in a position to adequately raise the ground or issue underlying the present motion but did not do so.
(b) Although the court may deny the motion under any of the circumstances specified in this section, in the interest of justice and for *986good cause shown it may in its discretion grant the motion if it is otherwise meritorious.

. Those nine are: summary denial of defendant’s jury selection motions; refusal to sequester the jury during trial; failure to rule upon the motion to sequester the witnesses; misstatement of defendant’s contentions; failure to instruct on the defense of accident and on lesser included offenses; erroneous sentencing instructions at voir dire; lack of evidentiary support for jury's findings of aggravating circumstances; failure to peremptorily instruct that defendant’s capacity was impaired; and court’s mandatory death instruction.

Issues that were raised in Smith’s motion for appropriate relief that were not raised in the North Carolina Supreme Court include both constitutional and nonconstitutional grounds. They consist of: denial of motion to sever the charges for trial; death qualifying of the jury; refusal to exclude for cause jurors who expressed certain beliefs; seating of an admittedly biased juror; admission of victim’s hearsay statements; admission of defendant’s in custody statements; denial of defendant’s right of cross-examination of med*987ical witness; showing photographs of the victim during autopsy procedures; restriction of defense counsel's argument to the jury re Smith's failure to testify; instructions regarding defendant’s failure to testify; insufficiency of the evidence as to rape; insufficiency of the evidence as to first degree murder; improper arguments of prosecutors; failure to notify defendant of aggravating circumstances to be raised; provision of psychiatric reports to the prosecutor and compelled self-incrimination; admission of Smith’s statements that he preferred the death penalty; prosecution's improper arguments to the jury during sentencing; enhancement of aggravating circumstances; use of a circumstance previously adjudicated in defendant’s favor; improper statements of the court when setting forth the state’s arguments re why this was heinous and cruel; instruction that jury’s decision was a mere recommendation of sentence; burden of proof on the existence of mitigating factors; failure to peremptorily instruct that defendant had no prior criminal history; failure to allow the defendant the presumption of innocence of aggravating circumstances; failure to instruct the jury that it need not unanimously find the existence of mitigating circumstances; failure to instruct the jury on the effect of a non-unanimous verdict; failure to instruct the jury to take into account the mitigating circumstances when considering the aggravating circumstances; court’s response to the jury’s question regarding the significance of a life sentence; unconstitutional vagueness of the "heinous, atrocious, or cruel” instruction; arbitrariness of death penalty in North Carolina; discriminatory aspects of death penalty in North Carolina; general lack of justification for the death penalty under the Eighth Amendment; constitutional inadequacy of North Carolina's appellate review of death sentences; and fourteen ineffective assistance of counsel claims.

. In. Satterwhite, the Supreme Court did conduct a harmless error analysis of the admission of psychiatric testimony in violation of the Sixth Amendment. In conducting this analysis, the Satterwhite Court was simply considering the evidence presented to the jury less the improperly admitted psychiatric testimony. The United States Supreme Court, the Texas Court of Criminal Appeals, and the Baxter County District Court each considered the evidence introduced at the sentencing hearing in light of settled Texas law about the parameters of the “continuing threat to society” requirement. The Court was not required to develop or reshape Texas law; rather, it solely needed to consider the significance of one piece of evidence. In contrast, the majority would have us consider Smith’s case in light of North Carolina law that was not in effect at the time the North Carolina trial court or the Supreme Court of North Carolina considered this case. Whether current North Carolina law reaches the conduct in which Smith engaged should be answered by the state whose law controls sentencing of criminals convicted in its courts.

. For this reason, cases like Rose and Cabana, which involved harmless-error analysis in other phases of capital murder cases are inapposite. In those cases, the critical issue was not whether a state had met the responsibility in shaping its laws, but rather whether an error made by the trial court in convicting the defendant was harmless under the principles enunciated in Chapman.

Neither, in my view, does Brecht v. Abrahamson, - U.S. -, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), cited by the majority, support its view that a federal habeas court can conduct a harmless-error analysis in this discrete area involving a state's process in "selecting” capital murder defendants for execution. In the first place, Brecht was not concerned with the parameters of federal habeas review but rather, it reshaped the standard by which federal courts conduct these analyses when harmless error analysis is appropriate. Consideration of the pivotal thrust of the Brecht opinion also illuminates the problem of federalism that is involved in federal courts conducting harmless error analysis in reviewing murder trials and how that problem would be exacerbated here. Under Brecht, if a state court conducts harmless-error review of a constitutional error, the defendant has the advantage of the State having to prove harmlessness beyond a reasonable doubt. If, however, the state court does not discover the error (as here), or does not review it for harmlessness (as here), the defendant would be significantly handicapped by a federal habeas review. The federal forum, under the scenario proposed by the majority, must only find that the error did not "substantially prejudice” the jury’s decision. See id. - U.S. at -, 113 S.Ct. at 1725 (White, J., dissenting) (explaining the "illogically disparate treatment” caused by Brecht).

I think the final point of the majority's four-part summary also misses its intended mark. My colleagues assert that federal courts already conduct the same analyses involved in the harmless error equation when determining prejudice in the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), calculus. In judging prejudice in ineffective assistance of counsel cases, however, a federal habeas court is not judging whether the state has shaped its law in a constitutional fashion but rather, it is reviewing whether a violation of the Sixth Amendment affected the jury's verdict. While the factual analysis may be the same, there is a wide gap in the spectrum of federalism separating a federal court's judgment as to whether a defense counsel’s conduct during a state criminal trial gives rise to a violation of the Sixth Amendment and a federal court's judgment on the effect of a conceded constitutional violation in this very discrete area of Eighth Amendment law. The latter requires a state to take prophylactic steps to assure that its laws pass constitutional muster, i.e., if a state is to impose the death penalty on a differentiated basis, it must design and administer the sentencing law so that the death penalty is not administered in an arbitrary fashion. An intrusion by a federal court would be taking over the state court’s sentencing function and would be correcting an error of state law.

. See Wiley v. Puckett, 969 F.2d 86 (5th Cir.1992), a circuit court opinion adopting that interpretation, albeit without discussion.