specially concurring:.
Although I recognize that this panel is bound by this court’s prior decision in Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1297, 140 L.Ed.2d 334 (1998), I write specially to express my belief that the Supreme Court’s holding in Chapman v. California requires that when state courts on direct review have disregarded their constitutional duty to apply the rigorous ' “beyond-a-reasonable-doubt” standard to constitutional error, federal courts on collateral review must apply the Chapman harmless-error standard as part of their obligation to vindicate federal constitutional rights and to protect criminal defendants from unconstitutional convictions and sentences. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) (“[W]e hold ... that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”). “The State bears the burden of proving that an error passes muster under this standard.” Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 1718, 123 L.Ed.2d 353 (1993). The Chapman standard protects those rights that are “rooted in the Bill of Rights, offered and championed in the Congress by James Madison, who told the Congress that the ‘independent’ federal courts would be the ‘guardians of those rights.?” Chapman, 386 U.S. at 21, 87 S.Ct. at 827. Therefore, the Chapman harmless-error rule is of constitutional magnitude because it is the “necessary rule” fashioned by the Supreme Court to fulfill its responsibility “to protect people from infractions by the States of federally guaranteed rights.” Id.
The Supreme Court’s subsequent holding in Brecht v. Abrahamson did not lessen that requirement, but only relieved federal habeas courts of the obligation of, duplicating the Chapman analysis when state courts on direct review already have satisfied this constitutionally mandated harmless-error review. It is clear to me that the Brecht Court’s new *238rule assumes that-a finding of harmlessness by the state courts under the rigorous Chapman rule always will precede federal habeas corpus review of the harmlessness question under the less stringent rule of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). See Brecht, 507 U.S. at 636, 113 S.Ct. at 1721 (“[I]t scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.”).
In support of its decision, the Brecht Court adverted to the State’s interest in the finality of convictions that survive direct review within the state court system. Id. at 635, 113 S.Ct. at 1720. The Court relied also on the principles of comity and federalism: “ ‘Federal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.’ ” Id. (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982)). Federal courts cannot justify abstaining from the enforcement of an individual’s constitutional right in deference to the systemic values of finality, federalism, and comity, however, unless there has in fact been a good-faith State effort to protect constitutional rights by applying the Chapman standard. See id.; John H. Blume & Stephen P. Garvey, Harmless Error in Federal Habeas Corpus After Brecht v. Abrahamson, 35 Wm. & Mary L. Rev. 163, 183-84 (Fall 1993).
Furthermore, Brecht was a non-capital case; it did not present, and the Court did not address, the applicability of its new rule to capital cases. “[T]he Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed.” Herrera v. Collins, 506 U.S. 390, 405, 113 S.Ct. 853, 863, 122 L.Ed.2d 203 (1993). Moreover, because-of the unique “severity” and “finality” of the death penalty, capital eases demand heightened standards of reliability. Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980). In this case, Barber will be executed with no state court ever having demanded that the State prove beyond a reasonable doubt that the constitutional error did not contribute to the verdict obtained. By repeating the state court’s error, this court will have failed in its obligation to “protect people from infractions by the States of federally guaranteed rights.”' See Chapman, 386 U.S. at 21, 87 S.Ct. at 827.
For these reasons, I conclude that this court in Hogue, by adopting a per se rule that all constitutional error on federal collateral review shall be analyzed under the lenient Brecht/Kotteakos standard, regardless of whether the state court applied the correct harmless-error standard on direct review, mistakenly failed to recognize its federal duty to determine whether there has been a good-faith State effort to protect constitutional rights by applying the Chapman standard.