ON PETITIONS FOR REHEARING
Before GODBOLD, Chief Judge, RO-NEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON, and CLARK, Circuit Judges. PER CURIAM:Footnote 40 of the opinion is hereby deleted. In the last sentence of the second paragraph of footnote 39, the words “a claim” are hereby deleted, and the words “an argument” are substituted in lieu thereof.*
IT IS ORDERED that the petitions for rehearing filed in the above-entitled and numbered cause be and the same are hereby DENIED.
CLARK, Circuit Judge, dissenting, with whom KRAVITCH and JOHNSON, Circuit Judges, join:
I dissent from the decision of the en banc court to deny rehearing in this case. The majority’s use of the Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) prejudice test (which requires that the petitioner show that but for the improper argument the result of the proceeding would have been different) is in conflict with the recently decided Supreme Court case of Caldwell v. Mississippi, — U.S. -, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
In Caldwell, the Supreme Court in evaluating the impact of an improper argument used by the prosecutor at the penalty phase of Caldwell’s trial concluded:
Because we cannot say that this effort [to minimize the jury’s responsibility for determining the appropriateness of the death penalty] had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eighth Amendment requires.
— U.S. at-, 105 S.Ct. at 2646 (emphasis added).
The language used by the Supreme Court in Caldwell is, in essence, a paraphrase of the harmless error test used by the Court in numerous cases, most notably in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). As I maintained in my special concurrence in this case, the harmless error test is incompatible with the Strickland v. Washington prejudice test, which shifts the burden of proof to the petitioner to demonstrate that but for the improper argument the result of the proceeding would have been different.
Furthermore, the prosecutor in this case made statements at the penalty phase indicating that he seldom sought the death penalty and then gave the factors he considered in deciding whether to seek the death penalty in a particular case. The majority of the en banc court was troubled *1449by this type of argument, i.e., the prosecutorial expertise argument. The root of the en banc majority’s concern was identical to that espoused by the Caldwell majority, i.e., that the prosecutor’s statement would lessen the jury’s sense of responsibility for determining the appropriateness of the death penalty. Additionally, the majority recognized that the argument in this case had at least some prejudicial effect. The majority stated:
Although we cannot conclude that these few improper arguments had no prejudicial effect on the jury, we are satisfied the prejudice was not severe.
Brooks v. Kemp, 762 F.2d 1383, 1415 (11th Cir.1985).
Therefore, the conclusion seems inescapable that our court’s en banc opinion in this case conflicts with the Supreme Court’s holding in Caldwell v. Mississippi, supra. The majority of our court found that the prosecutor’s argument had some effect on the sentencing decision in Brooks’ case. The Supreme Court in Caldwell held that the constitutional standard of reliability in the sentencing phase required another sentencing proceeding unless it was able to find that the prosecutor’s argument had no effect upon the jury’s decision. Consequently, I think we err when we do not reconsider our opinion in Brooks and I therefore dissent.
These changes were incorporated in the opinion at p. 1407.