ON PETITION FOR REHEARING
Before GODBOLD, Chief Judge, RO-NEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges. PER CURIAM:IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is 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 dissent 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 by 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:
We do not view the relatively small prejudicial impact of the improper arguments as undermining confidence in the sentencing verdict.
William Boyd Tucker v. Kemp, 762 F.2d 1480, 1489 (11th Cir.1985).
Therefore, the conclusion seems inescapable that the Court’s decision in Caldwell v. Mississippi, supra, coupled with the majority’s concession of at least some prejudice, requires reconsideration of our opinion in this case. I therefore dissent.