concurring in part and concurring in the judgment:
I concur in Parts I through IV of the opinion authored by Judge Gregory and Part V of the opinion authored by Judge Niemeyer. I also concur in the judgment on the McKoy issue. Because I have come to view the McKoy issue somewhat differently from my colleagues, however, I write separately to express my views regarding how McKoy, Chapman, and Brecht intersect in the circumstances of this case.
I.
In the early morning hours of May 14, 1985, North Carolina Highway Patrolman Raymond Worley radioed his dispatcher that he was stopping two vans with Maryland license tags. After receiving no further communication, the dispatcher sent officers to search for Worley. Worley’s patrol car was found on the side of the *333road, parked behind a white van. The driver’s side window of the car was shattered and Worley was sitting in the driver’s seat, his body leaning to the right with his head tilted downward. Blood covered his shirt and was spattered on his right arm, right leg and across the right side of his head. He was pronounced dead at the scene. A .22 caliber pistol and an identification card for Antonio Worrell were found at the scene. According to the autopsy, Worley had been shot three times with a .38 caliber firearm. One bullet entered behind his right ear, traveled through his neck, and lodged in his left back. Another bullet entered his right shoulder and lodged near the right base of his neck. A third bullet hit the middle finger of his left hand. The medical examiner testified that ‘Worley’s lungs were hyperinflated due to blood rushing into the airways, essentially drowning him in his own blood.” State v. Allen, 323 N.C. 208, 372 S.E.2d 855, 858 (1988). It was estimated that Worley lost consciousness within a minute and died within three to four minutes of the shooting. Within a matter of hours, officers had located Allen’s brother, Alex, walking near where a black van had been abandoned, in possession of a .38 caliber firearm, and tracked three other men, including Allen, to a nearby area where they were hiding in bushes.
Later that afternoon, Allen confessed to the murder. According to Allen, he, Alex, Worrell and Mack Greene left Washington, D.C. on May 11 in a stolen black van. They traveled to North Carolina, where they broke into a store and stole beer, cigarettes and the .22 and .38 caliber pistols. Allen kept the .38 pistol and gave the .22 pistol to Worrell. The men then stole a white van from a car lot. Allen and Alex got into the white van and followed Wor-rell and Greene in the black van, intending to return to Washington. While en route, Worley pulled over the two vans. After Worley approached and spoke to Worrell, the two men walked to the patrol car. Worley then motioned for Allen to come to the patrol ear. According to Allen’s written confession, Worley reached over to unlock the passenger door as Allen approached and Allen began shooting. The men then fled the scene in the black van. At the murder trial, however, Allen denied shooting Worley. Allen testified that he, Worrell, and Worley had met at the patrol car, but that he had returned to the black van to get his license when he heard shots being fired.
After the jury convicted Allen of the first-degree murder charge and stolen property charges, a capital sentencing hearing was held pursuant to N.C. Gen. Stat. § 15A-2000. At the conclusion of the hearing, the trial court submitted two aggravating and ten mitigating circumstances for consideration by the jury. See N.C. Gen.Stat. § 15A-2000(b). However, the jury was instructed that it must unanimously find the existence of any mitigating circumstances before such circumstances could be weighed against any aggravating circumstance. See N.C. Gen. Stat. § 15A-2000(b)(2). The jury found the existence of both aggravators, but only three of the ten mitigators, and returned a sentence of death.
At the time Allen was sentenced, the North Carolina Supreme Court had upheld this requirement of unanimity for mitigating circumstances. See State v. Kirkley, 308 N.C. 196, 302 S.E.2d 144, 157 (1983). During the pendency of his direct appeal, however, the United States Supreme Court overruled Kirkley and struck down the unanimity requirement because it “violated the principle in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), that a sentencer may not be precluded from giving effect to all mitigating evidence.” McKoy v. North Carolina, 494 *334U.S. 433, 438, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (quoting Mills v. Maryland, 486 U.S. 367, 375, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988)). “Relevant mitigating evidence,” the Court held, “is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value.” Id. at 440, 110 S.Ct. 1227 (internal quotation marks omitted). Two weeks after the Supreme Court’s decision in McKoy was handed down, the Supreme Court granted Allen’s petition for writ of certiorari and remanded his case to the North Carolina Supreme Court for further consideration in light of McKoy. See Allen v. North Carolina, 494 U.S. 1021, 110 S.Ct. 1463, 108 L.Ed.2d 601 (1990).
On remand, the state conceded McKoy error in the charge in Allen’s case, but argued that the error was “harmless beyond a reasonable doubt” based upon the post-sentencing jury poll, and the North Carolina Supreme Court agreed. See State v. Allen, 331 N.C. 746, 417 S.E.2d 227, 228 (1992). The United States Supreme Court denied certiorari, with three justices voting to grant the petition for writ of certiorari and reverse the judgment. See Allen v. North Carolina, 507 U.S. 967, 113 S.Ct. 1402, 122 L.Ed.2d 775 (1993). Allen’s subsequent motion for appropriate relief, see N.C. Gen.Stat. § ISA-1415, was denied by the state court, and this § 2254 petition followed.
When McKoy was decided by the Supreme Court, the North Carolina court, faced with the task of dealing with a number of death sentences imposed under the erroneous instruction, was initially presented with the question of whether the error was susceptible to harmless error analysis. Although ultimately concluding that “McKoy errors are subject to harmless error analysis,” the court recognized that “it would be a rare case in which a McKoy error could be deemed harmless.” State v. McKoy, 327 N.C. 31, 394 S.E.2d 426, 433 (1990). And since that time, the North Carolina Supreme Court has consistently decided that, where the evidence supports at least one unfound mitigating circumstance, the court cannot conclude beyond a reasonable doubt that the erroneous instruction did not prevent one or more jurors from finding the mitigating circumstance to exist. See State v. Zuniga, 336 N.C. 508, 444 S.E.2d 443, 447 (1994) (noting that the North Carolina court “has refused to hold McKoy error harmless where [the Court has] found ‘credible evidence supporting at least one submitted, but unfound mitigating circumstance’ ” (quoting State v. Robinson, 330 N.C. 1, 409 S.E.2d 288, 307 (1991))). In addition, the court has refused to evaluate the harmlessness of a McKoy error by reweighing aggravating and mitigating evidence:
This Court, in the McKoy error cases, has not inquired as to how individual jurors might have balanced the aggravating and mitigating evidence to resolve the harmlessness issue. On this issue, our only inquiry has been whether the evidence is such that one or more jurors could reasonably have found a statutory mitigating circumstance to exist. Where we have concluded there is such evidence, unless there is in the record something, such as a [post-verdict] poll, by which we can determine that the mitigating circumstance was unanimously rejected, we have consistently held McKoy error to be not harmless and the defendant entitled to a new capital sentencing proceeding. We have not thought it our function, in resolving the harmlessness issue, to surmise how one or more jurors might weigh the aggravating and mitigating evidence, which is capsulized in the form of individually submitted “circumstances.” This func*335tion, we continue to believe, is solely for the trial jurors who hear the evidence and are -properly instructed on the law.
State v. Lloyd, 329 N.C. 662, 407 S.E.2d 218, 221-22 (1991) (“Lloyd II”) (internal citations omitted) (emphasis added).1
In the more than thirty capital cases to reach the North Carolina Supreme Court since McKoy, the court has found the unanimity instruction to have been a harmless error in a total of five cases (including Allen). In two cases, the court found (as it did in Allen) that the specific questions asked of the individual jurors during the polling revealed that the jurors had unanimously rejected the unfound submitted circumstances. See State v. Price, 331 N.C. 620, 418 S.E.2d 169, 173 (1992), vacated on other grounds by Price v. North Carolina, 506 U.S. 1043, 113 S.Ct. 955, 122 L.Ed.2d 113 (1993); State v. Laws, 328 N.C. 550, 402 S.E.2d 573, 575-77 (1991). In one case, the court found that the error was harmless because the jury actually found the existence of all proposed mitigating circumstances submitted, but nonetheless imposed the death penalty. See State v. Roper, 328 N.C. 337, 402 S.E.2d 600, 619 (1991). And, in the single remaining case, the court found the error harmless because the defendant presented no mitigating evidence during the sentencing phase of his trial and the only mitigating circumstance submitted was the “catch-all” circumstance which, by definition, must arise “from the evidence” submitted. See State v. Hunt, 330 N.C. 501, 411 S.E.2d 806, 814 (1992).
II.
It is against the backdrop of this pertinent North Carolina law that I can now review the McKoy error under 28 U.S.C.A. § 2254(d) (West 1994 & Supp.2003) and under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
A.
The McKoy error is undisputed. Thus, the initial question before us is the same as that before the North Carolina Supreme Court: Was the McKoy error harmless beyond a reasonable doubt? See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).2 But, because that question was adjudicated on the merits by the state court, we may only review that adjudication under the deferential provisions of § 2254(d). We may grant federal habeas relief only if North Carolina’s adjudication of the claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Id.; see also Williams v. Taylor, 529 U.S. 362, 376, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
*336The North Carolina court concluded that the McKoy error was “harmless beyond a reasonable doubt” based upon its determination that the post-verdict poll demonstrated that the individual jurors were unanimous in their rejection of the seven unfound mitigating factors submitted to it by the trial judge. See Allen, 417 S.E.2d at 228. Like my colleagues, I find this construction of the jury poll to be an unreasonable application of the Chapman standard and, therefore, that § 2254 does not preclude us from granting habeas relief to Allen in this case.
B.
With no barrier to the grant of habeas relief presented by § 2254(d), I turn to the next distinct step in our analysis. A determination that the state court’s adjudication was the product of an unreasonable application of Chapman only results in our conducting an independent review of the harmlessness of the McKoy error, as opposed to conducting further review under the deferential standards set forth in the AEDPA amendments to § 2254(d). And, because we are dealing with a constitutional error subject to harmless error review in a habeas proceeding, we are to review the claim not under the Chapman harmless-error standard, but under the harmless-error standard of review set forth by the Supreme Court in Brecht.
In recognition of the strong principles of comity and respect for state court judgments, Brecht directs that we not grant habeas relief to a defendant unless “ ‘[the error] had a substantial and injurious effect or influence on the jury’s verdict,’ ” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)), or we are “in ‘grave doubt’ as to the harmlessness of [the] error.” Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir.2002) (quoting O’Neal v. McAninch, 513 U.S. 432, 438, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)); see also Boyd v. French, 147 F.3d 319, 327 (4th Cir.1998); Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir.1996) (en banc). We “do[ ] not ask whether the evidence of guilt was sufficient, whether the jury would have reached the same conclusion if the error had not occurred, or whether the jury reached the correct result based on the evidence presented.” Boyd, 147 F.3d at 327.
In order for an error to have a substantial and injurious effect or influence, it must have affected the verdict. Because juries have a limited number of responses to give in a criminal trial— guilty, innocent, or cannot decide — an error is harmless when the error did not substantially sway or substantially influence the response.
Thus, if the evidence is not merely sufficient, but so powerful, overwhelming, or cumulative that the error simply could not reasonably be said to have substantially swayed the jury’s judgment, then the error is not harmful. On the other hand, if the federal court is in grave doubt about whether the trial error had a substantial and injurious effect or influence on the verdict and therefore finds itself in virtual equipoise about the issue, the error is not harmless.
Cooper, 103 F.3d at 370 (citations and internal quotation marks omitted). Also, the inquiry is no longer one of who bears the burden of establishing harmlessness or error. Rather, it is “conceptually clearer for the judge to ask directly, ‘Do I, the judge, think that the error substantially influenced the jury’s decision?’ than for the judge to try to put the same question in terms of proof burdens (e.g., ‘Do I believe the party has borne its burden of showing ... ?’).” O’Neal, 513 U.S. at 436-37, 115 S.Ct. 992. “Grave doubt” exists when, in *337light of the entire record, “in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 435, 115 S.Ct. 992. “[W]here the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error,” “the petitioner must win.” Id. at 436, 437, 115 S.Ct. 992.
Having reviewed the record in this case within the confines of this standard, I am compelled to join the vote to grant conditional habeas relief to Allen.
First, although I cannot say with certainty that the unanimity instruction had a substantial and injurious effect or influence on the verdict of death, the nature of the error in this case unquestionably leaves me in grave doubt as to whether it was in fact harmless. According to Allen’s confession, Allen walked up to the driver’s side window and shot Worley as he reached over to open the passenger door to his police car and Allen fled the scene with the others. Officer Worley likely lost consciousness within one minute and died within four minutes. During the sentencing phase of the trial, the state presented no additional facts in support of the two aggravating factors submitted, and we know that the jury unanimously found the existence of the only two aggravating circumstances submitted to it for consideration — that Allen shot Patrolman Worley while Worley was engaged in his official duties in order to avoid being arrested for crimes that he committed with his cohorts during their trip from Washington to North Carolina.
Allen, however, presented the testimony of himself, his mother, his girlfriend, and his ex-wife in mitigation. With regard to Allen’s background, Allen’s mother testified that, from an early age, Allen witnessed frequent arguments between his parents, culminating in his need for medical treatment for nervousness. Allen’s mother and father ultimately separated, following a violent argument that occurred at Allen’s third birthday party, and Allen was thereafter reared in a single-parent home by his mother and grandmother. From the time his parents separated until Allen was approximately 12 years old, Allen’s father financially supported his ex-wife and children, but only saw his children once every three months or so. When Allen was approximately 12 years old and entering the sixth grade, his mother moved the family to Washington, D.C. As a result, Allen was able to see his father more frequently. However, Allen’s most significant adolescent problems began at about this same time. Upon arriving in Washington, Allen failed the sixth grade. He started drinking alcohol at age 14 or 15, began using heroin at age 15 or 16, married his pregnant girlfriend and dropped out of high school in the 10th grade, and added Preludin (a form of speed) to his heroin use at about the same time. Allen’s mother testified that Allen received a church education and had “plenty,” but testified that Alen had successfully hidden his early use of alcohol and drugs from both his father and her.
The second category of mitigating evidence pertained to Alen’s status as a father. Alen is the father of three sons. That is uncontroverted. As noted above, he married his first wife when he was 17 years old after she became pregnant with his first son, Timothy Jr. They divorced three years later, when Alen was 20 years old, but it appears uncontroverted that Alen maintained a very close and ongoing relationship with Timothy Jr. after the divorce. Alen, his mother and his father also maintained an ongoing relationship with Alen’s first wife. Indeed, Alen’s first wife and their son Timothy Jr. were present at the sentencing hearing and *338were pointed out to the jury, and she testified on Allen’s behalf. There was also testimony that Allen maintains some contact with his third son, but that he has been unable to locate or have contact with his second son because the mother moved away. There was also evidence that Allen maintained continuous employment while he was not incarcerated, which appears would have been at all times other than when Allen served a one-year sentence and a two-year sentence during his twenties.
As a result of the erroneous “unanimity” instruction given at the conclusion of the sentencing hearing, we know that the jury unanimously found three mitigating circumstances: (1) that Allen had no history of the use of a deadly weapon; (2) that Allen expressed remorse for the death of Trooper Worley; and (3) that Allen completed his high school education by obtaining his general equivalency degree while imprisoned. We also know that the jury did not unanimously find the existence of the seven additional mitigating circumstances that the trial court submitted for consideration: (1) that Allen had no significant history of prior criminal activity; (2) that Allen’s age at the time of the offense (30 years old) was a mitigating factor; (3) that Allen was reared in a single-parent home; (4) that Allen is the father of three sons; (5) that Allen remained employed during the times he was not incarcerated; (6) that Allen was a supporting parent of at least one of his children; or (7) the “catch-all” question of whether any single other circumstance arising from the evidence existed that the jury thought had mitigating value. But, we do not know whether any juror or jurors (fewer than twelve) found that any of these seven potentially mitigating circumstances existed or, if they did, whether the juror or jurors would have weighed the additional miti-gator or mitigators against the two aggravating circumstances and voted against the death penalty had they not been instructed that they must ignore them in the final analysis.
Having reviewed the entire record and, in particular the evidence supporting the mitigating circumstances which were not unanimously found by the jury, I cannot conclude with “fair assurance,” O’Neal, 513 U.S. at 437, 115 S.Ct. 992, that no “juror’s sentencing decision would have been substantially influenced” by any of the mitigating factors not unanimously found by the jury, see Boyd, 147 F.3d at 328. And because, after reviewing the record and the evidence presented in mitigation and aggravation, I am in “virtual equipoise as to the harmlessness of the [McKoy ] error,” O’Neal, 513 U.S. at 434, 115 S.Ct. 992,1 am directed by Supreme Court precedent to “treat the error, not as if it were harmless, but as if it affected the verdict (ie., as if it had a ‘substantial and injurious effect or influence in determining the jury’s verdict’).” Id.
Second, I note that, while the Brecht analysis is not defined by opinions of the North Carolina Supreme Court, I believe habeas relief would be inappropriate under Brecht for an additional reason, more unique to this case. Brecht recognizes that “federal habeas courts play an important role in protecting the constitutional rights of state criminal defendants,” but also reminds us that this “role is circumscribed and secondary to that of state courts.” Boyd, 147 F.3d at 327.
In this case, the North Carolina Supreme Court found the McKoy error to be harmless (and thus one of the “rare cases” in which the defendant does not get a new sentencing hearing) because the jury poll revealed that the jury unanimously rejected the unfound mitigating circumstances, a decision which we have now rejected as being a unreasonable application of the *339Chapman harmless error standard. It seems perverse that we then consider denying habeas relief from a North Carolina death sentence imposed under North Carolina’s death sentencing scheme because we believe, based upon our “reweighing” of the evidence under Brecht, that it should be upheld in the face of knowing that the North Carolina Supreme Court did not find the McKoy error harmless for that reason under the Chapman standard and would not have performed such a reweighing itself. In short, we would be doing what North Carolina would not do. Cf. Maynard v. Cartwright, 486 U.S. 356, 365, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (upholding invalidation of death sentence imposed by Oklahoma jury where one of two aggravating circumstances submitted to the jury was unconstitutional and Oklahoma courts had “ ‘no provision for curing on appeal a sentencer’s consideration of an invalid aggravating circumstance’ ” (quoting Cartioright v. Maynard, 822 F.2d 1477, 1482 (10th Cir.1987))).3 Without a post-verdict poll that would legitimately cure the McKoy error, I believe North Carolina's law is unequivocal that Allen would have received a resentencing hearing. And, this belief is only bolstered by the fact that the state of North Carolina did not argue as an alternative ground for denying habeas relief that the verdict should be upheld based on a reweighing of the evidence.
In conclusion, although I might have found none of the additional mitigating factors and voted to render the same verdict as did the improperly instructed jury, I would respect North Carolina’s view that it is not the court’s “function, in resolving the harmlessness issue, to surmise how one or more jurors might weigh the aggravating and mitigating evidence.... This function ... is solely for the trial jurors who hear the evidence and are properly instructed on the law.” Lloyd, 407 S.E.2d at 222. And even though we would not be bound by North Carolina’s interpretation of how Chapman’s “harmless beyond a reasonable doubt” standard is to apply to a constitutional error reviewed under Brecht, the same principles of comity and respect for the state courts which underscore Brecht would render it improper for us to uphold North Carolina’s death sentence on this basis. In any event, the evidence submitted in support of the un-found mitigating factors is not insignificant nor incredible in my view, nor apparently in the view of the North Carolina trial court which admitted the evidence and submitted the mitigators (some over objection by the state) as being supported by the evidence. For all these reasons, I am in grave doubt as to the harmlessness of the trial error (and in no doubt as to the prejudice Allen would have suffered if this court had denied habeas relief following a reweighing process).
III.
For the foregoing reasons, I agree that the state court’s adjudication of Allen’s McKoy claim was unreasonable and that Allen is entitled to a conditional writ of habeas corpus because I am in grave doubt as to whether the McKoy error was harm*340less under the Brecht/O’Neal standard. Under such circumstances, I am compelled to join in the decision to grant Allen a conditional writ of habeas corpus and leave it for a properly instructed jury to determine on an individual basis whether the mitigating circumstances of Allen’s life outweigh the aggravating circumstances of this unquestionably senseless murder.
Judge Shedd has requested that he be shown as joining in this opinion.
. In Lloyd II, the court, having rejected the state's contention that the jury poll revealed unanimous rejection of the unfound mitigating circumstances, concluded that the unanimity instruction was not otherwise harmless error because the evidence supported the trial court's submission of the "no significant history of prior criminal activity” mitigator to the jury. See Lloyd II at 222 (internal quotation marks omitted); see also State v. Lloyd, 321 N.C. 301, 364 S.E.2d 316, 323-24 (1988) ("Lloyd I") (upholding trial court's submission of the "no significant history” mitigator despite the fact that defendant had been convicted of two prior felony and numerous misdemeanor convictions several years prior to the murder).
. Although the state court did not cite to the Chapman harmlessness standard, see Chapman, 386 U.S. at 24, 87 S.Ct. 824 (providing that error is harmless where it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained”), the North Carolina standard applied under its statutes is the same as the Chapman standard.
. More specifically, in Cartwright v. Maynard, 822 F.2d 1477, 1482 (10th Cir.1987), the Tenth Circuit noted that ''[t]he Oklahoma courts ha[d] refused to apply the harmless error analysis or to independently reweigh the aggravating and mitigating circumstances. Thus, Oklahoma ha[d] no provision for curing on appeal a sentencer's consideration of an invalid aggravating circumstance.” On appeal, the Supreme Court noted that “[if] this was the case at that time, and the State does not dispute it, the Court of Appeals cannot be faulted for not itself undertaking what the state courts themselves refused to do.” Maynard v. Cartwright, 486 U.S. 356, 365, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).