[PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT


                              No. 94-2536


                  D. C. Docket No. 88-40228-MMP




STEPHEN TODD BOOKER,


                                                  Petitioner-Appellee,

                                versus


HARRY K. SINGLETARY, JR.,


                                              Respondent-Appellant.




          Appeal from the United States District Court
              for the Northern District of Florida


                            (July 17, 1996)


Before TJOFLAT, Chief Judge, HATCHETT and DUBINA, Circuit Judges.
TJOFLAT, Chief Judge:

                                 I.

     In the previous appeal in this case, we affirmed the

district court's issuance of a writ of habeas corpus, pursuant to

28 U.S.C. § 2254 (1994), setting aside the death sentence that

the petitioner received following his conviction for first degree

murder in Florida state court.   Booker v. Dugger, 

(11th Cir.), cert. denied, 

, 

, 116 L.

Ed. 2d 228 (1991).   The writ issued because petitioner's sentence

had been imposed in violation of Hitchcock v. Dugger, 

, 

, 

(1987) (applying Lockett

v. Ohio, 

, 

, 

(1978));

petitioner's sentencers -- the jury, which made the sentencing

recommendation, and the trial judge, who fashioned and imposed

petitioner's sentence -- gave no weight to certain mitigating

evidence that may have counselled the imposition of a sentence of

life imprisonment instead of death.   According to the trial judge

(in his instructions to the jury and, later, in imposing

sentence) and the prosecutor (in his summation at the close of

the penalty phase of petitioner's trial), the evidence was

entitled to no weight because it did not establish any of the

mitigating circumstances prescribed by Florida statute.     See Fla.
Stat. ch. 921.141(6) (1995).   Other mitigating evidence was not

presented to the judge and the jury because petitioner's counsel

believed that it would have been disregarded as irrelevant.


                                 2
       The State objected to the issuance of the writ on the ground

that, under Chapman v. California, 

, 

, 

(1967), the Hitchcock error was harmless beyond a
reasonable doubt.    In other words, the State argued that the

aggravating circumstances in the case were such that none of the

nonstatutory mitigating evidence the petitioner presented (or

could have presented) would have affected the outcome of the

case; the jury still would have recommended and the trial court

still would have imposed the death sentence.    On review, we were

"not able to speculate as to the effect this substantial

[nonstatutory mitigating] evidence would have had on the

sentencing body" and therefore we could not "find the error

harmless, regardless of the . . . aggravating circumstances that

may have been found."    

.

       Following our affirmance of the district court's decision,

the State petitioned the Supreme Court for a writ of certiorari.

The Supreme Court denied the State's petition on October 7, 1991.

Singletary v. Booker, 

, 

, 

.    The State, still in pursuit of the death penalty, moved the

trial court to set the sentencing phase of petitioner's case for

trial.    A trial date was set, but the proceedings were stayed

indefinitely.



                                 II.

       On April 21, 1993, the Supreme Court decided Brecht v.
Abrahamson, 

, 

, 

                                  3
(1993).   In Brecht, the Court held that Chapman's standard of

"harmless beyond a reasonable doubt" was inapplicable to habeas

corpus review.    

113 S. Ct. at 1713-14.    In place

of Chapman, the Court substituted the standard established by

Kotteakos v. United States, 

, 

, 90 L.

Ed. 1557 (1946), for resolving the harmless error issue on the

direct review of a criminal conviction.      

,

113 S. Ct. at 1714.   The Kotteakos standard asks whether the

error "had substantial and injurious effect or influence in

determining the jury's verdict."       

, 66

S. Ct. at 1253.   By substituting Kotteakos' standard for

Chapman's, the Court in Brecht made it easier for a state to show

that a constitutional violation did not prejudice an habeas

petitioner's case.    See Duest v. Singletary, 

, 1337

(11th Cir. 1993), cert. denied, ___ U.S. ___, 

,

, and cert. denied, ___ U.S. ___, 

, 

(1994).

     With the less stringent Brecht standard in hand, the State

moved the district court to vacate its judgment setting aside

petitioner's death sentence in accordance with Fed. R. Civ. P.

60(b)(6).   Rule 60(b)(6) authorizes a district court, in the

exercise of its discretion, to relieve a party from the operation

of a final judgment for "any . . . reason justifying relief."

The State argued that the district court should vacate its

judgment and reinstate the petitioner's death sentence because



                                   4
the Hitchcock error that permeated the sentencing phase of

petitioner's case was harmless under the Kotteakos test.

     The vacation of a judgment under Rule 60(b)(6) is an

extraordinary remedy.   See Ritter v. Smith, 

, 1400

(11th Cir.), cert. denied, 

, 

, 97 L.

Ed. 2d 747 (1987).   The State submits that this extraordinary

remedy is called for in this case because there has been a change

in the law:   a lessening of the State's burden of demonstrating

that a constitutional violation is excusable.    "[S]omething more

than a 'mere' change in the law is necessary[, however,] to

provide the grounds for Rule 60(b)(6) relief."   

.   In addition to citing a change in the law, a Rule

60(b)(6) movant "must persuade [the court] that the circumstances

are sufficiently extraordinary to warrant relief."    

whether to grant the requested relief is, as noted above, a

matter for the district court's sound discretion.

     The district court denied the State relief under Rule

60(b)(6) because the State had not demonstrated the

"extraordinary circumstances" required by Ritter.     We find no

abuse of discretion in this decision.



                               III.

     Even if we were to revisit the district court's grant of

habeas relief under the correct standard -- as we were required

to do on remand from the Supreme Court in Duest v. Singletary --
we would still hold that the State has failed to carry its burden


                                 5
of excusing the constitutional error.1   In affirming the district

court's decision setting aside petitioner's death sentence, we

observed:

          In petitioner's case it is clear beyond cavil that
     significant nonstatutory mitigating factors were excluded
     from the jury's consideration by the erroneous jury charge.
     Booker was the only defense witness at the sentencing phase
     of the trial, and he testified that he had been hospitalized
     for psychiatric reasons nine times beginning at age 13, that
     he had severe problems with alcohol and drugs and had
     experienced blackouts, and that he was honorably discharged
     from the Army. He said he could not remember the crime, but
     that if he did it he felt remorseful. . . . Although no
     psychiatric testimony was presented during sentencing,
     Booker did call one psychiatrist during the guilt phase of
     his trial; the testimony adduced showed that, although
     Booker was not insane, his records from Walter Reed Army
     Medical Center indicated that Booker suffered from an
     organic brain disorder as a result of drug use. The
     psychiatrist also testified that there were indications of
     paranoid schizophrenia. The police officer who took
     Booker's confession testified that Booker seemed to have a
     split personality when he confessed. Booker assumed the
     identity of "Aniel"; he said that "Steve" committed the
     murder; he clenched his teeth so hard they cracked; and he
     laughed and cried uncontrollably. The officer stated that
     he did not think Booker was faking. There was also evidence
     that Booker was cooperative with the police, and that he may
     have made the anonymous phone call reporting the murder.

(footnote omitted).   After summarizing

this evidence in the record, we observed that at the sentencing

     1
        In Duest, also a capital case from Florida, we reversed
the district court's refusal to issue a writ of habeas corpus
setting aside the petitioner's death sentence. Duest v.
Singletary, 

(11th Cir. 1992). We did so because (1)
the petitioner's jury had based its recommendation of death upon
consideration of a prior criminal conviction which was
subsequently vacated -- a constitutional error under Johnson v.
Mississippi, 

, 

, 

(1988)
-- and (2) the State had not shown that the error was harmless
under the Chapman standard. 

. The
Supreme Court, on certiorari, vacated our judgment and remanded
the case "for further consideration in light of Brecht."
Singletary v. Duest, 

, 1049, 

, 1941,

(1993).

                                6
hearing subsequently held by the trial judge, other nonstatutory

mitigating evidence was presented.

      This evidence included the report of a court-appointed
      psychiatrist. This report concluded that Booker had above
      normal intelligence but was impulsive and had difficulty
      postponing gratification. It also noted that Booker had had
      little supervision as a child, that he began drinking and
      using drugs as a teenager, and that he had experienced
      hallucinations. The psychiatrist concluded that Booker was
      not under extreme emotional duress or the domination of
      another at the time of the crime. But due in part to
      intoxicants he had consumed, Booker was "most probably . . .
      less able than the average individual to conform his conduct
      to the requirements of the law."

the Hitchcock violation, however, neither the jury

nor the sentencing judge considered whether any of this evidence

counselled against the imposition of the death penalty.   In

addition, because Booker's attorney believed that Florida law did

not permit these sentencers to consider nonstatutory mitigating

circumstances, other available mitigating evidence was not

presented.   See 

n.3.   Because we were unable to

speculate as to the effect the mitigating evidence would have had

on the judge or jury, we could not find the error to be harmless.

See 

.   We therefore affirmed the district court's grant

of habeas relief.

      When reevaluting the case in Duest v. Singletary under the
Brecht standard, we posed the question as follows:   "Did the

constitutional error 'substantially influence' the verdict, or,

at least, does a 'grave doubt' exist as to whether it did?     If

so, then the petitioner is entitled to habeas relief."    

(citations omitted).   As the Supreme Court

instructed in O'Neal v. McAninch, ___ U.S. ____, ____, 

992, 994, 

(1995), which was decided eighteen

months after the panel's decision in Duest:

     When a federal judge in a habeas proceeding is in grave
     doubt about whether a trial error of federal law had
     "substantial and injurious effect or influence in
     determining the jury's verdict," that error is not harmless.
     And, the petitioner must win.

When, in 

, we said that we were unable to

speculate as to the effect the disregarded "substantial

[mitigating] evidence would have had on the sentencing body," we

were in essence answering in the affirmative the second part of

the question posed in Duest.

     AFFIRMED.




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