         Case: 13-13906   Date Filed: 10/15/2019   Page: 1 of 32


                                                                   [PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-13906
                     ________________________

              D.C. Docket No. 7:04-cv-02923-RDP-RRA


JAMES MCWILLIAMS,

                                                      Petitioner – Appellant,

                                versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
WARDEN, HOLMAN CORRECTIONAL FACILITY,
ATTORNEY GENERAL, STATE OF ALABAMA,

                                                   Respondents – Appellees.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Alabama
                     ________________________

                          (October 15, 2019)

                ON REMAND FROM THE
          SUPREME COURT OF THE UNITED STATES
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Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

TJOFLAT, Circuit Judge:

        Petitioner, James McWilliams, is an Alabama prison inmate awaiting

execution for murder. A jury found McWilliams guilty as charged and

recommended that he be sentenced to death. At McWilliams’s sentencing hearing,

his attorney requested, under Ake v. Oklahoma,1 that the court appoint a

psychiatrist to assist him in countering the State’s argument that McWilliams’s

mental health status was insufficient to constitute a mitigating circumstance that

warranted imposing a sentence of life imprisonment rather than death. The trial

judge denied that request. The U.S. Supreme Court, reviewing our denial of




        1
         470 U.S. 68, 83, 105 S. Ct. 1087, 1096 (1985). McWilliams was indigent during all
phases of the murder case. Ake holds that

        when [an indigent] defendant demonstrates to the trial judge that his sanity at the
        time of the offense is to be a significant factor at trial, the State must, at a minimum,
        assure the defendant access to a competent psychiatrist who will conduct an
        appropriate examination and assist in evaluation, preparation, and presentation of
        the defense.

Id.

        This elementary principle, grounded in significant part on the Fourteenth
        Amendment’s due process guarantee of fundamental fairness, derives from the
        belief that justice cannot be equal where, simply as a result of his poverty, a
        defendant is denied the opportunity to participate meaningfully in a judicial
        proceeding in which his liberty is at stake.

Id. at 76.


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McWilliams’s application for a writ of habeas corpus under 28 U.S.C. § 2254,2

concluded that the trial judge’s refusal to provide the requested psychiatric

assistance, which the Alabama appellate courts had upheld, 3 constituted a decision

that was “contrary to, or involved an unreasonable application of, clearly

established Federal law”—i.e., its holding in Ake v. Oklahoma—and reversed.

McWilliams v. Dunn, 137 S. Ct. 1790, 1801 (2017) (quoting 28 U.S.C. §

2254(d)(1)). The Court remanded the case with the instruction that we consider,

under Brecht v. Abrahamson,4 whether McWilliams is entitled to the habeas writ

and a new sentencing hearing. We conclude that he is.

                                                 I.

       We draw from the Supreme Court’s opinion in McWilliams v. Dunn in

describing McWilliams’s murder prosecution, the circumstances that gave rise to




       2
           McWilliams v. Comm’r, Ala. Dep’t of Corr., 634 F. App’x 698, 700 (11th Cir. 2015).
       3
         The Alabama Court of Criminal Appeals, in affirming McWilliams’s conviction and
death sentence, found no error in the trial judge’s denial of his Ake request. McWilliams v. State,
640 So. 2d 982, 991 (Ala. Crim. App. 1991). The Alabama Supreme Court, on certiorari review,
affirmed the Court of Criminal Appeals decision (without expressly addressing McWilliams’s
Ake claim). Ex parte McWilliams, 640 So. 2d 1015, 1016 (Ala. 1993). Although the Supreme
Court did not expressly address McWilliams’s Ake claim, we treat the Court, in affirming the
Court of Criminal Appeals’ decision, as having rejected the Ake claim on the merits for the
reasons stated by the Court of Criminal Appeals.
       4
          507 U.S. 619, 623, 113 S. Ct. 1710, 1714 (1993). As explained infra, Brecht v.
Abrahamson establishes what a § 2254 petitioner must show in order to obtain relief from a
constitutional error committed during trial in a criminal prosecution in state court, which is
reviewable on direct appeal.
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his attorney’s request for psychiatric assistance, and why the refusal of that request

ran afoul of Ake.


      [T]he State of Alabama charged McWilliams with rape and murder.
      The trial court found McWilliams indigent and provided him with
      counsel. It also granted counsel’s pretrial motion for a psychiatric
      evaluation of McWilliams’[s] sanity, including aspects of his mental
      condition relevant to “mitigating circumstances to be considered in a
      capital case in the sentencing stage.” . . . .
             Subsequently a three-member Lunacy Commission examined
      McWilliams . . . . The three members, all psychiatrists, concluded that
      McWilliams was competent to stand trial and that he had not been
      suffering from mental illness at the time of the alleged offense. . . .
             McWilliams’[s] trial took place in late August 1986. On August
      26 the jury convicted him of capital murder. The prosecution sought the
      death penalty, which under then-applicable Alabama law required both
      a jury recommendation (with at least 10 affirmative votes) and a later
      determination by the judge. The jury-related portion of the sentencing
      proceeding took place the next day. The prosecution reintroduced
      evidence from the guilt phase and called a police officer to testify that
      McWilliams had a prior conviction. The defense called McWilliams
      and his mother. Both testified that McWilliams, when a child, had
      suffered multiple serious head injuries. McWilliams also described his
      history of psychiatric and psychological evaluations, reading from the
      prearrest report of one psychologist, who concluded that McWilliams
      had a “blatantly psychotic thought disorder” and needed inpatient
      treatment.
             ....
             Although McWilliams’[s] counsel had subpoenaed further
      mental health records from Holman State Prison, where McWilliams
      was being held, the jury did not have the opportunity to consider them,
      for, though subpoenaed on August 13, the records had not arrived by
      August 27, the day of the jury hearing.
             After the hearing, the jury recommended the death penalty by a
      vote of 10 to 2, the minimum required by Alabama law. The court
      scheduled its judicial sentencing hearing for October 9, about six weeks
      later.


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              Five weeks before that hearing, the trial court ordered the
       Alabama Department of Corrections to respond to McWilliams’s
       subpoena for mental health records. The court also granted
       McWilliams’[s] motion for neurological and neuropsychological
       exams. . . .
              . . . Dr. John Goff, a neuropsychologist employed by the State’s
       Department of Mental Health, examined McWilliams. On October 7,
       two days before the judicial sentencing hearing, Dr. Goff filed his
       report. The report concluded that McWilliams presented “some
       diagnostic dilemmas.” On the one hand, he was “obviously attempting
       to appear emotionally disturbed” and “exaggerating his
       neuropsychological problems.” But on the other hand, it was “quite
       apparent that he ha[d] some genuine neuropsychological
       problems.” . . . .
              The day before the sentencing hearing defense counsel also
       received updated records from Taylor Hardin hospital, and on the
       morning of the hearing he received the records (subpoenaed in mid-
       August) from Holman Prison. The prison records indicated that
       McWilliams was taking an assortment of psychotropic
       medications . . . .
              The judicial sentencing hearing began on the morning of October
       9. Defense counsel told the trial court that the eleventh-hour arrival of
       the Goff report and the mental health records left him “unable to present
       any evidence today.” He said he needed more time to go over the new
       information. Furthermore, since he was “not a psychologist or a
       psychiatrist,” he needed “to have someone else review these findings”
       and offer “a second opinion as to the severity of the organic problems
       discovered.”
              . . . [D]efense counsel moved for a continuance in order “to allow
       us to go through the material that has been provided to us in the last 2
       days.”[5] The judge offered to give defense counsel until 2 p.m. that
       afternoon. He also stated that “[a]t that time, The Court will entertain
       any motion that you may have with some other person to review” the
       new material. Defense counsel protested that “there is no way that I can
       go through this material,” but the judge immediately added, “Well, I


       5
         Two attorneys represented McWilliams throughout his trial and the sentencing hearing
before the trial judge. Only one of the attorneys was involved in the exchanges with the judge
regarding the need for psychiatric assistance.
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will give you the opportunity. . . . If you do not want to try, then you
may not.” The court then adjourned until 2 p.m.
        During the recess, defense counsel moved to withdraw. . . . The
trial court denied the motion . . . .
        When the proceedings resumed, defense counsel renewed his
motion for a continuance, explaining,

      “It is the position of the Defense that we have received
      these records at such a late date, such a late time that it has
      put us in a position as laymen, with regard to
      psychological matters, that we cannot adequately make a
      determination as what to present to The Court with regards
      to the particular deficiencies that the Defendant has. We
      believe that he has the type of diagnosed illness that we
      pointed out earlier for The Court and have mentioned for
      The Court. But we cannot determine ourselves from the
      records that we have received and the lack of receiving the
      test and the lack of our own expertise, whether or not such
      a condition exists; whether the reports and tests that have
      been run by Taylor Hardin, and the Lunacy Commission,
      and at Holman are tests that should be challenged in some
      type of way or the results should be challenged, we really
      need an opportunity to have the right type of experts in this
      field, take a look at all of those records and tell us what is
      happening with him. And that is why we renew the Motion
      for a Continuance.”

 The trial court denied the motion.
       The prosecutor then offered his closing statement, in which he
argued that there were “no mitigating circumstances.” Defense counsel
replied that he “would be pleased to respond to [the prosecutor’s]
remarks that there are no mitigating circumstances in this case if I were
able to have time to produce . . . any mitigating circumstances.” But, he
said, since neither he nor his co-counsel were “doctors,” neither was
“really capable of going through those records on our own.” . . .
       The trial judge then said that he had reviewed the records himself
and found evidence that McWilliams was faking and manipulative. . . .
       ....
       The court then sentenced McWilliams to death.

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McWilliams, 137 S. Ct. at 1794–97 (alterations within quotation marks in original)

(citations omitted).

      McWilliams appealed, arguing that the trial court had erred in denying him

the right to meaningful expert assistance guaranteed by Ake. The Alabama Court

of Criminal Appeals disagreed. It wrote that Ake’s requirements “are met when the

State provides the [defendant] with a competent psychiatrist.” McWilliams, 640 So.

2d at 991. And the State, by “allowing Dr. Goff to examine” McWilliams, had

satisfied those requirements. Id.

      “This was plainly incorrect,” in the Supreme Court’s view. McWilliams,

137 S. Ct. at 1800. The trial judge’s conduct at the sentencing hearing “did not

meet even Ake’s most basic requirements.” Id. Ake “requires the State to provide

the defense with ‘access to a competent psychiatrist who will conduct an

appropriate [1] examination and assist in [2] evaluation, [3] preparation, and [4]

presentation of the defense.” Id. (quoting Ake, 470 U.S. at 83, 105 S. Ct. at 1096)

(alterations and emphasis in original).

      The Supreme Court assumed that the State

      met the examination portion of [the Ake] requirement by providing for
      Dr. Goff’s examination of McWilliams. But what about the other three
      parts? Neither Dr. Goff nor any other expert helped the defense evaluate
      Goff’s report or McWilliams’[s] extensive medical records and
      translate these data into a legal strategy. Neither Dr. Goff nor any other
      expert helped the defense prepare and present arguments that might, for
      example, have explained that McWilliams’[s] purported malingering
      was not necessarily inconsistent with mental illness . . . . Neither Dr.
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       Goff nor any other expert helped the defense prepare direct or cross-
       examination of any witnesses, or testified at the judicial sentencing
       hearing himself.

Id. at 1800–01.

       Having concluded that the Alabama courts unreasonably applied its holding

in Ake, the Supreme Court remanded the case to us to decide if “access to the type

of meaningful assistance in evaluating, preparing, and presenting the defense that

Ake requires would have mattered.” Id. at 1801. We deem the phrase “would have

mattered” to mean whether the denial of such assistance “would have prejudiced”

McWilliams in defending against the imposition of a death sentence.6

                                                II.

       The trial judge’s Ake error in refusing to grant defense counsel’s request for

psychiatric assistance came shortly after the sentencing hearing convened in the

morning of October 9, 1986. Brecht v. Abrahamson dictates how we review trial

judges’ constitutional errors, such as this one, that occur during trial.

       Brecht places the errors into two categories. The first involves trial errors

that are subject to harmless-error review. The second involves structural errors




       6
         In explaining that the assistance of an expert might have “mattered,” the Court took
issue with our conclusion below that, even if there was an Ake error, it did not have a “substantial
and injurious effect or influence” on the sentencing—the standard under Brecht for determining
whether to grant habeas relief under § 2254 for a trial court error. McWilliams, 137 S. Ct. at
1801 (quoting Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015)). Thus, to determine whether it
“would have mattered,” we must evaluate the error under Brecht.
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that are not. An error in the first category is “amenable to harmless error analysis

because it ‘may . . . be quantitatively assessed in the context of other evidence

presented [during the trial] in order to determine [the effect it had on the trial].’”

Brecht, 507 U.S. at 629, 113 S. Ct. at 1717. These errors involve, for the most

part, the admission of evidence proffered by the State and the exclusion of

evidence proffered by the accused.7 The federal habeas court, reviewing the record

of the trial, assesses the impact the error may have had on the jury’s verdict. The

petitioner prevails if the court finds that the error was prejudicial, i.e., that it had a

“substantial and injurious effect or influence in determining the jury’s verdict.” Id.

at 637, 113 S. Ct at 1722.

       Errors in the second category are not subject to harmless-error analysis

because they are structural. An example is the denial of the right to counsel. See

Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984).

Because the absence of counsel affects “[t]he entire conduct of the trial from

beginning to end,” Arizona v. Fulminante, 499 U.S. 279, 309–10, 111 S. Ct. 1246,

1265 (1991), it “def[ies] analysis by ‘harmless-error’ standards,” Brecht, 507 U.S.



       7
          Other errors in the first category include, for example, constitutional challenges to jury
instructions, see, e.g., Clemons v. Mississippi, 494 U.S. 738, 752–54, 110 S. Ct. 1441, 1450–51
(1990); Pope v. Illinois, 481 U.S. 497, 501–04, 107 S. Ct. 1918, 1921–23 (1987); Rose v. Clark,
478 U.S. 570, 579–80, 106 S. Ct. 3101, 3107–08 (1986); comments on the defendant’s silence,
United States v. Hasting, 461 U.S. 499, 508–09, 103 S. Ct. 1974, 1980 (1983); and admission of
the defendant’s confession, Milton v. Wainwright, 407 U.S. 371, 372, 92 S. Ct. 2174, 2175
(1972).
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at 629, 113 S. Ct. at 1717 (quoting Fulminante, 499 U.S. at 309, 111 S. Ct. at

1265). Prejudice is presumed, requiring “automatic reversal of the conviction.”

Id. at 629–30, 113 S. Ct. at 1717. The error defies analysis under the harmless-

error standard used to assess the prejudice caused by a trial error because the

assistance that counsel would have provided to the accused at trial is unknown. It

is impossible to know how an attorney would have investigated the charges,

developed a defense, selected jurors, presented and examined witnesses, and

argued the case to the jury in summation, or even whether an attorney would have

advised proceeding to trial at all. United States v. Gonzalez-Lopez, 548 U.S. 140,

150, 126 S. Ct. 2557, 2564–65 (2006). As such, the effect of the denial cannot be

“quantitatively assessed” in the context of the evidence presented to the jury at the

trial.

         The constitutional error in this case is structural. Like the denial of counsel,

the Ake error infected the entire sentencing hearing from beginning to end, as

McWilliams was prevented from offering any meaningful evidence of mitigation

based on his mental health, or from impeaching the State’s evidence of his mental

health. The assistance a psychiatrist would have provided McWilliams’s counsel

in “evaluating, preparing, and presenting the defense that Ake requires” is unknown

and, as such, cannot be quantitatively assessed in the context of the evidence

presented to the sentencing judge. To determine whether it “would have

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mattered”—i.e., would have helped McWilliams defend against the State’s case for

a death sentence and present mitigating evidence—would require us to speculate as

to how a psychiatrist would have assisted the defense, what mitigating evidence the

defense would have presented based on the psychiatrist’s analysis, or what

evidence the defense would have offered to impeach the State’s evidence, and how

the State would have responded in rebuttal. Such a hypothetical exercise, as with

the denial of counsel, is all but impossible. Because this Ake error defies analysis

by harmless-error review, prejudice to McWilliams must be presumed.8

                                               III.

       Our decision in Hicks v. Head, 333 F.3d 1280 (11th Cir. 2003), that “an Ake

error is a trial error . . . subject to harmless error analysis,” id. at 1286, does not

compel a different result. In reaching that conclusion, this Court in Hicks assumed


       8
          The cases from our sister circuits holding that an Ake error is subject to harmless error
review are inapposite. See Concurring Op. at 16 n.1 (citing White v. Johnson, 153 F.3d 197, 203
(5th Cir. 1998); Tuggle v. Netherland, 79 F.3d 1386, 1388 (4th Cir. 1996); Brewer v. Reynolds,
51 F.3d 1519, 1529 (10th Cir. 1995); Starr v. Lockhart, 23 F.3d 1280, 1291 (8th Cir. 1994),
superseded by statute on other grounds, Antiterrorism and Effective Death Penalty Act, Pub. L.
No. 104-132, 110 Stat. 1214). Except for Starr, in each of those cases the Ake request was made
in anticipation that the State would introduce psychiatric testimony regarding the defendant’s
future dangerousness. See White, 153 F.3d at 203; Tuggle, 79 F.3d at 1391; Brewer, 51 F.3d at
1529–30. If the State never introduced that testimony, the right to assistance under Ake would
never arise. Thus, any Ake error could not be structural. White, 153 F.3d at 203; Tuggle, 79 F.3d
at 1391–92; Brewer, 51 F.3d at 1530; cf. Starr, 23 F.3d at 1291 (“We do not believe that a right
to which a defendant is not entitled absent some threshold showing can fairly be defined as basic
to the structure of a constitutional trial.”). The case is much different when the defendant seeks
to affirmatively offer evidence of his mental state, as McWilliams did here. In this context, the
right to the assistance of a psychiatrist is not so conditional.


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that there was in fact an Ake error—that the Georgia Supreme Court on direct

appeal, in the context of passing on Hicks’s argument that the trial court abused its

discretion in denying his motion for a continuance, unreasonably rejected Hicks’s

Ake claim on the merits. But the Georgia Supreme Court never reviewed an Ake

claim. On appeal, Hicks argued that the trial court abused its discretion in denying

his motion for a continuance and motion for funds for a neurological examination

so he could seek additional testing to support his Ake-appointed psychiatrist’s

opinion on his insanity defense. The Georgia Supreme Court decided, as a matter

of state law, that the trial court “did not abuse its discretion” by denying Hicks’s

motions. Hicks v. State, 352 S.E.2d 762, 775 (Ga. 1987) (citing Ealy v. State, 306

S.E.2d 275, 279 (Ga. 1983)).9

       The Ake claim this Court considered in Hicks did not arise until Hicks

petitioned the Superior Court of Butts County, Georgia for a writ of habeas corpus.

In his petition, Hicks argued that the trial court’s denial of his motion for a

continuance rendered his counsel ineffective under Strickland, insofar as he was

unable to obtain a neurological examination, which he contended was part of the

psychiatric assistance he was entitled to under Ake. The state habeas court held an




       9
          This Court assumed that the Georgia Supreme Court, in finding no abuse of discretion
in the trial court’s denial of Hicks’s motion for a continuance, rendered a decision that “was
contrary to, or involved an unreasonable application of,” 28 U.S.C. § 2254(d)(1), the U.S.
Supreme Court’s holding in Ake.
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evidentiary hearing on Hicks’s ineffective assistance claim, at which Hicks

introduced the additional expert opinions regarding his mental condition that he

would have obtained had the trial court not denied his motions. The habeas court

denied Hicks’s ineffective assistance claim and, in the process, his claim that the

trial court violated his rights under Ake. 10

       The District Court was thus faced with an Ake claim litigated in a collateral

proceeding. Reviewing the evidence Hicks presented at the evidentiary hearing in

the state habeas court, the District Court held that while the denial of the

continuance violated Ake, the error was harmless. Hicks v. Turpin, No. 3:97-CV-

51-JTC (N.D. Ga. Sept. 2, 2000). On appeal, we assumed the denial of the

continuance constituted an Ake error 11 so we could decide the sole question

whether Ake violations are amenable to harmless error analysis. Hicks, 333 F.3d at

1284. We held that they are and, reviewing the same evidence the state habeas




       10
          Hicks’s Ake claim was cognizable on direct appeal. Therefore, under Georgia’s
procedural default rules, the habeas court lacked authority to entertain it. See Whatley v.
Warden, Ga. Diagnostic & Classification Ctr., 927 F.3d 1150, 1184 n.56 (11th Cir. 2019) (citing
Black v. Hardin, 336 S.E.2d 754, 755 (Ga. 1985)). Nonetheless, the State, in defending the
District Court’s denial of Hicks’s Ake claim in this Court, effectively waived the argument that
the habeas court disregarded Georgia’s procedural default rule.
       11
          We indulged the assumption notwithstanding the absence of any U.S. Supreme Court
precedent decided prior to Hicks’s trial holding that the denial of a continuance, requested to
enable an Ake-appointed psychiatrist to bolster her opinion, constitutes a violation of the Due
Process Clause of the Fourteenth Amendment.
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court and the District Court considered, affirmed the District Court’s finding of

harmless error. Id. at 1286–87.

      Therefore, our decision in Hicks stands only for the narrow proposition that

when an Ake claim is entertained on collateral attack in state court—in a hearing at

which the petitioner can introduce the evidence that would have been obtained and

presented at trial but for the Ake violation—we may review for harmless error

under Brecht. But Hicks does not control the analysis of an Ake claim like the one

presented here, which is based on a denial of psychiatric assistance and was

litigated and rejected on direct appeal. Prejudice in these cases must be presumed,

because the error is structural.

      Our colleague argues that “the procedural history of Hicks . . . cannot limit

its unambiguous holding that Ake error is subject to harmless-error review.”

Concurring Op. at 17. But the procedural context in which the Ake claim in Hicks

arose was critical for determining whether the error could be harmless. In

reviewing for harmless error under Brecht, we look to the record of the state trial

court as a whole and consider whether the violation had a “substantial and

injurious effect” in the context of the entire trial. Brecht, 507 U.S. at 638, 113 S.

Ct. at 1722; see also id. at 641, 113 S. Ct. at 1724 (Stevens, J., concurring)

(explaining that a reviewing court must “evaluate the error in the context of the

entire trial record” (emphasis added)). In Hicks, because the Ake claim was raised

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for the first time on collateral attack, that record encompassed the record of

Hicks’s trial and the record of the state habeas proceedings, which included the

evidentiary hearing the habeas court conducted to determine, in the context of

Hicks’s ineffective assistance of counsel claim, whether the denial of the

continuance prejudiced counsel’s performance. At that evidentiary hearing, Hicks

was able to offer the expert opinions that he would have obtained before trial but

for the denial of the continuance—the purported Ake error. This was the body of

evidence this Court (and the District Court) had before it in assessing whether the

Ake error was amenable to harmless error review. See Hicks, 333 F.3d at 1286

(relying on the evidence presented at the state habeas proceeding to find the Ake

error harmless); Hicks, No. 3:97-CV-51-JTC, at 22–24 (same).

      By contrast, here we have no such record from which we could assess

prejudice, because there has been no evidentiary hearing convened for the express

purpose of deciding whether the trial judge’s error was harmless. All we have is

the record before the trial judge at the sentencing hearing. Unlike in Hicks,

McWilliams never had an opportunity to demonstrate what the provision of a

psychiatrist would have meant to his defense. Therefore, we cannot “quantitatively

assess[ ] in the context of [the] other evidence presented [at the sentencing

hearing]” the effect the denial of psychiatric assistance had on the trial judge’s




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sentencing decision. Brecht, 507 U.S. at 629, 113 S. Ct at 1717. Prejudice must be

presumed.

                                         IV.

      For the foregoing reasons, we hold that this Ake error was structural. We

remand the case to the District Court with instructions to issue a writ of habeas

corpus vacating McWilliams’s sentence and entitling him to a new sentencing

hearing, following the provision of a psychiatrist to provide assistance in

accordance with Ake.

      SO ORDERED.




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JORDAN, Circuit Judge, concurring in the judgment.

       I concur in the judgment granting federal habeas corpus relief to Mr.

McWilliams, but for a different reason. The majority may be right that an error

under Ake v. Oklahoma, 470 U.S. 68 (1985), should be classified as structural, but

that conclusion contradicts our prior decision in Hicks v. Head, 333 F.3d 1280, 1286

(11th Cir. 2003), which holds that an Ake error is a trial error. Because we are bound

by Hicks, I would conduct a harmless-error analysis under Brecht v. Abrahamson,

507 U.S. 619, 623 (1993), and O’Neal v. McAninch, 513 U.S. 432, 436 (1995). That

review convinces me that Mr. McWilliams was harmed by the Ake error, so I would

remand to the district court with instructions to issue a writ of habeas corpus vacating

Mr. McWilliams’ death sentence and ordering Alabama to provide him with a new

sentencing hearing consistent with Ake.

                                              I

       More than 15 years ago, we considered in Hicks an issue of “first impression

for our circuit: whether violations of Ake . . . are subject to harmless error analysis[.]”

333 F.3d at 1282. We answered that question affirmatively, holding that an Ake

error is not structural, but rather “trial error” amenable to harmless-error review. Id.

at 1286.1



       1
         Every other circuit to decide the issue has also held that an Ake error is subject to
harmless-error review. See White v. Johnson, 153 F.3d 197, 203 (5th Cir. 1998); Tuggle v.
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       We then ruled that Brecht supplied the appropriate harmless-error standard

for Ake violations in federal habeas cases. See id. at 1286. Applying Brecht, we

concluded that the alleged Ake error in that case—the trial court’s “denial of

psychiatric assistance until a few days before trial”—was harmless because the

additional expert testimony offered by the defendant in post-conviction proceedings

did not “contradict[ ] the evidence presented at trial that [the defendant] understood

the difference between right and wrong” at the time of the murder, and “relate[d] to

the same impulse control disorder testified to [by the defendant’s expert] at trial.”

Id. at 1287.

       The majority believes that Hicks can be distinguished—and therefore

avoided—because the Ake claim in that case was litigated in state post-conviction

proceedings whereas the Ake claim here was litigated at trial and on direct appeal.

But the procedural history of Hicks—while possibly relevant to the ultimate

outcome—cannot limit its unambiguous holding that Ake error is subject to

harmless-error review. See Hightower v. Schofield, 365 F.3d 1008, 1027 n.28 (11th

Cir. 2005) (“We recently decided in Hicks . . . that Ake errors are subject to harmless




Netherland, 79 F.3d 1386, 1388 (4th Cir. 1996); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th
Cir. 1995); Starr v. Lockhart, 23 F.3d 1280, 1291 (8th Cir. 1994).
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error analysis.”), vacated and remanded, 545 U.S. 1124 (2005), opinion reinstated,

Hightower v. Terry, 459 F.3d 1067, 1071 (11th Cir. 2006). 2

       Figuring out whether a constitutional violation is structural can be difficult, as

illustrated by the many opinions in United States v. Roy, 855 F.3d 1133 (11th Cir.

2017) (en banc). Nevertheless, the answer to that question depends on the nature of

the violation, and not on when or how the error was raised or litigated. See, e.g.,

United States v. Neder, 527 U.S. 1, 14 (1999) (“Under our cases, a constitutional

error is either structural or it is not.”). Given our holding in Hicks, we are not at

liberty to hold that an Ake error is structural. If that is going to be the new rule in

this circuit, it can only be announced by the en banc court. See United States v.

Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (explaining that “a panel

cannot overrule a prior one’s holding even though convinced it is wrong”).

       Nor can Hicks be meaningfully distinguished based on its facts. In Hicks, as

here, the trial court granted the request for psychiatric assistance, but denied a

request for a continuance, failing to allow sufficient time for the court-appointed


       2
          The majority asserts that this procedural distinction is critical because the record in Hicks
encompassed the trial and the state habeas proceedings, which included the evidentiary hearing
the habeas court conducted to determine, in the context of Mr. Hicks’ ineffective assistance of
counsel claim, whether the denial of the continuance prejudiced counsel’s performance. Here too
the record contains both the record of Mr. McWilliams’ trial and the record of the state post-
conviction proceedings, which included an evidentiary hearing on Mr. McWilliams’ ineffective
assistance of counsel claim. As discussed below, Mr. McWilliams presented testimony regarding
his mental health at that hearing to support his ineffective assistance of counsel claim. As in Hicks,
that testimony helps inform our analysis of the type of evidence Mr. McWilliams could have been
presented at sentencing had the trial court provided him expert assistance in accordance with Ake.
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expert to effectively assist the defense. Neither case involves an outright refusal to

provide an expert under Ake.3

       Specifically, in Hicks the trial court granted Mr. Hicks’ request for psychiatric

assistance, but the psychiatrist was appointed just days before the trial. See 333 F.3d

at 1284–85 n.2. The alleged Ake error was the trial court’s denial of Mr. Hicks’

motion for a continuance and request for additional funds for neurological testing.

See id.     Here, similarly, the trial court appointed Dr. John Goff to perform

neuropsychological testing requested by Mr. McWilliams’ counsel, in accordance

with Ake. But because of the trial court’s denial of a continuance, Mr. McWilliams

was unable to meet with Dr. Goff or another expert to help him evaluate Dr. Goff’s

report and the extensive medical records and translate the data into a legal strategy.

Thus, the nature of the Ake error here is essentially the same as that in Hicks: the

short time frame provided did not allow for meaningful expert assistance.

       Because of these factual similarities, the line drawn by the majority between

the “trial error” in Hicks and the “structural error” here will prove difficult for district

courts to apply. It will be nearly impossible to determine whether Ake violations



       3
         It is possible that Hicks would not control, and structural error would exist, had the trial
court outright refused to appoint a psychiatric expert under Ake. Such a refusal would have been
more akin to the complete denial of the right to counsel, which has been held to be structural error.
See Gideon v. Wainwright, 372 U.S. 335, 342–45 (1963) (establishing the right to counsel for
indigent criminal defendants); Johnson v. United States, 520 U.S. 461, 468–69 (noting the total
deprivation of the right to counsel in violation of Gideon is structural error); Brecht, 507 U.S. at
629–30 (same). But, as discussed above, that is not what happened here.
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raised in future habeas petitions are subject to harmless-error analysis or not. For

these reasons, I would apply Hicks, find that the Ake violation constitutes trial error,

and proceed to the Brecht harmless-error analysis.

                                          II

      On remand from the Supreme Court, we must determine whether Alabama’s

Ake violation prejudiced Mr. McWilliams. In particular, we must “specifically

consider whether access to the type of meaningful assistance in evaluating,

preparing, and presenting the defense that Ake requires would have mattered,” i.e.,

whether it resulted in a “substantial and injurious effect or influence.” McWilliams

v. Dunn, 137 S. Ct. 1790, 1801 (2017) (quoting Davis v. Ayala, 135 S. Ct. 2187,

2198 (2015), and Brecht, 507 U.S. at 623)). I would conclude, based on the

standards set forth in Brecht and O’Neal, that it would have.

                                           A

      Our divided opinion in McWilliams v. Commissioner, Alabama Department

of Corrections, 634 F. App’x 698 (11th Cir. 2015), rejected Mr. McWilliams’

argument that the Alabama state courts unreasonably applied Ake. We explained

that our sister circuits were divided on whether Ake requires a state to provide a

mental health expert solely for the defense, or whether a neutral expert (available to

both sides) is sufficient. See id. at 705–06. Given that split and the lack of a Supreme

Court resolution, we held that Alabama’s “provision of a neutral psychologist [in

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Mr. McWilliams’ case] would not be ‘contrary to, or involve[ ] an unreasonable

application of, clearly established Federal law.’” Id. at 706 (quoting 28 U.S.C. §

2254(d)(1)).

      We also provided an alternative holding. “[A]ssuming an Ake error occurred,”

we denied relief because Mr. McWilliams did not show that the error had “a

substantial and injurious effect on [his] sentence.” Id. at 706–07. We reached this

conclusion because the trial court “reviewed Dr. Goff’s report and took into account

the possibility of organic brain damage but also noted that, throughout [Mr.]

McWilliams’[ ] medical records, different psychologists and psychiatrists describe

him as a malingerer . . . . Based on a review of this and other evidence, the trial

[court]   found    that   [Mr.]    McWilliams’[      ]     ‘aggravating   circumstances

overwhelmingly outweighed the mitigating circumstances.’” Id. Moreover, “[a]

few additional days to review Dr. Goff’s findings would not have somehow allowed

the defense to overcome the mountain of evidence undercutting his claims that he

suffered mental illness during the time of the crime.” Id. at 707.

      I wrote a separate concurrence agreeing that Mr. McWilliams had not shown

prejudice. I reached that conclusion “in part because Mr. McWilliams did not

present Dr. Goff as a witness at the state post-conviction hearing” and it was

therefore difficult “to conclude that Mr. McWilliams has met his burden on




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prejudice, as we do not know how additional time with Dr. Goff (and his report)

would have benefitted the defense.” Id. at 712 (Jordan, J., concurring).

      Judge Wilson dissented, concluding both that the Alabama courts

unreasonably applied Ake and that Mr. McWilliams demonstrated that this error had

a substantial and injurious effect on his sentence. See id. at 713–17 (Wilson, J.,

dissenting). Regarding prejudice, Judge Wilson determined that the Ake error

“precluded [Mr.] McWilliams from offering evidence that directly contradicted the

psychiatric evidence put forward by the state.” Id. at 716–17. Moreover, testimony

from the Rule 32 post-conviction hearing established that “with appropriate

assistance, he would have been in position to confront the State’s evidence that he

was merely feigning mental health issues.” Id. at 717. In particular, Dr. George

Woods explained that Mr. McWilliams would have presented “different,”

significantly “more viable” mental health evidence had he been “afforded an expert

who actually reviewed his full psychiatric history and had more than a few hours to

assist the defense.” Id.

      Mr. McWilliams appealed the denial of his Ake claim. The Supreme Court

granted certiorari, see McWilliams v. Dunn, 137 S. Ct. 808 (2017) (mem.), and then

reversed. See McWilliams, 137 S. Ct. at 1801. The Supreme Court determined that

it did not need to answer whether “Ake clearly established that a State must provide

an indigent defendant with a qualified mental health expert retained specifically for

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the defense team” because it found that “Alabama here did not meet even Ake’s most

basic requirements.” Id. at 1799–1800. The Court explained that Ake “requires the

State to provide the defense with ‘access to a competent psychiatrist who will

conduct an appropriate [1] examination and assist in [2] evaluation, [3] preparation,

and [4] presentation of the defense.’” Id. at 1800 (quoting Ake, 470 U.S. at 83, with

emphasis in McWilliams).

      Although it assumed that Dr. Goff met the examination requirement, the

Supreme Court found Ake error because no expert assisted in the evaluation,

preparation, or presentation of the defense. See id. at 1800–01. It then remanded

the case to us to “specifically consider whether access to the type of meaningful

assistance in evaluating, preparing, and presenting the defense that Ake requires

would have mattered.” Id. at 1801. Both the majority opinion and the dissent in the

Supreme Court provided divergent accounts of what, in their respective views, the

record showed regarding prejudice. Compare id. (majority opinion) (“There is

reason to think that [the Ake error] could have [mattered]. For example, the trial

judge relied heavily on his belief that McWilliams was malingering. If McWilliams

had the assistance of an expert to explain that ‘malingering is not inconsistent with

serious mental illness,’ . . . he might have been able to alter the judge’s perception

of the case.”), with id. at 1809–11 (Alito, J., dissenting) (recounting the aggravating




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circumstances and the psychological evidence presented to conclude that Mr.

McWilliams failed to show prejudice).4

                                                B

       We are required to grant habeas relief to Mr. McWilliams if the Ake error had

a “substantial and injurious effect or influence” on his sentence. See Brecht, 507

U.S. at 623. “To show prejudice under Brecht, there must be more than a reasonable

possibility that the error contributed to the conviction or sentence.” Mason v. Allen,

605 F.3d 1114, 1123 (11th Cir. 2010) (per curiam) (internal quotation marks omitted

and alterations adopted). Although the Brecht standard “is more favorable to and

less onerous on the state, and thus less favorable to the defendant, than the Chapman

harmless beyond a reasonable doubt standard,” Brecht is not a burden of proof.

Trepal v. Sec’y, Fla. Dep’t of Corr., 684 F.3d 1088, 1111–12 & n.26 (11th Cir. 2012)

(citation and internal quotation marks omitted). See also O’Neal, 513 U.S. at 994–

95 (“[W]e deliberately phrase the issue in this case in terms of a judge’s grave doubt,

instead of in terms of ‘burden of proof.’”) (alteration added).5


       4
         The prejudice discussion in the majority and dissenting opinions in McWilliams seems to
confirm that the Supreme Court did not view the Ake violation as structural. If the error had been
deemed to be structural, prejudice would have been presumed and Mr. McWilliams would have
been given a new sentencing hearing without the need for us to conduct harmless-error analysis.

       5
          There is some language in Brecht suggesting the Supreme Court shifted to the petitioner
the burden to show prejudice. See Brecht, 507 U.S. at 637 (stating habeas petitioners “are not
entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual
prejudice’”) (emphasis added). The Supreme Court, however, subsequently clarified in O’Neal
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       When considering whether a defendant was prejudiced by a constitutional

error that affected his presentation of mitigating evidence, we have to “evaluate the

totality of the available mitigation evidence—both that adduced at trial, and the

evidence adduced in the habeas proceeding”—and “reweigh[ ] it against the

evidence in aggravation.” Williams v. Taylor, 529 U.S. 362, 397–98 (2000) (citing

Clemons v. Mississippi, 494 U.S. 738, 751–52 (1990)). See also Hicks, 333 F.3d at

1286–87. So, in order to answer the specific question remanded to us by the

Supreme Court, we must first understand what sort of assistance in evaluation,

preparation, and presentation of the defense Dr. Goff provided (or could have

provided). We must then reweigh the mental health evidence obtained through such

assistance against the evidence presented by the prosecution. If review of the record

leaves us in “grave doubt about the likely effect of an error on the jury’s verdict,”

we must “treat the error, not as if it were harmless, but as if it affected the verdict

(i.e., as if it had a ‘substantial and injurious effect or influence in determining the

jury’s verdict’).” O’Neal, 513 U.S. at 435. If we cannot say with fair assurance that




that this language “is not determinative.” O’Neal, 513 U.S. at 438–39 (explaining that Brecht
adopted the harmlessness standard of Kotteakos v. United States, 328 U.S. 750 (1946), which
placed “the risk of doubt on the State,” and that this statement in Brecht “did not speak for a Court
majority”). See also Fry v. Pliler, 551 U.S. 112, 122 (2007) (Stevens, J., concurring in part and
dissenting in part) (“[T]he Brecht standard . . . imposes a significant burden of persuasion on the
State.”); Trepal, 684 F.3d at 1111 n.26 (“We do not phrase the Brecht requirement as a burden of
proof, for it is not.”) (citing O’Neal, 513 U.S. at 435); Bonner v. Holt, 26 F.3d 1081, 1083 (11th
Cir. 1994) (stating that Brecht “did not alter the burden of proving error harmless, which remains
with the government”).
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the verdict—here the sentence of death—was not substantially swayed by the error,

we must grant relief. See Trepal, 684 F.3d at 1114.

      We have not yet conducted a prejudice analysis for the specific Ake violation

articulated by the Supreme Court, as in our initial opinion we considered the alleged

Ake error to be the failure to appoint a defense expert for Mr. McWilliams. See

McWilliams, 137 S. Ct. at 1801 (noting that the Eleventh Circuit “did not specifically

consider whether access to the type of meaningful assistance in evaluating,

preparing, and presenting the defense that Ake requires would have mattered”). As

the Supreme Court has now explained, Ake requires more than an examination. See

id. at 1800–01. Our prejudice analysis on remand therefore requires more as well.

      Based on my review, there is sufficient evidence in the record to conclude the

Ake error identified by the Supreme Court had a “substantial and injurious effect or

influence in determining” the trial court’s sentence. Brecht, 507 U.S. at 623. Dr.

Goff’s report, which the parties received just two days before the judicial sentencing

hearing, stated that the “neuropsychological assessment” administered to Mr.

McWilliams reflected “organic brain dysfunction.” Dr. Goff found “evidence of

cortical dysfunction attributable to right cerebral hemisphere dysfunction,” shown

by “left hand weakness, poor motor coordination on the left hand, sensory deficits

including suppressions of the left hand and very poor visual search skills.” These

deficiencies were “suggestive of a right hemisphere lesion” and “compatible with

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the injuries” Mr. McWilliams said he sustained as a child. The report also stated

that Mr. McWilliams’ “obvious neuropsychological deficit” could be related to his

“low frustration tolerance and impulsivity.”

      Dr. Goff concluded that although Mr. McWilliams exaggerated certain

symptoms, “it is quite apparent that he has some neuropsychological problems.” He

explained that psychological tests are classified by their “transparency,” meaning

some tests are easy for the subject to influence to falsely “look bad on,” whereas

others are not. Mr. McWilliams “performed poorly” on those tasks he would not

have been able to manipulate.

      The prison records received the morning of the sentencing hearing further

supported Dr. Goff’s opinion that Mr. McWilliams had neuropsychological

problems. Those records indicated that Mr. McWilliams was taking an assortment

of psychotropic medications, including Desyrel, Librium, and an antipsychotic

Mellaril.

      Had Mr. McWilliams and his counsel been given sufficient time to review Dr.

Goff’s report and the medical records with Dr. Goff himself or with another expert,

that data could have been translated into a legal strategy. See McWilliams, 137 S.

Ct. at 1800. But because the trial court refused to allow a continuance for defense

counsel to obtain such assistance, Mr. McWilliams was unable to respond to the

prosecutor’s argument that there were no mitigating mental health circumstances.

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Indeed, Mr. McWilliams’ counsel stated at the sentencing hearing that he “would be

pleased to respond to [the prosecutor’s] remarks that there are no mitigating

circumstances,” but because neither he nor his co-counsel were doctors, neither was

really capable of going through those records on their own.

      When it sentenced Mr. McWilliams to death, the trial court found no

mitigating circumstances, relying heavily on evidence that Mr. McWilliams was

“feigning, faking, and manipulative.”     As the Supreme Court noted, had Mr.

McWilliams received the assistance of an expert to explain Dr. Goff’s findings and

conclusions—which support a claim that Mr. McWilliams’ malingering is not

inconsistent with serious mental illness—“he might have been able to alter the

judge’s perception of the case.” McWilliams, 137 S. Ct. at 1802.

      Testimony from the Rule 32 hearing likewise shows that, had Mr.

McWilliams’ been able to obtain meaningful assistance from a psychiatric expert,

he would have been able to confront the prosecution’s evidence of malingering. The

Rule 32 court conducted a four-day evidentiary hearing on Mr. McWilliams’

petition, which alleged in part that his counsel rendered ineffective assistance by

failing to investigate and present mitigating evidence at his penalty phase and

sentencing hearing. Dr. Woods, a neuropsychiatrist, testified at the hearing that Mr.

McWilliams’ testing indicated a “cry-for-help.” He also explained the difference

between a “fake-bad” and a “cry-for-help” diagnosis: the former is “someone

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attempting to make themselves look worse,” and though the latter seems similar, it

actually reflects “significant psychiatric and psychological problems.”

      Dr. Woods further explained that the results of the MMPI, which Mr.

McWilliams had been given prior to his arrest in this case (when he had no incentive

to fake his results), were “very, very consistent” with the results of the MMPIs

administered post-arrest by the state’s doctors. The “internal consistency” of the

tests undermined the trial court’s impression that evidence of malingering eliminated

the possibility that Mr. McWilliams had genuine mental health issues.

      Finally, Dr. Woods testified that Mr. McWilliams was suffering from bipolar

disorder on the night of the crime. Dr. Woods relied on prison records showing that

Mr. McWilliams was medicated with antipsychotics and antidepressants throughout

his entire incarceration. Due to the Ake error, which precluded meaningful review

of these records in advance of the sentencing hearing, Mr. McWilliams was unable

to present this or similar evidence to the trial court.

      Together, Dr. Goff’s report and Dr. Woods’ testimony indicate that, had Mr.

McWilliams received the assistance he was entitled to under Ake, he would have

been able to present evidence and arguments to explain that his purported

malingering was not necessarily inconsistent with mental illness. See McWilliams,

137 S. Ct. at 1800. This could have persuaded the trial court that his organic brain




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dysfunction caused sufficient impairment to rise to the level of a mitigating

circumstance. See id.

      Admittedly, the record contains testimony from psychiatrists which supports

the prosecution’s theory of malingering. See McWilliams, 137 S. Ct. at 1810 (Alito,

J., dissenting) (summarizing psychiatric evidence that supports the prosecution’s

theory that Mr. McWilliams was feigning mental illness). But at the very least the

record creates “grave doubt” as to whether the Ake error had a “substantial and

injurious effect or influence” in determining the trial judge’s sentence. O’Neal, 513

U.S. at 436. As a result, the error is not harmless, and Mr. McWilliams is entitled

to habeas relief. See id. See also Booker v. Singletary, 90 F.3d 440, 444 (11th Cir.

1996) (finding prejudice under Brecht because “we were unable to speculate as to

the effect of the disregarded ‘substantial [mitigating] evidence would have had on

the sentencing body’”) (quoting Booker v. Dugger, 922 F.2d 633, 636 (11th Cir.

1991)); Smith v. Singletary, 61 F.3d 815, 818–19 (11th Cir. 1995) (finding prejudice

under Brecht where the sentencing court precluded the presentation of certain

mitigating evidence).

                                         III

      Under our prior decision in Hicks, the Ake violation in Mr. McWilliams’ case

constitutes trial error. Under Brecht and O’Neal, however, the error was not

harmless. I would therefore remand to the district court with instructions to issue a

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writ of habeas corpus vacating the death sentence and requiring Alabama to provide

Mr. McWilliams with a new sentencing hearing in accordance with Ake.




                                       32
