Rehearing en banc granted by order filed 9/23/97.
Published opinion filed 7/29/97 is vacated.
                                             Filed:   August 8, 1997


                   UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                           Nos. 96-12(L)
                     (CA-84-2135-6-2AK, et al)



Larry Gilbert, et al,

                                           Petitioners - Appellees,

          versus

Michael W. Moore, etc., et al,

                                          Respondents - Appellants.




                              O R D E R


     The Court amends its opinion filed July 29, 1997, as follows:

     On page 2, section 3, line 2 -- the district court is changed
from "at Columbia" to "at Greenville."
     On page 2, section 3, line 4 -- the district court numbers are

corrected to read "CA-84-2135- 6-2AK" and "CA-84-2792-6-2AK."

     On page 3, section 2, line 5 -- "John Henry Blume, III,

Columbia, South Carolina," is added to correct the "argued" counsel

information for appellees.
                              - 2 -



     On page 3, section 2, line 11 -- "David P. Voisin, Hilary

Sheard, CENTER FOR CAPITAL LITIGATION, Columbia, South Carolina" is

added to correct the "on brief" counsel information for appellees.
                                      For the Court - By Direction



                                         /s/ Patricia S. Connor

                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY GILBERT,
Petitioner-Appellee,

v.

MICHAEL W. MOORE, Director of the
                                         No. 96-12
South Carolina Department of
Corrections, in his official capacity;
ATTORNEY GENERAL OF THE STATE OF
SOUTH CAROLINA,
Respondents-Appellants.

J. D. GLEATON,
Petitioner-Appellee,

v.

MICHAEL W. MOORE, Director of the
                                         No. 96-13
South Carolina Department of
Corrections, in his official capacity;
ATTORNEY GENERAL OF THE STATE OF
SOUTH CAROLINA,
Respondents-Appellants.
LARRY GILBERT,
Petitioner-Appellant,

v.

MICHAEL W. MOORE, Director of the
                                                       No. 96-15
South Carolina Department of
Corrections, in his official capacity;
ATTORNEY GENERAL OF THE STATE OF
SOUTH CAROLINA,
Respondents-Appellees.

J. D. GLEATON,
Petitioner-Appellant,

v.

MICHAEL W. MOORE, Director of the
                                                       No. 96-16
South Carolina Department of
Corrections, in his official capacity;
ATTORNEY GENERAL OF THE STATE OF
SOUTH CAROLINA,
Respondents-Appellees.

Appeals from the United States District Court
for the District of South Carolina, at Greenville.
C. Weston Houck, Chief District Judge.
(CA-84-2135-6-2AK, CA-84-2792-6-2AK)

Argued: March 5, 1997

Decided: July 29, 1997

Before RUSSELL, MURNAGHAN, and MOTZ, Circuit Judges.

_________________________________________________________________

                    2
Affirmed by published opinion. Judge Russell wrote the opinion, in
which Judge Murnaghan and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Charles Molony Condon, Attorney General, Robert F.
Daley, Jr., Assistant Attorney General, Columbia, South Carolina, for
Appellants. Vance L. Cowden, Department of Clinical Legal Studies,
UNIVERSITY OF SOUTH CAROLINA SCHOOL OF LAW,
Columbia, South Carolina; John Henry Blume, III, Columbia,
South Carolina, for Appellees. ON BRIEF: John W.
McIntosh, Deputy Attorney General, Donald J. Zelenka, Assistant
Deputy Attorney General, Columbia, South Carolina, for Appellants.
William Lewis Burke, Jr., Department of Clinical Legal Studies,
UNIVERSITY OF SOUTH CAROLINA SCHOOL OF LAW,
Columbia, South Carolina; David P. Voisin, Hilary Sheard,
CENTER FOR CAPITAL LITIGATION, Columbia, South
Carolina, for Appellees.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

The Director of the South Carolina Department of Corrections, in
his official capacity, and the Attorney General of the State of South
Carolina (collectively "the State"), appeal the district court's final
order granting Larry Gilbert's and J.D. Gleaton's individual petitions
for writs of habeas corpus. Although we heard oral argument on the
appeals and cross-appeals in seriatim, we consolidate both cases into
this single opinion.

I.

On Tuesday afternoon, July 12, 1977, half-brothers Gilbert and
Gleaton drove around Cayce, South Carolina intending to purchase
drugs. After several unsuccessful inquiries in Cayce, they drove
toward South Congaree. As they traveled along Highway 51, they
noticed a lone attendant, Ralph Stoudemire, in a service station, and
decided to rob him. Gleaton entered the station first. After requesting
some cigarettes, he pulled out a hunting knife, and told Stoudemire

                    3
that it was a robbery. As Stoudemire reached into his pocket, Gleaton
made a stabbing motion at Stoudemire, and a scuffle ensued. Gleaton
inflicted Stoudemire with slash and stab wounds to his torso and
wrists. During the scuffle, Gilbert entered the station with a gun and
shot Stoudemire once. Gilbert and Gleaton then ran out of the station.
On his way out, Gilbert grabbed a nearby pocketbook left in the sta-
tion by Stoudemire's wife. From across the street, Stoudemire's son
witnessed the men drive off and saw his father stagger out of the ser-
vice station pointing at the car. Stoudemire died approximately forty-
five minutes later.

The police arrested Gilbert and Gleaton the next day. While the
men were in police custody, each man admitted to driving around
looking for a business to rob so they would have money with which
to purchase drugs. Gilbert confessed to shooting Stoudemire with the
gun. Gleaton confessed to assaulting Stoudemire with the knife.

An autopsy established that Gilbert and Gleaton had collectively
inflicted Stoudemire with one superficial gunshot wound to the chest,
two superficial slash wounds to the wrists, and five stab wounds to
the torso. One of the stab wounds pierced Stoudemire's heart and
caused his death.

II.

In October 1977, Gilbert and Gleaton (hereinafter "the Petition-
ers"), were jointly tried and convicted for the murder and armed rob-
bery of Stoudemire. At their subsequent sentencing trial, both men
received death sentences. On direct appeal, the Supreme Court of
South Carolina affirmed the convictions, but reversed the sentences
because of the solicitor's improper closing argument during the sen-
tencing phase of the trial.1 At the resentencing trial in February 1980,
the Petitioners again received death sentences. The Supreme Court of
South Carolina affirmed their new sentences.2 After the United States
_________________________________________________________________

1 State v. Gilbert, 258 S.E.2d 890 (S.C. 1979), overruled in part, State
v. Torrence, 406 S.E.2d 315, 328 n.5 (S.C. 1991) (abolishing practice of
in favorem vitae review).

2 State v. Gilbert, 283 S.E.2d 179 (S.C. 1981).

                    4
Supreme Court declined discretionary review of their appeals,3 the
Petitioners filed applications for post-conviction relief ("PCR") in
state court. Their applications were denied by separate orders follow-
ing a joint hearing. The Supreme Court of South Carolina refused to
consider their appeals, and the United States Supreme Court denied
certiorari review.4

In 1984, the Petitioners filed separate petitions for writs of habeas
corpus in federal district court. In June 1988, the district court granted
the State's motion for summary judgment on all claims raised by the
Petitioners in their PCR applications. Three years later, in August
1991, the district court vacated its order, and remanded the petitions
to a magistrate judge with instructions to hold the pleadings in abey-
ance for sixty days while the Petitioners pursued additional remedies
in state court.

The Petitioners immediately filed second PCR applications in state
court. In March of 1994, the judge who presided over the joint hear-
ing on their applications declined to grant them relief. The Supreme
Court of South Carolina denied the Petitioners' petitions for certiorari
review. Neither Gilbert nor Gleaton petitioned the United States
Supreme Court for writs of certiorari.

During the four years in which the Petitioners' second PCR appli-
cations were litigated in state court, the parties continued to file plead-
ings in federal district court. In May 1992, the State moved to
expedite the district court's decision. As of that date, the State waived
exhaustion as to all of the claims pending before the district court.
The Petitioners opposed the motion, urging the district court to wait
until the state court concluded its review of their pending PCR appli-
cations. In late July 1992, however, the district court granted the
State's motion to expedite.

Finally, on August 26, 1996, the district court granted the Petition-
ers' habeas corpus petitions. The district court found the implied mal-
_________________________________________________________________

3 Gilbert v. South Carolina, 456 U.S. 984 (1982).

4 Gleaton v. Aiken, 467 U.S. 1220 (1984); Gilbert v. South Carolina,
467 U.S. 1220 (1984).

                     5
ice instruction, which had been presented to the jury in the 1977 guilt
phase of their trial, contained unconstitutional rebuttable presump-
tions and was not harmless error. The district court also found the
Petitioners' remaining grounds of appeal either unsubstantiated or not
of constitutional magnitude.

The State appeals the district court's grant of the writs of habeas
corpus. The Petitioners' cross-appeal the district court's denial of the
writs on their remaining issues.

III.

The key issue on appeal is the implied malice instruction. At the
close of the guilt phase of the Petitioners' trial, the trial court
instructed the jury that murder is "the killing of any person with mal-
ice aforethought, either expressed or implied." The trial court
explained that "malice may be expressed as where previous threats of
vengeance or lying in wait or other circumstances show directly that
an intent to kill was really entertained." Malice may also be implied
from the "facts and circumstances of the case which are proven." In
addition, the "willful, deliberate and intentional doing of any unlawful
act without just cause" or the "conduct of the defendant in the use or
handling of a deadly weapon" creates a rebuttable presumption of
malice.

In Yates v. Evatt, the Supreme Court held that this implied malice
instruction, which was the standard instruction given in South Caro-
lina at the time of Gilbert's and Gleaton's trial, violates a defendant's
due process right because the instruction erroneously shifts the burden
of proof as to malice from the prosecution to the defendant.5 The dis-
trict court found the instruction to be harmful error in the Petitioners'
case and granted their petitions for writs of habeas corpus. Our review
of the district court's determination is plenary.6

The harmlessness standard for habeas review of constitutional error
_________________________________________________________________

5 500 U.S. 391, 400-02 (1991), disapproved in part on other grounds,
Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991).

6 Brecht v. Abrahmson, 507 U.S. 619, 637 (1993).

                     6
is whether the error "had substantial and injurious effect or influence
in determining the jury's verdict."7 The Petitioners must establish "ac-
tual prejudice" as a result of the implied malice instruction in order
to obtain habeas relief.8 In a recent habeas case, Arnold v. Evatt,9 we
addressed an identical claim, based on the same implied malice
instruction, and applied the analysis established by the Supreme Court
in Yates.10 The reviewing court "must only determine the error was
unimportant in relation to the other evidence considered by the jury
independently of the erroneous presumption."11 In making this deter-
mination, the reviewing court must: "(1) ask what evidence the jury
actually considered in reaching its verdict; and (2) weigh the proba-
tive force of that evidence as against the probative force of the errone-
ous presumption standing alone."12

Throughout its charge on malice, the trial court reminded the jurors
to base their determination of malice on all of the evidence presented,
that any malice presumption was rebuttable, and that the State must
establish malice beyond a reasonable doubt. In asking what evidence
the jury actually considered, we apply the customary presumption that
the jurors followed the trial court's instructions in reaching their
decision.13 The jury also heard evidence tending to rebut malice.
Notably, the solicitor presented Gleaton's statement that the killing of
Stoudemire was the result of a "scuffle." Thus, as in Yates and
Arnold, the jury was "free to look beyond the unlawful presumption
and consider all the evidence on malice."14

In Arnold, we found that the implied malice instruction was not
prejudicial. We based our decision on the existence of fourteen pieces
of evidence showing express malice, including evidence of premedi-
tation. Most of that evidence also supported the predicate facts under-
_________________________________________________________________

7 Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

8 Id.

9 No. 95-4019, 1997 WL 249156, (4th Cir. May 14, 1997).

10 Id. at *2.

11 Id.

12 Id.

13 Id.

14 Id. (quoting Yates, 500 U.S. at 408).

                    7
lying the erroneous presumptions. In addition, the solicitor at
Arnold's trial referred to the implied malice instruction in his closing
argument. Nonetheless, we found that Arnold had failed to "tip the
scales sufficiently in his favor," leading to our conclusion that "any
reasonable jury, notwithstanding the implied malice instruction,
would have found malice beyond a reasonable doubt."15

In contrast to the solicitor in Arnold, the solicitor in the Petitioners'
case offered no evidence of express malice. Gleaton's statement to the
police, as well as physical evidence at the scene of the crime, indi-
cated that the stabbings took place as part of a scuffle. Gleaton
entered the store carrying a knife, while Gilbert waited outside. Only
after Gleaton and Stoudemire began to scuffle did Gilbert enter the
station with a gun and shoot at Stoudemire. Stoudemire was still
alive, and mobile, when the Petitioners left the station.

The State's primary argument on appeal is that the probative force
of the physical evidence is sufficient to outweigh the probative force
of the erroneous presumptions. In particular, the State points to the
multiple wounds suffered by Stoudemire. The State relies on six
cases, primarily from the Eleventh Circuit, for the proposition that the
inference of intent created by the nature of the crime may be suffi-
cient to render a burden-shifting intent instruction harmless. All of
these cases pre-date Yates and address a broader rebuttable presump-
tion (i.e. a person intends the consequences of his acts). Most impor-
tantly, these cases can be distinguished based on the facts. The courts
found the intent instructions harmless because the extreme nature of
the crimes demonstrated the defendants' overwhelming intent to
ensure the death of the victims.16 In this case, the Petitioners assaulted
Stoudemire but made no effort to ensure his death.
_________________________________________________________________

15 Id. at *3.

16 Cunningham v. Zant, 928 F.2d 1006, 1015 (11th Cir. 1991) (victim
killed as a result of eighteen blows with wrench to head); Dickey v.
Lewis, 859 F.2d 1365, 1371 (9th Cir. 1988) (defendant tracked victim
down, shot him at point-blank range, and then blocked attempts to render
assistance); Williams v. Kemp, 846 F.2d 1276, 1284 (11th Cir. 1988)
(victim killed as a result of ten crushing blows to skull and smoke inhala-
tion from intentional fire); House v. Lavoie, 843 F.2d 474, 475 (11th Cir.
1988) (defendant admitted intent to shoot victim and fired five shots at

                    8
We believe that the facts in the Petitioners' case more closely
resemble those in Houston v. Dutton,17 an opinion applying the Yates
analysis. While we do not necessarily embrace the holding in that
case, it offers some guidance as to when a burden-shifting instruction
constitutes harmful error. In Houston, the defendant killed the owner
of a gasoline service station during the course of a robbery by shoot-
ing him three times, twice at point-blank range. 18 The defendant
claimed the killing was an accident that occurred during the course of
a struggle over the gun. The trial court charged the jury that the use
of a deadly weapon raised a rebuttable presumption of malice.
Because of the two point-blank shots, the nature of the crime in
Houston was arguably even more indicative of malice than the nature
of the crime in the Petitioners' case. On habeas review, however, the
Sixth Circuit held that the implied malice instruction was harmful
error.19

The solicitor in the Petitioners' case also exacerbated the prejudi-
cial effect of the implied malice instruction. In particular, he referred
to one of the rebuttable presumptions in his closing argument. In
Hyman v. Aiken, this court found an identical malice instruction given
in a South Carolina case to be prejudicial.20 Although Hyman
involved different circumstances, we noted that the "importance of
the malice instructions is emphasized by the solicitor's reliance on
them in his closing argument . . . ."21 This is not a dispositive factor,
_________________________________________________________________

close range, hitting victim in head); Tucker v. Kemp, 762 F.2d 1496,
1503 (11th Cir. 1985) (victim kidnaped, driven to remote location, and
then killed as a result of crushing blow to skull with metal pole); Lamb
v. Jernigan, 683 F.2d 1332, 1342 (11th Cir. 1982) (defendant stabbed
seventy-two year old victim eleven times, three of which were immedi-
ately disabling).

17 50 F.3d 381 (6th Cir.), cert. denied 116 S. Ct. 272 (1995).

18 Id. at 383.

19 Id. at 387. See also Hernandez v. Rayl, 944 F.2d 794, 797 (10th Cir.
1991) (victim shot four times during bar altercation under uncertain cir-
cumstances; burden-shifting intent instruction found harmful).

20 824 F.2d 1405, 1410 (4th Cir. 1987).

21 Id.

                    9
as implied by our holding in Arnold.22 Nonetheless, in the absence of
overwhelming evidence of malice, whether express or implied, it
becomes more likely that the solicitor's use of the presumption influ-
enced the jury's determination.

The district court found that because the source of the jury's malice
determination "may well have been the constitutionally infirm jury
charge, it cannot be said to be harmless and the convictions cannot
stand." We agree. Unlike the defendant in Arnold, the Petitioners have
tipped the scales sufficiently in their favor. The relevant inquiry is not
whether "in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the guilty verdict actu-
ally rendered in this trial was surely unattributable to the error."23 A
reasonable jury, looking at all of the facts in this case, might have
inferred malice from the presence of the weapons, the wounds, and
Stoudemire's death. Under these circumstances, however, the pre-
sumptions in the implied malice instruction were prejudicial.

In the absence of evidence of express malice, and having examined
the evidence of implied malice presented by the State, we harbor "a
grave doubt as to [the] harmlessness" of the implied malice instruction.24
Accordingly, we affirm the district court's order granting habeas
relief to the Petitioners.

IV.

Our decision to affirm the judgment of the district court on the
basis of the implied malice instruction relieves us of the responsibility
to consider any of the other issues raised by the Petitioners on cross-
appeal.25 However, we do note that the Petitioners' ineffective assis-
tance of counsel claims could provide an independent ground for the
grant of their habeas petitions.
_________________________________________________________________

22 No. 95-4019, slip op. at 6.

23 Sullivan v. Louisiana, 113 S. Ct. 2078, 2081 (1993) (emphasis in
original).

24 O'Neal v. McAninch, 115 S. Ct. 992, 995 (1995).

25 See Hyman, 824 F.2d at 1417 (Russell, J., and Widener, J., concur-
ring in part and dissenting in part).

                    10
It is our responsibility to order appropriate relief for those petition-
ers who demonstrate the existence of harmful error. We must fulfill
this responsibility even if we are convinced of the guilt of the Peti-
tioners and even if our decision requires the State to either release
them, or retry them, nearly twenty years after their initial trial.

AFFIRMED

                     11
