                   United States Court of Appeals,

                          Eleventh Circuit.

                            No. 94-5029.

             Dean DELGUIDICE, Petitioner-Appellant,

                                 v.

            Harry K. SINGLETARY, Respondent-Appellee.

                            May 24, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 90-6558-CIV-JCP), James C. Paine, Judge.

Before ANDERSON and BARKETT, Circuit Judges, and YOUNG*, Senior
District Judge.

     PER CURIAM:

     Dean Delguidice, a Florida prison inmate convicted in 1988 of

attempted manslaughter and two counts of battery, appeals the

district court's judgment denying his petition for writ of habeas

corpus brought pursuant to 28 U.S.C.A. § 2254.     Delguidice argues

that the state trial court erred in admitting the testimony of a

psychologist because his counsel was not sufficiently notified in

advance of the scope and nature of the examination giving rise to

the psychologist's testimony.   We reverse and remand.

                              I. FACTS

     The issues in this appeal involve two overlapping criminal

prosecutions of Delguidice.   The charges in this case (hereinafter

"the instant case") arose on May 8, 1987, when Delguidice attacked

a department store security guard.1         The information charging

     *
      Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
     1
      A second person was struck during the course of this melee,
which resulted in the jury finding Delguidice guilty as to the
Delguidice in the instant case was filed June 1, 1987;           counsel for

Delguidice filed a notice of reliance on the insanity defense on

July 23, 1987.

      Thereafter,    in   September   1987,   Delguidice   was    tried   and

convicted in an unrelated criminal case (hereinafter "the second

case").   Delguidice was represented by different counsel in the

second case.      At the request of Delguidice's father, on November

30,   1987,   a   clinical   psychologist,    Dr.   Ceros-Livingston,     was

appointed to determine Delguidice's competency to be sentenced in

the second case.      It is undisputed that Delguidice's attorney in

the second case had notice of the court's order for the examination

by Dr. Ceros-Livingston.2       On December 5, 1987, when Dr. Ceros-

Livingston conducted the examination pursuant to the court's order

in the second case, she was under the misapprehension that she was
                                                                      3
to evaluate Delguidice with respect to both pending cases.                She

prepared a report of her findings accordingly.               Delguidice's

counsel in the instant case was not notified in advance of the




second count of battery.
      2
      Delguidice's counsel in the second case received notice of
the examination in open court when the trial judge directed that
Delguidice undergo a competency exam for sentencing.
      3
      Specifically, Dr. Ceros-Livingston was sent documents which
led her to believe she was to examine Delguidice as to both
cases. She was sent a notice to examine Delguidice as to his
competency (for sentencing purposes in the second case). For
some unknown reason, she was also sent a probable cause affidavit
and booking sheet which indicated that she was to examine
Delguidice as to the instant case. Consequently, she examined
Delguidice both as to his competency to be sentenced in the
second case and as to his sanity at the time of the offense
giving rise to the instant case.
examination.4

       At       trial    in   the    instant      case,    Delguidice     interposed     an

insanity defense. Dr. Arnold Stillman testified for the defense in

support         of   Delguidice's         insanity      theory.     He    testified   that

Delguidice suffered from "organic brain syndrome," which resulted

in episodic attacks of violence over which Delguidice had no

control.         Dr. Stillman concluded that Delguidice was insane at the

time       of   the     offense     and    that    he    thought    he    was   acting   in

self-defense.

       The trial court in the instant case, over counsel's objection,

allowed Dr. Ceros-Livingston to testify in rebuttal of Delguidice's

insanity defense.             She testified that although Delguidice believed

he was defending himself at the time of the assault in the instant

case, he was legally sane at that time.                     In Dr. Ceros-Livingston's

opinion, Delguidice knew right from wrong and understood the

consequences of his actions at the time of the instant offense.

Dr.    Ceros-Livingston             was    the    only    witness   who    testified     in

opposition to Delguidice's insanity defense.

       As noted, Delguidice was convicted and the trial court entered

judgment against him.               The Florida Fourth District Court of Appeal

affirmed his conviction (rejecting the Sixth Amendment challenge at

issue here).5           Delguidice's petition for writ of habeas corpus in

the District Court for the Southern District of Florida, which

       4
      It is clear, however, that Delguidice's counsel in the
instant case had a copy of the doctor's report well before the
trial.
       5
      The District Court of Appeal did, however, order that
Appellant's sentence as a habitual offender be reversed.
Delguidice v. State, 554 So.2d 35 (Fla.App. 4 Dist.1990).
raised his Sixth Amendment constitutional challenge, was denied.

This appeal ensued.

                             II. DISCUSSION

     Delguidice asserts that the district court erred in denying

his habeas corpus petition, i.e., it erred in concluding that the

admission of Dr. Ceros-Livingston's testimony at trial did not

violate Delguidice's Sixth Amendment right to consultation with

counsel.     Delguidice contends that, pursuant to Estelle v. Smith,

451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and its

progeny, when counsel is not properly notified of a psychiatric

evaluation, use of the results of that evaluation violates the

defendant's Sixth Amendment right to consultation with counsel.

         A   criminal   defendant   has   a   Sixth   Amendment    right   to

assistance of counsel before submitting to a pretrial psychological

examination that represents a "critical stage" of that defendant's

prosecution.     Smith, id. at 468-70, 101 S.Ct. at 1876.           See also

Godfrey v. Kemp, 836 F.2d 1557, 1563-64 (11th Cir.), cert. denied,

487 U.S. 1264, 109 S.Ct. 27, 101 L.Ed.2d 977 (1988).6             In Smith,

the Court held that once a defendant is formally charged, his Sixth

Amendment right to counsel precludes such an examination without

first notifying counsel as to its scope and nature.               Smith, 451

U.S. at 470-71, 101 S.Ct. at 1877;        Powell v. Texas, 492 U.S. 680,

681-83, 109 S.Ct. 3146, 3148, 106 L.Ed.2d 551 (1989).

     In Smith, the sentencing jury evaluated the defendant's future

dangerousness in deciding whether to impose the death penalty.

     6
      There has been no argument that the examination at issue
here was not a "critical stage." Thus, the State effectively
concedes this point.
Smith, 451 U.S. at 456-58, 101 S.Ct. at 1870.                  The defendant had

been interviewed by a psychiatrist to determine whether he was

competent to stand trial. Id. At the sentencing hearing, however,

the    psychiatrist     testified     that      the   defendant      constituted     a

continuing threat to society.            Id. at 458-60, 101 S.Ct. at 1871.

The    defendant's     counsel   were     not    aware   in    advance     that   the

examination    would    include     an    inquiry     into    defendant's     future

dangerousness, and the Court concluded that the defendant had not

received     the   opportunity      to    discuss      with    his      counsel    the

examination or its scope.           Id. at 468-71, 101 S.Ct. at 1876-77.

The Court employed the following rationale for its conclusion that

the defendant's Sixth Amendment rights had been violated:

       It is central to [the Sixth Amendment] principle that in
       addition to counsel's presence at trial, the accused is
       guaranteed that he need not stand alone against the State at
       any stage of the prosecution, formal or informal, in court or
       out, where counsel's absence might derogate from the accused's
       right to a fair trial.

Id. at 468-70, 101 S.Ct. at 1876 (quotation omitted);                      see also

United States v. A.R., 38 F.3d 699, 704 (3d Cir.1994).

        In sum, the Sixth Amendment right to counsel requires that

counsel be given       advance notice of the scope and nature of a

psychological examination so that counsel can discuss with the

client the advisability of undergoing the examination and give

other appropriate advice. Buchanan v. Kentucky, 483 U.S. 402, 424-

25, 107 S.Ct. 2906, 2918-19, 97 L.Ed.2d 336 (1987);                      Smith, 451

U.S.    at   469-71,    101   S.Ct.      at   1876-77.        It   is    clear    that

Delguidice's counsel in the instant case had no advance notice of
the psychological examination by Dr. Ceros-Livingston.7

     The     State's   only   argument   is   that   the   examination   was

initiated at the request of Delguidice's father, that Delguidice

was represented by counsel (albeit different counsel) in the second

case at the time the Court ordered the competency examination, and

that this counsel knew about the examination.              Thus, the State

argues that Delguidice is not entitled to relief.

         The State's position is essentially that notice need not have

been given to counsel in the instant case because Delguidice was

represented in the second case and that counsel was notified that

an examination would take place.          The problem with the State's

argument is its failure to focus on whether counsel in the second

case was notified as to the scope of the examination.8            Although

Delguidice's counsel in the second case was aware in advance that

Delguidice was to be examined as to his competency for sentencing,

he had no advance notice at all that Dr. Ceros-Livingston was also

going to examine Delguidice on the separate issue of Delguidice's


     7
      The State notes that counsel for Delguidice in the instant
case knew about the examination before trial and, accordingly,
had sufficient time to prepare an effective cross examination.
The Supreme Court cases explaining the contours of Smith,
however, make clear that the purpose of the notification
requirement is to afford counsel the opportunity to consult with
the client prior to the examination. See Smith, 451 U.S. at 469-
71, 101 S.Ct. at 1876-77. Nothing in Smith or its progeny
suggests that notification after the examination but prior to
trial satisfies the Sixth Amendment concerns espoused in those
cases; indeed, such notification forces a defendant to "stand
alone against the state" at precisely a time the Supreme Court
has held he need not.
     8
      Because we find that the notice given was constitutionally
inadequate, we need not decide whether Delguidice's Sixth
Amendment rights in the instant case could have been satisfied by
adequate notice to counsel in the second case.
sanity.    The record reveals that at a hearing in open court before

sentencing in the second case, Delguidice's father requested that

Delguidice be examined for competency with respect to sentencing.

Delguidice's counsel in the second case was present.               The trial

court agreed and ordered the same.          However, the documents which

were sent to Dr. Ceros-Livingston by Court Projects included the

booking sheet and probable cause affidavit relating to the instant

case. These documents led Dr. Ceros-Livingston to believe that she

was expected to examine Delguidice not only for competency for

sentencing in the second case, but also for possible insanity at

the time of the crime at issue in the instant case.              There is no

evidence in the record suggesting that counsel for Delguidice in

the second case had any advance notice that the examination by Dr.

Ceros-Livingston    would   exceed    the    scope    contemplated,       i.e.,

competency in the second case.9

     The Supreme Court case law is clear that, under the Sixth

Amendment, counsel must have advance notice not only of the fact of

an examination but also of the scope of the examination.                Indeed,

that was the precise matter at issue in Smith.                 There, it was

possible   that   defense   counsel   did   have     advance   notice    of   an

examination relating to competency to stand trial, but was not

     9
      These facts are easily distinguishable from Magwood v.
Smith, 791 F.2d 1438 (11th Cir.1986). In Magwood, two physicians
were appointed at the request of defense counsel to determine
defendant's competency to stand trial. Later, these physicians
testified at trial to rebut defendant's insanity defense. Id. at
1441. Unlike the instant case, however, the physicians limited
their testimony at trial to only defendant's competency to stand
trial; neither expressed an opinion as to defendant's sanity at
the time of the offense. Id. at 1442. The court expressly noted
that this differed from the situation in Smith, supra. Magwood,
791 F.2d at 1442.
notified in advance that the examination would encompass the issue

of future dangerousness.

      Defense counsel, however, were not notified in advance that
      the psychiatric examination would encompass the issue of their
      client's future dangerousness.[fn15]

      [fn15] It is not clear that defense counsel were even informed
      prior to the examination that Dr. Grigson had been appointed
      by the trial judge to determine respondent's competency to
      stand trial.

451   U.S.   at   471   and   n.   15,    101   S.Ct.   at   1877   and   n.   15.

Accordingly, the Court held that by exceeding the scope of the

noticed examination, the defendant's Sixth Amendment right to

counsel had been violated:         "Respondent was denied the assistance

of his attorneys in making the significant decision of whether to

submit to the examination and to what end the psychiatrist's

findings could be employed."             Id. at 470-71, 101 S.Ct. at 1877.

See also Vanderbilt v. Collins, 994 F.2d 189, 198 (5th Cir.1993)

(holding that Sixth Amendment violated when examination encompassed

more than its intended scope).

      Similarly, in Buchanan, the Court indicated that defense

counsel must be given advance notice "about the scope and nature"

of the examination to enable counsel to consult with client.                   483

U.S. at 424, 107 S.Ct. at 2919.            The Court in Buchanan emphasized

that the nature of the Sixth Amendment right at issue is the

consultation with counsel, not the uses to which the psychological

examination is later put.          Id. at 422-26, 107 S.Ct. at 2918-19.

"Such consultation, to be effective, must be based on counsel's
being informed about the scope and nature of the proceeding."10 Id.

      10
      The Court went on to conclude that Buchanan's Sixth
Amendment rights had not been violated because his counsel had
at 424, 107 S.Ct. at 2919.

     Because no counsel for Delguidice had advance notice that the

scope     of   the   examination   would   include   Delguidice's   possible

insanity, we conclude that Delguidice's Sixth Amendment rights were

violated.11

        Our conclusion that the trial court erred in admitting the

testimony of Dr. Ceros-Livingston in violation of Delguidice's

Sixth Amendment rights does not end our inquiry.              We must also

decide whether the error was harmless.          Satterwhite v. Texas, 486

U.S. 249, 255-59, 108 S.Ct. 1792, 1797-98, 100 L.Ed.2d 284 (1988)

(adopting harmless error rule). The Court recently set forth a new

harmless error standard for habeas review of trial type errors.

Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1722,



been notified about both the examination and the scope of the
examination. Id. at 424-26, 107 S.Ct. at 2919. The problem in
Buchanan was that the state used the results of this examination
(an examination about which counsel was fully informed) in a way
not anticipated by counsel. Id. at 422-24, 107 S.Ct. at 2918
("Petitioner attempts to bring his case within the scope of Smith
by arguing that, although he agreed to the examination, he had no
idea, because counsel could not anticipate, that it might be used
to undermine his "mental status' defense."). The Court thus
noted that although the effectiveness of counsel's consultation
depended, in part, on an awareness of the uses to which the
examination could be put, counsel should have been able to
anticipate these uses. By contrast, in this case, Delguidice's
counsel in the second case was not informed about the scope and
nature of the examination; thus, he was denied the opportunity
to use his expertise to anticipate potential uses because the
State failed to discharge its obligation to give him advance
notice of the scope of the examination.
     11
      The State does not argue that Delguidice's claim is barred
by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334
(1989), and we decline to raise the issue sua sponte. See
Collins v. Youngblood, 497 U.S. 37, 40-41, 110 S.Ct. 2715, 2718,
111 L.Ed.2d 30 (1990) (holding that the Teague rule is not
"jurisdictional" in the sense that the court must raise and
decide the issue sua sponte ).
123 L.Ed.2d 353 (1993).   "The test ... is whether the error "had

substantial and injurious effect or influence in determining the

jury's verdict.' "   Id. (quoting Kotteakos v. United States, 328

U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1993)).      We follow the

Fifth Circuit in applying the Brecht standard to Smith errors. See

Vanderbilt v. Collins, 994 F.2d 189, 198-99 (5th Cir.1993).    Cf.

Horsley v. Alabama, 45 F.3d 1486, 1492 n. 11 (11th Cir.), cert.

denied, --- U.S. ----, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995) ("We

think the Supreme Court's rationale (advancing comity, federalism,

finality, and the importance of the trial) for the Brecht rule

reaches almost all federal habeas cases....").

     After careful review of the record, we conclude that the error

was not harmless. Dr. Ceros-Livingston's testimony was the State's

only rebuttal of Delguidice's insanity defense, which was supported

by the testimony of Dr. Stillman and by a lay witness who testified

that Delguidice looked enraged ("not normal") during the commission

of the instant offense.       In light of the evidence supporting

Delguidice's insanity defense, and in the absence of other evidence

rebutting Delguidice's insanity defense, we conclude that the

admission of Dr. Ceros-Livingston's testimony had a substantial and

injurious effect or influence in determining the jury's verdict.

                          III. CONCLUSION

     Accordingly, the judgment of the district court is reversed,

and the case is remanded to the district court with instructions

that the writ of habeas corpus, appropriately conditioned, should

be granted.

     REVERSED and REMANDED.
