*1 protests against taking . of sure, To who process” “due cases one To there are law, of it process due require showing property that the error without in which we particular say the result that in his complained actually prejudiced of is answer to no merits, process cases are of a much law have led to but these of case due he had ade- ilk. result because no different the same quate upon the merits. defense big tent. It covers process” “Due is a at merely procedural fundamentals issue Coe, 424, 35 at S.Ct. at 629. 237 U.S. personal but certain substantive here delay notifying Lane The inexcusable justice. of 16and basic rules liberties deprived opportunity of it Hollow context, simple these two words criminal law proposed meaningful mount a defense array requir rules repository of an are consequently, it deprivation property; of its government. If a play fair from the process of was denied due law. inflammatory closing prosecutor makes an lawfully be Hollow cannot Because Lane evidence, suppresses exculpatory argument, “responsible operator,” there deemed gain a tactical advan delays indictment to Accordingly, payment of Mrs. not one. process” protects the accused. tage, “due from the Lockhart’s benefits must be made 637, DeChristoforo, Donnelly v. 416 U.S. Disability Lung Trust Fund. Black (1974); 1868, Brady affirmed, desig- benefits is award of 1194, Maryland, v. S.Ct. responsible opera- as Lane Hollow nation of (1963); v. Gouv United States tor is vacated. eia, 180, 104 81 L.Ed.2d 467 U.S. S.Ct. (1984). However, in their char essential IN PART AND VACATED AFFIRMED acter, fair-play rules do not resemble these IN PART. i.e., components process, the core due right appropriate hearing to a notice and deprivation meaningful at a proposed instead, place; they simply are

time and (albeit ones) of criminal

rules fundamental transgressions

law While practice. they implicate process, these rules due do the trial

not violate unless render Donnelly, unfair. 416 U.S. SMITH, Andrew Lavern Petitioner- Consequently, can do at 1871. we assess Appellant, such the fairness impact errors reliability the trial and its as an accurate See, guilt. e.g., Ange indicator of Jones MOORE, Commissioner, South Michael Cir.1996). lone, If Corrections; Department day has a fair in court and the defendant Condon, Attorney General, Charles verdict, he has received all heard a reliable Carolina, Respondents-Appellees. guarantees him. process that due No. 97-18. process are an- Core violations of due day If fair other there has been no order. Appeals, United States Court court, reliability of the result irrele- Circuit. Fourth vant, day in a fair court is how we because Argued Dec. 1997. Inasmuch as reliability assure the of results. notice of the Lane Hollow did not receive March Decided deprivation still be [could] claim “when Fuentes, prevented,” 407 U.S. at 1994, may speculate it could prevented.

not have been necticut, Loving Virginia, E.g., (1967); v. Con- Griswold

810 *4 III, Blume, Henry

ARGUED: John Cor- School, Ithaca, York, Ap- nell Law New for pellant. Soles, Attorney Lauri J. Assistant General, Columbia, Carolina, Ap- for South pellees. Johnson, Lynn ON BRIEF: Sheri School, Ithaca, York; Cornell Law New Norris, Capital Litiga- L. For Teresa Center tion, Columbia, Carolina, Appel- for General, Condon, eighty- car. After the Attorney he could borrow their lant. Charles M. refused, year old Johnson McIntosh, Attorney six Mr. Deputy Gener- John W. him force that he fell to the struck with such Zelenka, al, Deputy At- J. Assistant Donald eighty-two year Mrs. floor. old General, When Daley, F. Assistant torney Robert aid, came to her husband’s Johnson Columbia, General, Attorney her for his knife and stabbed several reached Appellees. for as Smith then stabbed Mr. Johnson times. MOTZ, LUTTIG, WILLIAMS, and Before help up from the floor to his wife. got Judges. Circuit attack, During the Mrs. course Johnson, times was stabbed seventeen opinion. Judge published Affirmed face, back, chest, and hands. Mr. about her in which opinion, WILLIAMS wrote wounds, twenty-seven stab Johnson suffered joined. Judge Judge LUTTIG MOTZ wrote wounds, including on and several defensive separate opinion concurring in all of the face, neck, chest, hands, wrists, and about his except Part opinion of the II.B. wounds, back. In addition to stab both WILLIAMS, Judge: Circuit injuries had “blunt force” consistent victims pistol.2 Dr. having struck with a been January On South Car Sexton, pathologist Joel the forensic who jury convicted Andrew Smith olina *5 performed autopsies, the testified 'Johnsons’ Christy brutal murders of and Corrie John inju- most of the Johnsons’ wounds and that recommendation, Following jury’s son. the during were inflicted before death ries the trial court Smith death. sentenced consciousness. appeals, state exhausting After his Smith petitioned the district court for habe leaving his knife in Mrs. Johnson’s After , § 2254 corpus as relief. 28 U.S.C.A back, keys See the Johnsons’ Smith took the (West 1994).1 his The district court denied away car and drove from the scene. corpus petition a of day, for writ habeas following police the found the Johnsons’ . proba wheels, of granted tire, his motion for certificate stripped battery, spare of car its appeal. appeal, conclude upon ble cause to On parts. Based several and various other by of the numerous raised tips, lawfully none claims police the searched different provide There, a basis for habeas relief. Ac Smith the the residence of mother. Smith’s cordingly, we affirm. police parts found the taken from the John- ear.

sons’ I. charged Smith arrested and Smith, 28, 1983, waiving his Saturday, May murders. After Miranda On armed two brutally knife, rights, of Smith confessed to murder- pistol with a and a went to home addition, Smith identi- Christy and Corrie Johnson to see whether the Johnsons.3 procedures petition exactly eligible it became for the out filed habeas three 1.Smith 18, prior § of the Antiterror- of the AEDPA as of June months enactment lined in true, Penalty of Effective Death Act ism and Id. n. if at 403 1. Even Smith's 1996." (AEDPA). See No. 110 Stat. petition Pub.L. finally habeas decided state result, 1996). (enacted April As a on Supreme prior to that South Carolina Court AEDPA, § which amended U.S.C.A. Angelone, 92 See Bennett v. date. (West 2254(d) Supp.1997), apply § does Cir.) (concluding inappli § appeal. Murphy,-U.S.-, this Lindh petition petitioner’s state habeas cable ---, 117 S.Ct. finally prior satisfying that state been decided (1997) (holding new habeas - denied, opt-in requirements), cert. apply peti of do not to habeas standards review -, (1996). 136 L.Ed.2d 395 117 S.Ct. pending prior in federal court enact tions sepa- AEDPA). 2. skull was fractured two Accordingly, Mr. Johnson’s we review ment of the places. was lacerated pre-AEDPA rate Mrs. Johnson’s skull "claims under law.” How Smith’s Moore, (4th Cir.1997) locations. ard v. in several (en banc) pre-AEDPA capital (applying law to reads, pertinent part, as Smith's confession petition prior to enactment of AED- filed PA). follows: day Saturday drinking walk- I was all inapplica- Last Section of the AEDPA is ing. wanted see if appeal. I needed a ride and I ble this South Carolina "contends the knife found in Mrs. Johnson’s back tion for a fiéd writ certiorari. See Smith v. Carolina, stab the as the knife used to Johnsons. 475 U.S. Moreover, police that (1986). Smith told the he hid an Smith filed during pistol he had used the murders application post-conviction (PCR) relief ceiling place employment. false at his 9, 1986. July state court on an After eviden tiary hearing, the state PCR court denied was indicted in October 1983 on application Smith’s as to guilt phase time, two counts of At that murder. trial, but ordered Smith be resen State notified intended to seek pursuant tenced to Skipper v. South Car penalty. trial began, the death Before the olina, hearing the trial court to determine held (1986).4 party appealed Neither competency this Smith’s to stand trial. Dr: order. John Dunlap, psychiatrist at the South Carolina On October resentencing Health, Department of Mental testified began. trial days testimony, After four hearing capable that Smith was of assist- the imposition recommended competent ing his counsel and to stand trial. Following death-sentence. recom Based the evidence introduced at that mendation, again the trial court once sen found, hearing, specifically the trial court tenced Smith to appeal, death. On direct doubt, beyond a reasonable that Smith was South Carolina Court affirmed this competent to stand trial. Smith, death sentence. See 298 S.C. began January Smith’s trial (1989). 482, 381 S.E.2d 724 The United insanity pre- Smith raised defense and States peti denied Smith’s Clark, testimony sented Helen for a tion writ certiorari. See Smith psychologist. clinical Dr. Clark testified that schizophrenia from Smith suffered and a dis- 108 L.Ed.2d775 sociative disorder at time of the murders *6 an application Smith filed for PCR in state distinguish right wrong. could not from and 13, on August court an After eviden- not to in Smith elected take the stand his tiary hearing, the state PCR court denied In reply, own defense. the State introduced application. Smith’s The South Carolina Su- Cole, testimony of Spurgeon the Dr. also a preme petition Court denied Smith’s for psychologist. Dr. clinical Cole testified that writ certiorari. The United States Su- support Smith’s test results did preme again petition Court denied Smith’s legally Clark’s conclusion that in- for a See certiorari. Smith v. South writ at sane the time of the murders. On Janu- Carolina, 1126, 132 14,1984, ary jury rejected the Smith’s insani- (1995). ty him guilty defense and on found both counts of murder. At the conclusion of the 24, 1996, January On Smith filed a habeas court, subsequent sentencing phase, the trial petition § pursuant to 28 in U.S.C.A. recommendation, following the sen- the United District for Dis States Court the tenced Smith to death. trict South Carolina. On August 27, 1996, hearing was held before a appeal, magis

On direct the Carolina Su- February preme judge. magis trate In affirmed Smith’s convictions the Smith, judge Report and sentences. State trate issued a 151-page death and (1985). 406, 334 in S.C. S.E.2d 277 The United Recommendation which he recommended peti- deny States Court denied the request Smith’s that district court Smith’s ' car, (J.A. 1073-74.) Christy Johnson would let me borrow his up I walked to let so his house and he wouldn’t arguing. got got the to me .use car. We I mad Skipper In v. South Christy and I hit He Johnson. fell floor (1986), the Corrie, wife, his and came at me some- Eighth Court held a defendant’s and that Four- thing, pushed I don’t know I what. her back. rights teenth were the Amendment violated if I reached for knife and I stabbed her several sentencing court refused admit evidence of times; Christy I then stabbed Johnson several prison adaptability to Id. at life. got up got after he off the I times floor. the at 1670-71. keys got and and car. went persons eligible for the evidentiary hearing federal habeas the class of narrow[s] for an and Stephens, Zant penalty.” corpus relief. In June of the district death 2733, 2742, 877, 103 adopted Report and Recommenda- court (1983). aggravating gen An factor does not petition for federal tion and denied Smith’s persons uinely eligible for narrow class relief. fairly penalty “[i]f the death the sentencer (1) Smith contends: that South appeal, On every applies to de [it] could conclude that aggravating cir- “physical torture” Carolina’s Creech, 463, 474, Arave v. fendant.” (2) unconstitutional; that his cumstance is failing present for were ineffective counsel “physi contends that South Carolina’s mitigation punishment aggravating genu fails cal torture” factor .to (3) trial; incompe- resentencing he was persons inely eligible for narrow class (4) trial; violated tent to stand require penalty the death because it does (5) counsel; right his Sixth Amendment separate and distinct an intent to torture petit jury were grand jury that.the disagree. from intent to kill. We Equal Protection selected violation of the (6) Clause; trial court’s instructions law, physical Under South expert testimony insanity violated the victim is intention torture exists “when Amendment; trial Sixth ally subjected physical prior abuse serious that its erroneously court instructed Smith, to death.” State v. 298 S.C. unani- sentencing recommendation must be see added); (emphasis S.E.2d arguments mous. We address Elmore, also State 279 S.C. turn. (1983). Thus, despite 785 n. 2 S.E.2d contrary, Smith’s contentions

II. requires clear that law South Carolina Using charge upheld intent torture. A. Elmore, S.E.2d at 785 n. the trial petition, In Smith first his federal habeas physical court defined torture as follows: “physical Carolina’s tor- contends torture is the intentional Physical inflic- aggravating ture” not re- circumstance does serious, vile, or inhuman tion of horrible and, therefore, fails quire an intent to. torture body another abuse before genuinely persons the class of narrow death of the death. instantaneous eligible penalty. alter- death *7 Physi- victim does not constitute torture. native, Smith contends that even the physi- inflic- cal torture include the malicious re- aggravating cal torture circumstance bodily by depriving tion of harm to another torture, finding quires intent a intent an to of body him or her of a member of his or her unsupported by the in evidence this case. by of her rendering or a member his or useless, body by seriously disfiguring or 1. body a of her his or her or member his or satisfy Eighth To Four and body, or the intentional and unmerciful Amendments, capital a sen teenth state’s prolonging pain of and to the severe abuse lim tencing suitably scheme must channel or another, or the intentional and body jury’s imposing it the discretion the death unmerciful infliction serious and exten- Jeffers, v. See Lewis penalty. 497 U.S. pain physical body sive abuse 774, 110 3092, 3098-99, 111 606 L.Ed.2d another. (1990); Maynard Cartwright, v. (J.A added).) (emphasis We con- at 356, 362-64, 1853, 1858-59, 100 clude that the trial court’s instruction ade- (1988); Godfrey Georgia, conveyed it to quately U.S. find an to torture. intent opinion). (plurality Moreover, particular aggravating suit the trial court’s definition Whether a factor something oth- ably jury’s “make[s channels limits torture clear that it] a discretion (cid:127) juror might depends, part, “genuinely er than those factors that whether lacerations, abrasions, expect present ordinary by murder ized to find an and contusions present.” Murray, having must Jones that were consistent with been struck (4th Cir.1992). words, In other pistol. ordinary person conclude that [not] “could Sexton, pathologist Dr. Joel the forensic ‘physical aggravating circum [the torture’] performed autopsies who on the John- Arave, defendant,” applies every stance sons, testified at trial that most of John- at who U.S. at sons’ wounds were inflicted before death. Cartwright, kill his victim. intended to Cf. addition, Dr. Sexton testified that the wounds (invalidat at 1859 U.S. at most probably during were “inflicted ... ing aggravating circumstance that “an ordi (J.A 1918.) at consciousness.” Dr. Sexton’s nary honestly de person could believe” testimony supported by nature murder); Godfrey, every scribed at wounds, physical evidence discovered at (invalidating S.Ct. at 1764-65 scene, the crime and Smith’s own confession. person of aggravating circumstance that “[a] First, existence wounds” “defensive sensibility ordinary honestly could” believe on the wrists and hands of the Johnsons murder”). every “almost Accord described indicate that were both alive con- ingly, “physical we hold South Carolina’s during scious the attack and tried defend “genuine aggravating torture” circumstance Also, smearing themselves. pooling ly persons eligible the class of narrow[s] of blood locations in different the John- Zant, penalty.” death home sons’ demonstrates the Johnsons 103 S.Ct. at they struggled were alive and conscious as Finally, with Smith. Smith’s own account of the murders indicates the Johnsons if the Smith contends even dining were alive and much of conscious “physical aggravating torture” circumstance Smith, According attack. first he struck torture, requires an intent- to finding' Mr. Johnson. Mrs. came When Johnson unsupported by intent to torture was aid, her husband’s Smith stabbed her several argument, case. This like this Johnson, wounding times. After Mrs. last, brutality must fail. The of the Johnson, turned his back to attention Mr. murders, by as evidenced the number and whom stabbed several times. After blud- inflicted, injuries nature of the more Johnson, Mr. geoning Smith resumed stab- support than sufficient conclu bing forego- Mrs. Johnson. Based sion that intended to torture the John- ing, finding intent we conclude that Moore, sons. Gilbert amply Cf. supported torture the evidence in (4th Cir.1998) (noting savage this ease. ry uncertainty left no attack concern in whether acted with defendants B. tent). At resentencing, the trial *8 autopsy aggravating Mr. Johnson’s that he court circum revealed submitted several times, twenty-seven jury had been stabbed includ- stances to the for their consideration. wounds, torture, finding physical In several defensive or about addition to the face, neck, chest, hands, wrists, In jury, returning and back. of recommendation wounds, death, the mur addition to the stab Mr. Johnson found that committed injuries felony— had “blunt force” consistent with ders while the commission having deadly weapon. pistol. larceny been struck with a As a with the of a In result use blows," nonweighing.state, those Mr. Johnson’s skull was frac- such as South separate jury’s aggravating tured two locations. Mrs. John- the reliance on invalid may process son’s autopsy revealed that she had been factor not “infect the formal times, including deciding appropriate stabbed seventeen several is an whether death wounds, back, face, if least penalty” jury defensive on or about her the also “finds at one chest, Black, husband, aggravating Stringer her and hands. Like Mrs. valid factor.” 222, 232, injuries “blunt Johnson had force” character- 503 (1992) evidentiary support for the [lar- if the is “sufficient (noting L.Ed.2d (Appellant’s a differ- Br. at 20- ceny] aggravator.” factor would not have made invalid the error jury’s to the determination 21.) ence harmless). Thus, “physical tor- the was factor, Tuggle the State As to the second invalid, aggravating ture” circumstance were regarding have introduced evidence the must whether it infected determine the in which Smith killed the brutal manner death.

jury’s decision to sentence Smith to sentencing the during even absent Johnsons F.3d Tuggle v. Netherlands Moreover, but question physical torture. (4th Cir.) (noting er- that harmless pur- for the fact that Smith was resentenced analysis aggra- appropriate when one ror Carolina, 476 U.S. Skipper suant to v. South invalid), vating factor is determined to be (1986), the L.Ed.2d — denied, U.S.-, cert. jury the identical evidence would have heard (1996); Abra see also Brecht v. result, jury during guilt phase. As a the hamson, 619, 637, 113 S.Ct. only any was did not hear evidence t that (1993) (noting aggravating allegedly relevant to the invalid grant relief court circumstance. that “the ‘had sub unless convinced error injurious influence in stantial and effect or any Because Smith does contend ” determining (quoting ... verdict’ Kot excluded, improperly was the third evidence States, 750, 776, teakos v. United application factor the issues Tuggle has no L.Ed. 1557 (1946))). Likewise, presented Smith concedes here. fac- Tuggle, this Court six considered- bearing Tuggle that the factor has “no fourth ag- determining tors in whether an invalid 20.) (Appellant’s Br. at here.” gravating circumstance a substantial factor, respect fifth Tuggle With injurious on the effect or influence argument all They prosecutor’s closing focused on Tuggle, 79 at 1393. verdict. See statutory aggravating circumstances include: jury. presented argues, howev- (1) strength remaining aggrava- er, (2) prosecution primarily con- circumstance; ting the evidence admit- “physical aggrava- cerned torture” sentencing hearing ... to estab- ted at the circumstance; only For support, tor. Smith notes aggravating lish the invalid (3) “physi- improperly prosecutor’s closing argument at the on the excluded (4) any hearing; sentencing aggravator required pages the nature cal torture” four evidence; closing argu- mitigating transcription, argu- closing whereas prosecutor; any ment of indica- “larceny” aggravator required ment on the jury tion that or enter- alone, hesitant one That howev- page. less than fact sentencing reaching tained doubt its er, hardly prosecution evidence that determination. primarily “physical on the torture” focused “larceny” aggrava- aggravator. To find the court, a thor- Id. at 1393. The district after tor, jury only used factors, had to find that Smith ough analysis six of these concluded weapon piece any “physical deadly property took a ag- in the torture” error Here, gravating belonging to the de- circumstance was harmless. We the Johnsons. agree. seriously dispute, nor could fense did not they, that Smith used a knife and stole factor, Tuggle As to the first result, -surpris- Johnsons’ As a is not car. presence aggravating found the of a second *9 spent time ex- ing prosecution that the less Spe- felony. of a circumstance—commission of, jury to and the plaining the elements cifically, jury larceny found with the use “larceny” aggrava- supporting, deadly clearly weapon. finding of a That spent explaining ting than circumstance supported by record. Smith confessed to of, Moreover, supporting, the evidence the elements and killing the a Johnsons with knife. “physical aggravating circum- torture” taking he to car. confessed Johnsons’ concedes, must, there Even Smith as stance. factor, respect Tuggle only to the sixth ineffective their “conduct under

With so sentencing proper functioning verdict after mined the jury returned its of the adver only Although process hours of sarial trial two deliberation. cannot be relied having just to con- jury question judge produced a on as a did send result.” Id. at no cerning parole, there is clear evidence 104 S.Ct. at 2064. question The jury was hesitant en- Smith’s indicating whether counsel were ineffective is a sentencing reaching question its mixed tertained doubt of law and fact that we re Warden, view novo. determination. de See Griffin 1355, 1357(4th Cir.1992). F.2d factors, Applying these we conclude that “physical aggravating if the torture” even constitutionally were somehow

circumstance A. infirm, a it did not have substantial and reviewing contentions, After Smith’s injurious effect or influence on the objec we conclude that his counsel were not to decision to sentence Smith death. As tively failing present unreasonable in to evi result, any error was harmless. The record dence that Smith had a non-violent character. unimpeachable contains an “lar- this case attempted paint Had counsel Smith’s to deadly cir- ceny weapon” aggravating as a good Smith non-violent awith man. jury not evi- any cumstance. The did hear (and character, likely the State could most only was allegedly dence that relevant would) have Smith introduced evidence that aggravating circumstance. evi- invalid No (1) was involved in the murder of David improperly dence excluded as a result of was (2) Craig; raping had been accused of and allegedly aggravating invalid circum- (3) assaulting young girl; implicated stance, any and Smith concedes that error the murder of another individual named Pa ability mitigat- not affect his to introduce did (4) tel; reputation and the communi prosecution argue evidence. did not ty being for violent.5- Because of the afore solely allegedly during invalid factor for evidence, mentioned Smith’s counsel decided closing argument, its and returned “dangerous” put that it would be Smith’s only verdict after two hours of deliberation. into character issue. conclude coun We strategic not sel’s decision to make Smith’s III. reasonable, only an issue character Next, contends that his Smith Strickland, but at unassailable. See failing for counsel were ineffective to investi (noting presumption S.Ct. at gate, prepare, present miti and evidence in challenged appro being conduct was an gation punishment his tri resentencing priate necessary strategy trial under the particular, argues al. his Evatt, circumstances); see also Bell v. present counsel failed evidence that he Cir.1995) (recognizing had a non-violent character extensively strategies “that after in devised adapt prison. reviewing well The test for vestigating any the law facts relevant to claims of ineffective assistance of counsel probable options virtually and all are unchal Washing well established. See Strickland lengeable”). Accordingly, counsel ton, failing present were ineffective Smith must his demonstrate that evidence that Smith had a char non-violent objec performances counsel’s fell below an acter. tive standard reasonableness. See id. does, 104 S.Ct. at If he 2064-67. B. per then must show that deficient prejudiced point Despite formance Smith’s contentions to the con- defense deprived fair trary, that he was of a trial. id. his counsel did introduce evidence result, prison. Lesley adaptability As a Smith’s counsel deemed reputation testi- One of Smith's own character witnesses had a for violence. hearing fied second at the State PCR that Smith *10 (1991) 392, 448, (holding S.C. 409 S.E.2d that she had met with Smith testified Greene possible long as it was to raise that “as psychological files and reviewed application, an argument in his PCR first- Based her evaluation and inves tests. applicant may not raise it in a successive tigation, testified that Smith Greene application”). from This claim now barred prison In successfully adapt to life. further state collateral review. sum, simply not demonstrated Smith has performance was “that counsel’s deficient.” properly present did Because Smith - Strickland, 2064. S.Ct. at U.S. court, we this claim in state hold that Smith raising from the claim procedurally barred See on federal habeas review. before us C. Thompson, Coleman v. the evidence of Smith’s In addition to 2554-55, 2546, 115 L.Ed.2d 640 life, adaptability prison Smith’s counsel (1991) on a (holding that a claim dismissed mitigating regarding evidence introduced procedural procedurally state rule is barred Dr. Helen tes- mental illness. Clark Smith’s Reed, review); on federal habeas Harris couple that when she saw Smith tified 1042-43, 262, 255, 1038, 109 S.Ct. arrested, showing days after he he was was (1989) (holding, that a feder L.Ed.2d 308 symptoms schizophrenia. She testified may when al court not review a claim that, opinion, right not know in her Smith did its a 'state has declined to consider court wrong at murders. from time adequate merits basis of an and inde on the mitigating counsel also introduced Smith’s rule). pendent con procedural state Smith lack intent. regarding Smith’s tends, however, competence to stand confes- Specifically, they used Smith’s own therefore, and, trial cannot cannot be waived did not intend to sion illustrate that Smith follow, For the defaulted. reasons Rather, they murder rob and the Johnsons. disagree. argued that occurred as a result the murders in has that an Supreme Court held argument an after the Johnsons would in competent knowingly cannot or defendant reviewing car. After let Smith borrow their right court telligently waive his to have the record, convinced that counsel’s we are competency. Drope v. determine his See performance was not deficient. 896, Missouri, 420 U.S. 95 S.Ct. (noting that IV. trial); Pate competency is essential a fair Next, Robinson, contends 383 U.S. Smith that he (holding incompetent trial because he was stand trial, however, incompetent taking of an defendant vio Mellaril.6 At Smith’s conviction Pate, argued incompe process).. Neither nor Drope counsel that Smith would be lates due result, however, support argument Smith’s tent taken off Mellaril. As this competence appeal, nor to stand trial be raised issue was neither raised direct Rather, any premise application. time. The rather unremarkable Smith’s first PCR incompe Drope for the behind and Pate is that an Smith raised this issue first time result, intelli application. knowingly As a tent defendant cannot his second PCR Pate, pro gently rights. judge state PCR dismissed this claim as waive State, waiver, cedurally 305 at at 841. Unlike which defaulted.7 See Aice thioridazine, incompetent Smith was to stand 6. "Mellaril is trade name for contend that Nevada, Rather, antipsychotic drug.” Riggins taking v. 1810, 1812, trial because he Mellaril. stppped believed that if counsel Riggins, Court held taking psychosis drag would be re- that his Sixth and Fourteenth Amend- defendant’s jury. vealed that such a concedes rights ment violated adminis- were forced appear. condition did not during See id. at tration Mellaril trial. Rig- S.Ct. at Unlike the defendant present this to the South Smith failed to issue gins, the of Mellaril to. Smith was administration petitioned for when suspended unlike trial. Also the defen- before a writ of certiorari. Riggins, trial did not dant Smith's counsel *11 voluntary therefrom, conduct is and on whether can focuses courts address the merits); Carrier, fo- knowing, procedural default doctrine Murray issue’s v. federalism, 478, 495-96, comity, judicial 2649-50, on cuses and economy. (stating that where a petitioner has suffered a fundamental miscar- (4th Barnett, In Noble v. F.3d 582 riage justice a decision on the merits is Cir.1994), specifically this Court held that appropriate regard procedural without to a governing petitions “noth rules habeas default). Id. at to do with the doctrine waiver.” flatly rejected this holding, so V. argument “a ineompeteney that claim of Next, Smith contends that his Sixth Id. to stand trial can be forfeited.” never right Amendment to effective assistance of 587; v. Muncy, see also Clanton 845 F.2d counsel Spurgeon was violated when (4th Cir.1988) (holding that a Cole, psychologist a originally by retained ineompeteney claim of to stand trial be Smith, on testified behalf of thé State that defaulted). Although Noble dealt with the legally not Specifically, insane.9 doctrine, abuse of the writ we believe that its Clark, Dr. Cole testified that Dr. Helen (if holding applies equal greater) not psychologist ultimately by retained Smith to simply, here. Put force rationale defense, help insanity establish the misinter- Drope inapposite in and Pate are the context preted According Smith’s test results. ¶. Bundy procedural a But default. see Smith, testimony upon Dr. Cole’s was based (11th Cir.1987) Dugger, 816 protected by confidential information the at- (stating challenge that “a can defendant torney-client privilege. competency to trial for the stand first time petition”). his initial Accordingly, begin analysis habeas We our of Smith’s ineompeteney noting that a claim stand “attorney-client hold claim that law, for the first time in privilege trial asserted a federal is creation of the common subject petition procedural de Lange Young, Constitution.” 869 F.2d argue Cir.1989). does not n. 2 fault. Because Smith that Because fed resulting can demonstrate cause and habeas review is eral limited “violations of prejudice from default or he has States Constitution or its United law and jus treaties,” miscarriage Cooper Taylor, suffered a fundamental 103 F.3d — tice, (4th Cir.1996) (en denied, denying did not banc), district court err cert. -, compe evidentiary hearing (1997), Wainwright attorney- tence to stand trial.8 See mere violation of Smith’s Sykes, privilege client would not warrant habeas relief, (holding Lange, at 1012 see n. petitioner if the (noting can show cause for the state if a “[e]ven violation of the attor- default, occurred, procedural prejudice resulting ney-client and privilege this violation trial, hearing hearing 8. Prior to the start of Smith’s first testified Dr. Cole at the first state PCR was held to whether com- only determine Smith was that he testified for because petent to stand trial. Based the evidence thought Smith’s trial counsel would be found, hearing, introduced at that the trial court helpful to the defense. trial counsel Smith’s con- doubt, beyond a reasonable that Smith was com- explanation, admitting fimied Dr. Cole’s petent finding to stand This factual trial. honestly testimony believed Cole’s that Dr. presumption entitled to a of correctness helpful would be Smith’s trial defense. corpus proceeding. federal habeas they objected thought counsel also that if to Dr. 2254(d) (West 1994). § U.S.C.A. Because Smith testimony Cole’s the State call Dr. John present convincing and failed clear Dunlap—the psychiatrist the South from Car- contrary, magistrate judge determined Department of olina Mental Health who testified issue was without merit and should pre-trial competency hearing at Smith’s that he magis- adopted dismissed. The district court capable assisting compe- his counsel judge’s Report trate Recommendation testimony they tent trial'—whose be- to stand request competency denied for a hear- helpful lieved would be less the defense. ing. procedurally If the issue were default- ed, we would do likewise. final in became grounds Smith’s sentence *12 [ha insufficient for alone would be relief’). Thus, though 1990, South Car even Su beas] of when the United States March attorney-client, privi extended the olina has petition certiora preme' for Court denied lege to a communications cover defendant’s appeal. ri See Smith v. on direct help employed prepare a to psychiatrist 1536, 1060, 110 108 494 U.S. S.Ct. defense,10 Hitopou v. insanity State see (1990). Therefore, must de 775 L.Ed.2d lus, 549, 747, (1983), 749 279 309 S.C. S.E.2d necessary pro termine whether the rule only if the is relief Smith entitled vio result Smith seeks—the State duce the is when the violated State Sixth Amendment a when it calls lates the Sixth Amendment re psychiatrist a as a calls defense-retained psychiatrist as a witness— defense-retained argues grant The buttal witness. by precedent ex compelled was dictated a ing he seeks would create Smith relief Teague, at isting at that time. See 489 U.S. result, As a new rule of constitutional law. 301, 109 at S.Ct. Teague considering apply before we must Caspari claim.” v. the merits of [Smith’s] landscape” in March “Surveying legal 383, 948, 953, Bohlen, 389, 114 S.Ct. 510 U.S. Graham, 468, 1990, of at 113 S.Ct. 506 U.S. (1994) that, (noting if raised 127 236 L.Ed.2d 898, jurist have found at a reasonable would State, Teague a by inquiry is thresh dictating no result Smith now seeks. case matter). old Indeed, jurist have found at least would “new It is well established that contrary. Noggle v. two cases applied or rules will not be announced (6th Cir.1983), Marshall, 706 F.2d 1408 on unless fall eases collateral review Sixth Circuit held that the Sixth Amendment exceptions.” Penry Ly into one two v. of on rebut is not violated State calls when 2934, 302, 313, naugh, psychiatrist. tal Id. at a defense-retained (citing Teague Lange, at Similarly, 1415-16. Lane, 288, 311-13, 109 v. 489 U.S. S.Ct. 1008, the held that a defen Seventh Circuit (1989)).11 1075-77, 103 L.Ed.2d A rule is right dant’s Amendment to counsel Sixth Teague if purposes “new” for “the result a not when the state wit violated called .as by precedent existing was not at dictated by psychiatrist originally a contacted ness [and time conviction sen the defendant’s say Id. 1012-13. defense. at We cannot 301, 109 final.” at Id. at S.Ct. tence] became objectively opinions is that either these 1070; Caspari, 510 U.S. see unreasonable. See O’Dell Netherlands (1994) (outlining Teague S.Ct. (4th Cir.1996) bane) (not (en words, is if analysis). In other a rule “new” contrary “new” if that a rule is not “a considering jurists claim reasonable “ objectively un conclusion would have been by existing compelled ‘have felt — ”), U.S.-, aff'd, reasonable precedent’ petitioner’s] [the to rule favor.” conclude, 1969, 138 L.Ed.2d 351 We Collins, 461, 467, 113 V: See Graham therefore, jurist in March reasonable (1993) (em 892, 898, 122 compelled felt 1990 would not have added) Parks, phasis (quoting Saffle adopt the rule that now seeks. Be- (1990)). the rule seeks is “new” cause First, applied rejected a new be retroactive- Court rule should appeal places primary, private "[t]he because ly Smith’s claim direct if it certain kinds any [that Cole] record void of [was] beyond power conduct individual insanity help was hired to establish the defense." authority law-making proscribe. criminal Smith, S.E.2d State v. 286 S.C. Second, applied retroac- new rule should (1985) (concluding employed that "Dr. Cole was requires tively of those it the observance selection”). solely jury to aid in the defense's As concept implicit procedures that in the are result, con- the South Carolina liberty. ordered relationship cluded existed that no confidential Lane, Teague the two. between (internal marks, alterations, quotation omit- citations above, subject Teague two ex- 11. As noted ted). exception is relevant here. Neither ceptions. Komahrens, it cannot be purposes Teague, used Smith’s contention that Matthews, wrongly his death sentence. Arnold were disturb decided

and should be overruled need detain us long. It well established that a decision VI. is binding panels this Court on other unless seeking habe petition In his subsequent is overruled en banc relief, Smith further claims that both as opinion intervening Court or an deci grand jury petit and the were selected *13 Supreme sion of the United States Court. Equal violation of Protection in Clause NLRB, Corp. See Industrial Turnaround v. that the trial ex and court’s instructions on Cir.1997). (4th 115 254 F.3d Because testimony insanity pert and violated Komahrens, Matthews, holdings in concedes, Amendment. Smith howev Sixth question Arnold have not been into by called er, specifically that these claims were not en Supreme either the banc Court or the Nevertheless, appeal. raised on direct Court, they binding continue to be the law of procedurally argues that the claims are this Circuit. because the defaulted Court these issues when it South reviewed its in vitae review.12

conducted VII. favorem rejected have We reviewed identi Finally, resentencing at Smith’s the trial argument several Kornahrens cal times. See jury court instructed the sentencing that its (4th Cir.1995) Evatt, 1350, 1362-63 66 v. F.3d recommendation, death penalty whether the (holding that a claim record-based reviewed sentence, or a life must be unanimous. pursu the South Carolina that Smith contends the trial court’s instruc of in is ant doctrine vitae favorem law, tion misstated South Carolina see defaulted); procedurally see v. also Arnold 16-3-20(0 (Law. § Ann. S.C.Code Co (4th Cir.1997) Evatt, 113 F.3d 1357-58 op.1985 Supp.1997) (providing & that if a — (same), denied, U.S.-, cert. capital agree in to case is unable (1998); 715, 139 v. L.Ed.2d 655 Matthews penalty, the death must defendant be (4th Evatt, Cir.) (same), 105 F.3d 912-13 imprisonment), to life sentenced and violated — denied, U.S.-, 102, 139 118 cert. the rule established in v. Simmons South (1997). we in L.Ed.2d 57 As noted Komah- Carolina, 114 U.S. rens: 2194-95, 129 (1994) (holding L.Ed.2d 133 that review, Even with in vitae unless favorem process requires due criminal defen prisoner specific objections raises parole argue ineligibil dant allowed to be court, we before state cannot deter- prosecution ity arguments rebut future properly mine whether court the state has follow, dangerousness). For the reasons applied principles, federal constitutional arguments without merit. find both to be matter, court whether the state In has even these issues at all. considered A. short, judgment we have no state court review. response argu In first to Smith’s question F.3d at 1362. Because Smith mis failed ment—that instruction specifically ap- raise these claims on direct states Carolina law—the State cites a peal, procedurally alleges we conclude that are series court that it of state decisions pursuant previous barred to our decisions have found identical instruction be a Komahrens, Matthews, and Arnold.13 correct Carolina law. statement (in life) argue re that he 12. Under vitae favor of 13. Because Smith can does favorem view, appellate "the court searches the record for prejudice or a cause and fundamen demonstrate regard objection error without to whether an has default, miscarriage justice excuse the tal Evatt, preserved it." v. F.3d Kornahrens we do not consider whether either exists. See Cir.1995) (4th (internal quotation Evatt, (4th Kornahrens F.3d omitted). marks vitae has review favorem Cir.1995). abolished State of been in the South Carolina. id. paradigmat was the by.the held cited so hold we that “Simmons Whether the cases ” It well import. is of established 95 F.3d no ic ‘new rule.’ O’Dell Netherlands — permit Cir.1996) (en us to principles, (4th banc), of federalism “basic aff'd, only those state-court decisions review -, rights.” implicate constitutional (1997). rule Accordingly, the announced (4th Evatt, Kornahrens v. be used to disturb Smith’s Simmons cannot Cir.1995) added); Cooper (emphasis see death sentence.15 Cir.1996) Taylor, (en banc) (stating that federal habeas review VIII. to “violations United States limited treaties”), cert. or its law Constitution provide any has failed Because Smith —

denied, -, habeas relief grounds upon which not, therefore, We will of the district court is granted, the decision contention that the instruc- entertain Smith’s hereby affirmed. *14 misstates question tion in South law. AFFIRMED B. MOTZ, Judge, DIANA Circuit GRIBBON response argu to Smith’s second concurring: vio question ment—that the instruction lates announced in the rule Simmons14—the “physical aggravating torture” cir- If argues the rule established invalid, II.B, see ante cumstance were section not overrule our decision in Simmons did error I could not conclude that the would not McKellar, Gaskins v. Cir. decision have infected the to sentence 1990), held that an in which we identical However, the reasons death. any not have on the instruction did effect opinion II.A of the set forth in section (hold juryes sentencing decision. Id. at 955 court, correctly I the district court believe disputed that “it inconceivable that “physical as to torture” instructed jurors have instruction could caused supported jury’s finding impose unanimously to a death sentence out Accordingly, physical I concur torture. should unani fear of mistrial not be court, judgment opinion of and in the impose impris mous in their decision to life except for II.B. section onment”). not decide We need whether Sim Gaskins, mons if it overruled because even did, A is not entitled to relief. upset prisoner

state his sentence if the

federal habeas review court-made rule he seeks the benefit “new.” See which Lane, 288, 301,

Teague v. 489 U.S. 1060, 1070, (1989); 103 L.Ed.2d 334 see also — -, ——,

O’Dell v. Netherlands (1997); Collins, 466-67, 113

Graham v. (1993). L.Ed.2d year

In a well over before case decided one matter, parties filed their briefs in this Carolina, final in when 15. Smith’s became In Simmons sentence (1994), peti- 114 S.Ct the United States denied his process requires due Court held that appeal. tion for on direct See Smith v. certiorari argue a criminal defendant allowed to prosecution, argu parole ineligibility to rebut Simmons, which dangerousness. future Id. at ments of rule, a new was decided in 1994. held created S.Ct. at 2194-95.