*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,”
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).
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
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,
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);
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.