*1 HUMPHRIES, Paul Shawn
Petitioner-Appellant, OZMINT, Director, Car- E. South
Jon Corrections; Department
olina McMaster, Attorney
Henry Dargan Carolina,
General, Re- State of South
spondents-Appellees.
No. 03-14. of Appeals,
United States
Fourth Circuit. 27, 2004.
Argued: Oct. 4, 2005. Feb.
Decided: *2 Norris, Lynn Teresa Center
ARGUED: Cоlumbia, Litigation, For South Capital Carolina, Appellant. Donald John General, Zelenka, Deputy Attorney Chief *3 Attorney Office of the General South Carolina, Columbia, Carolina, for South R. Appellees. Hag- ON BRIEF: Thomas Carolina; gard, Ridgeway, Joseph South Maggiacomo, Capital Litiga- Center for tion, Columbia, Carolina, for Appel- South McMaster, Henry Dargan Attorney lant. General, McIntosh, Deputy John W. Chief General, Columbia, Attorney South Car- olina, Appellees. WILKINS, Judge,
Before Chief WILKINSON, NIEMEYER, WIDENER, LUTTIG, WILLIAMS, MICHAEL, TRAXLER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, Judges, Circuit HAMILTON, Judge. Senior Circuit by published opinion. Affirmed Senior Judge opinion, HAMILTON wrote the Judge which and Judges Chief WILKINS WIDENER, NIEMEYER, LUTTIG, WILLIAMS, MOTZ, TRAXLER, KING, joined. and SHEDD Judge LUTTIG wrote concurring opinion. Judge a WILKINSON dissenting opinion, wrote in which a MICHAEL, GREGORY, Judges joined. DUNCAN EN BANC ON REHEARING HAMILTON, Judge: Senior Circuit On Hum- August Shawn Paul phries was convicted in the Circuit Court County, for Greenville South Carolina of murder, attempted robbery, possession of during of a firearm commission vio- crime, conspiracy. lent and criminal Fol- sentencing lowing hearing, rec- ommended sentence of death and, conviction in accordance murder with verdict, head, trial jury’s killing Meanwhile, the state court him. Blackwell Humphries slumped ground sentenced to death for that to the in the store. police exhausting conviction. After arrested Blackwell at state remedies, apprehended scene and later petition filed for a day. writ of corpus habeas the United States
District Court for the District of South Humphries, State v. 325 S.C. Carolina, § 28 U.S.C. which the dis- (1996). S.E.2d 25, 2005, July trict court dismissed.1 On 12, 1994, July On County Greenville granted the district court Humphries a grand jury charged Humphries with the of appealability, certificate 28 U.S.C. (2) murder; following offenses: at- *4 below, § 2253. For the reasons stated we (3) tempted robbery; possession of a fire- affirm the district court’s dismissal of during arm the commission of a violent Humphries’s petition. habeas crime; and criminal conspiracy. On 1, 1994, August the case went to trial and
I returned a guilty verdict of on all As found the South counts. Carolina Su-
preme appeal, Court on direct the facts of During the separate sentencing phase of this case are as follows: trial, Humphries’s proffered, the solicitor 1, 1994, January Humphries
On shot admitted, and the state trial court all of Smith, Dickie the owner of the Max- the evidence that during was admitted Saver convenience store in Fountain guilt phase of the trial. Following the Inn, South Carolina. The evidence at evidence, court’s admission of this the so- trial night established that on the before licitor called two witnesses from Dickie killing, Humphries and his friend family, Randy Smith’s his brother Smith Eddie Blackwell drinking drove around and his wife Pat Smith. These witnesses They gun beer. also stole a night. childhood, testified about Dickie Smith’s Shortly after 7:00 a.m. January ethic, upbringing, generosity, work and they entered the Max-Saver relationship young conven- close with his daughter Smith, ience store. working Ashley. who was store, Humphries asked whether he Randy Smith testified that he and Dick- hot, something Humphries
wanted and grew up ie Smith in a poor family that did gun flashed the stolen replied and not have hot water. When Dickie Smith money. he wanted nine-years old, was his father died. After There was some evidence to suggest death, his father’s Smith and the other Smith then reached under a counter to family began working support members pull gun. out a The video camera at the family. that, Randy Smith testified store recorded the shooting. When when Dickie grade, Smith was in the ninth counter, Smith reached under the Hum- job he took a after school aas meat cutter phries fired shot in Smith’s store, direction grocery a Bi-Lo until working from fled the store. The bullet 10:00 or 11:00 p.m. night. In the tenth by Humphries fired struck grade, Smith acquired Dickie Smith a full-time McMaster, Initially, Humphries Gary Maynard, Henry respectively, named po- hold these former commissioner of the respon- South Carolina sitions and have been substituted as Corrections, dents, Department 25(d)(1). and Charles Con- Fed.R.Civ.P. For ease of ref- don, erence, attorney gener- South respondents Carolina’s former we will refer to as "the al, Now, respondents. as throughout opinion. Jon Ozmint and State" trustworthy, pleasant was a job respectful, in a textile mill working second shift person. Randy continuing attend school. while community in the everyone Smith testified Humphries support strategy, good he was Dickie Smith and
liked The first called thirteen witnesses. wit- person. Humphries’s ness Albert Humphries, was paternal grandfather. He testified that Pat During testimony, her Smith de- brother, and his Richard Hum- Humphries ambitious, hard- Dickie Smith as scribed Humphries’s him phries, lived with instance, working, generous. For af- Humphries time grandmother receiving degree and ter one technical three-years Humphries old until was supervisor, Dickie Smith went becoming twelve-years old. Albert testi- get to school to his residential home back heavy drink- fied that he and his wife were building hous- began builder’s license and marijuana in grew ers that his wife Ashley in 1986. was born in 1988. es backyard. their de- Albert Dickie Smith and Pat Smith described son, father, as Humphries’s scribed his very Ashley’s close and relationship violent, that he unpredictably noting had Ashley having a hard testified prison been to several times. Albert *5 her killed time since father was and was son had Humphries testified that his cut receiving counseling. him the arm with a knife and had on testimony, in Following Humphries’s grandmother the state kicked face, knocking her out. photograph to admit of the crime false teeth moved documentary scene and evidence demon- Goode, aunt, Humphries’s Patricia testi- adjudicated strating Humphries was Humphries’s fied that father had said on in delinquent breaking 1985 for two and as occasions that never loved his numerous he in in 1989 enterings, convicted Anderson that the children and children should have County, burglary and South Carolina been aborted. larceny larceny, and conviсted of in Ala- Scott, mother, Humphries’s Carla testi- bama in 1990. that, father, Humphries’s fied after she left pregnant Humphries she became with as a in making mitigation, In terms of a case knife result his father her at raping Humphries’s strategy was four-fold. point. eventually stated that she left She First, sought he that there was to establish their paternal grandpar- children with (1) by demonstrating kill no intent to that: ents married times. and several more She panicked he in pulled trigger he after after only reunited with children she attempt to Dickie to reach reaction Smith’s who allow the chil- married someone would (2) counter; under the he did not kill dren to live with her. Donna Brashier was also the store who (3) during shooting; he drove off with- Humphries’s Scott also discussed crimi- (4) Blackwell; out Eddie he voluntari- Scott, nal Hum- According record. Next, ly Hum- killing. confessed phries was arrested in 1984 for two counts phries sought to was demonstrate he placed breaking entering and was person significant a nonviolent who had no Thereafter, probation. given on he was history engaging in violent acts. He suspended more after probation he was sought young that he was a also show for times. Af- fighting school several history man had an of emo- Humphries’s probation who extensive ter second revoca- old, tional, Fi- physical, years and substance abuse. tion he was he when fifteen was Columbia, facility nally, Humphries sought to show that he sent state South addition, placed on Satan. In Shults thirty days was testified Carolina Humphries’s again. Humphries Humphries was arrested father introduced probation drugs January breaking ages into a and alcohol 1989 for between church, looking for food be- and ten. apparently six on the street for a living he had been cause Humphries’s in mitigation case was guilty to that Humphries pled
week. testimony closed with the of three wit- charge placed probation. and was nesses, family two (Tammy Comp- friends Humphries charged Alabama Shaw) step-sister, ton David and his stealing an automobile. As a result with Tammy Compton Jamie Scott. testified charge, was sentenced Humphries Humphries enough she trusted to leave years’ imprisonment two followed her children with him and David Shaw years probation. four Humphries good, testified nonviolent person. Jamie Scott testified she loved Humphries, Humphries’s step- Debbie mother, step-brother her and wanted to lot see Humphries’s testified that father jury alcohol, return a life sentence. drugs, a combination of used every day fumes and had shared paint gave Before the state trial court Humphries from those substances with instructions, final its the solicitor and coun- Humphries, Hum- 1983 to 1992. Richard their gave argu- sel brother, regarding the phries’s testified argument, ments. In his closing the solici- in which he and circumstances tor broke his down into four (1) up, including: their father’s vio- grew parts, commenting tо the parents; toward his own the lack lence [y]ou things deciding look at four water; running hot water and sometimes *6 punishment. issue of You look at the (4) food; trips the lack of taken and aggravation. aggravated Is it an mur- dumpsters find school clothes.2 der? You look at the character of the that, Taylor Preston when testified he any mitigation, Defendant. You look employed Department of by was Youth statutory or other mitigation mitigation Services, he had contacts with they’ve you. numerous presented And the last Humphries, who was thirteen at the time. victim, thing you look at is the his According Taylor, Humphries to Preston uniqueness. harm to the commu- What cooperative, a pleasant, respectful, was and nity and to the family and to the victim boy. nonviolent did this Defendant cause? Those are things you the four at. look Shults, Mary expert an witness with a degree in The his sociology degree and master’s solicitor then turned attention to work, Hum- in The solicitor regarding aggravation. in social testified the evidence in history. argued social She related that that the evidence this case clear- phries’s statutory Humphries throughout ly aggravating established the had been reminded State, by product upon his life that he circumstance relied rape. was during Humphries’s stated that father was the murder was committed Shults violent, robbery kick incredibly people would in the commission of a while face, Then, deadly weapon.3 people, cut and would refer to himself was armed with a Badsen, Humphries's grandmother, 2. unfortunate circumstances of Hum- maternal Badsen, Lindsay Humphries's uncle. phries’s upbringing were further confirmed witnesses, testimony Ruby of two other presented aggrava- with one 3. The was (murder ting during circumstance committed the evi- Humphries’s charac- The solicitor then addressed the solicitor turned Hum- Humphries’s mitigation presented by ter and check- in summarized dence detail, past great stating: in phries. argued ered The solicitor to the mitigat- lack complete that there was he He’s since was 13 been trouble evidence, old, years ing arguing had years old. When he was con- breaking significant history prior he two and enter- criminal committed He that his ings, given probation. and he was victions crimes of violence and Family given relatively young (twenty-two), a chance mental age Court judge at age capacity, drug and occasional and alcohol use of no were moment. got fights He missed school. He got suspended school. He school. Finally, the solicitor turned to Dickie away. they brought He And him ran so uniqueness Smith’s individual. age probation back in at 14 on a revoca- regard, solicitor stated: tion, yet was given and he another Dickie Smith was born fourth chance, again, And stricter conditions. son, fifth child a fellow Alton named away. he school. ran Hе skipped He lady Smith and a Lottie sweet named got He disruptive sus- school. They grew up Mae Darnell Smith. pended. poor. They have water. didn’t hot at age brought So 15 he’s back in for They coming had a in and a tub spigot probation another revocation. And this stove, they next to the had a few said, Family Judge time “You of cotton. acres know, enough enough. going We’re Dickie Smith is as much about this case you send down to Columbia. We’re Paul Humphries. as Shawn When Alton going you if to send down there see [to] nine, Smith died when Dickie was he you figure we. can’t out what makes pulled up by bootstraps himself tick.” family. contributing he started they And all psychological do kind[s] got jobs all picking He kinds of odd reports things I’ll talk about penny pound, hunting cotton at a rab- just back, a moment. comes And he bits, them, out, skinning dressing them *7 truant, age at an 16 is habitual and he them selling for 50 cents. school, drops age out and at basically old, years gets job in he’s he When burglarizes 17 he church and steals at Bi-Lo in Greenville the Meat church, given proba- and he’s Department working after He’s school. tion. gone day. to school all after From Alabama, And he age goes at to and til or night school about 10:00 10:30 at there, larceny he’s convicted of down Bi-Lo, money, at working saving his jail years. and he’s sent to for two And family. a car buying for the gets age he out when he’s and at report. They he to in grade, goes fails issue warrant When he’s tenth he down probation. gets job, for him. He’s still on And at to Boenett’s and he a full-time age 22 going he a murder and at- second shift. He’s all commits to school tempted robbery. day, working midnight, armed and he’s until dant). robbery of a commission while armed was also instructed to consid- deadly weapon) statutory with a two and miti- er other circumstances it found to be (no gating significant prior circumstances mitigating. history age and criminal of the defen- grew up part al. He southern Lottie Mae Darnell Smith contributing. kids, County Simpsonville all Greenville below high them out of eight got with cotton, school, mainly farming, agricul- that was degree, some of all at least a tech ture area. through college. them watching it grew up change And he to school, high Dickie Smith finished
When industrial. he first And went to work Carbide, went to work for then he Union for one of the at industries Union Car- Kemet, stop but he didn’t there. He bide, and then he decided he going kept He went improving himself. part change, to be of that and he started Tech, got engineering degree, he and building houses down there and building supervisor, became a and then he he a business down there. back to Tech he decided went because houses, got and he he wanted build finishing portion After his Tech, got and he degree his—another concerning Dickie Smith’s his builder’s license. uniqueness, the solicitor then concluded Pat, they and fell in argument by arguing following And 1984 he met his love, they got jury: marriеd. That’s the year Shawn Paul com-
same here, Who is the victim Shawn Paul age mitted two house break-ins Humphries or is it Dickie Smith? Who a pretty 1986 Dickie makes drastic guy is this the victim? Is it over here or going quit move. He decides he’s Donna, Brashier, is it got Donna who’s full-time, go Kemet and houses build gunshot every day hear that of her out, goes building he he starts got life and who’s see Dickie Smith community grown in the he had homes every laying day on the floor of her life? year in. Shawn Paul up That’s the same is the Is it this Who victim? Defendant his up proba- is second here, momma, or lady right is his down tion violation and sent to Colum- wife, Ashley, or who only way his bia. daddy go she can is to see her visit 4th, July they Then have a grave Sunday after church? baby Ashley. girl
little named You punish- There are a lot of reasons for know, brought year in a 12 the Defense reason, is ment. Rehabilitation one said, stepdaughter- -stepsister, old proper goal rehabilitation in some — “Please don’t Paul Hum- put Shawn circumstances, you’ve got but to decide sorry the electric chair.” I’m I phries Defendant, about whether who not feel it was appropriate bring did law, at 14 is breaking breaking year Ashley parade in a six girl old law, law, breaking at 15 is at 17 is you. front of her *8 law, going breaking —is Ashley In 1988 is born. That’s the same going jail, to breaking the law and who’s year Humphries jail Shawn Paul went to every given system been chance that the in years. spring you’re for two And if going offers. You decide to 1992, believe, opens I Smith Dickie rehabilitate him. MaxSaver, building to a
doors busi- punish- What are some other reasons for community. ness down that ment? is a reason for pun- Retribution may good, You have look at the ishment. That not sound right unique- to but,- may fact, I not right, ness of the individual. would submit sound Smith, you by everybody’s part punishment, that because retribution Dickie saying you description you unique community a individu- is our have done was you I ask you mercy, and for and going and we’re asks something wrong mercy did he Paul you.... give? what Shawn punish you comes here and asks Humphries this, you a case like when look at When gave he none. mercy, for and Shawn you aggravation, when you look and Humphries Paul comes here asks mitigation, I at the total lack look life, gave Is that you and he death. for submit, you look at when would justice? That’s what Defendant, fair? that Is and when character this justice. you. Smith, you’re up for is It’s here profane at Dickie how you look you at all the circumstances when look argument, counsel for his Defendant, how of this crime and of this penalty that Humphries argued the death gift man a life give profane for was unwarranted several reasons. these under circumstances.... First, emphasized for Humphries counsel punishment you do recommend What that no of an intent to there was co-worker, defending his a man is when (1) Humphries: pulled the kill because store, defending he’s defending he’s his trigger panicked he in reаction to after built, has he’s ducking he and be- what attempt under to reach Dickie Smith’s counter, somebody hind the and takes (2) Brashier; counter; did not kill Donna him? and executes nine millimeter Blackwell; (4) and drove off without you punishment do recommend? What killing. Coun- voluntarily confessed you punishment do recommend What was argued Humphries sel also you’ve like that? got when character significant person who had no nonviolent punishment you do recommend What engaging acts. Coun- history of violent somebody like Dickie Smith is tak- when Humphries a young sel argued us? en from history man of emo- who had extensive now, If not in If not then when? a case tional, and abuse. Fi- physical, substance this, aggravated as when that’s as then nally, Humphries argued counsel you may say, do The defense do it? respectful, pleasant trustworthy, “Well, you ag- can think of all kinds of person. You can think gravating cases.” Following the state trial court’s instruc- you can of that. You look at think deliberations, the jury’s tions case. the circumstances of this for recommended sentence of death this, if aggravating If not in a as case and, in accordance with murder conviction absolutely mitiga- in a no not case with verdict, trial jury’s the state court this, like if not in a with a tion case sentenced to death this, if in a character like not case when At the post-trial conviction.4 motions taken, somebody Dickie Smith is like objected counsel hearing, Humphries’s you going when to do it? It’s then are use of between solicitor’s easy. supposed to be It’s never during Dickie Smith easy. easy in the It won’t be been trial closing argument, the state court future. objection. overruled the Paul Humphries comes into this Shawn you mercy. appeal, On direct the South Carolina asking courtroom *9 state trial Supreme Paul in here Court affirmed the Humphries Shawn comes conviction, 4. For the other counts of Hum- tences. twenty-year phries sen- received concurrent
215 9, Id. a judgment. Humphries court’s at 57. On June certificate of appealability, 28 1997, Supreme § Court U.S.C. 2253. the United States Humphries’s petition for a denied writ 3, 2004, a May panel On divided of this Carolina, v. Humphries certiorari. South court vacated Humphries’s death sentence 2441, 1268,
520
117
L.Ed.2d
U.S.
138
and remanded the case with instructions to
(1997).
201
solely
issue the writ
for
purpose
Ozmint,
resentencing. Humphries v.
16, 1997,
September
Humphries
On
filed
(4th Cir.2004).
F.3d 266
The State
a
filed
post-conviction
an application for
relief
timely petition
rehearing
sug-
for
with a'
court,
he
state
which
later amended. Fol
gestion
rehearing
for
en bane to which
evidentiary
lowing
hearing,
the state
Humphries filed
response.
majority
A
court
application.
habeas
dismissed the
judges
active circuit
voted
rehear
18, 1999,
On
peti
June
filed a
banc,
en
this case
which resulted in the
tion for writ
of certiorari
.the South
panel opinion.
vacatur of the
Supreme
Carolina
Court. On September
27, 2001,
Supreme
Carolina
South
II
granted
petition
Court
for a writ of
Our standard for collateral re
and requested
parties pro
certiorari
view
a state court’s decision on the
briefing.
through
ceed
Humphries,
with
2254(d)
§
merits
under
U.S.C.
is well-
counsel,
appellate
following
briefed the
is
settled. A federal court may
grant
petition
sue in his
for certiorari: “Counsel
corpus
writ of habeas
unless the state
provide petitioner
did not
assis
effective
adjudication
court’s
of the claim “resulted
sentencing
tance at
they
because
failed to
contrary to,
in a
decision
or in
object timely
argu
to the solicitor’s closing
of,
volved
application
an unreasonable
ment
suggesting
petitioner
de
law,
clearly established Federal
as deter
,was
served to die
life
because
mined
Supreme
the United
than the
Supreme
less
victim’s.” The
2254(d)(1).
§
States.”
U.S.C.
Court of South
affirmed
Carolina
the state
law,”
“clearly
phrase
established Federal
judgment
26,
August
habeas court’s
on
id., “refers to the holdings,
opposed
as
State,
v.
351 S.C.
dicta,
[Supreme]
Court’s deci
(2002).
160, 168
570 S.E.2d
as of the
of the relevant
sions
time
state-
24, 2002, Humphries
On December
filed
Nuth,
court decision.” Booth-El v.
petition
for a
corpus
writ
habeas
(4th Cir.) (internal
F.3d
quotation
the United States District Court for the
omitted),
denied,
marks
cert.
U.S.
District of
January
South Carolina. On
(2002).
216 Irvin and 362, 405-06, elderly couple, of an 120 tal murders 529 U.S. S.Ct.
Taylor,
(2000).
497,
2529.
Finally, Rose Bronstein. Id. at
107 S.Ct.
1495, 146
389
L.Ed.2d
trial,
During
of
sentencing phase
the
the
application’
the ‘unreasonable
“[u]nder
victim-impact
clause,
may grant
prosecutor
the
read a
state
a
court
federal habeas
compiled
probation
that
the
the ment
was
writ if
state court identifies
the
of her interviews with
officer on
basis
governing legal principle
[the
correct
surviving family members.
the Bronsteins’
decisions but unreason-
Supreme] Court’s
498-500, 107
2529. The victim-
of
Id. at
S.Ct.
ably applies
principle
the facts
413,
included all three forms
impact
at
120
statement
prisoner’s case.” Id.
S.Ct.
applica-
victim-impact evidence: accounts of
Notably, an “unreasonable
1495.
impact
of the
psychological
from an
emotional
tion of federal
law
different
law,”
family,
descriptions
crime on
application
federal
be-
incorrect
characteristics,
personal
application of
Bronsteins’
an incorrect
federal
cause
instances, objectively
family
opinions and
not, in all
un-
the victims’
members’
law
410,
crimes and
Id. at
1495.
characterizations
S.Ct.
reasonable.
499-500,
2529.
defendant.
Id. at
107 S.Ct.
Ill
Booth,
held that all three
In
the Court
victim-impact
are irrele
that his trial
forms of
evidence
Humphries contends
im
constitutionally
to a
of whether to
ineffective vant
determination
counsel were
sentence,
ad
object
portion
pose
death
and that their
they
when
failed to
arbitrary
capricious
at sentenc mission thus risks
the solicitor’s
at
penalty.
death
Id.
According
Humphries,
imposition
ing.
State
502-03, 107
2529. The Court noted
the dictates of
v. Tennes
S.Ct.
violated
2597,
that,
see,
in
victim-impact
because
evidence
501 U.S.
S.Ct.
(1991),
facts
which the defendant was
L.Ed.2d 720
when
solicitor
cludes
about
murder,
at
time
it is
argued
jury during
to the
the sen
unaware
effect
culpability.
to the defendant’s
tencing phase of the trial
unrelated
Dickie
Id.
217
-
decision,
(1989),
Payne
the
Court extended Booth
In the
ob
the Court
may
served that “a
prosecutor’s
properly
comments on the
State
con
cover
that
meaning
clude
assess
personal
murder victim’s
characteristics.
case,
fully
defendant’s moral
811-12,109
culpability and
Id. at
S.Ct. 2207. In that
blameworthiness,
it should have
before
attempt
in an
to more
to enable
sentencing
at the
phase evidence of the
fully comprehend the human loss involved
sрecific harm caused
the defendant.”
mentally
of a
the murder
unstable
825,
Furthermore,
Id. at
111
S.Ct.
man,
prosecutor
made vari
homeless
“unfairly
the Court observed that Booth
ous
references
at
trial;
in a
weighted
capital
the scales
while
phase
the sentencing
about
the- victim’s
virtually
placed
no limits are
on the rele
character,
personality
including
infer
mitigating
vant
a capital
evidence
defen
ring from
possession
the victim’s
reli
may
dant
concerning
introduce
his own
gious-
registration
articles and voter
card
circumstances,
the State is barred from
that
the victim was a man of faith who
either
‘a
offering
glimpse
the life’ which
community, reading
eared about his
”
extinguish,’
defendant ‘chose to
at
id.
prayer
written
victim that
822, 111
(quoting
S.Ct. 2597
Mills v. Ma
scene,
the murder
noting
found at
-and
367, 397,
ryland,
1860,
486 U.S.
S.Ct.
problems.
victim had mental
Id. at
C.J.,
(Rehnquist,
Third, the facts concerning Humphries’s ed that not in Humphries way was by character referred to the solicitor in his prejudiced portion the solicitor’s already thoroughly were re- argument unique related character greater counted detail an earlier por- of Dickie Smith. tion of the solicitor’s closing argument. date, objection,
No -being Fourth, even to this Humphries’s attack on the three concerning portion raised earlier statements made solicitor near closing argument. solicitor’s As noted end of the solicitor’s misses the above, history life compari- the solicitor’s proper argu- mark. statements were year-by-year son set forth simply chronolo- ment because the statements asked Catoe, 353, 601 360 S.C. S.E.2d jury unique- to focus on Dickie Smith’s Hall, (2004). Unquestionably, the solicitor was In the solicitor directed ness. argue Dickie entitled to Smith of Hall’s life jury weigh the worth Moreover, equally unique. the solicitor against the lives of Hall’s victims: jury “look” at was entitled ask the values, talking I am about because ask uniqueness Dickie and to Smith’s of values. jury is a statement verdict consequences to consider and talking And I am not about dollars person unique- “when” a of Dickie Smith’s two [lives cents far as what the is “taken.”6 ness worth, it is but nevertheless girls were] Fifth, the evidence in this case concern- the lives question of values. What are sentence not close. ing appropriate they Are girls of these two worth? that, after Hum- The evidence showed man, psycho- life and Eddie Blackwell entered phries path, this killer who stabs and stabs store, convenience Dickie Max-Saver kills, rapes kidnaps. Humphries whether he want- Smith asked his trial argued Id. at 339. Hall hot, Humphries something flashed ed object counsel’s allowed “the so- failure replied that he wanted gun a stolen arbitrary, charge licitor with an money. there was While analysis,” misconceived violat- sentencing under a counter as Dickie Smith reached Id. The ing right process. to due gun, though pull out shot agreed. South Carolina head, killing him. Dickie in the Smith Payne, the Applying South Carolina Su- clearly supported aggra- This evidence that the Hall case was preme Court held case, vating in the that the murder factor distinguishable from the case: during the commission of was committed recognized Humphries we *16 robbery Humphries was armed with while more for the state to com- prejudicial weapon. mitiga- in deadly a The evidence pare the worth of the life of the defen- proffered by Humphries tion to counteract his it dant with that of victim than is to aggravation carefully in the evidence compare their lives on the evi- based meticulously attacked the solicitor. and Moreover, present dence In the presented.... a unique that Dickie Smith was case, only suggested In the solicitor not subject is not to serious debate. person short, that, than his no that Hall’s life was worth less we harbor doubt notwith- victims’, arbitrary developed he an for- standing comparison the solicitor’s a Humphries objectionable, jury so sen- mula if the Hall’s life whereby finds finds victims’, tence of death would have resulted. less than his then the jury could no other conclusion reach Sixth, the reasonableness South justified. penalty than that the death Supreme Court’s decision in this Carolina Further, in while the solicitor Hum- becomes more evident when one ex- case in phries compared Hall the histories of Hum- amines that court’s recent decision family society, though Payne We and the consequence note that a is that victim’s even put the defendant can be to death for mur- defendant did not know the victim or the another, person "unique” However, der of a more than family. victim's are inevit- these is, fact, though even the defendant in unaware comparative consequences Payne's able give uniqueness. of the victim's This does us framework; we, judges framework concern, pause some as does notion court, liberty an inferior are without that, Payne, a of death can under sentence change. severity turn on the of the harm caused to the (cita- lives, in phries’s particular family.” and his victim’s the solici- and to this Id. - omitted). jury compare quotation tor in Hall asked the tion and internal marks life with that of his the worth Hall’s victim-impact Whether the evidence coun- victims’. teracts mitigating the defendant’s question, is a asking jury make a Id. at 341. comparison between victim-impact evi- view, gave prin- In our court Hall mitigating dence and the defendant’s evi- cipled- explanation why the circum- dence; case, determining In this in distinguishable stances of Hall were sentence, appropriate jury was asked those involved our case. The Hall court personal to consider Dickie Smith’s charac- that Hall indicated involved direct “val- teristics, harm family caused his and ue” between the defendant society by Humphries’s actions, Hum- victim, asking weigh to- evidence, phries’s mitigating includ- which relative worth of the defendant and the of Humphries’s personal ed evidence char- comparison, victim. This con- court acteristics, both favorable and unfavorable. cluded, fundamentally rendered trial Hall’s circumstances, Under these was reason- contrast, By unfair. the court concluded Supreme able for the South Carolina simply solicitor to conclude solicitor’s life compared the “histories” the defendant history year- comparison contained and the victim’s “based on the lives evi- by-year chronology solicitor’s oth- thus, id., presented,” dence Hum- concerning er comments Dickie Smith’s phries’s trial was not fundamentally unfair. uniqueness within the were boundaries of essence, the court in Hall evaluated the question required to consid- role that the played solicitor’s n of Humphries. er—the blameworthiness both reasonably Hall and concluded one was constitutionally proper D and the other was not. paying lip While service to the correct Finally, the reasonableness of the South review, standard of which we all seem to Carolina Court’s decision agree presents Humphries with ex- by examining case is illustrated words overcome, tremely difficult hurdle to Payne case itself. tells us *17 in simply apply dissent this case does not have a in legitimate states interest did, it. For if it assuredly it most would introducing evidence a personal of victim’s analysis reach a different result. An characteristics and evidence the harm point pellucid. the dissent makes this caused family society to the victim’s begins by characterizing the defendant’s actions to counteract The dissent
the mitigating presented by evidence which argument solicitor’s as one in defendant. at a U.S. S.Ct. the solicitor asked for death sentence Payne quite explicit 2597. The was Court because Dickie Smith’s life was worth it regard Humphries’s in this when stated that more than life. The dissent legitimate “State has a interest in counter- tells us how the solicitor’s “climactical flourish,” acting mitigating “baldly evidence post compared which the in, put defendant is general entitled to remind- worth of the victim’s existence ing just the sentencer that urged the murder- with that of the defendant and individual, er jury should be as an to a impose penalty,” post considered death too victim so is an individual whose Dickie life worth because Smith’s death represents unique society Humphries’s loss to more than life. In character- holds that comparative this all argument light, specifically in
izing the solicitor’s ignores the fact improperly are unconstitutional. arguments the dissent worth Supreme interpretation the South Carolina Court The fallacies the dissent’s argument determined that the solicitor’s Payne are obvious. not involve a relative did all Court did not hold that Payne of Dickie Smith and worth of the lives arguments are uncon- comparative worth duty § our Humphries. Under most, Payne At Court dis- stitutional. first if the not to determine instance comparisons the vic- approved of between a relative argument solicitor’s involved society. and other victims of 501 U.S. tim to comparison, but rather decide worth Indeed, 2597. the Court’s Supreme South Carolina whether only comparative reference to relevant was unreasonable when deter- Court following: arguments argument mined that the solicitor’s did Payne echoes the concern voiced comparison. such a The dissent involve case that the admission of victim Booth’s carry duty. fails utterly to out jury to find impact permits evidence turning Payne, Before its attention as- that defendants whose victims were inability us for our the dissent criticizes are more de- community sets their “to to no that even point other serving punishment than whose those egregiousness pros- of this approaches perceived are to be less wor- victims no ecutor’s comments and other case however, matter, ... thy. general As has
which a court tolerated such miscon- impact is not victim offered serving up at 236. duct.” Post judgments encourage comparative critique, proceeds the dissent to discuss instance, that the killer of this kind —for several state cases which have addressed hardworking, parent deserves devoted Obviously, Payne. our review under penalty, the death but that the murderer rely § us find or require 2254 does not not. reprobate does upheld has a similar a state ease which Rather, our prosecutorial argument. stan- added). Thus, (emphasis Payne Id. simply dard of asks us to determine review careful to note that victim-im- Court Supreme South Carolina whether encourage evidence is not offered to pact unreasonably clearly applied Court estab- judgments involving comparative the vic- prec- lished United States society. More tim other victims edent.7 did not dis- importantly, Payne Court
Next,
the de-
approve
turns
between
the dissent
its attention
dissent,
this, it
According
to the
and the victim.8 In view of
Payne.
fendant
accept
“simply
if we have
dis
reminded the
that in addition
Even
dissent’s
life,
considering
should
*18
defendant’s
precedent
than
torted invitation
cite
other
victim";
(2)
the
also consider
life of the
and
clearly
precedent,
Supreme
established
Court
proper
"was
extensiоn of the
natural
egregious
more
than the
this
cases
one before
argument concerning vic-
prosecutor’s earlier
example,
do
For
State
court
exist.
v. Ha-
Thus,
impact
Id.
the
tim
evidence.”
Haselden
selden,
prosecutor
the
told
that "[i]f
the
upheld
argument
prosecutor's
the
even
court
you
walk
this
let this murderer
out of
court
case,
though,
prosecutor ex-
unlike this
the
you
saying
with
life
are
his
room
his
then
unmistakably implored
jury to
plicitly and
the
victim’s]
more than
life.”
[the
life is worth
weigh
comparative
the
worth of the defendant
594,
denied,
1,
610,
N.C.
577 S.E.2d
cert.
his
victim.
540 U.S.
oughly
victim-impact
Humphries’s
the intended use of
evidence
life
comparison
solicitor’s
and,
trial
given,
had such notice been
did not render
to that of Dickie Smith’s
tac-
would have used different trial
fundamentally unfair.
counsel
trial
Humphries’s
tics,
things,
including, among other
select-
Payne
our
know from
review
We
jurors differently
reconfiguring
authority
ing
Supreme Court
other relevant
expert
testimony. Humphries
the defendant
witness’s
comparisons
between
comply
capital
suggests
that the
failure
victim are
State’s
inevitable
16-3-20(B)
due
§with
violated his federal
is asked to assess
in which
case
process rights.
force of the
persuasive
defendant’s
victim-impact
mitigating evidence and
reasons,
For
Hum
several
such
comparisons,
evidence. Some
16-3-20(B)
§
is mis
phries’s reliance on
religion, unques-
on race or
those based
First, Humphries
raising an
placed.
is
Zant v.
tionably are unconstitutional. See
law,
cognizable
which
not
issue of state
is
865,
103 S.Ct.
Stephens, 462 U.S.
on federal habeas review.
Lewis
Cf.
(noting
ficity. pre- not Although the need should have itself, say that this is it to argument, Humphries a related sented suffice hall- rights remotely case about “the process that his due were not a even claims governments,” post because death “was marks totalitarian violated sentence J., (Wilkinson, dissenting). It not imposed, part, at least on the basis does regimes of opportunity terrifying information which he had no “the most concern Gardner, explain.” ap- or deny Century” anything the Twentieth or U.S. 362, 97 S.Ct. is not case According Hum Id. And it proaching such. he did phries, not most adequate аlongside that bears “the receive notice mention concerning the expendability.” examples introduction of victim-im of human terrible and, pact therefore, suggest could not ad Even to Id. these equately prepare his defense in advance. trivializes the historical vic- events This claim founders the simple reason of those events which the dissent tims that Humphries knew reasonably invokes reference. should have known that victim-impact evi This case not us to foot does invite “set dence during would be used State on a road recognize Americans will not sentencing phase of the trial. There our tolerate,” will Constitution id. fore, ample opportunity he had to investi by denying Humphries’ And petition on gate Indeed, and rebut that evidence. grounds majority correctly no clearly requires there law that time is not does sense whatsoever ly, specific, express notice of victim- “sanction executions on basis of ex- evidence,
impact and Humphries point can weighings tended relative human to no relevant federal authority to substan worth,” id. at or to egre- “condonfe] Thus, tiate his claim. the South Carolina gious human worth comparisons,” id. at reasonably interpreted 239, of the sort,” most “horrific id. at 238. federal law to find admission hyperbole Such only betrays the fact that victim-impact evidence did not violate (as the dissent has chosen panel, did the Humphries’s right to a fair trial under the well) mistakenly as to address itself to a Due Process Clause of the Fourteenth question of law to a set of facts Amendment. are not even arguably before the court.
V
To
case,
decide this
dowe
not need to
plumb the “anciently
princi-
established
hérein,
stated
judg-
For the reasons
ples”
law,
of federal
see id.
nor
court
ment of the district
is affirmed.
must we “ascend to-
register”
of “sen-
AFFIRMED
tencing philosophy” and its “seminal con-
LUTTIG,
concurring:
Judge,
Circuit
cepts” at “a high level of generality,” see
ignores
full en
court
banc
the dis-
id. at 243-44. And neither aré we invited
question
of both the
sent’s caricatures
or required to conduct a far-reaching “sur-
facts giving
and the
presented
law
rise to vey! of]
sentencing
American
practice” and
properly decides the
question,
sentencing procedure,”
“historic
id. at
govern-
issue before us on
basis
Tellingly,
248:
not even the dissent under-
*21
First,
analysis
object.
concedes,
takes
actual
anything of the
as the dissent
requires
sort.
Strickland
state court and
court
great
to treat with
deference
us, instead, a
have before
rather
We
trial
real-time
counsel’s
decisions with re-
law,
of
straightforward question
one as to
Second,
spect
objections
at trial.
as the
review,
our
of
as a court of
scope
which
2254(d)
concedes, section
re-
dissent also
law,
narrowly
clearly
is
cirсumscribed
quires us to defer to the state court’s
binding
by congressional enactment
Thus, the
application
great
of Strickland.
precedent. Contrary to
Supreme Court
deference owed to trial counsel’s contem-
characterization, we
not
dissent’s
do
poraneous
trial
implicating
decisions
strat-
us,
have
as we would on direct
even
before
review,
egy
on collateral
compounded
is
appeal
explicit
a case in which an
of
to the state court’s
where we are to defer
made,
human worth
were
of these
highly
review
deci-
deferential
question
whether it would violate the
of
AEDPA,
Furthermore, under
we
sions.
to resort
government
Constitution
for
judgment
uphold the
of the
are bound to
appealing
comparisons
to such
for
unless it was
state court
unreasonable
convicted
crime.
higher sentence
one
of
of
of both Strickland and
application
its
less,
nothing
nothing
us
but
more
Before
is
just
not
one
the other. And
Payne,
either,
an ineffective assistance of
than
this,
top of
chief
upon
all
case
which
under
Strickland Wash-
counsel claim
relies, namely Payne,
the dissent
does not
on collateral review of a
raised
ington,
presented
address the
even
issue
in this
judgment
fully
that
considered
state court
namely victim-to-defendant value
such,
precise question
claim. As
that
case—
making
utterly im-
it
we are
with which
confronted
law
—thus
plausible
suggest
that the South Car-
whether,
meaning
of 28
within
U.S.C.
olina court’s
case consti-
treatment
contrary
§
to or an
unreason-
application
tuted
unreasonable
application
clearly
established
able
hold-
holding Payne.
clearly established
of the United
ings
of the
state court
States for the South Carolina
reviewing with substan-
short,
are
we
counsel at
Humphries’
conclude that
application
the state court’s
deference
tial
constitutionally inef-
sentencing
were
clearly
holdings
two
of the
established
failing
to ob-
fective
Strickland
under
if,
cases,
Payne.
Strickland and
Even
ject
of the state solicitor’s
portion
to the
deference,
such
we
to conclude
under
were
Payne v.
allegedly violated
argument that
its
court erred in
under-
state
Tennessee,
808, 111
501 U.S.
application
holding
standing of the
and/or
(1991).
L.Ed.2d 720
grant Humphries’
order to
Payne,
pains
avoid even
The dissent
would still have to
petition we
conclude
articulation of this narrow
as the
much
that,
deference,
under the same
the state
precise articula-
its
question because
legal
in its application
court erred
of Strick-
only the
focus not
into stark
tion draws
requires
which itself
land—
the state court
question pre-
exaggeration
dissent’s
Therefore,
to trial counsel.
to defer
we
indefensibility
sented, but, ultimately,
four,
following
separate,
face
plainly
legal
standards
under
of the dissent
valid,
grounds
alternative
compelling affir-
of this case.
disposition
govern
of the
mance
denial of Humphries’ peti-
(1) it was
tion:
not contrary to or an
of this
particular posture
Because
application
unreasonable
case,
required to accord extraordi-
arewe
South Carolina to hold that Payne
erects
to trial counsel’s
nary deference
failure
against
urges
no
four
per se bar
victim-to-defendant
brief
references
*22
Payne
Humphries during the
value
because
solicitor’s narrative
comparisons,
does
(2)
all;
objection-
issue at
of Dickie
life
not
that
even if
Smith’s
created an
address
Payne
comparisons,
person-to-person
such
able
value
did address
it
in
Payne.
post-conviction
violation of
On
was not an
re-
application
unreasonable
view, the South Carolina
Payne
for South Carolina to conclude
that
held,
alia,
that
no
inter
such human-worth comparison occurred
victim-to-defendant
(3)
case;
comparisons
value
were
clearly
this
even if
not
such
an
uncon-
were
“Payne
application
stitutional because
not
Payne,
unreasonable
it
does
indi-
cate
would not
concern about
application
be
unreasonable
be-
tween the
for
victim and
Strickland
South Carolina
the defendant.”
to.con-
State,
Humphries
362,
object
clude
351
that counsel’s failure to
S.C.
570
did
(2002)
II”).
not
S.E.2d
167
objectively
(“Humphries
constitute
unreasonable
(4)
performance;
Our task in
habeas proceeding
even if
this
is to
failure to
object
determine
were
whether this
application
ruling
an unreasonable
state-court
Strickland,
to,'or
was “contrary
it was nevertheless not an un-
involved an unreason-
(rather
able application
holding
of’ the
application
reasonable
of Strickland for
dicta)
South
than the
of Payne.
Carolina to
that
conclude
Hum-
U.S.C.
§
phries
prejudiced
2254(d)(1);
Taylor,
was not
Williams v.
counsel’s fail-
U.S.
362, 412,
ure
object.
Each
grounds
of these four
S.Ct.
A.
falters at
first
very
step.
its
our strict
On
concedes,
As Humphries
pre-
order to
ly
Humphries’
circumscribed- review of
vail on
conviction,
his Strickland claim premised on state-court
elementary
ob
object,
counsel’s failure to
he must first
servation is
dispose
sufficient to
of the
what,
establish
because,
that
trial
petition,
matter,
occurred at
with-
as a threshold
objection
out
improper, illegal,
was
required
or un-
to show state
.
Appellant’s
constitutional. See
Br. at 12-
challenged portion
court that
of the
13.- Humphries argues
and the dissent
was unconstitutional.*
*Payne
explicitly
(though
comparisons,
given
does
state
value
in hold-
solici-
not
ing) that
"[i]n
event that
victim-impact
evidence
intro-
tor’s use of
in this
unduly
duced
so
prejudicial
apparently
unobjectiona-
that it
case was
otherwise
unfair,
ble,
fundamentally
renders the trial
clearly
contrary
an unrea-
Due Process Clause of the
application
Fourteenth Amend-
sonable
of Darden for South Car-
provides
ment
Humphries’
mechanism
.relief.”
olina to conclude that
trial was
Payne,
(citing
501 U.S. at
fundamentally
Nevertheless,
reprobate
designed
the dissent raises three
does not.
It is
arguments
Payne
show instead each victim’s
flatly
uniqueness
untenable
being....
human
clearly established “the ban
as an individual
somehow
comparisons”
holding—
such
as its
without
501 U.S.
Payne,
mentioning
comparisons.
even
such
Post
(citation
quota
original)
(emphasis
that,
First,
argues
dissent
omitted).
matter,
an initial
tion marks
As
condone
explicitly
because
does not
of this
the dissent’s treatment
text
*23
thereby con-
it
comparisons,
human-worth
way
disingenuous,
is
in a
that exact
Payne
(“Notably
post at
demns them. See
ly
panel
mirrors
error of the vacated
the
any
is
from the Court’s discussion
absent
post at 242 with Hum
opinion. Compare
imprimatur
hint
for human
com-
of
(4th
Ozmint,
phries v.
366 F.3d
Indeed, one
parisons ....
searches
Cir.2004). In
the dissent
particular, both
any
Payne opinion in vain for
indication
panel opinion
introduce the “con
that
the Court meant
to condone such
compari
about victim-to-victim value
cern”
But,
course,
of
comparative judgments.”).
concern,
if
sons as
it were the Court’s
holding
we
not ascertain the
under law
do
by
litigant.
a
instead of concern raised
by
is
inquiring
of a ease
into what
absent Then,
quote
to
sentence
proceed
both
Rather, the
from the Court’s discussion.
general matter”
beginning
out
“[a]s
of a case is found in what
actual-
holding
context, omitting
key
word “however”
ly
discussion. The
present
the Court's
the concern
that denotes contrast between
“negative
approach
inference”
dissent’s
litigant and the Court’s sub
raised
re-
precedent
Court
would find
thereby twisting the
sequent
remark —
every
error in
trial
versible
imply
the Court
language
Court’s
slightest novelty as-yet
unaddressed
exрlicit disapproval of
expressing
turning AEDPA
its
Court—
this
comparisons
passage.
such value
head.
post
(arguing
the Court
See
Second, the
fol-
dissent references the
incredulity” about victim-to-vic
“professes
lowing passage as its sole evidence from
passage,
comparisons
tim value
this
Payne
Payne
“eon-
text
disapproval
“signals
that it thus
clear
for
comparisons:
human-worth
interpersonal comparison
demn[ed]”
kind of
here”).
course,
plain
Of
as is
Payne
the concern voiced
occurred
echoes
Booth’s,
above,
fully
pas
the text
quoted
case that the admission
victim from
says something
different than
permits
sage
quite
to find
impact evidence
sug
would
quotation
whose
as-
the dissent’s tortured
that defendants
victims were
sim
community
gest.
key passage,
to their
are more de-
this
Court
sets
(1)
litigant Payne
that the
had
serving
punishment
ply
than those whose
noted
worthy.
comparisons,
about value
are
less
raised
concern
perceived
victims
be
matter, however,
normatively
made a
neutral
victim and then
general
As a
that, in
con
is not
contrast
this
impact evidence
offered
encour- observation
cern,
gener
comparative judgments
impact
this
victim
age
instance,
ally
purposes.
for such
There
kind—for
that the killer of
admitted
fore,
key passage
only
this
hardworking,
parent
passage
devoted
deserves
—the
can
Payne upon
which the dissent
penalty,
death
but that
murderer
from
oughly by
majority,
Darden likewise fails
relief.
any
provide
with
avenue of
possibly rely
clearly
erroneously
not “condemn” or oth-
established federal law
—does
disapproval
human-
express
Rather,
erwise
incorrectly.
or
that application
and,
all;
value
needless
unreasonable.”);
must also be
see also
Court,
say,
did
through
neither
Nuth,
Booth-El v.
288 F.3d
575-76
incredulity” at
passage, “profess
such com-
(4th Cir.2002)
C.J.)
(“The
(Wilkinson,
Instead,
simply
parisons.
makes
that,
has
stressed
in section
general pur-
neutral
that the
observation
2254(d)(1), Congress specifically used the
pose
victim-impact
evidence is not to
‘unreasonable,’
word
term
not a
like
comparisons.
create
”
victim-to-victim
(alteration
‘erroneous’
‘incorrect.’
Moreover, even if
passage
omitted)).
quotation
Patently,
marks
un-
Payne
express disapproval
did
of value der
in light
this standard and
of this evi-
comparisons, it would
in-
nevertheless be
dence, it was not unreasonable for South
adequate
purposes
dissent’s
Carolina to
conclude that
erected
First,
three further reasons.
as the South
*24
se
per
no
bar to victim-to-defendant value
held,
Carolina
passage
court
addresses
comparisons.
only
comparisons,
victim-to-victim value
not
comparisons,
value
Finally, in a virtual
that
victim-to-defendant
concession
and therеfore does not establish a bar
Payne
of
language
provides no
basis
its
(or
against
upon)
otherwise comment
argument,
grasps
lofty
the dissent
at
ab-
II,
Humphries
latter.
See
S.E.2d
in
attempt
an
to salvage
posi-
stractions
its
(“According
passage,
the com-
tion. Turning from its self-described “tex-
parison
Payne
prohibited by
is one be-
Payne,
actually
tual dissection” of
which
tween the
and other
victim
members
virtually
includes
no reference to the text
society; Payne
any
does not indicate
con-
Payne,
appeals
the dissent
“an
over-
comparisons
cern about
between the victim
Payne
philoso-
view of
its sentencing
defendant.”). Second,
and the
because
phy,” admittedly “ascending
regis-
to th[e]
apparently
allegation
there
no
in
“a high
generality.”
ter” of
level of
Post
Payne
that
victim-to-victim value com-
at 243. That the dissent must reference
parison
made,
been
passage
had
concepts
such ethereal
as the “overview”
dicta,
clearly
holding,
in
not in
thus
Payne
and “sentencing philosophy” of
Williams,
irrelevant under AEDPA. See
support
its argument effectively demon-
1495;
529 U.S. at
United
strates,
only
Payne
not
clearly
that
did not
03-4867,
Washington,
Slip
States v.
No.
in
holding
against
establish
rule
human-
(4th Cir.2005) (“[T]he
op. at
holding ...
also,
comparisons,
worth
but
and even
materially
limited to sets
facts that are
certainly,
more
that it was not unreason-
indistinguishable from
facts
before
2254(d)(1)
able under section
for South
court in
(emphasis
original)).
that case.”
Carolina
so conclude.
Third,
this,
re-
addition to all
we are
viewing the South Carolina court’s inter-
South
even ar-
Because
Carolina was not
pretation
passage
of this
under the defer-
determining
guably unreasonable
ential
application”
“unreasonable
standard
Payne
per
did not establish a
se rule
2254(d)(1).
of section
See Williams
against
compari-
victim-to-defendant value
Taylor,
411, 529 U.S. at
S.Ct. 1495 sons, Humphries’
claim fails on
Strickland
(“[A]
may
federal habeas court
not issue
ground
alone.
simply
the writ
because
court con-
Humphries’
But
claim fails on three oth-
independent
judgment
cludes
its
state-court decision applied
compelling grounds
relevant
er
as well.
inadvertent,
they
not
Humphries
B.
were
created,
deliberately
human-
must have
established,
clearly
had
if
Even
contrary,
comparison.
On the
rule
victim-to-
per
against
se
holding,
of the solici-
apparent purpose
effect
(which it
value
defendant
to def-
Humphries
tor’s references to
not),
Carolina’s determi-
plainly
South
did
Humphries’
exculpatory
late the
version
compari-
human-worth
no such
nation that
history presented by
defense—
life
an “un-
here would not be
son occurred
prosecution’s
which was the
main task
Payne.
See
application”
reasonable
sentencing hearing, a task
en-
openly
(“We
II,
S.E.2d at
by Payne.
dorsed
finding that
PCR court’s
agree with
argument
suggest
does
the solicitor’s
far,
sentencing
hear-
By
the bulk
is worth more than the
life
that Smith’s
ing and
bulk
the solicitor’s
original)).
(emphasis in
life.”
Petitioner’s
de-
were concerned with the
argument
challenged portion
attempt
present
exculpatory
of the solicitor’s
fense’s
primarily
story
Humphries’ culpability
consists
follow-
for the
about
sentences,
interspersed
in the
ing
portraying
hardships
three
murder
of Dickie Smith’s life
life. The
at-
Humphries’ past
solicitor’s summation
defense
year
history:
Humphries’
“That’s
same
Shawn
moral
tempted
show
guilt
Paul
committed two house
murder was attenuated due
age
13....
That’s
*25
past: poverty, pa-
break-ins
same
the misfortunes of his
Humphries
up
abuse,
alcohol,
his
year
drugs
juve-
Paul
is
for
Shawn
rental
and
and
end,
violation and sent down
To
probation
punishment.
second
nile crimes and
year
to Columbia....
That’s the same
presented
the defense
thirteen witnesses
jail
Paul
went to
for
Humphries
mitigation
Shawn
to the two vic-
compared
—as
years.” J.A. 107. The solicitor thus
tim-impact
prosecution
two
that the
witnesses
juxtaposed positive
happy
argument,
events
the so-
offered.
his
his
marriage,
victim’s life—his
decision
of
issue
Hum-
licitor’s discussion
business,
homebuilding
to
phries’
start a
and the
culpability spans
pages
twelve full
birth of his
with
daughter—
contempora-
transcript
compared
to
—as
Humphries’
neous misdeeds in
life. J.A.
pages
three and a half
devoted to the
of Dickie
life. Compare
narrative
Smith’s
J.A. 92-104 with J.A. 105-08. The domi-
only
The dissent
that the
possi-
contends
argument
nant theme of the
was
solicitor’s
purpose
juxtaposi-
ble
and effect of such a
that, despite
hardships
he faced in his
convey
tion
was
conclusion that
youth, Humphries
childhood and
bore
still
Humphries’
than
life was worth less
Dickie
responsibility
moral
The
for his choices.
(“The
post
life. See
at 237-38
Smith’s
following excerpt summarizes his twelve-
solicitor’s
no
simply leave
page
Humphries’ personal
discussion
inadvertence,
explanations
room
or
for
culpability:
of an unintentional
verbalization
an er-
Rather,
thought....
rant
train of
A lot of people
come from broken
prosecution
side-by-
A
come
sought point-by-point,
people
homes.
lot
from sin-
side,
year-by-year
parent
Dickie
came
gle
demonstrate
homes.
Smith
very
parent
Ashley
that at
a single
instant one life
home.
use,
put
being
single parent
was
to worthwhile
the other
from a
home.
Smith
now
not.”).
single
was
But
everybody
of course
does not
If
who came from a
that,
follow
a
parent
family
because the references
home or
blended
violence,
every
breaking
person
home
if
went
into houses
judgment
with
is a
murdered,
freighted
comparative
out and
couldn’t fill this
we
with
moral
im-
port.”).
people.
Humphries
box
Because
with
could have
choices,
made better
including
choice
question [Humphries’] daddy
There’s no
Smith,
not to kill Dickie
he should be held
question
was
no
vio-
violent. There’s
actions,
morally
despite
accountable
lence is a learned behavior....
attempt
argue
the defense’s
problem
And that’s
America.
Humphries’
exculpated
difficulties of
life
it,
question
vio-
There’s no
about
but
murder
Dickie
lence as a learned behavior does not
Smith. Such
tenor of
solici-
to explaining
happened
come close
what
argument,
tor’s
import
clearest
it.
just
here.
It
doesn’t do
the contrasting references to events in
... Violence as a
behavior
learned
does
Humphries’
Dickie
Smith’s lives. To
explain larceny.
not
Violence
say that
Dickie Smith are
explain
learned
evil
behavior does
morally
both
responsible for their choices
killing. Simply
malice
do it.
doesn’t
say
is not
life
“worth
Smith’s
...
the mitigation
they’re
That’s
than Humphries
more”
or that Smith was
you.
throwing at
That’s
crux of
person”
Humphries.
“more valuable
than
defense.
Clearly,
the solicitor’s
about
Why is it the crux of the defense? Be-
Humphries’ moral accountability, and his
you’ve got
aggravated,
cause
sense-
victim-impact
use of
highlight
evidence to
less
No
killing.
question about it. And
it,
unobjectionable
Payne.
were
under
you’ve
got
kid who’s been
trouble
Court openly countenanced the
since he was
horrible record.
juxtaposition of victim-impact evidence
only thing
try
So the
left is to
mitigation
with the
defense’s evidence
use,
marijuana
take this alcohol use and
purpose
deflating
exculpato-
for the
and poverty background and sort of
*26
ry
story
at
presented
sentencing by
life
bootstrap yourself
into
of
up
some sort
many capital defendants:
I
mitigation.
mental
would
And
submit
legitimate
state has a
interest
[T]he
horribly.
you
to
that it fails
counteracting
mitigating
100-01, 103.
to
J.A.
Like the reference
in,
to put
which the defendant is entitled
passage,
Dickie Smith
above
by reminding
just
the sentencer that
challenged
Humphries
to
in the
references
the murderer
be
an
should
considered as
solicitor’s brief narrative of Dickie Smith’s
individual, so
the victim
too
is an individ-
life
the main
underlined
theme
the solic-
represents
unique
ual whose death
loss
argument, namely
itor’s whole
that Hum-
society
particular
family.
to
and in
to his
bear moral
phries
responsibility
should
references,
by
Payne,
the choices he made. Both
U.S.
S.Ct. 2597
(alteration
men,
contrasting
suggest
original) (quotation
the two
marks
omitted).
Here,
could have made other choices
and citation
the solicitor
Smith,
victim-impact
that he did not make. Like Dickie
used
evidence to “counteract
by
mitigating
presented
could have chosen to build the
evidence”
faced;
adversity
by
spite
suggesting
houses
he
defendant
that the unfortu-
instead,
of Humphries’
he chose to break into houses.
nate circumstances
back-
(“That
Compare post
ground
Dickie Smith
did not
him of moral re-
absolve
Thus,
happened
be
building
sponsibility
houses while
for his crimes.
Humphries happened
reading
Paul
be
natural
ar-
Shawn
most
solicitor’s
(“Defense
unreasonable)
coun-
portion
objectively
did not
challenged
gument,
comparison
preserve
a tactical
a human-worth
sel made
decision
constitute
selected.”);
Rather,
contrast
already
it was
statement
that had
been
all.
accountability
Inst.,
moral
Roxbury
defendant’s
194 F.3d
Spicer v.
Corr.
Therefore, it
un-
(4th Cir.1999)
was not an
joined
his actions.
(opinion
Payne
application
C.J.) (counsel’s
for South
reasonable
Wilkinson,
object
failure to
that,
Payne
even if
Carolina to determine
testimony
eyewitness
at trial
of an
compari-
value
did bar victim-to-defendant
objectively
not
unreasonable because
sons,
no
value
occurred in
such
may
preferred
counsel
have
cross-exami-
this case.
witness);
to exclusion of the
Arnold
nation
(fail-
(4th Cir.1997)
Evatt,
v.
C. object at trial to evidence discredit- ure Third, if even South Carolina had erred ing testimony reasonably a witness’ could Payne, or application in its treatment part strategy). have been trial unrea- could not hold that would be we case, clearly even if estab- sonable for South Carolina to determine against rule lished a victim-to-defendant object failure to never- that trial counsel’s if human-worth and even constitutionally accept- theless constituted clearly compari- had made such a solicitor under Strickland. performance able As son, it not unreason- would constitute an above, compounded here owe noted we for South application able Strickland to trial counsel’s decision: we deference that Humphries’ Carolina to conclude highly defer the South Carolina court’s constitutionally counsel ineffec- were per- trial deferential review of counsel’s all, failing object. tive for After And deference that trial formance. objectionable allegedly portion of the solic- under counsel must be afforded Strickland objec- An quite itor’s brief. extensive, appel- appropriately because might tively adequate attorney defense poorly late courts are suited to second- easily judged have that he would lose face strategy on-the-fly trial deci- guess jury by objection an posing with the sions trial counsel. See Strickland emotionally point charged caviled at 668, 689, Washington, 466 U.S. argument, might and that this harm (1984) (“[A] 2052, 80 L.Ed.2d court outweigh any benefit to his client from indulge strong presumption must having a few sentences stricken counsel’s conduct falls within the wide *27 Indeed, given that record. there no range professional assis- reasonable clеarly rely, law on which to established tance; is, the over- that defendant must may reasonably trial counsel have feared that, cir- presumption come the under the the jury very probably that would view his cumstances, challenged might action unjustified objection strategy.”). considered sound trial In- be unsuccessful point pettifogging that as mere dis- deed, it failure is well established that —and Also, credibility accordingly. counted his objectionable ma- object to inadmissible or brief, given the indirect nature of the al- tactical can terial for reasons constitute reason- leged comparison, objectively an objectively strategy trial under reasonable See, attorney might that Nuth, able even have feared Booth-El v. e.g., Strickland. (4th Cir.2002) (Wilkin- objection actually ju- his draw the would 288 F.3d (counsel’s son, C.J.) compari- into a human-worth object rors’ minds failure to son, fleeting than ref- objectionable panel may have rather the solicitor’s all, Humphries. After absent favorable other reasons was not erences to been might argument. well objection, have missed itor’s See ante at 220-22. challenge bases alleged significance primarily these references twenty-eight as on three sentences in a supposed comparison, page as a human-worth argument. court ma- All three referred did the South Carolina and the circuit, fleetingly to that he all whom had dis- jority judges this extensively only cussed a few that an hu- minutes be- unwilling explicit are to hold concludes, As the majority fore. there man-worth occurred in this was no reasonable Likewise, probability that the attorney so- a reasonable case. licitor’s use of those few sentences at that judged objection have that an might changed point the outcome of the proceed- point might highlighted solic- have (“[W]e ings. ante See at 222 no harbor debunking exculpato- effective itor’s that, notwithstanding doubt the solicitor’s pre- life ry Humphries’ history version comparison that Humphries objec- finds so by sented the defense. tionable, a sentence of death would have sum, given the deference owed to resulted.”). Far less did it constitute an real-time, significant tactically decisions application of unreasonable Strickland for counsel, objections about made trial South thus to Carolina conclude. unlikely could trial is that we hold that The denial of Humphries’ Strickland object objectively counsel’s failure to claim, thus, independently supported by unreasonable under Strickland —even if distinct, individually four compelling, were claim considering we Strickland grounds sufficient for affirmance. It is for even Payne the first instance and had if that I judgment reason concur clearly rule against established a human- opinion of the court. comparisons. fact Considering WILKINSON, Judge, dissеnting: Circuit explicit counsel grounds had no objection Payne under because person No should be executed Amer- comparisons, does address such theory ica on the life that his is of less the fact that the deference we trial owe worth than that of else. This someone compounded counsel is the deference only clearly is not principle established in judgment owe we South Carolina’s under law; anciently it is so. federal Neither AEDPA, Humphries’ pe- it is evident attorney, defense nor court judge, a state tition must be denied on the first prong federal counterpart nor his should need Strickland. any prompting object to a death sen- premised principle
tence that
on a
D.
human
comparative
worth. Because the
majority’s opinion
respect
fails to
the ban
Fourth,
ap-
it was not
unreasonable
comparisons,
process
such
plication of Strickland for South Carolina
them,
strays perilously
endorsing
close to
that Humphries
prej-
to hold
did not suffer
I respectfully dissent.
challenged portion
udice
*28
II,
argument.
solicitor’s
See
should
There
be no doubt that this case
(“In
opinion,
evidence serves It a mul- justice system. affords criminal the impressing for on
titude of avenues I. jury anguish of the loss peculiar the majority’s The defense of the state solic- Indeed, evi- impact victim violent crime. begins the closing argument itor’s with the important more may dence become transgression that claim that it contains no It is severity of offense increases. My our censure. col- would warrant capital sentencing in a certainly warranted leagues argument “simply claim that this family proceeding, where the loss did not invite the to return sentence profound friends most and where is on the relative worth of the lives based prosecution of murder has robbed the Op. Humphries.” Maj. Dickie Smith and critical witness. proposition, support To this perver- But here happened what majority attempts submerge prose- Payne. proper sion of all that is under improper weighing cutor’s of human worth those system in our reflects Punishment argument at the end of his the sea is things for which an individual defendant already legitimate evidence before responsible, not of the relative val- notions jury. But close examination the solici- prose- ue of human lives. The respective betrays final to the presentation tor’s principle cutor took leave of the bedrock futility apology. punishment on circum- rests began closing argu- his solicitor crime, consequences stances of sentencing phase by ments at the sketch- victims, criminal its and the defendant’s would ing contours the evidence he history. sen- capital Rather than seek He discuss. announced: wholly de- tence these traditional and bases, into strayed the prosecutor fensible things deciding You at four look should territory whose forbidden nature punishment. issue of You look at have been self-evident. aggravated Is it mur- aggravation. der? look at the You character
Indeed, majority point is able to any mitigation, You Defendant. look approaches no that even other statutory mitigation mitigation or other prosecutor’s com egregiousness of this they’ve you. last presented to And the ments no case which a court other victim, thing look you is has tolerated such misconduct. There uniqueness. harm to commu- majori What reason lacuna in the telling nity family and to and to victim ty opinion wrongfulness putting —the cause? are compara did this Defendant Those people to death on the basis of now, things you at. arguments tive human worth the four look * (4th Cir.2004). My changed any respect upon that This dissent relies views have not *29 opinion supplemented by points expressed panel the debated from those I in vacated as Ozmint, during rehearing. opinion, Humphries process F.3d the en banc Pat, entirely [I]n the evidence was met [Dickie Smith] This outline of and love, Indeed, they got they the fell in married. unremarkable. year propri the That’s the same Paul Hum- generally has endorsed Shawn See, phries committed two ety e.g., of each of its elements. house break-ins at Carolina, age pretty 13. 1986 Dickie makes a v. Smith 512 U.S. Simmons (1994) 2187, 129 drastic He going move. decides he’s L.Ed.2d 133 quit and go full-time, Kemet build homes the (aggravating including factors defen out, goes and he building he starts “prior history”); Lockett v. dant’s criminal Ohio, homes in the he 586, 604, community grown had 438 U.S. up in. the evidence). year That’s same Shawn Paul (mitigating L.Ed.2d 973 up proba- for his second prosecutor The was therefore well with- tion violation and sent down Colum- exegesis in constitutional bounds in his bia. first the three sections. The trial evidence 4th, July they Then in the have a received, testimony the at sentenc- witness girl little baby Ashley. named You ing, closing prosecution’s argu- and the know, Defense in a 12 brought year the aggravating ment discussed turn the said, old stepdaughter stepsister, — crime, Humphries’ the circumstances of put “Please don’t Shawn Paul Hum- history, mitigating criminal and the evi- phries in electric I’m sorry chair.” I The dence offered defendant. testi- appropriate did not feel was to bring mony prosecutor elicited for the final Ashley in a year girl parade six old concerning presentation, element his you. her front similarly uniqueness, was sound. victim’s Ashley In 1988 is born. That’s the same Dickie appeared Smith’s relatives before year Paul Humphries jail Shawn went to objection without and recounted years. spring two And their recollections of the victim and what 1992, believe, opens I Dickie Smith Indeed, had he meant to each of them. MaxSaver, doors building to the a busi- juncture, stopped had the solicitor at this community. ness in that down beyond his actions would have been scruti- majority claims that the solicitor ny. only foreground meant “Dickie Smith’s The problem was that the solicitor did uniqueness part an as individual” stop. commentary his on the victim his contends impact evidence, prosecutor took leave vignettes nothing from victim’s life did of his announced intention to discuss “the Maj. more than further this purpose. Op. victim, uniqueness” and the “harm to 212-13, majority 220. The keeps re- community to the victim and to peating prosecutor’s comments family” that crime defendant’s had comparison. did not involve human worth Instead, gen- he into a caused. launched begins why But it not. explain never human Indeed, eral could majority why tells us never not have been more from his Humphries’ removed Paul full name needed Shawn purpose Dickie showing stated Smith as to occur at all—let alone three times—in unique being. part closing argument and individual human that was expressly previewed This stark detour should have been obvi- to the en- tirely Dickie legitimate ous the solicitor’s first mention of the discussion of Smith being. as an human defendant narrative of the victim’s individual Because prosecutor using life: avoided words such own *30 238 “worth,” general my purpose comparing the worth “compare” or “value” or
as
portion
assert that this
the
colleagues also
the victim’s and
defendant’s existence.
credibly
Haselden,
argument
regarded
Indeed,
cannot
be
his
the
the case on which
human
Id.
comparative
one of
worth.
n.7,
relies,
224
majority chiefly
Maj. Op. at
char-
220-21,
accept
222. I cannot
up
single
the most
it can muster
Indeed,
argument
if this
acterization.
begin
approach
did not
to
sentence which
hu-
comparative
deemed to be one
exploration of
prosecutor’s
the
extensive
worth,
I
of an
then
conceive
man
cannot
Humphries’
in the
case.
relative worth
designa-
that would merit that
cen-
have not hesitated to
Other courts
tion.
than
violations of
less horrific sort
sure
simply leave
comparisons
The solicitor’s
v.
happened
that which
here.
In State
inadvertence,
explanations of
no room for
Koskovich,
448,
Any doubts one lingering might have wife, Pat, Randy, and his was all legiti- purpose about the thor- State’s should be mately designed to underscore the impor- oughly by dispelled considering how tance of family the victim’s life to his mem- solicitor drew his comments to close. He bers, friends, to his the community and to to that returned the notion “Dickie Smith he served. Comment this upon evidence much Paul is as about this case as Shawn clearly would conform to the strictures of Humphries” by rhetorically asking “[w]ho Payne and the rhetorical embellishment of here, is the victim Shawn Paul the evidence would within be well the lati- legitimately or is it He Dickie Smith?” closing tude afforded arguments. implored jury capital return a sen- tence “if with asking not in a case But that is not what occurred in this this, if character like not a case when prose- case. That the facts from which the taken, somebody like Dickie Smith is then comparison already cutor drew his were you going when are to do it?” It was the record does not the prejudice cure exhortation, however, another ending that resulting the format in which the “[Wjhen you left the in no doubt: look prosecutor chose to present significant Defendant, at the character this and portion comparison close. The be- you Smith, when pro- look at Dickie how tween the victim and perpetrator that you fane when look at all the circum- formed the focus of this stances of this crime and of Defen- point reached the at which differences in dant, give profane gift how this man a of degree ripen into differences kind. The life under these circumstances.” This con- simply State did not seek to comment on cluding only flourish served one purpose: the evidence. The State did seek sim- point already hammer home the that ply explore consequences the terrible specific infused multiple comparisons family this crime the victim’s and com- of episodes from those two that the lives munity lay unique- out the victim’s just solicitor had set forth: Hum- Shawn sought ness as an individual. The State life, phries had Dickie led a worthless present peoples’ two lives in a crafted invi- one, worthy had led a death Smith and a compare tation to the their relative sentence was warranted on this basis. side-by-side comparison This worth. the relative value of two lives was calculat- The majority finally contends edly incendiary and the sentenc- rendered in- prоsecution’s argument entirety its ing fundamentally infirm. permissible volved no more than comments My on colleagues emphasize against backdrop the evidence. Viewed that all of the past message, majority’s suggestion discussion lives prosecutor obeyed prohibition the victim and defendant had al- ready judgments comparative been into at the human worth submitted sentencing hearing. The majority avoiding “compare” *32 plainly disagree Payne on what better not more have made “could Payne unequivocally endorsed Op. Cone. holds. is untenable.
choices” capital in impact of victim evidence argued use prosecutor could have The close choices, it never came proceedings, un- but Humphries’ nature tragic of of any imprimatur on the sort clos- placing those responsibility derscored prosecutor offered here. choices, Humphries’ mitigat- ing argument and attacked fact, plain Court issued indulging Supreme In day long all without ing evidence clear human worth warnings to steer of relative human worth. an of regret warnings which I compari- comparisons, explanation no Left with not here, say majority has heeded. plausi- let alone a that occurred son one, ap- only I what again can state ble A. so obvious from record:
pears
intrinsic
jury
that the
prosecutor told
Payne
example of
provides
good
itself
than
one
time
less
of
life over
value
impact
victim
evidence
the uses
which
another,
and that a sentence
that of
put.
case
the mur-
may be
The
involved
was warranted on that
death
basis.
twenty-eight-year-old
of a
mother and
der
two-year-old daughter
the de-
her
whom
II.
with a
viciously stabbed to death
fendant
Payne
approved
The
us
re
knife.
Court
This case comes to
on collateral
butcher
impact
of victim
evidence
judgment
the introduction
reviewing
state court
view.
attack,
concerning
physical
psychological
our
of def
obligations
collateral
three-year-
quite
are
harm inflicted on the victim’s
proceedings
to state court
erence
repeatedly,
also
Congress
that a feder
old son who was
stabbed
has declared
plain.
survived,
witnessed the
may
yet
of habeas
and who thus
grant
al court
writ
Testimo-
holding murder
his mother
sister.
corpus unless the state court’s
to,
the victim
contrary
ny
surviving
unreason
relatives of
or involved an
“was
of,
the use of
provides
paradigm case for
application
clearly established
able
evidence,
law,
impact
regardless
by the Su
victim
Federal
as determined
States,”
actually wit-
the United
whether
those survivors
preme Court of
2254(d)(1)
nessed,
(2000),
boy
Payne,
young
§
in
as the
did in
or “resulted
U.S.C.
unreason
commission of the crime.
decision that
based on an
light
able determination
faсts
impact
Payne made clear that victim
presented
court
the evidence
State
evidence,
per-
to the
relating
or “evidence
2254(d)(2).
§
The
28 U.S.C.
proceeding.”
of the victim and the
sonal characteristics
question
simply
before us is
whether
of the crimes on the vic-
impact
emotional
violated
court’s decision
this case
state
legiti-
family,”
important
tim’s
has
clearly
applying
federal law
established
sentencing. 501
place
capital
mate
U.S.
law
governing
rule that
“a
contradicts
817,
permit-
are
2597. States
S.Ct.
cases.”
[the
Court’s]
set forth
offer
to introduce such evidence to
ted
Taylor,
529 U.S.
Williams
quick
“a
life which a
glimpse
(2000).
1495, 146
L.Ed.2d
extinguish,
dem-
[to
chose to
defendant
family
to the
agree
pivot- onstrate]
I
the loss
victim’s
majority
society
has
from the
analysis
in this
v. Tennes-
which
resulted
Payne
al case
prejudicial
defendant’s homicide.” Id. at
111 no more
than the many tactical
(quoting
Maryland,
S.Ct. 2597
Mills v.
486 decisions that must be made in the course
367, 397,
U.S.
108 S.Ct.
100 L.Ed.2d
capital
litigation.
Id. at
C.J.,
(Rehnquist,
dissenting))(in- 2597. While Booth and Gathers believed
omitted).
quotations
ternal
Grounding a
the individualized consideration of a
capital sentence in considerations of this
required
defendant
in a capital
pro-
case
sort does not violate the traditional pre-
evidence,
hibited victim impact
cepts
sentencing.
contrary,
On the
vic-
protested
the victim should
impact
tim
informs the
likewise be accorded
respect.
individual
*33
“specific
harm
by
caused
the crime in
822, 825,
Id. at
111
Finally,
S.Ct. 2597.
825,
question,”
2597,
id. at
111 S.Ct.
Payne
Court determined that
ap-
consequences
of a criminal act have proach
sentencing
underlying Booth and
long
been
factor on which punishment
narrow,
Gathers had been too
criticizing
may
819-20, 825,
properly rest.
Id. at
111
premise
of those cases that victim im-
reason,
S.Ct. 2597. For this
forbidding
pact evidence
general
not in
“do[es]
reflect
allowing
states from
impact
victim
evi- on the
‘blameworthiness,’
defendant’s
sentencing
dence in
proceedings would re-
only
relating
evidence
to ‘blamewor-
duce the deceased to a “faceless stranger
thiness’ is relevant to the capital sentenc-
penalty phase
capital
of a
trial [and]
ing
819,
decision.” Id. at
(describing federal and
sentencing au-
criminal act.
“the
reform that enables
information about the
thority to consider
Indeed,
Payne opinion
one
searches
by
committed
harm caused
the crime
in vain for
indication
the Court
(victim
defendant”);
evi-
impact
id.
judg-
comparative
meant
condone such
“designed
portray
the sen-
dence is
part
opinion
ments.
In the one
authority
caused
the actual harm
tencing
comparative ap-
considers
where
crime”);
id.
by a
particular
sort,
only
to con-
peals
does so
(factors
relating to
generally
S.Ct. 2597
ques-
them.
considers the
demn
long
“specific harm” caused
crime have
tion,
Booth,
raised in
of whether victim
authori-
by sentencing
been “considered
might
“a
impact
permit
(evidence
ties”);
“illus-
id.
submitted was
victims were
find
defendants whose
Payne’s
caused by
trative of the harm
community
are more de-
assets
their
(states
double-murder”);
may properly
id.
serving of
than those whose
punishment
harm
“specific
authorize consideration
perceived
worthy.”
to be less
victims are
*34
assessing pun-
caused
the defendant”
Booth,
823,
(citing
Id. at
111
2597
482
S.Ct.
(evi-
ishment);
826,
at
proffered as the basis for the death sen-
Payne
The
proceed
Court had to
at a
tence. The pairing of
people,
two
one high level of generality because the deci-
actual and one supposed, contemplated by
it
sions
overruled had already ascended to
condemns,
the example
Payne
which
see
Booth,
register.
instance,
for
held
823,
501
at
U.S.
111 S.Ct.
does not
sentencing
that
only
evidence must relate
suddenly
acceptable
become
when the
to the defendant’s blameworthiness. See
hypothetical
dyad
element of the
is re-
818-19,
Booth,
at
id.
111
(citing
S.Ct. 2597
placed by
prosecutor
with the person
2529).
504, 505,
that evidence must and that it has made human worth com- blameworthiness. See to the defendant’s Id., 222 n. 6. For Booth, parisons “inevitable.” its 818-19, (citing id. at finds fault 2529). part, the concurrence likewise 482 U.S. at inconven- Payne, with because dismisses harm Payne envisions blame and as “dicta,” opinion ient statements in categories sentencing ev- organizing two 229, 230, ignoring thus Op. Cone. Indeed, Payne stands for the idence. explanation of the basis Court’s argu- proposition that relevance Payne for its own decision. I do not think sentencing be capital ments should any “shortcomings.” has Far from mak- in at least one of these two grounded “inevitable,” ing human worth doubt, possible, it is no principles. And by stressing condemns them reasoning the chain reconstruct an quality of victim as individual human every such a cat- supports relationship Payne, See being. U.S. egory evidence state federal nothing S.Ct. 2597. there was all Thus sentencing permits. history, law Criminal prosecutor’s about this “inevitable” deci- instance, See, e.g., relates blame. sion to take leave of the focus on Dickie intro, (“A k,Ch. comment defen- U.S.S.G. Smith and Shawn Paul as indi- prior criminal dant with record behav- into viduals and launch culpable is more than a first offender ior which, by side-by- two laying their lives deserving punish- of greater and thus side, individuality. If undermined ment.”) impact Victim “inevitable,” this were all so wonders one Payne contemplated, meanwhile, re- sort why only argument country it is the in this in like manner to harm. lates indulge explicit such an extended and judgments, Comparative human worth weighing of the relative worth of human contrast, defy in stark classification under life. general this rubric. For their resort to transgression The extent the State’s lives, human respective worthiness of is, beyond sadly, salvaging through the they slightest do not on the bear *36 aforementioned standard review. For culpability defendant’s or deleterious process due its core contains a commit- Indeed, consequences his criminal act. litigants ment to treat all as individuals of majority argument offers not one Castillo, equal v. dignity. Lyng 477 See comparisons relates human either worth 635, 2, 2727, 636 U.S. n. 106 S.Ct. 91 Instead, concepts. of these seminal (1986). individuality L.Ed.2d This majority pro- retreats behind nebulous however, compromised, prosecutors when nouncements about “the boundaries of implore juries to hand down sentences on question required was to consid- of comparative theories human worth. 223, er,” Maj. Op. at observations The past lives this was exhorted to argument bulk “[t]he solicitor’s relation, balance no connection bore or that Humphries should die because his tragic brought for the events save which life was worth less than Dickie Smith’s.” the into Yet parties court. the State en- at 220. as Propositions Id. such these gaged comparisons in of the sweeping life ignore prosecutor simply both what defendant, histories victim and what he did in breaching said in process, far re- coapting, events Payne all principles about. place in time moved and relevance majority proper inquiry The concludes its own review of from the at hand. The very Payne saying opinion concept has “a of a sentence should have operated preclude this vating mitigating circumstances, misadventure. or the does not receive a sentence for See, One lead- sheer heinousness of the e.g., offense. ing 16-3-20(C). a less valuable life than someone else. § South Carolina Code All of system One receives sentence under our these factors are focused on individuals having committed a Violating crime. qua comparative individuals are not principle, prosecutor’s human nature. But thing one the centerpiece of worth comparison my colleagues’ defies closing argument cannot invite is a sen- justification just did the deci- tence on the basis that person one is of sion. more intrinsic value than someone else. A may
defendant not be simply condemned B. deemed, for being long trajectory over the life, a less estimable human being than steps surveys When one back and Amer- his victim. ican sentencing practice, the fact that the majority faces so hard a task in accommo- Payne, the wake of gov- the federal dating Payne of human ernment, military, thirty-three surprising. worth is not thirty-eight states pen- with the death comparative
The
worth
alty
relied
have authorized the use of
im-
victim
category
on here fell within the
pact
of factors
in capital
sentencing.
John
Blume,
that the
prohibited
Court has
as H.
Ten Years
Payne: Victim
unduly prejudicial
penalty
Cases,
the death
Impact Evidence in Capital
88 Cor-
sentencing
(2003).
context.
See Johnson v. Mis-
nell L.Rev.
Unsurprising-
sissippi
584-85,
ly,
U.S.
jurisdictions
while these
allow a broad
1981, 100 L.Ed.2d
(quoting
range
evidence,
Zant
of victim impact
none
Stephens,
462 U.S.
sanctions the
comparative
sort of
(1983))
246 manageable domain of lives. itself to the more and defendant’s Such
of the victim’s consequences. of a and their hardly form the basis crimes a factor would increase, the imposi- much less two-level III. a of death.
tion of sentence
habeas
ignore Payne’s
application
condemnation of
The
of the federal
If we
requires
inquire
to
whether
argu-
statute here
us
comparative
use of
human
ments,
governing legal
applied
the state court
we invite future abuses. As
exclaimed,
partic-
a
“unreasonably
“one
rule
to the facts of
judge
trial
this was
of
Taylor,
my
prisoner’s
I have
heard in
ular
case.” Williams v.
arguments
ever
best
1495,
362, 407-08,
146
...
120
given
argument
in a
U.S.
S.Ct.
life
(2000).
delivery,
The
law that
technique,
of
...
effec- L.Ed.2d 389
federal
terms
effective, governs Humphries’
so
claim of ineffective
The
tiveness.”
v.
however,
it was
im-
is
precisely because
so
assistance
counsel
Strickland
2052,
668,
prejudicial Humphries,
ig- Washington,
U.S.
S.Ct.
properly
(1984).
“punish-
majority
that
The
de-
premise
L.Ed.2d
nored
bedrock
related,
the lion’s share of its attention
directly
ment should be
votes
prosecutor’s
comments re-
the criminal defen- whether
personal culpability
Brown,
538,
dant,”
spected
central
Payne. Payne
479 U.S.
course
California
it
a rule of
provides
conclusion also qualitative- prosecutor’s position were as advocate must quantitatively ments him latitude of But the ly unimportant totality pros- in the of the afford wide tactic. objective beyond But at times se- closing. must extend ecutor’s First, grounds. curing it the State’s wishes at cost. To flawed on least two law, juror simplistic. portions ways unschooled The offensive may human prosecutor’s presentation final the solicitor’s pages may legitimate legal ap- than have up appeared well take “less four departure it not the from historic sen- approximately twenty-eight” peal, [the] Maj. Op. tencing procedure 221. But Thus as- occupies full. was. automata, if we invidious invitation judges, we would be sured the State’s juror may mandated at least one well permitted, undertook sort inquiries consciously engaged have what would oth- prong the second of Strickland with *40 only faintly challenges implicit preceded adjudica- have remained an erwise I guilt. tion of am Wiggins, pos- And well aware that a in the evidence. Under this variety in sibility safeguards prejudice prong satisfies the state federal law protect legitimacy work to supports resentencing. of such Strickland
convictions. IV. say But to properly system our Capital procedure in must guilty thing found he say is one largely province the states. remain another, properly can quite be executed is many good victim impact And has when his sentence is based on the kind uses, awakening them legitimate among extraordinary arguments that the prosecu- to the of serious juries tragic toll crime. presentation represents. accept tor’s To was an But here abuse of this set sentence is to foot on a road tool, powerful an prosecutorial abuse recognize Americans will not and our Con- n attorney that no reasonable would sit and stitution will not tolerate. re- great With argue with that a greet silence. To defen- spect my I majority, friends should be death dant sent to because his single would not step along take a was of life less intrinsic value than his path. decide, is to ask a not victim on the MICHAEL, GREGORY, Judge Judge crime, not on character the conse- Judge join DUNCAN me this dis- crime, quences the criminal sent. crime, of the of the perpetrator record but on some unfettered evaluation of human prejudice. works improper impact may play an es-
Victim important
pecially part capital proceed-
ings where the crime has caused almost pain.
unfathomable But no state sentenc- practice nor
ing precept federal law capital be permit should read to sentence BARRIE, David behalf of On themselves comparison-of to be based on a the relative similarly situated; and all others Jill value human life or worth of human Richling, C. behalf On of themselves beings. comparisons Human worth are similarly Cary situated; and all others governments. hallmarks of totalitarian Luskin, Alan behalf of themselves On country. do not They belong our Soci- similarly situated; and all others Deb gotten have deepest eties into the sort of Luskin, bie behalf of themselves On making these trouble similarly situated, and all others imposition basis explicit for the of death. Plaintiffs-Appellants, most terrifying regimes Twenti- v. Century govern- eth were which those weighted the value of the lives of ments INTERVOICE-BRITE, INC., D. Daniel executing citizens as a prelude their Roy Graham; Hammond; Rob J. them. Brandenburg; H. David W. Gordon Polcyn; Givens; A. transgression I realize that Michael J. David before Berger; Hammond; today approach H. Harold us does not the most Dwain even Brown; Gregory Smith, D. examples expendability. of human M. Defen terrible dants-Appellees. appreciate I that the sentence notes the words and “value” history “the solicitor’s life or “worth” is a invitation to simple subter- year-by-year chronology fuge, condoning contained in human egregious during was based upon long facts established substance so as cer- see, Likewise, U.S. are avoided. phrases tain (1991). agree But we prosecu- L.Ed.2d 720 while suggestion that concurrence’s case, we could saying applicable than doing no more here tion was