Lead Opinion
Affirmеd by published opinion. Senior Judge HAMILTON wrote the opinion, in which Chief Judge WILKINS and Judges WIDENER, NIEMEYER, LUTTIG, WILLIAMS, MOTZ, TRAXLER, KING, and SHEDD joined. Judge LUTTIG wrote a concurring opinion. Judge WILKINSON wrote a dissenting opinion, in which Judges MICHAEL, GREGORY, and DUNCAN joined.
ON REHEARING EN BANC
On August 5, 1994, Shawn Paul Hum-phries was convicted in the Circuit Court for Greenville County, South Carolina of murder, attempted robbery, possession of a firearm during the commission of a violent crime, and criminal conspiracy. Following a sentencing hearing, the jury recommended a sentence of death for the murder conviction and, in accordance with
I
As found by the South Carolina Supreme Court on direct appeal, the facts of this case are as follows:
On January 1, 1994, Humphries shot Dickie Smith, the owner of the Max-Saver convenience store in Fountain Inn, South Carolina. The evidence at trial established that on the night before the killing, Humphries and his friend Eddie Blackwell drove around drinking beer. They also stole a gun that night. Shortly after 7:00 a.m. on January 1, they entered the Max-Saver convenience store. Smith, who was working in the store, asked Humphries whether he wanted something hot, and Humphries flashed the stolen gun and replied that he wanted money.
There was some evidence to suggest Smith then reached under a counter to pull out a gun. The video camera at the store recorded the shooting. When Smith reached under the counter, Hum-phries fired a shot in Smith’s direction and fled from the store. The bullet fired by Humphries struck Smith in the head, killing him. Meanwhile, Blackwell slumped to the ground in the store. The police arrested Blackwell at the scene and apprehended Humphries later that day.
State v. Humphries,
On July 12, 1994, a Greenville County grand jury charged Humphries with the following offenses: (1) murder; (2) attempted robbery; (3) possession of a firearm during the commission of a violent crime; and (4) criminal conspiracy. On August 1, 1994, the case went to trial and the jury returned a verdict of guilty on all counts.
During the separate sentencing phase of Humphries’s trial, the solicitor proffered, and the state trial court admitted, all of the evidence that was admitted during the guilt phase of the trial. Following the court’s admission of this evidence, the solicitor called two witnesses from Dickie Smith’s family, his brother Randy Smith and his wife Pat Smith. These witnesses testified about Dickie Smith’s childhood, upbringing, work ethic, generosity, and close relationship with his young daughter Ashley.
Randy Smith testified that he and Dick-ie Smith grew up in a poor family that did not have hot water. When Dickie Smith was nine-years old, his father died. After his father’s death, Smith and the other family members began working to support the family. Randy Smith testified that, when Dickie Smith was in the ninth grade, he took a job after school as a meat cutter at a Bi-Lo grocery store, working until 10:00 or 11:00 p.m. at night. In the tenth grade, Dickie Smith acquired a full-time
During her testimony, Pat Smith described Dickie Smith as ambitious, hardworking, and generous. For instance, after receiving one technical degree and becoming a supervisor, Dickie Smith went back to school to get his residential home builder’s license and began building houses in 1986. Ashley was born in 1988. Pat Smith described Dickie Smith and Ashley’s relationship as very close and testified that Ashley was having a hard time since her father was killed and was receiving counseling.
Following this testimony, the state moved to admit a photograph of the crime scene and documentary evidence demonstrating that Humphries was adjudicated as delinquent in 1985 for two breaking and enterings, convicted in 1989 in Anderson County, South Carolina of burglary and larceny, and convicted of larceny in Alabama in 1990.
In terms of making a case in mitigation, Humphries’s strategy was four-fold. First, he sought to establish that there was no intent to kill by demonstrating that: (1) he pulled the trigger after he panicked in reaction to Dickie Smith’s attempt to reach under the counter; (2) he did not kill Donna Brashier who was also in the store during the shooting; (3) he drove off without Eddie Blackwell; and (4) he voluntarily confessed to the killing. Next, Hum-phries sought to demonstrate that he was a nonviolent person who had no significant history of engaging in violent acts. He also sought to show that he was a young man who had an extensive history of emotional, physical, and substance abuse. Finally, Humphries sought to show that he was a trustworthy, respectful, and pleasant person.
In support of this strategy, Humphries called thirteen witnesses. The first witness was Albert Humphries, Humphries’s paternal grandfather. He testified that Humphries and his brother, Richard Hum-phries, lived with him and Humphries’s grandmother from the time Humphries was three-years old until Humphries was twelve-years old. Albert Humphries testified that he and his wife were heavy drinkers and that his wife grew marijuana in their backyard. Albert Humphries described his son, Humphries’s father, as unpredictably violent, noting that he had been to prison several times. Albert Humphries testified that his son had cut him on the arm with a knife and had kicked Humphries’s grandmother in the face, knocking her false teeth out.
Patricia Goode, Humphries’s aunt, testified that Humphries’s father had said on numerous occasions that he never loved his children and that the children should have been aborted.
Humphries’s mother, Carla Scott, testified that, after she left Humphriеs’s father, she became pregnant with Humphries as a result of his father raping her at knife point. She stated that she eventually left the children with their paternal grandparents and married several more times. She reunited with the children only after she married someone who would allow the children to live with her.
Scott also discussed Humphries’s criminal record. According to Scott, Hum-phries was arrested in 1984 for two counts of breaking and entering and was placed on probation. Thereafter, he was given more probation after he was suspended from school for fighting several times. After Humphries’s second probation revocation when he was fifteen years old, he was sent to a state facility in Columbia, South
Debbie Humphries, Humphries’s stepmother, testified that Humphries’s father used a combination of alcohol, drugs, and paint fumes every day and had shared those substances with Humphries from 1983 to 1992. Richard Humphries, Hum-phries’s brother, testified regarding the circumstances in which he and Humphries grew up, including: (1) their father’s violence toward his own parents; (2) the lack of hot water and sometimes running water; (3) the lack of food; and (4) the trips taken to the dumpsters to find school clothes.
Preston Taylor testified that, when he was employed by the Department of Youth Services, he had numerous contacts with Humphries, who was thirteen at the time. According to Preston Taylor, Humphries was a pleasant, respectful, cooperative, and nonviolent boy.
Mary Shults, an expert witness with a degree in sociology and a master’s degree in social work, testified regarding Hum-phries’s social history. She related that Humphries had been reminded throughout his life that he was a product of rape. Shults stated that Humphries’s father was incredibly violent, would kick people in the face, cut people, and would refer to himself as Satan. In addition, Shults testified Humphries’s father introduced Humphries to drugs and alcohol between the ages of six and ten.
Humphries’s case in mitigation was closed with the testimony of three witnesses, two family friends (Tammy Compton and David Shaw) and his step-sister, Jamie Scott. Tammy Compton testified she trusted Humphries enough to leave her children with him and David Shaw testified Humphries was a good, nonviolent person. Jamie Scott testified she loved her step-brоther a lot and wanted to see the jury return a life sentence.
Before the state trial court gave the jury its final instructions, the solicitor and counsel for Humphries gave their closing arguments. In his closing argument, the solicitor broke his argument down into four parts, commenting to the jury that
[y]ou look at four things in deciding the issue of punishment. You look at the aggravation. Is it an aggravated murder? You look at the character of the Defendant. You look at any mitigation, statutory mitigation or other mitigation they’ve presented to you. And the last thing you look at is the victim, his uniqueness. What harm to the community and to the victim and to the family did this Defendant cause? Those are the four things you look at.
The solicitor then turned his attention to the evidence in aggravation. The solicitor argued that the evidence in this case clearly established the statutory aggravating circumstance relied upon by the State, that the murder was committed during the commission of a robbery while Humphries was armed with a deadly weapon.
He’s been in trouble since he was 13 years old. When he was 13 years old, he committed two breaking and enter-ings, and he was given probation. He was given a chance by the Family Court judge at age 13.
He missed school. He got in fights at school. He got suspended at school. He ran away. And so they brought him back in at age 14 on a probation revocation, and he was given yet another chance, stricter conditions. And again, he skipped school. He ran away. He was disruptive in school. He got suspended.
So at age 15 he’s brought back in for another probation revocation. And this time the Family Court Judge said, “You know, enough is enough. We’re going to send you down to Columbia. We’re going to send you down there [to] see if we. can’t figure out what makes you tick.”
And they do all kind[s] of psychological reports and things that I’ll talk about in just a moment. And he comes back, and at age 16 is an habitual truant, and he basically drops out of school, and at age 17 he burglarizes the church and steals from the church, and he’s given probation.
And at age 18 he goes to Alabama, and he’s convicted of larceny down there, and he’s sent to jail for two years. And he gets out when he’s age 20, and at 21 he fails to report. They issue a warrant for him. He’s still on probation. And at age 22 he commits a murder and attempted armed robbery.
The solicitor then addressed the evidence in mitigation presented by Hum-phries. The solicitor argued to the jury that there was a complete lack of mitigating evidence, arguing that Humphries had a significant history of prior criminal convictions for crimes of violence and that his relatively young age (twenty-twо), mental capacity, and occasional drug and alcohol use were of no moment.
Finally, the solicitor turned to Dickie Smith’s uniqueness as an individual. In this regard, the solicitor stated:
Dickie Smith was born in 1950, fourth son, fifth child of a fellow named Alton Smith and a sweet lady named Lottie Mae Darnell Smith. They grew up poor. They didn’t have hot water. They had a spigot coming in and a tub next to the stove, and they had a few acres of cotton.
Dickie Smith is as much about this case as Shawn Paul Humphries. When Alton Smith died when Dickie was nine, he pulled himself up by his bootstraps and he started contributing to the family. He got all kinds of odd jobs picking cotton at a penny a pound, hunting rabbits, skinning them, dressing them out, selling them for 50 cents.
When he’s 14 years old, he gets a job in Greenville at the Bi-Lo in the Meat Department working after school. He’s gone to school all day. From after school til about 10:00 or 10:30 at night working at Bi-Lo, saving his money, buying a car for the family.
When he’s in tenth grade, he goes down to Boenett’s and he gets a full-time job, second shift. He’s going to school all day, and he’s working until midnight,contributing. Lottie Mae Darnell Smith with eight kids, got them all out of high school, all at least a tech degree, some of them through college.
When Dickie Smith finished high school, he went to work for Union Carbide, then Kemet, but he didn’t stop there. He kept improving himself. He went to Tech, he got an engineering degree, and he became a supervisor, and then he went back to Tech because he decided he wanted to build houses, and he got his — another degree at Tech, and he got his builder’s license.
And in 1984 he met Pat, and they fell in love, and they got married. That’s the same year Shawn Paul Humphries committed two house break-ins at age 13. In 1986 Dickie makes a pretty drastic move. He decides he’s going to quit Kemet and go build houses full-time, and he goes out, and he starts building homes in the community he had grown up in. That’s the same year Shawn Paul Humphries is up for his second probation violation and sent down to Columbia.
Then in 1988, July the 4th, they have a little baby girl named Ashley. You know, the Defense brought in a 12 year old stepdaughter- — -stepsister, said, “Please don’t put Shawn Paul Hum-phries in the electric chair.” I’m sorry I did not feel it was appropriate to bring in a six year old girl Ashley and parade her in front of you.
In 1988 Ashley is born. That’s the same year Shawn Paul Humphries went to jail for two years. And in the spring of 1992, I believe, Dickie Smith opens the doors to the MaxSaver, building a business down in that community.
You have the right to look at the uniqueness of the individual. I would submit to you that Dickie Smith, by everybody’s description to you was a unique individual. He grew up in that southern part of Greenville County below Simpsonville that was mainly farming, cotton, agriculture area.
And he grew up watching it change to industrial. And he first went to work for one of the industries at Union Carbide, and then he decided he was going to be pаrt of that change, and he started building houses down there and building a business down there.
After finishing the portion of his closing argument concerning Dickie Smith’s uniqueness, the solicitor then concluded his argument by arguing the following to the jury:
Who is the victim here, Shawn Paul Humphries or is it Dickie Smith? Who is the victim? Is it this guy over here or is it Donna, Donna Brashier, who’s got to hear that gunshot every day of her life and who’s got to see Dickie Smith laying on the floor every day of her life? Who is the victim? Is it this Defendant or is it this lady right here, his momma, or his wife, or Ashley, who the only way she can see her daddy is to go visit his grave on Sunday after church?
There are a lot of reasons for punishment. Rehabilitation is one reason, and rehabilitation is a proper goal in some circumstances, but you’ve got to decide about whether this Defendant, who at 13 is breaking the law, at 14 is breaking the law, at 15 is breaking the law, at 17 is going — is breaking the law, at 18 is breaking the law and going to jail, who’s been given every chance that the system offers. You decide if you’re going to rehabilitate him.
What are some other reasons for punishment? Retribution is a reason for punishment. That may not sound good, may not sound right, but,- in fact, it is part of punishment, because retribution is our community saying you have donesomething wrong and we’re going to punish you....
When you look at a case like this, when you look at the aggravation, when you look at the total lack of mitigation, I would submit, when you look at the character of this Defendant, and when you look at Dickie Smith, how profane when you look at all the circumstances of this crime and of this Defendant, how profane to give this man a gift of life under these circumstances....
What punishment do you recommend when a man is defending his co-worker, he’s defending his store, he’s defending what he has built, and he’s ducking behind the counter, and somebody takes a nine millimeter and executes him? What punishment do you recommend? What punishment do you recommend when you’ve got a character like that? What punishment do you recommend when somebody like Dickie Smith is taken from us?
If not now, then when? If not in a case that’s as aggravated as this, then when do you do it? The defense may say, “Well, you can think of all kinds of aggravating cases.” You can think of this and you can think of that. You look at the circumstances of this case.
If not in a case as aggravating as this, if not in a case with absolutely no mitigation like this, if not in a case with a character like this, if not in a case when somebody like Dickie Smith is taken, then when are you going to do it? It’s not supposed to be easy. It’s never been easy. It won’t be easy in the future.
Shawn Paul Humphries comes into this courtroom asking you for mercy. Shawn Paul Humphries comes in here and asks you for mercy, and I ask you what mercy did he give? Shawn Paul Humphries comes in here and asks you for mercy, and he gave none. Shawn Paul Humphries cоmes in here and asks you for life, and he gave death. Is that fair? Is that justice? That’s what you’re here for is justice. It’s up to you.
In his closing argument, counsel for Humphries argued that the death penalty was unwarranted for several reasons. First, counsel for Humphries emphasized that there was no evidence of an intent to kill because Humphries: (1) pulled the trigger after he panicked in reaction to Dickie Smith’s attempt to reach under the counter; (2) did not kill Donna Brashier; (3) drove off without Blackwell; and (4) voluntarily confessed to the killing. Counsel also argued that Humphries was a nonviolent person who had no significant history of engaging in violent acts. Counsel argued that Humphries was a young man who had an extensive history of emotional, physical, and substance abuse. Finally, counsel argued that Humphries was a trustworthy, respectful, and pleasant person.
Following the state trial court’s instructions and the jury’s deliberations, the jury recommended a sentence of death for the murder conviction and, in accordance with the jury’s verdict, the state trial court sentenced Humphries to death for that conviction.
On direct appeal, the South Carolina Supreme Court affirmed the state trial
On September 16, 1997, Humphries filed an application for post-conviction relief in state court, which he later amended. Following an evidentiary hearing, the state habeas court dismissed the application. On June 18, 1999, Humphries filed a petition for a writ of certiorari in .the South Carolina Supreme Court. On September 27, 2001, the South Carolina Supreme Court granted the petition for a writ of certiorari and requested the parties proceed with briefing. Humphries, through appellate counsel, briefed the following issue in his petition for certiorari: “Counsel did not provide petitioner effective assistance at sentencing because they failed to object timely to the solicitor’s closing argument suggesting that the petitioner deserved to die because his life ,was worth less than the victim’s.” The Supreme Court of South Carolina affirmed the state habeas court’s judgment on August 26, 2002. Humphries v. State,
On December 24, 2002, Humphries filed a petition for a writ of habeas corpus in the United States District Court for the District of South Carolina. On January 29, 2003, the State filed a motion for summary judgment. Humphries filed his response on February 14, 2003. On February 25, 2003, a United States Magistrate Judge reported and recommended that Humphries’s habeas petition be denied. On June 19, 2003, the district court, after conducting a de novo review of the record, granted the State’s motion for summary judgment and dismissed the petition. On July 25, 2003, the district court granted Humphries a certificate of appealability, 28 U.S.C. § 2253.
On May 3, 2004, a divided panel of this court vacated Humphries’s death sentence and remanded the case with instructions to issue the writ solely for the purpose of resentencing. Humphries v. Ozmint,
II
Our standard for collateral review of a state court’s decision on the merits under 28 U.S.C. § 2254(d) is well-settled. A federal court may not grant a writ of habeas corpus unless the state court’s adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal law,” id., “refers to the holdings, as opposed to the dicta, of the [Supreme] Court’s decisions as of the time of the relevant state-court decision.” Booth-El v. Nuth,
Ill
Humphries contends that his trial counsel were constitutionally ineffective when they failed to object to a portion of the solicitor’s closing argument at sentencing. According to Humphries, the State violated the dictates of Payne v. Tennessee,
A
In Booth v. Maryland,
In Booth, the Court held that all three forms of victim-impact evidence are irrelevant to a determination of whether to impose a death sentence, and that their admission thus risks arbitrary and capricious imposition of the death penalty. Id. at 502-03,
In South Carolina v. Gathers,
In Payne, the- Court overruled both Booth and Gathers. The Payne case involved a brutal attack of a mother and her two small children that left the mother and one of her children dead. Payne,
In - the Payne decision, the Court observed that “a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant.” Id. at 825,
In Darden, the Court addressed prosecutorial misconduct at the guilt phase of a capital murder trial. In addressing Darden’s argument that his trial and resulting conviction were fundamentally unfair because of the prosecutor’s improper argument, the Court characterized the inquiry as whether the improper comments were so unfair as to make the conviction a denial of due process. Darden,
B
In its decision on state habeas, the South Carolina Supreme Court first held that Payne only prohibited comparisons between the victim and other members (victims) of the community. Humphries,
In our opinion, the solicitor’s closing argument did not render sentencing fundamentally unfair as they [sic] did not prejudice Petitioner. The solicitor’s comments were based on evidence already in the record. Smith’s wife and brother testified during the penalty phase regarding each of the facts about Smith’s life upon which the solicitor commented. Petitiоner presented the testimony of thirteen witnesses in mitigation during the sentencing phase who attested to Petitioner’s at-risk childhood and subsequent criminal acts as a juvenile and young adult, providing all the evidence of Petitioner’s character discussed by the solicitor in his closing.
Through the testimony of Petitioner and Smith’s family members, both the similarities (the childhood poverty and .adversity) and the differences (the manner in which Petitioner and Smith dealt with their circumstances) were readily apparent to the jurors, before the solicitor’s closing argument. As permitted by Payne, the State offered evidence of Smith’s “uniqueness” as an individual by describing the successful ways in which Smith dealt with adversity in his life. Likewise, Petitioner introduced evidence of his own “uniqueness” through the testimony of thirteen witnesses (compared to Smith’s two witnesses) regarding his own difficult childhood and background, thereby inviting a comparison between Petitioner and Smith’s respective charT-acters even before the solicitor gave his closing remarks. As such, we do not believe the solicitor’s comments were so prejudicial (if prejudicial at all) that they rendered Petitioner’s death sentence fundamentally .unfair under the Due Process Clause.
To reverse the PCR court’s denial of relief, this Court must find, first, that counsel was ineffective, and, second, that counsel’s ineffectiveness resulted in prejudice. Payne does .not prohibit character comparisons between defendants and victims; it prohibits comparisons that suggest that there are worthy and unworthy victims. Therefore, Petitioner cannot establish either the ineffectiveness prong or the prejudice prong of the test as required to overturn the PCR court’s denial of relief.
Humphries,
C
As noted earlier, Humphries claims that the solicitor’s closing argument at the sentencing phase of the trial, taken as a whole, in effect asked the jury to impose the - death penalty because Dickie Smith was a worthy individual and an asset to the community while Humphries was not. According to Humphries, such comparative worth arguments run afoul of the dictates of Payne and the Due Process Clause of the Fourteenth Amendment and, therefore, his trial counsel were constitutionally ineffective for failing to. object to. the solicitor’s closing argument.
In advancing his argument, Humphries does not posit that any one of the solicitor’s comments, standing alone, was improper or factually inaccurate. Thus, his collectivity argument focuses on a few of the solicitor’s comments, which he contends created an impermissible situation in which the solicitor asked for a sentence of death based solely on the relative worth of his life and the life of Dickie Smith. In particular, Humphries objects to the year-by-year chronology, wherein the history of his life was compared to the history of Dickie Smith’s life.
We conclude that the South Carolina Supreme Court did not unreasonably apply Payne when it held that the solicitor’s closing argument at the sentencing phase of the trial, taken as a whole, did not render Humphries’s sentencing proceeding fundamentally unfair. First, the record in this case simply belies Humphries’s claim that the solicitor’s comparison of the lives of both Humphries and Dickie Smith was the centerpiece of the solicitor’s argument. It was not. As set forth above, the solicitor’s life history comparison contained in the year-by-year chronology essentially was the manner in which the solicitor chose to present to the jury the argument that Dickie Smith was a unique individual. Within that year-by-year chronology, the solicitor referenced Humphries four times, telling the jury that: (1) “Dickie Smith is as much about this case as ... Hum-phries”; (2) Humphries “committed two house break-ins at age 13”; (3) in 1986 Humphries violated the terms of his probation and was “sent down to Columbia”; and (4) in 1988 Humphries went to prison for two years. The bulk of the solicitor’s argument was not that Humphries should die because his life was worth less than Dickie Smith’s. Indeed, the solicitor did not use the words “worth,” “comparative worth,” or “value” in his year-by-year chronology. Rather, the bulk of the solicitor’s argument was devoted to the evidence in aggravation, Humphries’s lack of character, the absence of mitigating evidence in the case, and an explanation how these facts, along with the victim-impact evidence, warranted the imposition of a death sentence.
To be sure, the portion of the solicitor’s argument dealing with Dickie Smith’s unique personal characteristics is contained in less than four pages of an approximately twenty-eight page transcript of the solicitor’s closing argument and, during this segment of the solicitor’s closing argument, Humphries is mentioned just four times. Further, after thе solicitor made his final reference to Humphries in his year-by-year chronology by telling the jury that in 1988 Humphries “went to jail for two years,” the solicitor followed two sentences later with the reminder to the jury that it had “the right to look at the uniqueness of the individual.” The solicitor then added that “Dickie Smith, by everybody’s description to you was a unique individual.” Moreover, the solicitor essentially concluded his argument by asking the jury to impose a sentence of death because: (1) the evidence in aggravation
Second, the solicitor’s life history comparison contained in the year-by-year chronology was based upon facts established during the trial and were aspects of the trial which were readily apparent to the jury. Indeed, the circumstances of Dickie Smith’s life and the impact of his death on his family were thoroughly presented without contemporaneous objection through the testimony of Randy and Pat Smith. The circumstances of Humphries’s upbringing were thoroughly explored by Humphries’s counsel in the thirteen witnesses called by the defense. Because the solicitor’s life history comparison contained in the year-by-year chronology was based on evidence already before the jury, it is hard to take issue with the South Carolina Supreme Court’s conclusion that Hum-phries was not prejudiced by the solicitor’s comments.
Third, the facts concerning Humphries’s character referred to by the solicitor in his comparison were already thoroughly recounted in greater detail in an earlier portion of the solicitor’s closing argument. No objection, even to this date, is -being raised concerning this earlier portion of the solicitor’s closing argument. As noted above, the solicitor’s life history comparison set forth in the year-by-year chronology contained the following facts relating to Humphries: (1) he “committed two house break-ins at age 13”; (2) in 1986 he violated the terms of his probation and was “sent down to Columbia ”; and (3) in 1988 he went to prison for two years. Earlier, however, the solicitor had mentioned that Humphries had, at age thirteen, “committed two breaking and enterings” and was placed on probation. The solicitor pointed out that, because Humphries continued to be disobedient in school, he was brought before the family court on a probation violation and was released with stricter conditions imposed. The solicitor added that, at age fifteen, Humphries violated the terms of his probation and was “sent down to Columbia.” The solicitor also proffered that, at age sixteen, Humphries was “an habitual truant,” who “basically drop[ped] out of school.” The solicitor further noted that, at age seventeen, Hum-phries burglarized a church. The solicitor noted that, at age eighteen, Humphries went to Alabama and committed a larceny for which he was convicted and imprisoned for two years. Finally, the solicitor noted that, upon his release, Humphries failed to report to the probation office, a warrant was issued, and. within a couple of years of his release from prison he committed the murder at issue. Because all of the facts concerning Humphries referred to by the solicitor in his year-by-year chronology were facts recounted in greater detail earlier in his closing argument, it is difficult to conclude that the South Carolina Supreme Court acted unreasonably when it concluded that Humphries was not in any way prejudiced by the portion of the solicitor’s argument related to the unique character of Dickie Smith.
Fourth, Humphries’s attack on the three statements made by the solicitor near the end of the solicitor’s argument misses the mark. The statements were proper argument because the statements simply asked
Fifth, the evidence in this case concerning the appropriate sentence was not close. The evidence showed that, after Hum-phries and Eddie Blackwell entered the Max-Saver convenience store, Dickie Smith asked Humphries whether he wanted something hot, and Humphries flashed a stolen gun and replied that he wanted money. While there was evidence that Dickie Smith reached under a counter as though to pull out a gun, Humphries shot Dickie Smith in the head, killing him. This evidence clearly supported the aggravating factor in the case, that the murder was committed during the commission of a robbery while Humphries was armed with a deadly weapon. The evidence in mitigation proffered by Humphries to counteract the evidence in aggravation was carefully and meticulously attacked by the solicitor. Moreover, that Dickie Smith was a unique person is not subject to serious debate. In short, we harbor no doubt that, notwithstanding the solicitor’s comparison that Humphries finds so objectionable, a sentence of death would have resulted.
Sixth, the reasonableness of the South Carolina Supreme Court’s decision in this case becomes more evident when one examines that court’s recent decision in Hall v. Catoe,
I am talking about values, because a jury verdict is a statement of values. And I am not talking about dollars and cents as far as what the [lives of the two girls were] worth, but nevertheless it is a question of values. What are the lives of these two girls worth? Are they worth the life of this man, the psychopath, this killer who stabs and stabs and kills, and rapes and kidnaps.
Id. at 339. Hall argued that his trial counsel’s failure to object allowed “the solicitor to charge the jury with an arbitrary, misconceived sentencing analysis,” violating his right to due process. Id. The South Carolina Supreme Court agreed.
Applying Payne, the South Carolina Supreme Court held that the Hall case was distinguishable from the Humphries case:
In Humphries we recognized that it is more prejudicial for the state to compare the worth of the life of the defendant with that of his victim than it is to compare their lives based on the evidence presented.... In the present case, the solicitor not only suggested that Hall’s life was worth less than his victims’, he developed an arbitrary formula whereby if the jury finds Hall’s life worth less than his victims’, then the jury could reach no other conclusion than that the death penalty is justified. Further, while the solicitor in Hum-phries compared the histories of Hum-phries’s and his victim’s lives, the solicitor in Hall - asked the jury to compare the worth of Hall’s life with that of his victims’.
Id. at 341.
In our view, the Hall court gave a principled- explanation of why the circumstances of Hall were distinguishable from those involved in our case. The Hall court indicated that Hall involved a direct “value” comparison between the defendant and the victim, asking the jury to- weigh the relative worth of the defendant and the victim. This comparison, the court concluded, rendered Hall’s trial fundamentally unfair. By contrast, the court concluded that the solicitor in Humphries simply compared the “histories” of the defendant and the victim’s lives “based on the evidence presented,” id., and thus, Hum-phries’s trial was not fundamentally unfair. In essence, the court in Hall evaluated the role that the solicitor’s argument played in both Hall and Humphries and reasonably concluded one was constitutionally proper and the other was not.
Finally, the reasonableness of the South Carolina Supreme Court’s decision in this case is illustrated by examining the words of the Payne case itself. Payne tells us that states have a legitimate interest in introducing evidence of a victim’s personal characteristics and evidence of the harm caused to the victim’s family and society by the defendant’s actions to counteract the mitigating evidence presented by the defendant.
D
While paying lip service to the correct standard of review, which we all seem to agree presents Humphries with an extremely difficult hurdle to overcome, the dissent in this case simply does not apply it. For if it did, it most assuredly would reach a different result. An analysis of the dissent makes this point pellucid.
The dissent begins by characterizing the solicitor’s closing argument as one in which the solicitor asked for a death sentence because Dickie Smith’s life was worth more than Humphries’s life. The dissent tells us how the solicitor’s “climactical flourish,” post at 248, “baldly compared the general worth of the victim’s existence with that of the defendant and urged the jury to impose a death penalty,” post at 235, because Dickie Smith’s life was worth more than Humphries’s life. In character
Before turning its attention to Payne, the dissent criticizes us for our inability “to point to no other argument that even approaches the egregiousness of this prosecutor’s comments and no other case in which a court has tolerated such misconduct.” Post at 236. In serving up this critique, the dissent proceeds to discuss several state cases which have addressed Payne. Obviously, our review under § 2254 does not require us to find or rely on a state ease which has upheld a similar prosecutorial argument. Rather, our standard of review simply asks us to determine whether the South Carolina Supreme Court unreasonably applied clearly established United States Supreme Court precedent.
Next, the dissent turns its attention to Payne. According to the dissent, Payne specifically holds that all comparative worth arguments are unconstitutional. The fallacies in the dissent’s interpretation of Payne are obvious.
The Payne Court did not hold that all comparative worth arguments are unconstitutional. At most, the Payne Court disapproved of comparisons between the victim and other victims of society.
Payne echoes the concern voiced in Booth’s case that the admission of victim impact evidence permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. ... As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind — for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not.
Id. (emphasis added). Thus, the Payne Court was careful to note that victim-impact evidence is not offered to encourage comparative judgments involving the victim and other victims in society. More importantly, the Payne Court did not disapprove of comparisons between the defendant and the victim.
The dissent also tells us that a search of the Payne opinion “for any indication that the Court meant to condone” comparative worth arguments would be “in vain.” Post at 242. However, our task under § 2254 is not to determine whether Payne condones some, or even all, comparative worth arguments; rather, our task is to determine whether the South Carolina Supreme Court was unreasonable when it determined that Payne did not prohibit victim-to-defendant comparisons and whether the court was unreasonable when it determined that the solicitor’s closing argument did not render Humphries’s trial fundamentally unfair.
Moreover, the Payne Court recognized that some comparisons would be made between the defendant and the victim.
When all is said and done, the issue before this court is unmistakably narrow. The issue is not whether we think all comparative worth arguments are unconstitutional or only those involving victim-to-victim comparisons. Nor are we called upon to determine if there are shortcomings in the Payne framework.
IV
Humphries also claims that the State’s failure to notify him prior to trial of the State’s intended use of victim-impact evidence during the sentencing phase of the trial violated his right to a fair trial under the Due Process Clause of the Fourteenth Amendment. On direct appeal, the South Carolina Supreme Court rejected this claim.
Humphries first posits that his trial counsel reasonably believed that South Carolina Code § 16-3-20(B) entitled the defense to receive pre-trial written notice of the aggravating factors that would be used at the sentencing phase of the trial, which implicitly included victim-impact evidence. According to Humphries, his trial counsel did not receive pre-trial notiсe of the intended use of victim-impact evidence and, had such notice been given, his trial counsel would have used different trial tactics, including, among other things, selecting jurors differently and reconfiguring an expert witness’s testimony. Humphries suggests that the State’s failure to comply with § 16-3-20(B) violated his federal due process rights.
For several reasons, Humphries’s reliance on § 16-3-20(B) is misplaced. First, Humphries is raising an issue of state law, which is not cognizable on federal habeas review. Cf. Lewis v. Jeffers,
In a related argument, Humphries claims that his due process rights were violated because his death sentence “was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.” Gardner,
V
For the reasons stated hérein, the judgment of the district court is affirmed.
AFFIRMED
Notes
. Initially, Humphries named Gary Maynard, former commissioner of the South Carolina Department of Corrections, and Charles Con-don, South Carolina’s former attorney general, as respondents. Now, Jon Ozmint and Henry McMaster, respectively, hold these positions and have been substituted as respondents, Fed.R.Civ.P. 25(d)(1). For ease of reference, we will refer to respondents as "the State" throughout this opinion.
. The unfortunate circumstances of Hum-phries’s upbringing were further confirmed by the testimony of two other witnesses, Ruby Badsen, Humphries's maternal grandmother, and Lindsay Badsen, Humphries's uncle.
. The jury was presented with one aggravating circumstance (murder committed during
. For the other counts of conviction, Hum-phries received concurrent twenty-year sentences.
. Within the year-by-year chronology, the solicitor referenced Humphries four times, telling the jury that: (1) "Dickie Smith is as much about this case as ... Humphries”; (2)
. We note that a consequence of Payne is that a defendant can be put to death for the murder of a person more "unique” than another, even though the defendant is, in fact, unaware of the victim's uniqueness. This does give us some pause for concern, as does the notion that, under Payne, a sentence of death can turn on the severity of the harm caused to the victim’s family and society, even though the defendant did not know the victim or the victim's family. However, these are inevitable consequences of Payne's comparative framework; a framework that we, as judges of an inferior court, are without liberty to change.
. Even if we have to accept the dissent’s distorted invitation to cite precedent other than clearly established Supreme Court precedent, cases more egregious than the one before this court do exist. For example, in State v. Ha-selden, the prosecutor told the jury that "[i]f you let this murderer walk out of this courtroom with his life then you are saying that his life is worth more than [the victim’s] life.”
. In view of the framework established in Payne, the Payne Court's decision to refrain
. Arguably, Payne has a few shortcomings. For example, a consequence of Payne is that a defendant can be put to death for the murder of a person more "unique” than another, even though the defendant was, in fact, unaware of the victim's uniqueness at the time of the crime. Also, under Payne, a sentence of death can turn on the severity of the harm caused to the victim’s family and society, even ' though the defendant did not know the victim or the victim’s family. Whether we agree or disagree with these consequences simply is beside the point. These consequences are inevitable under the Payne framework; a framework that we, as judges of an inferior court, are without liberty to change.
Concurrence Opinion
concurring:
The full en banc court ignores the dissent’s caricatures of both the question of law presented and the facts giving rise to that question, and properly decides the issue before us on the basis of the governing legal standards and the actual facts as they appear in the record. I concur in the judgment reached by the court and in its opinion.
Although the need should not have presented itself, suffice it to say that this is not a case even remotely about “the hallmarks of totalitarian governments,” post at 249 (Wilkinson, J., dissenting). It does not concern “the most terrifying regimes of the Twentieth Century” or anything approaching such. Id. And it is not a case that bears mention alongside “the most terrible examples of human expendability.” Id. Even to suggest these comparisons trivializes the historical events and the victims of those events to which the dissent invokes reference.
This case does not invite us to “set foot on a road Americans will not recognize and our Constitution will not tolerate,” id. And by denying Humphries’ petition on the grounds that the majority correctly does is not in any sense whatsoever to “sanction executions on the basis of extended weighings of relative human worth,” id. at 239, or to “condonfe] egregious human worth comparisons,” id. at 239, of the most “horrific sort,” id. at 238. Such hyperbole only betrays the fact that the dissent has chosen (as did the panel, mistakenly as well) to address itself to a question of law and to a set of facts that are not even arguably before the court.
To decide this case, we do not need to plumb thе “anciently established principles” of federal law, see id. at 235, nor must we “ascend to- this register” of “sentencing philosophy” and its “seminal concepts” at “a high level of generality,” see id. at 243-44. And neither aré we invited or required to conduct a far-reaching “survey! of] American sentencing practice” and “historic sentencing procedure,” id. at 245, 248: Tellingly, not even the dissent under
We have before us, instead, a rather straightforward question of law, one as to which our scope of review, as a court of law, is clearly and narrowly circumscribed by congressional enactment and binding Supreme Court precedent. Contrary to the dissent’s characterization, we do not even have before us, as we would on direct appeal of a case in which an explicit human worth comparison were made, the question of whether it would violate the Constitution for the government to resort to such comparisons in appealing for a higher sentence of one convicted of crime. Before us is nothing less, but nothing more either, than an ineffective assistance of counsel claim under Strickland v. Washington, raised on collateral review of a state court judgment that fully considered that claim. As such, the precise question of law with which we are confronted is whether, within the meaning of 28 U.S.C. § 2254, it was contrary to or an unreasonable application of clearly established holdings of the Supreme Court of the United States for the South Carolina state court to conclude that Humphries’ counsel at sentencing were not constitutionally ineffective under Strickland for failing to object to the portion of the state solicitor’s argument that allegedly violated Payne v. Tennessee,
The dissent is at pains to avoid even as much as the articulation of this narrow legal question because its precise articulation draws into stark focus not only the dissent’s exaggeration of the question presented, but, ultimately, the indefensibility of the dissent under the legal standards that govern disposition of this case.
Because of the particular posture of this case, we are required to accord extraordinary deference to trial counsel’s failure to object. First, as the dissent concedes, Strickland requires the state court and this court to treat with great deference trial counsel’s real-time decisions with respect to objections at trial. Second, as the dissent also concedes, section 2254(d) requires us to defer to the state court’s application of Strickland. Thus, the great deference owed to trial counsel’s contemporaneous decisions implicating trial strategy is compounded on collateral review, where we are to defer to the state court’s highly deferential review of these decisions. Furthermore, under AEDPA, we are bound to uphold the judgment of the state court unless it was unreasonable in its application of both Strickland and Payne, not just the one or the other. And on top of all this, the chief case upon which the dissent relies, namely Payne, does not even address the issue presented in this case — namely victim-to-defendant value comparisons — thus making it utterly implausible to suggest that the South Carolina court’s treatment of that case constituted an unreasonable application of any clearly established holding in Payne.
In short, we are reviewing with substantial deference the state court’s application of the clearly established holdings of two cases, Strickland and Payne. Even if, under such deference, we were to conclude that the state court erred in its understanding of the holding and/or application of Payne, in order to grant Humphries’ petition we would still have to conclude that, under the same deference, the state court erred in its application of Strickland— which itself requires the state court to defer to trial counsel. Therefore, we face the following four, separate, plainly valid, alternative grounds compelling affir-mance of the denial of Humphries’ petition: (1) it was not contrary to or an unreasonable application of Payne for South Carolina to hold that Payne erects
A.
As Humphries concedes, in order to prevail on his Strickland claim premised on counsel’s failure to object, he must first establish that what, occurred at trial without objection was improper, illegal, or unconstitutional. . See Appellant’s Br. at 12-13.- Humphries argues and the dissent urges that the four brief references to Humphries during the solicitor’s narrative of Dickie Smith’s life created an objectionable person-to-person value comparison in violation of Payne. On post-conviction review, the South Carolina Supreme Court held, inter alia, that victim-to-defendant value comparisons were not clearly unconstitutional because “Payne does not indicate any concern about comparisons between the victim and the defendant.” Humphries v. State,
Plainly it was' not, because Payne* never once even mentions victim-to-defendant value comparisons. Humphries’ claim thus falters at its very first step. On our strictly circumscribed- review of Humphries’ state-court conviction, this elementary observation is sufficient to dispose of the petition, because, as a threshold matter, Humphries was required to show in state court that the challenged portion of the argument was unconstitutional.
Second, the dissent references the following passage as its sole evidence from the text of Payne that Payne “eon-demn[ed]” human-worth comparisons:
Payne echoes the concern voiced in Booth’s, case that the admission of victim impact evidence permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind — for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s uniqueness as an individual human being....
Payne,
Moreover, even if this passage from Payne did express disapproval of value comparisons, it would nevertheless be inadequate for the dissent’s purposes for three further reasons. First, as the South Carolina court held, the passage addresses only victim-to-victim value comparisons, not victim-to-defendant value comparisons, and therefore does not establish a bar against (or otherwise comment upon) the latter. See Humphries II,
Finally, in a virtual concession that the language of Payne provides no basis for its argument, the dissent grasps at lofty abstractions in an attempt to salvage its position. Turning from its self-described “textual dissection” of Payne, which actually includes virtually no reference to the text of Payne, the dissent appeals to “an overview of Payne and its sentencing philosophy,” admittedly “ascending to th[e] register” of “a high level оf generality.” Post at 243. That the dissent must reference such ethereal concepts as the “overview” and “sentencing philosophy” of Payne to support its argument effectively demonstrates, not only that Payne did not clearly establish in holding a rule against human-worth comparisons, but also, and even more certainly, that it was not unreasonable under section 2254(d)(1) for South Carolina to so conclude.
Because South Carolina was not even arguably unreasonable in determining that Payne did not establish a per se rule against victim-to-defendant value comparisons, Humphries’ Strickland claim fails on this ground alone.
But Humphries’ claim fails on three other compelling grounds as well.
Even if Payne had clearly established, in holding, a per se rule against victim-to-defendant value comparisons (which it plainly did not), South Carolina’s determination that no such human-worth comparison occurred here would not be an “unreasonable application” of Payne. See Humphries II,
The challenged portion of the solicitor’s argument consists primarily of the following three sentences, interspersed in the solicitor’s summation of Dickie Smith’s life history: “That’s the same year Shawn Paul Humphries committed two house break-ins at age 13.... That’s the same year Shawn Paul Humphries is up for his second probation violation and sent down to Columbia.... That’s the same year Shawn Paul Humphries went to jail for two years.” J.A. 107. The solicitor thus juxtaposed positive and happy events in the victim’s life — his marriage, his decision to start a homebuilding business, and the birth of his daughter— with contemporaneous misdeeds in Humphries’ life. J.A. 107.
The dissent contends that the only possible purpose and effect of such a juxtaposition was to convey the conclusion that Humphries’ life was worth less than Dickie Smith’s life. See post at 237-38 (“The solicitor’s comparisons simply leave no room for explanations of inadvertence, or of an unintentional verbalization of an errant train of thought.... Rather, the prosecution sought point-by-point, side-by-side, and year-by-year to demonstrate to the jury that at the very instant one life was being put to worthwhile use, the other was not.”). But of course it does not follow that, because the references to Humphries were not inadvertent, they must have deliberately created, a human-worth comparison. On the contrary, the apparent purpose and effect of the solicitor’s references to Humphries was to deflate the exculpatory version of Humphries’ life history presented by the defense— which was the prosecution’s main task at the sentencing hearing, a task openly endorsed by Payne.
By far, the bulk of the sentencing hearing and the bulk of the solicitor’s closing argument were concerned with the defense’s attempt to present an exculpatory story about Humphries’ culpability for the murder by portraying the hardships of Humphries’ past life. The defense attempted to show that Humphries’ moral guilt for the murder was attenuated due to the misfortunes of his past: poverty, parental abuse, drugs and alcohol, and juvenile crimes and punishment. To this end, the defense presented thirteen witnesses in mitigation — as compared to the two victim-impact witnesses that the prosecution offered. In his closing argument, the solicitor’s discussion of this issue of Hum-phries’ culpability spans twelve full pages of the transcript — as compared to the three and a half pages devoted to the narrative of Dickie Smith’s life. Compare J.A. 92-104 with J.A. 105-08. The dominant theme of the solicitor’s argument was that, despite the hardships he faced in his childhood and youth, Humphries still bore moral responsibility for his choices. The following excerpt summarizes his twelve-page discussion of Humphries’ personal culpability:
A lot of people come from broken homes. A lot of people come from single parent homes. Dickie Smith came from a single parent home. Ashley Smith is now from a single parent home. If everybody who came from a single parent home or a blended family or ahome with violence, if every person went out and murdered, we couldn’t fill this jury box with people.
There’s no question [Humphries’] daddy was violent. There’s no question violence is a learned behavior....
And that’s a problem in America. There’s no question about it, but violence as a learned behavior does not come close to explaining what happened here. It just doesn’t do it.
... Violence as a learned behavior does not explain larceny. Violence as a learned behavior does not explain evil malice killing. Simply doesn’t do it.
... That’s the mitigation that they’re throwing at you. That’s the crux of the defense.
Why is it the crux of the defense? Because you’ve got an aggravated, senseless killing. No question about it. And you’ve got a kid who’s been in trouble since he was 13, horrible record.
So the only thing that is left is to try to take this alcohol use and marijuana use, and poverty background and sort of bootstrap yourself up into some sort of mental mitigation. And I would submit to you that it fails horribly.
J.A. 100-01, 103. Like the reference to Dickie Smith in the above passage, the challenged references to Humphries in the solicitor’s brief narrative of Dickie Smith’s life underlined the main theme of the solicitor’s whole argument, namely that Hum-phries should bear moral responsibility for the choices he made. Both references, by contrasting the two men, suggest that Humphries could have made other choices that he did not make. Like Dickie Smith, Humphries could have chosen to build houses in spite of the adversity he faced; instead, he chose to break into houses. Compare post at 249 (“That Dickie Smith happened to be building houses while Shawn Paul Humphries happened to be breaking into houses is a judgment freighted with comparative moral import.”). Because Humphries could have made better choices, including the choice not to kill Dickie Smith, he should be held morally accountable for his actions, despite the defense’s attempt to argue that the difficulties of Humphries’ life exculpated Humphries for the murder of Dickie Smith. Such was the tenor of the solicitor’s argument, and the clearest import of the contrasting references to events in Humphries’ and Dickie Smith’s lives. To say that Humphries and Dickie Smith are both morally responsible for their choices is not to say that Smith’s life was “worth more” than Humphries or that Smith was a “more valuable person” than Humphries.
Clearly, the solicitor’s argument about Humphries’ moral accountability, and his use of victim-impact evidence to highlight it, were unobjectionable under Payne. The Payne Court openly countenanced the juxtaposition of victim-impact evidence with the defense’s evidence in mitigation for the purpose of deflating the exculpatory life story presented at sentencing by many capital defendants:
[T]he state has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.
Payne,
C.
Third, even if South Carolina had erred in its treatment or application of Payne, we could not hold that it would be unreasonable for South Carolina to determine that trial counsel’s failure to object nevertheless constituted constitutionally acceptable performance under Strickland. As noted above, here we owe compounded deference to trial counsel’s decision: we defer to the South Carolina court’s highly deferential review of trial counsel’s performance. And the deference that trial counsel must be afforded under Strickland is appropriately extensive, because appellate courts are poorly suited to second-guess trial strategy and on-the-fly decisions of trial counsel. See Strickland v. Washington,
In this case, even if Payne clearly established a rule against victim-to-defendant human-worth comparisons and even if the solicitor had clearly made such a comparison, it would not constitute an unreasonable application of Strickland for South Carolina to conclude that Humphries’ counsel were not constitutionally ineffective for failing to object. After all, the allegedly objectionable portion of the solicitor’s argument was quite brief. An objectively adequate defense attorney might easily have judged that he would lose face with the jury by posing an objection that caviled at an emotionally charged point in the argument, and that this harm might outweigh any benefit to his client from having a few sentences stricken from the record. Indeed, given that there was no clearly established law on which to rely, trial counsel may have reasonably feared that the jury would view his very probably unsuccessful and unjustified objection at that point as mere pettifogging — and discounted his credibility accordingly. Also, given the brief, indirect nature of the alleged comparison, an objectively reasonable attorney might even have feared that his objection would actually draw the jurors’ minds into a human-worth comparison, rather than the solicitor’s fleeting references to Humphries. After all, absent
In sum, given the deference owed to real-time, tactically significant decisions about objections made by trial counsel, it is unlikely that we could hold that trial counsel’s failure to object was objectively unreasonable under Strickland — even if we were considering this Strickland claim in the first instance and even if Payne had clearly established a rule against human-worth comparisons. Considering the fact that counsel had no explicit grounds for objection under Payne because Payne does not address such comparisons, and the fact that the deference we owe trial counsel is compounded by the deference we owe South Carolina’s judgment under AEDPA, it is evident that Humphries’ petition must be denied on the first prong of Strickland.
D.
Fourth, it was not an unreasonable application of Strickland for South Carolina to hold that Humphries did not suffer prejudice from the challenged portion of the solicitor’s argument. See Humphries II,
The denial of Humphries’ Strickland claim, thus, is independently supported by four distinct, compelling, and individually sufficient grounds for affirmance. It is for this reason that I concur in the judgment and opinion of the court.
Payne does explicitly state (though not in holding) that "[i]n the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for .relief.” Payne,
Dissenting Opinion
dissenting:
No person should be executed in America on the theory that his life is of less worth than that of someone else. This principle is not only clearly established in federal law; it is anciently so. Neither a defense attorney, nor a state court judge, nor his federal counterpart should need any prompting to object to a death sentence that is premised on a principle of comparative human worth. Because the majority’s opinion fails to respect the ban on such comparisons, and in the process strays perilously close to endorsing them, I respectfully dissent.
There should be no doubt that this case presents a violation of this sort. The prosecutor made no bones about what he did. He baldly compared the general worth of the victim’s existence with that of the defendant and urged the jury to impose a death penalty on that basis. This sort of argument should not serve as a prelude to
In Payne v. Tennessee,
But what happened here was a perversion of all that is proper under Payne. Punishment in our system reflects those things for which an individual defendant is responsible, not notions of the relative value of respective human lives. The prosecutor took leave of the bedrock principle that punishment rests on the circumstances of the crime, the consequences for its victims, and the defendant’s criminal history. Rather than seek a capital sentence on these traditional and wholly defensible bases, the prosecutor strayed into territory whose forbidden nature should have been self-evident.
Indeed, the majority is able to point to no other argument that even approaches the egregiousness of this prosecutor’s comments and no other case in which a court has tolerated such misconduct. There is a reason for this telling lacuna in the majority opinion — the wrongfulness of putting people to death on the basis of comparative human worth arguments is now, and was at the time of Humphries’ sentencing, clearly forbidden. I would therefore affirm ' Humphries’ conviction, -but I would issue the writ for purposes of resentenc-ing. I regret that I take such exception to the views of my distinguished colleagues and able concurring brother on this issue, but I do.
I.
The majority’s defense of the state solicitor’s closing argument begins with the claim that it contains no transgression that would warrant our censure. My colleagues claim that this argument “simply did not invite the jury to return a sentence based on the relative worth of the lives of Dickie Smith and Humphries.” Maj. Op. at 221. To support this proposition, the majority attempts to submerge the prosecutor’s improper weighing of human worth at the end of his argument in the sea of legitimate evidence already before the jury. But close examination of the solicitor’s final presentation to the jury betrays the futility of this apology.
The solicitor began his closing arguments at the sentencing phase by sketching the contours of the evidence he would discuss. He announced:
You look at four things in deciding the issue of punishment. You look at the aggravation. Is it an aggravated murder? You look at the character of the Defendant. You look at any mitigation, statutory mitigation or other mitigation they’ve presented to you. And the last thing you look at is the victim, his uniqueness. What harm to the community and to the victim and to the family did this Defendant cause? Those are the four things you look at.
The prosecutor was therefore well within constitutional bounds in his exegesis of the first three sections. The trial evidence received, the witness testimony at sentencing, and the prosecution’s closing argument discussed in turn the aggravating circumstances of the crime, Humphries’ criminal history, and the mitigating evidence offered by the defendant. The testimony the prosecutor elicited for the final element of his presentation, concerning the victim’s uniqueness, was similarly sound. Dickie Smith’s relatives appeared before the jury without objection and recounted their recollections of the victim and what he had meant to each of them. Indeed, had the solicitor stopped at this juncture, his actions would have been beyond scrutiny.
The problem was that the solicitor did not stop. In his commentary on the victim impact evidence, the prosecutor took leave of his announced intention to discuss “the victim, his uniqueness” and the “harm to the community and to the victim and to the family” that the defendant’s crime had caused. Instead, he launched into a general human worth comparison that could not have been more removed from his stated purpose of showing Dickie Smith as a unique and individual human being. This stark detour should have been obvious from the solicitor’s first mention of the defendant in the narrative of the victim’s own life:
[I]n 1984 [Dickie Smith] met Pat, and they fell in love, and they got married. That’s the same year Shawn Paul Hum-phries committed two house break-ins at age 13. 1986 Dickie makes a pretty
drastic move. He decides he’s going to quit Kemet and go build homes full-time, and he goes out, and he starts building homes in the community he had grown up in. That’s the same year Shawn Paul Humphries is up for his second probation violation and sent down to Columbia.
Then in 1988, July the 4th, they have a little baby girl named Ashley. You know, the Defense brought in a 12 year old stepdaughter — stepsister, said, “Please don’t put Shawn Paul Hum-phries in the electric chair.” I’m sorry I did not feel it was appropriate to bring in a six year old girl Ashley and parade her in front of you.
In 1988 Ashley is born. That’s the same year Shawn Paul Humphries went to jail for two years. And in the spring of 1992, I believe, Dickie Smith opens the doors to the MaxSaver, building a business down in that community.
The majority claims that the solicitor meant only to foreground “Dickie Smith’s uniqueness as an individual” in this part of his closing argument and contends that the vignettes from the victim’s life did nothing more than further this purpose. Maj. Op. at 212-13, 220. The majority keeps repeating that the prosecutor’s comments did not involve a human worth comparison. But it never begins to explain why not. Indeed, the majority never tells us why Shawn Paul Humphries’ full name needed to occur at all — let alone three times — in the part of the closing argument that was expressly previewed to the jury as an entirely legitimate discussion of Dickie Smith as an individual human being. Because the prosecutor avoided using words such
The solicitor’s comparisons simply leave no room for explanations of inadvertence, or of an unintentional verbalization of an errant train of thought. Indeed, such glancing or implicit comparisons may be all but unavoidable in a sentencing proceeding focused on the persons of the victim and the perpetrator. Yet the prosecution here uttered identically-phrased comparisons for three separate occasions — comparisons that took on the air of a refrain. All of these comparisons mentioned the defendant by his. full name and all employed the same dramatic construction, “[t]hat’s the same year Shawn Paul Humphries.... ” The record thus presents no general, oblique, or inadvertent comparisons of the victim and defendant. Rather, the prosecution sought point-by-point, side-by-side, and year-by-year to demonstrate to the jury that at the very instant one life was being put to worthwhile use, the other was not.
Thus, far from showing the victim as an individual, the prosecution presented two largely separate lives in tandem. In this regard, the comparison went far beyond the only two cases raised by the State that purport to reconcile Payne with comparative worth arguments, State v. Haselden,
Other courts have not hesitated to censure violations of a less horrific sort than that which happened here. In State v. Koskovich,
In the face of these precedents, I am surprised the majority clings to its defense
Any lingering doubts one might have about the State’s purpose should be thoroughly dispelled by considering how the solicitor drew his comments to a close. He returned to the notion that “Dickie Smith is as much about this case as Shawn Paul Humphries” by rhetorically asking “[w]ho is the victim here, Shawn Paul Humphries or is it Dickie Smith?” He legitimately implored the jury to return a capital sentence by asking “if not in a case with a character like this, if not in a case when somebody like Dickie Smith is taken, then when are you going to do it?” It was another ending exhortation, however, that left the jury in no doubt: “[Wjhen you look at the character of this Defendant, and when you look at Dickie Smith, how profane when you look at all the circumstances of this crime and of this Defendant, how profane to give this man a gift of life under these circumstances.” This concluding flourish served only one purpose: to hammer home the point that already infused the multiple specific comparisons of episodes from those two lives that the solicitor had just set forth: Shawn Hum-phries had led a worthless life, Dickie Smith had led a worthy one, and a death sentence was warranted on this basis.
The majority contends finally that the prosecution’s argument in its entirety involved no more than permissible comments on the evidence. My colleagues emphasize that all of the discussion of the past lives of the victim and the defendant had already been submitted into evidence at the sentencing hearing. The majority notes that “the solicitor’s life history comparison contained in the year-by-year chronology was based upon facts established during the trial [that] were readily apparent to the jury.” Maj. Op. at 221.
I do not suggest this evidence was inadmissible. To the contrary, the victim impact evidence was properly submitted. The testimony of Dickie Smith’s brother, Randy, and his wife, Pat, was all legitimately designed to underscore the importance of the victim’s life to his family members, to his friends, and to the community he served. Comment upon this evidence would clearly conform to the strictures of Payne and the rhetorical embellishment of the evidence would be well within the latitude afforded closing arguments.
But that is not what occurred in this case. That the facts from which the prosecutor drew his comparison were already in the record does not cure the prejudice resulting from the format in which the prosecutor chose to present a significant portion of his close. The comparison between the victim and perpetrator that formed the focus of this closing argument reached the point at which differences in degree ripen into differences in kind. The State did not seek simply to comment on the evidence. The State did not seek simply to explore the terrible consequences of this crime for the victim’s family and community or to lay out the victim’s uniqueness as an individual. The State sought to present two peoples’ lives in a crafted invitation to the jury to compare their relative worth. This side-by-side comparison of the relativе value of two lives was calculatedly incendiary and rendered the sentencing fundamentally infirm.
Viewed against the backdrop of this message, the majority’s suggestion that the prosecutor obeyed the prohibition on judgments of comparative human worth by avoiding the words “compare” and “value” or “worth” is a simple invitation to subterfuge, condoning egregious human worth comparisons in substance so long as cer
II.
This case comes to us on collateral review. In reviewing a state court judgment on collateral attack, our obligations of deference to state court proceedings are quite plain. Congress has declared that a federal court may not grant a writ of habeas corpus unless the state court’s holding “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1) (2000), or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The question before us is simply whether the state court’s decision in this case violated clearly established federal law by applying “a rule that contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor,
The majority and I agree that the pivotal case in this analysis is Payne v. Tennessee,
A.
Payne itself provides a good example of the uses to which victim impact evidence may be put. The case involved the murder of a twenty-eight-year-old mother and her two-yeаr-old daughter whom the defendant viciously stabbed to death with a butcher knife. The Payne Court approved the introduction of victim impact evidence concerning the physical and psychological harm inflicted on the victim’s three-year-old son who was also stabbed repeatedly, yet survived, and who thus witnessed the murder of his mother and sister. Testimony by surviving relatives of the victim provides a paradigm case for the use of victim impact evidence, regardless of whether those survivors actually witnessed, as the young boy did in Payne, the commission of the crime.
Payne made clear that victim impact evidence, or “evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family,” has an important and legitimate place in capital sentencing.
Payne also rebutted in turn each argument against victim impact evidence that had informed the earlier decisions of Booth v. Maryland,
Payne thus endorses, explicitly and unequivocally, the use of victim impact evidence at the punishment phase of a capital trial. Yet, while the states plainly “remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs,” id. at 824-25,
Notably absent from the Court’s discussion is any hint of imprimatur for human worth comparisons, let alone of the naked variety that occurred here. For human worth comparisons are so far removed from the Court’s central concern of harm that it is inconceivable that the Court somehow meant to allow them. Indeed the human worth comparison offered in this case presents the very antithesis of Payne’s rationale for victim impact evidence. Evidence introduced to inform the sentencing authority of the “specific harm” caused by the crime in question, id. at 825,
Indeed, one searches the Payne opinion in vain for any indication that the Court meant to condone such comparative judgments. In the one part of the opinion where the Court considers comparative appeals of this sort, it does so only to condemn them. Payne considers the question, raised in Booth, of whether victim impact evidence might permit “a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy.” Id. at 823,
[a]s a general matter ... victim impact evidence is not offered to encourage comparative judgments of this kind — for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s ‘uniqueness as an individual human being,’ whatever the jury might think the loss to the community resulting from his death might be.
Id. at 823,
The Court’s discussion of victim impact evidence in Payne therefore signals a clear
In fact, contrary to the majority’s claim that comparative worth judgments are “inevitable” after Payne, Maj. Op. at 222 n.6, 225 n.9, a fair examination of the case reveals that the Court did not even believe that arguments of this sort would be raised in capital proceedings, much less profferеd as the basis for the death sentence. The pairing of two people, one actual and one supposed, contemplated by the example which Payne condemns, see
Quite the opposite, it is the relative nature of these sorts of judgments that provoked the Court’s disapproval, not the imaginative leap that resort to a conjectural comparator requires. Life in our society is not the relative matter that the prosecutor tried to make it. Each life stands instead on a footing of its own. This is the essential point the Court expresses. Otherwise it is impossible to imagine why the Court would tether its overruling of Booth and Gathers to their holdings “that evidence and argument relating to the victim and the impact of the victim’s death on the victim’s family are inadmissible at a capital sentencing hearing,” id. at 830 n. 2,
To this point, I have confined myself to a textual analysis of the Payne opinion. But an overview of Payne leads to the very same conclusion as a textual dissection, namely that a victim’s status as “an individual human being,” id., does not allow human worth comparisons, let alone approve them. An overview of Payne and its sentencing philosophy is necessary because it likewise forfends the majority’s conclusion.
The Payne Court had to proceed at a high level of generality because the decisions it overruled had already ascended to this register. Booth, for instance, held that sentencing evidence must relate only to the defendant’s blameworthiness. See id. at 818-19,
The significance of Payne is that it added harm to Booth’s discredited insistence
Comparative human worth judgments, in stark contrast, defy classification under this rubric. For in their general resort to the respective worthiness of human lives, they do not bear in the slightest on the defendant’s culpability or the deleterious consequences of his criminal act. Indeed, the majority offers not one argument that relates human worth comparisons to either of these seminal concepts. Instead, the majority retreats behind nebulous pronouncements about “the boundaries of a question the jury was required to consider,” Maj. Op. at 223, and observations that “[t]he bulk of the solicitor’s argument was not that Humphries should die because his life was worth less than Dickie Smith’s.” Id. at 220. Propositions such as these simply ignore both what the prosecutor said and what he did in breaching the principles that Payne was all about.
The majority concludes its own review of Payne by saying that the opinion has “a few shortcomings,” Maj. Op. at 225 n.9, and that it has made human worth comparisons “inevitable.” Id., 222 n. 6. For its part, the concurrence likewise finds fault with Payne, because it dismisses inconvenient statements in that opinion as “dicta,” Cone. Op. at 229, 230, thus ignoring the Supreme Court’s explanation of the basis for its own decision. I do not think Payne has any “shortcomings.” Far from making human worth comparisons “inevitable,” Payne condemns them by stressing the quality of a victim as an individual human being. See Payne,
The extent of the State’s transgression is, sadly, beyond salvaging through the aforementioned standard of review. For due process at its core contains a commitment to treat all litigants as individuals of equal dignity. See Lyng v. Castillo,
B.
When one steps back and surveys American sentencing practice, the fact that the majority faces so hard a task in accommodating Payne to comparisons of human worth is not surprising.
The comparative worth argument relied on here fell within the category of factors that the Supreme Court has prohibited as unduly prejudicial in the death penalty sentencing context. See Johnson v. Mississippi
In the wake of Payne, the federal government, the military, and thirty-three of the thirty-eight states with the death penalty have authorized the use of victim impact evidence in capital sentencing. John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 Cornell L.Rev. 257, 267 (2003). Unsurprisingly, while these jurisdictions allow a broad range of victim impact evidence, none sanctions the sort of comparative worth arguments advanced in this proceeding. To place the matter in perspective, the United States Sentencing Guidelines, made advisory after Booker, contemplate a multitude of enhancements and departures for a variety of factors relating to the crime. These include the knowing selection of a vulnerable victim, U.S.S.G. § 3A1.1, the perpetrator’s aggravating role in the offense, U.S.S.G. § 3B1.1, the abuse of a position of trust or use of a special skill in committing the offense, U.S.S.G. § 3B1.3, the infliction of significant physical or extreme psychological injury on the victim, U.S.S.G. § 5K.2, 5K2.3, the use of a weapon or dangerous instrumentality in the commission of the crime, U.S.S.G. § 5K2.6, and the crime’s purpose of facilitating or concealing another offense, U.S.S.G. § 5K2.9. One can look in vain among these enhancements and departures for any factor remotely resembling the relative worth
If we ignore Payne’s condemnation of the use of comparative human worth arguments, we invite future abuses. As the trial judge exclaimed, this was “one of the best arguments I have ever heard in my life given in a closing argument ... in terms of the technique, ... delivery, effectiveness.” The argument was so effective, however, precisely because it was so improperly prejudicial to Humphries, and ignored the bedrock premise that “punishment should be directly related, to the personal culpability of the criminal defendant,” California v. Brown,
My concurring brother seeks repeatedly to condemn the dissent’s discussion of sentencing principles without ever trying to rebut it. Indeed, the concurrence fails to come to grips with the fact that what transpired in this case was a profound departure from traditional American sentencing practice as it existed both before, during, and after the Payne decision. By breaking from sentencing regimes which relate punishment to the defendant’s actions, the majority also departs from the historic understanding that punishment is not a matter of status, but rather a function of the legal wrong a citizen has committed and his responsibility therefor. The majority allows this defendant to be executed, not for doing, but for being a less worthy person than someone else. Such a sentence strays so far from the normal ambit of a court of law as to strain human faculties. Measuring the relative value of human beings on whatever ineffable scale that applies could not be a more dangerous exercise. Thankfully, American sentencing practice has until now limited itself to the more manageable domain of crimes and their consequences.
III.
The application of the federal habeas statute here requires us to inquire whether the state court applied the governing legal rule “unreasonably to the facts of a particular prisoner’s case.” Williams v. Taylor,
The standards in this area are well settled. Under Strickland, the defendant must first “show that counsel’s performance was deficient.” Id. at 687,
I have already described the degree to which the prosecutor’s human worth comparisons flew in the face of existing federal law and established sentencing practice. I do recognize that state law on sentencing evidence is permissive. See State v. Gutledge,
I realize that counsel’s decisions should not be picked apart by hindsight. Caution is particularly needed in collateral proceedings, when issues that appear plain to a habeas court have only become so after several rounds of anterior review. Advocates must often make instantaneous decisions with imperfect information and without the benefit of considered judgment. And, although correcting every error of counsel might yield some benefit, it would also create far more substantial costs going forward. In particular, second-guessing counsel’s decision not to object at closing argument would encourage a slew of vexatious challenges that would needlessly distract the court and jury. Worse still, such hindsight might discourage tactical choices to remain silent, prompting lawyers to off-putting interjections that would needlessly - imperil their client’s defense. Mindful of ill possibilities such as these, this circuit has always indulged a “strong presumption that counsel’s .conduct falls within the wide range of reasonable professional assistance.” Truesdale v. Moore,
That having been said, there are some occasions when counsel must object or lose all claim to his defined Sixth Amendment role as representative of the accused. I emphasize yet once more the unprecedented character of the prosecution’s closing argument and the extent of its departure from the most settled principles of American sentencing. For a lawyer to allow his client to be put to death on the basis of such an argument is to deprive the defendant of any semblance of effective assistance at the precise moment when he needed that assistance most.
Neither of Humphries’ two counsel objected to the State’s comparative worth arguments at trial. They did lodge a general challenge to the admissibility of victim impact evidence without prior notice, which they reserved for appeal. But they were remarkably silent during the comparative worth arguments, and admitted after trial that their failure to object constituted ineffective assistance of counsel. Their post-trial admission here must be taken as more than a mere tactic. While the concurrence contends that the failure of an objection was “objectively reasonable trial strategy,” Cone. Op. at 234, this is a creative reconstruction of counsels’ thought processes that neither the majority, nor the South Carolina Supreme Court, nor the State, nor counsel itself has ever sought to advance. The failure to object was, in counsel’s words, “not a matter of
There is also no doubt that this record presents a “reasonable probability that at least one juror would have struck a different balance,” but for the constitutional error. Wiggins,
The majority attempts to deny this conclusion by maintaining that these comments were quantitatively and qualitatively unimportant in the totality of the prosecutor’s closing. But this argument is flawed on at least two grounds. First, it is simplistic. The offensive portions of the prosecutor’s final presentation may well take up “less than four pages of [the] approximately twenty-eight” that it occupies in full. Maj. Op. at 221. But we would be automata, not judges, if we undertook inquiries of the sort mandated by the second prong of Strickland with the kind of approach the majority’s computation represents. Indeed, the product of those inquiries would be reduced to arbitrariness were we to dilute the judicial enterprise in such a manner.
Second, my colleagues’ position fails to appreciate the effective qualities of the oratory in which the human worth comparison occurred. Contrary to the claim that the “solicitor’s comparison of the lives of both Humphries and Dickie Smith” was not “the centerpiece of the solicitor’s argument,” Maj. Op. at 220, this comparison was in fact the piece-de-resistance of the prosecutor’s presentation to the jury. One simply cannot review the argument without seeing that it builds inexorably towards this apex. The devices the prosecutor employs while making the comparison — dramatic repetition of the words “[t]hat’s the same year,” punctuation of a plea to the jury with the phrase “how profane,” the plaintive repetition of “if not” in his ultimate exhortation, and the series of rhetorical questions — all stand in stark contrast to the prosaic remainder of the record. Appreciation of an argument’s dynamic compels the conclusion that the solicitor’s human worth comparison was intended to be, and was, a climac-tical flourish designed to move the jury to a sentence of death.
I respect fully the prerogative of lawyers to make an emotional close. The prosecutor’s position as advocate must also afford him wide latitude of tactic. But the objective must at times extend beyond securing the State’s wishes at any cost. To a juror unschooled in the ways of the law, the solicitor’s human worth comparison may have appeared a legitimate legal appeal, not the departure from historic sentencing procedure that it was. Thus assured that the State’s invidious invitation was permitted, at least one juror may well have consciously engaged what would oth
IV.
Capital procedure in our system must remain largely the province of the states. And victim impact has many good and legitimate uses, among them awakening juries to the tragic toll of serious crime. But the comparison here was an abuse of this powerful prosecutorial tool, an abuse that no reasonable attorney would sit and greet with silence. To argue that a defendant should be sent to death because his life was of less intrinsic value than his victim is to ask a jury to decide, not on the character of the crime, not on the consequences of the crime, not on the criminal record of the perpetrator of the crime, but on some unfettered evaluation of human worth that works improper prejudice.
Victim impact evidence may play an especially important part in capital proceedings where the crime has caused almost unfathomable pain. But no state sentencing practice nor precept of federal law should be read to permit a capital sentence to be based on a comparison-of the relative value of human life or worth of human beings. Human worth comparisons are the hallmarks of totalitarian governments. They do not belong in our country. Societies have gotten into the deepest sort of trouble by making these comparisons an explicit basis for the imposition of death. The most terrifying regimes of the Twentieth Century were those in which governments weighted the value of the lives of their citizens as a prelude to executing them.
I realize that the transgression before us today does not even approach the most terrible examples of human expendability. I appreciate that the sentence Humphries challenges was preceded by an adjudication of guilt. And I am well aware that a variety of safeguards in federal and state law work to protect the legitimacy of such convictions.
But to say that Humphries was properly found guilty is one thing and to say that he can properly be executed is quite another, when his sentence is based on the kind of extraordinary arguments that the prosecutor’s presentation represents. To accept this sentence is to set foot on a road Americans will not recognize and our Constitution will not tolerate. ■ With great respect for my friends in the majority, I would not take a single step along this path.
Judge MICHAEL, Judge GREGORY, and Judge DUNCAN join me in this dissent.
My views have not changed in any respect from those I expressed in the vacated panel opinion, Humphries v. Ozmint,