Lead Opinion
Affirmed by published opinion. Judge WILLIAMS wrote the majority opinion, in which Judge HAMILTON joined. Judge MOTZ wrote a concurring opinion.
On the morning of February 9,1985, Fred H. Komahrens, III, killed his ex-wife, her elderly father, and her boyfriend’s ten-year-old son. After a full trial, a jury found Komahrens guilty of capital murder and sentenced him to death. Komahrens never contested the fact that he committed these gruesome crimes. Instead, in all stages of this proceeding, he has challenged the degree of his guilt and debated the proper penalty for his crimes. After exhausting all avenues of state-court relief, Komahrens sought a writ of habeas corpus from the United States District Court for the District of South Carolina pursuant to 28 U.S.C. § 2254 (1988). Upon a thorough review of Komahrens’s claims by a magistrate judge, the district court denied his petition. Like the other courts before us, we, too, believe that Kor-nahrens’s trial and sentencing were free from constitutional defect, and, therefore, affirm the district court’s denial of the writ.
I.
Although the facts of this case have been set out in prior proceedings, they bear repeating for the purposes of this appeal. Upon returning home from a night out, Kor-nahrens’s ex-wife, Patti Jo Komahrens (Patti), her boyfriend John Avant, and Avant’s ten-year-old son, Jason, encountered an enraged Komahrens waiting for them at the doorstep. Komahrens was armed with a handgun and bayonet.
While Avant remained in the car to gather belongings and to awaken his sleeping son, Komahrens confronted Patti as she exited from the passenger side. Komahrens looked at Avant, pointed the gun at him, and said, “I’m going to kill you.” (PCR App. 801). When Patti called out Avant’s name, Komah-rens shot her in the chest. This wound was not fatal. Patti’s father, Harry Wilkerson, lived in a house trailer next door. Patti ran inside, calling to Wilkerson for help. Kor-nahrens followed her into the trailer, encountered Wilkerson, and fatally stabbed him. Still pursuing Patti, Komahrens followed her back outside. After catching up with her near the ear, Komahrens stabbed Patti to death. Meanwhile, Avant ran into his and Patti’s home next to Wilkerson’s trailer to get and load his gun. As he was doing so, he began to hear screams from the outside. He quickly left the house, only to see Komah-rens drag Jason across the yard, pin him down and crouch over him. Then, Komah-rens dragged Jason out of sight. At this point, Avant ran to a neighbor’s trailer and called the police.
When the police arrived, all three bodies were gone. Komahrens was arrested the next day when an officer spotted him walking down a road near Wilkerson’s trailer. The bodies of Patti, Wilkerson, and Jason were discovered two days later when Komahrens, after retaining counsel, drew police a map showing the location of their common grave. Stabbing was the immediate cause of death for all three victims; Jason was found with his hands and feet bound with packing tape.
On June 10,1985, Komahrens was indicted for the triple murder of Patti, Wilkerson, and Jason. In November 1985, a trial was held and on November 16th Komahrens was convicted of all three murders. Two days later, on November 18th, a sentencing hearing was held, and the jury returned a recommendation of death, which the trial judge accepted. Komahrens appealed to the South Carolina Supreme Court, which affirmed his conviction and sentence. State v. Kornahrens,
On September 19, 1991, Komahrens filed this federal habeas action. The case was assigned to a magistrate judge, who denied Kornahrens’s request for an evidentiary hearing. On March 31, 1994, the magistrate judge entered a 97-page report and recom
In his petition to this Court, Kornahrens does not raise all of the issues pressed in the court below, focussing instead on seven arguments. Specifically, Kornahrens argues that during the guilt phase: (1) the trial court erred in refusing to give the jury an instruction on the lesser included offense of voluntary manslaughter; and (2) the trial court erroneously defined reasonable doubt as “substantial doubt.” Komahrens also asserts that during the sentencing phase: (3) the evidence was insufficient to show that Patti and Jason were murdered in the commission of a kidnapping, pursuant to South Carolina’s statutory aggravating circumstance, see S.C.Code Ann. § 16-3-20(C)(a)(l)(c) (Law.Co-op.1994); (4) the jurors likely misconstrued the unanimity requirement; (5) the trial court erroneously refused to instmct the jury on the mitigating circumstance of lack of a significant criminal history; and (6) he is entitled to a new trial because state law unconstitutionally prevented him from introducing evidence of his future adaptability to prison. Finally, Kornah-rens’s seventh claim is that his sentencing counsel was constitutionally ineffective. We address each of these issues in turn; however, because the district court found that Kor-nahrens procedurally defaulted issues 2, 4, and 5, we reserve our discussion of these claims for last.
II.
During the guilt phase of Komahrens’s trial, the court refused to give the jury an instruction on voluntary manslaughter. Kor-nahrens argues that pursuant to Beck v. Alabama,
“A defendant is not entitled to have the jury instmcted as to lesser degrees of the crime simply because the crime charged is murder.” Briley v. Bass,
cess Clause), cert. denied,
The elements of voluntary manslaughter are well known:
Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation. “Sudden heat of passion upon sufficient legal provocation” that mitigates a felonious killing to manslaughter must be such as would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called “an uncontrollable impulse to do violence.”
State v. Lowry, — S.C. -,
Kornahrens argues that he introduced the following evidence showing that the murders could be considered voluntary manslaughter: (1) Komahrens testified that
Notwithstanding Komahrens’s assertions, we do not see how any of the victims’ actions can be constmed as provocation to murder. At most, Patti and her father reacted to the presence of an armed assailant. Komahrens claims that he showed up at Patti’s home solely to “talk” with her and Avant — even though he was armed with a bayonet and a handgun. We are confident that under any set of circumstances her reaction to that sight — “Freddie’s here; get the gun!”— would not have been a sufficient provocation for Komahrens to attack and kill her.
Therefore, we conclude that the trial court properly denied Komahrens an instruction on voluntary manslaughter because, very simply, he presented no evidence to support it.
III.
Komahrens also challenges three aspects of his sentencing and claims that each error entitles him to another trial for resentencing. First, he argues that the evidence was not sufficient to show that he murdered Patti and Jason “in the commission of a kidnapping,” S.C.Code Ann. § 16-3-20(C)(a)(l)(e) (Law. Co-op.1994). Next, he contends that he is entitled to present evidence of his future adaptability to prison pursuant to Skipper v. South Carolina,
A.
The jury returned a verdict of death based on its determination that Komahrens had murdered Patti and Jason in the commission of a kidnapping.
We have no difficulty concluding that the evidence was sufficient for a reasonable jury to decide that Kornahrens murdered Jason during the commission of a kidnapping. Avant testified that he heard screams before he saw Kornahrens dragging Jason across the yard in front of Wilkerson’s house. When the police arrived, Jason was gone, along with Patti and Wilkerson. Kornahrens argues that the state failed to introduce any evidence showing that Jason was alive at the time Kornahrens carried him away. Without proof that Jason was alive, Kornahrens contends, no reasonable jury could have found that he was kidnapped against his will. We disagree with this view of the record. The prosecution offered a vital piece of evidence showing that Jason was alive when Kornahrens kidnapped him. Jason’s hands and feet, alone among the three victims, were bound together with tape, clearly implying that there was a need to tie him up. A reasonable jury could have concluded that Kornahrens bound Jason to keep him from escaping until Kornahrens could decide what to do with him. Based on all of the evidence, it was clear that a reasonable juror could have concluded Kornahrens kidnapped Jason while he was still alive.
We agree with Kornahrens, however, that the evidence does not show that he was trying to kidnap Patti. Nevertheless, we still affirm his sentence because we conclude that the evidence was sufficient to show that Kor-nahrens murdered Patti “in the commission of’ kidnapping Jason. As noted above, South Carolina law requires a finding that a murder was committed during the commission of a kidnapping for the perpetrator to be eligible for the death penalty. Kornahrens argues that Jason’s kidnapping was too attenuated from Patti’s murder to have been carried out in its commission.
The South Carolina courts have not adopted this narrow interpretation of S.C.Code § 16-2-20(C)(a)(l). In State v. Damon,
Therefore, we hold that the evidence was sufficient to establish that Kornahrens murdered Patti and Jason in the commission of a kidnapping, and, accordingly, we affirm the district court.
B.
Six months after Kornahrens’s sentencing, the Supreme Court invalidated the South Carolina rule prohibiting capital defendants from introducing expert evidence showing their future adaptability to prison life. Skipper v. South Carolina,
1.
To assess this unusual problem, we commence with a basic habeas corpus issue: was this issue properly preserved for federal habeas corpus review? Because we review prior state-court judgments with the writ of habeas corpus, basic principles of federalism permit us to review only those state-court decisions that implicate federal constitutional rights. Therefore, if a state court rules against a defendant on federal issues and he has exhausted all avenues of state-court relief, a federal court can hear the defendant’s federal claims by way of the Great Writ. Conversely, if a defendant defaults by not following proper state appellate procedure, causing the state courts to rule against him solely on state-law procedural grounds, we have no power to review his defaulted issues because they are based solely on state procedural grounds rather than federal constitutional grounds. As the Supreme Court explained in Coleman v. Thompson,
Only one South Carolina court reviewed Kornahrens’s Skipper argument because it was not raised either at trial or on direct appeal. During state post-conviction relief, the Court of Common Pleas rejected the argument in one paragraph:
The Petitioner contends that he is entitled to a new trial because Skipper v. South Carolina,476 U.S. 1 [106 S.Ct. 1669 ,90 L.Ed.2d 1 ] (1986), was rendered after his trial so that he was precluded from presenting evidence of future adaptability to prison life. As previously stated, counsel presented the evidence of his adaptability to prison life by lay witnesses during his trial without objection. Unlike Skipper, the trial court never precluded him from presenting any testimony or favorable evidence as it relates to his character. To the contrary, Kornahrens was permitted to press, with some emphasis, his good conduct in jail and the jury was allowed to consider such in mitigation of punishment under the charges given for mitigating circumstances. While counsel may have emphasized the testimony “in a more positive fashion” if Skipper was decided before the trial, there was no exclusion of such testimony at his trial, only inclusion. The critical fact is that such evidence was not sought to be presented.
(J.A. 641-42) (final emphasis added) (internal citations omitted). We believe at least part of this decision—that expert testimony of future adaptability “was not sought to be presented”—was based on Kornahrens’s failure to attempt to proffer any expert Skipper-type evidence, not whether Skipper applied or whether a violation of that decision occurred. In Ashe v. Styles,
The crux of Kornahrens’s argument on appeal, however, is that his failure to proffer at trial is excusable because of the strong deterrent effect of existing state law at the time of trial. Although he has not framed the issue as such, this argument is basically a claim that cause exists to overcome his failure to make a proffer at trial. Essentially, Kornahrens argues that the futility doctrine, which holds that a failure to object at trial is excusable when there is well-established binding authority to the contrary,
In Engle v. Isaac,
We note ... that the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to ob*1359 ject at trial.... Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid. Allowing criminal defendants to deprive the state courts of this opportunity would contradict the principles supporting [Wainwright u] Sykes.
Id. at 130,
South Carolina also urges us to find that no prejudice resulted from Kornahrens’s failure to proffer because Kornahrens was allowed to introduce lay testimony about his future adaptability to prison. Brief of Respondents at 28. We are mindful, however, that in Engle, after finding that there was no cause for the default, the Supreme Court ended its inquiry, noting that because “we conclude[d] that these respondents lacked cause for their default, we do not consider whether they also suffered actual prejudice.” Id. at 134 n. 43,
2.
Perhaps predicting our holding above, Kornahrens proceeds to the next logical question: he argues that if his fatal error was failing to proffer Skipper evidence, then his trial counsel, William Runyon, was constitutionally ineffective for not attempting to do so. Komahrens notes two factors that should have alerted Runyon to the imminent demise of South Carolina’s prohibition on future adaptability evidence: (1) the Supreme Court had granted certiorari in Skipper before Kornahrens’s trial, and (2) most capital defense attorneys and professional publications were advising capital defendants to raise Skipper-typo challenges. Additionally, Kornahrens criticizes Runyon’s strategy regarding this type of evidence: Runyon testified that he put on lay testimony about future adaptability to elicit an objection from the prosecution that would preserve the error. If a failure to proffer the evidence deprived him of the benefit of Skipper, then, Kornahrens contends, Runyon should be held responsible.
In Griffin v. Warden,
The Supreme Court has devised a two-step inquiry to determine whether a lawyer’s poor performance has deprived an accused of his Sixth Amendment right to assistance of counsel. First, the defendant must show that his attorney’s performance was deficient. “Deficient performance” is not merely below-average performance; rather, the attorney’s actions must fall below the wide range of professionally competent performance. Second, the defendant must show that he was prejudiced by the substandard performance_ Because effectiveness of counsel is a mixed question of law and fact, we owe no special deference to the finding of the state court on the question.
Id. at 1357 (citing Strickland v. Washington,
Our primary difficulty with Kornahrens’s claim is his assertion that Runyon’s failure to proffer evidence was “outside the wide range of professionally competent performance.” Id. Skipper was on appeal to the Supreme Court at the time of Kornahrens’s trial, and Runyon testified that he was aware of that fact. Nevertheless, the case law is clear that an attorney’s assistance is not rendered ineffective because he failed to anticipate a new rule of law. See Honeycutt v. Mahoney,
S.Ct. 2111,
We readily admit that Kornahrens’s Skipper argument presents the most vexing issue in this case. Kornahrens is unenviably caught in a situation where his trial counsel’s performance may have been unwise, but nevertheless constitutionally sufficient. Unfortunately, he is the victim of a necessarily stringent procedural hurdle, coupled with a similarly important deference to attorney performance. Normally, these rules work to the benefit of both litigants and the judicial system as a whole. In this particular situation, however, we recognize that they have worked to Kornahrens’s detriment. Nevertheless, the rules are clear, and we are constrained by their inexorable commands. We, therefore, affirm the district court’s denial of the writ on these issues.
C.
Finally, Kornahrens raises several other claims of ineffective assistance of counsel during sentencing. He urges us to find that Runyon was ineffective for failing to investigate and introduce evidence of his mental condition at the time of the murders and evidence of his dysfunctional childhood. Specifically, he claims that Runyon should have better examined the one expert witness that he called to testify at trial, Dr. Schleimer. If Runyon had done so, Kornahrens argues, Dr. Schleimer would have testified that during the murders Kornahrens was in a “dissociative” state, akin to sleepwalking. He also criticizes the depth and method of Runyon’s questioning of Dr. Schleimer. Additionally, Kornahrens argues that Runyon should have investigated and met with Dr. Hamrick, a therapist who had worked with Kornahrens several years before the murders, and who would have confirmed Dr. Schleimer’s diagnosis. On a different note, but in a similar vein, Kornahrens also argues that Runyon should have probed further into his child
As discussed above, a successful claim of ineffective assistance of counsel requires the habeas petitioner to show his counsel’s objectively deficient performance and prejudice resulting therefrom. Strickland,
We believe that Runyon’s decisions regarding Kornahrens’s mental condition and childhood were based upon a sufficient trial strategy. Early in his preparation for trial, Runyon made a deliberate decision to portray Kornahrens as a normal person who simply snapped under the pressure of his divorce and his ex-wife’s constant badgering. Runyon decided to pursue this approach from his conversations with Kornah-rens. In Strickland, the Supreme Court made clear that “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.”
IV.
Generally under South Carolina law, direct appeal is the only avenue of relief for trial related errors of a non-constitutional dimension. Simmons v. State,
Notwithstanding this obvious procedural default, Kornahrens contends that South Carolina’s practice of infavorem vitae (in favor of life) review of the record in death penalty cases allows us to disregard his default. Under in favorem vitae review, the South Carolina Supreme Court would “review the entire record for legal error, and assume error when unobjected-to but technically improper arguments, evidence, jury charges, etc. are asserted by the defendant on appeal in a demand for reversal or a new trial.” State v. Torrence,
A.
As the district court recognized, the crux of federal habeas corpus review is to provide criminal defendants with a mechanism to review state court interpretations of federal constitutional protections, while providing deference to the state-court proceedings. Because our role is limited to reviewing state-court judgments, federal review is inappropriate if a prisoner failed to raise his claim and have it reviewed by a state court. Even with in favorem vitae review, unless the prisoner raises the specific objections before the state court, we cannot determine whether the state court has properly applied federal constitutional principles, or for that matter, whether the state court has even considered these issues at all. In short, we have no state court judgment to review. As the Court explained in Engle, “[t]he state appellate courts [must have] a chance to mend their own fences and avoid federal intrusion.” Engle v. Isaac,
Additionally, we are persuaded by decisions from other circuits that have confronted theories similar to in favorem vitae review and rejected them as substitutes for specific review by the state court. For example, Alabama appellate courts are “under a duty in capital cases to ‘notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has adversely affected a substantial right of the appellant.’ ” Julius v. Johnson,
B.
While we are reluctant to state alternative holdings, see ante at 1359, our reluctance is overcome here in light of Kornahrens’s in favorem vitae review by the state courts and the likelihood of further review of this federal habeas appeal. Even proceeding on the assumption that Kornahrens did not procedurally default on his claims, we believe that all of his arguments would fail on their merits. First, Kornahrens argues that the trial court’s description of reasonable doubt as “substantial doubt” during the guilt phase violated his right to due process because “substantial doubt” connotes a greater degree of doubt necessary to acquit than “reasonable doubt.” Although the Supreme Court did hold in Cage v. Louisiana,
Next, Kornahrens asserts that the state trial court should have instructed the jury that his lack of a significant criminal history involving the use of violence could mitigate imposing the death penalty, and the court’s failure to do so violated his right to due process. See S.C.Code Ann. § 16-3-20(C)(b)(l) (Law.Co-op.1985) (establishing the defendant’s lack of a significant criminal history involving a crime of violence against another person as a statutory mitigating circumstance). The trial court determined that Kornahrens’s prior conviction for assault and battery of a high and aggravated nature precluded the court from giving the requested
Finally, Kornahrens contends that the trial court’s jury instructions during the sentencing phase were so confusing that a “substantial probability” exists that “reasonable jurors ... well may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance.” Mills v. Maryland,
We conclude that we are barred from reviewing Kornahrens’s last three claims because Kornahrens procedurally defaulted in presenting them for federal habeas review. Even indulging Kornahrens’s contention that we are not barred from reviewing these claims because of procedural default, we find that they are without merit.
V.
For the foregoing reasons, we affirm the judgment of the district court denying the writ of habeas corpus.
AFFIRMED.
Notes
.Additionally, we reject Komahrens’ claim that Patti and Avant’s long-term harassment of him was sufficient provocation for the murder. Under South Carolina law, the provocation must be such that the defendant is whirled into a sudden heat of passion. Here, Komahrens was badgered for a long time and, if anything, his decision to confront Patti and Avant shows premeditation rather than a sudden provocation to violence.
. This is notwithstanding the evidence that Kor-nahrens bound Jason’s arms and legs together with tape while the child was still alive.
. As to the murder of Hariy Wilkerson, the jury found that Komahrens committed it during the commission of a burglary. See S.C.Code Ann. § 16 — 3—20(C)(a)( 1 )(d) (Law.Co-op.1976). Kor-nahrens does not challenge this finding.
. On a more technical level, Article 9 of the South Carolina Code, at the time of the offense, defined kidnapping as follows:
Whoever shall unlawfully seize, confine, inveigle, decoy, kidnap, abduct or carry away any other person by any means whatsoever without authority of law, except when a minor is seized or taken by his parent thereof, shall be guilty of a felony and, upon conviction, shall suffer the punishment of life imprisonment unless sentenced for murder as provided in § 16-3-20.
S.C.Code Ann. § 16-3-910 (Law.Co-op.1985).
. At first blush, it seems as if this argument would be fruitless, considering that even if these two convictions are reversed, Kornahrens is not challenging the jury’s death sentence for killing Harry Wilkerson. Kornahrens claims, however, that the three death sentences are so intertwined that if we reverse the two based on Patti’s and Jason's murders, we must also reverse that based on Wilkerson's. Because we affirm the challenged sentences, we need not reach this argument.
. Komahrens’s conviction and sentence were not final at the time this decision was handed down, so it is uncontroverted that Kornahrens would benefit from it. See Truesdale v. Aiken,
. See Guam v. Yang,
. It is unclear whether the futility doctrine can preserve errors on direct appeal as well. The Supreme Court granted certiorari in United States v. France,
. Additionally, we note that Kornahrens wisely does not question Runyon’s performance on appeal, as nothing in the record conclusively indicates that the Supreme Court decided Skipper before Runyon filed Komahrens's appellate brief in the South Carolina Supreme Court; as such we will not reach out to review whether Runyon’s failure to raise the Skipper issue on direct appeal before the South Carolina Supreme Court constituted ineffective assistance of counsel.
. It is important to note that Kornahrens never gave Runyon the slightest indication that he was abused as a child. In fact, according to the magistrate judge, Kornahrens testified at trial that he had a "normal and happy" childhood. (J.A. 829.)
. We also reject Kornahrens’ assertion that the district court erred by failing to conduct an evi-dentiary hearing. When a state court has resolved the facts important to the habeas issues in an evidentiary hearing, the federal habeas court is not required to hold another hearing unless the petitioner can show cause and prejudice for failing to raise the new factual issues in the state courts. See Keeney v. Tamayo-Reyes,
. See also Drayton v. Evatt,
. See State v. Small,
Concurrence Opinion
concurring:
I concur in the opinion of the court except for the portion concluding that Kornahrens procedurally defaulted certain claims. In my view, there was no procedural default. However, because I believe that these claims are for the reasons well stated by the majority nonetheless frivolous, I concur in the judgment of the court.