Affirmеd by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge WIDENER and Senior Judge HAMILTON joined.
OPINION
Appellant Joseph Earl Bates was sentenced to death for the murder of Charles Edwin Jenkins. Bates does not contest the fact that he committed the murder. After exhausting state challenges to the sentence imposed by the state courts, Bates petitioned the United States District Court for the Middle District of North Carolina for a writ of habeas corpus under 28 U.S.C. § 2254. The district court found no merit in his claims and dismissed the petition. We now affirm.
I.
On August 25, 1990, two fishermen discovered Charles Jenkins’ body floating in the Yadkin River, in Yadkin County, Nоrth Carolina. The victim’s ankles and wrists were bound by rope, his legs and arms were hog-tied, and a rope was tied around his neck. While investigating the murder, two police officers went to Bates’ house to speak with him. At that time, the officers obtained a piece of paper and some molding from Bates’ home having what appeared to be bloodstains on it. The following day, Bates gave a thirteen-page confession, in which he admitted to beating, hog-tying, kidnapping, and then shooting the victim in the neck. Bates was indicted for kidnapping and murder.
The facts surrounding the crime are undisputed. Some time in late July or early August 1990, someone broke into and fired gunshots into Bates’ home, causing Bates to set up a temporary campsite on his employer Hal Eddleman’s property. Around this same time Bates told his friend, Gary Shaver, that he could kill someone.
On August 10, Bates called Eddleman and told Eddleman to meet him at the bridge later that evening because something was “going down.” Eddleman went to the bridge as instructed, but Bates never came to meet him. The next evening Bates and Shaver went to a night club. At approximately 1:45 a.m., Bates instructed a waitress to ask Billy Grimes, anothеr friend, to telephone Eddleman. Bates told *416 her that Grimes and Eddleman would know what was going on.
At approximately 2:00 a.m., Jenkins asked Bates and Shaver for a ride home. During the ride, Bates asked Jenkins if he knew Bates’ ex-wife and her new boyfriend, and Jenkins replied that he did. Bates stopped twice during the ride. During the second stop, Bates struck Jenkins three times on the back of the head with a shovel, appearing to knock him unconscious. When Jenkins began to moan, Bates struck him again, hog-tied him, and then placed him in the vehicle.
On the way back to his campsite, Bates stopped at Eddleman’s house and told Ed-dleman that he “got one of the MF’s.” He then told Grimes, “I’ve got one of the guys that’s been messing with me. Do you want to watch or help?” Grimes declined to help, as did Shaver and Eddleman. Bates drove Jenkins back to his campsite around 4:00 a.m.
At the campsite, Bates loosened the ropes on Jenkins and began asking Jenkins who had shot into his home. Jenkins mentioned two people who were involved, but did not say anything else. Unsatisfied with Jenkins’ response, Bates then tied Jenkins to a tree and went to his tent to retrieve a gun that he had borrowed from Eddleman. Bates put the gun up to Jenkins throat, but Jenkins repeated that he did nоt know for sure who had shot into Bates’ home. Bates then untied Jenkins, took him to the back of the truck, and shot him in the neck. Jenkins was lying face-up near the back of the truck when Bates shot him. In his confession, Bates said he “shot him ... because he acted like he knew who had shot into my house, he spit on me and told me to go to hell, and this made me mad and I shot him.”
After rummaging through Jenkins’ pockets, Bates retied Jenkins’ hands and feet and loaded him into the jeep. Bates drove back to Eddleman’s house, returned Eddleman’s gun, and asked, “[w]hat do you think I should do with the body.” Bates then left and threw the body into the Yadkin River.
Later that day Bates discussed the murder with both Eddleman and Grimes. Bates told Eddleman, “[w]ell, it don’t bother me all that bad.” Bates told Grimes that he killed the victim because he would get no more time for murder than for kidnapping.
Bates was indicted for kidnapping and murder. The State sought the death penalty. A jury found Bates guilty of one count of first degree murder and one count of first degree kidnapping. He was sentenced to death for the first degree murder conviction. On appeal, the North Carolina Supreme Court awarded Bates a new trial based on an improper denial of Batеs’ motion for an ex parte hearing regarding his request for funds to employ a forensic psychologist.
State v. Bates,
During the closing argument of the penalty phase of the second trial, the prosecutor pointed out that Jenkins’ mother, Bates’ mother, and Bates’ sister each cried while on the stand. The prosecutor then asked whether the jurors saw Bates cry during the trial, or whethеr Bates had presented any evidence of remorse. The prosecutor also commented that Bates had been given the benefit of a lengthy trial and two good lawyers who would stand up and ask the jurors not to return the death penalty, because it was a lawyer’s job to do so.
*417
The jury recommended the death sentence on the basis of the kidnapping and the especially heinous, atrocious, or cruel nature of the crime. On November 9, 1994, Judge Julius Rousseau sentenced Bates to death for the first degree murder conviction and to an additional forty yeаrs in prison for the kidnapping conviction. The Supreme Court of North Carolina affirmed the conviction and sentence,
State v. Bates,
Bates then filed a motion for appropriate relief. The North Carolina Superior Court entered an order denying Bates’ claims, and the Supreme Court of North Carolina affirmed.
State v. Bates,
Next, Bates filed a petition for habeas corpus in the United States District Court for the Middle District of North Carolina. On February 14, 2002, the district court adopted the magistrate’s recommendation to dismiss Bates’ petition. Bates v. Lee, Nо. 1:99CV00742 (M.D.N.C. Feb. 14, 2002). Finding no substantial issue presented, the district court also declined to issue a certificate of appealability. Id. Bates now appeals.
II.
Federal courts entertaining collateral attacks on state convictions have only limited powers of judicial review.
See Williams v. Taylor,
A state court decision is contrary to clearly established federal law if the state court “applies a rule that contradicts the governing law set forth in [the Court’s] cases” or “confronts a set of facts that are materially indistinguishable from a decision of the Court and nevertheless arrives at a result different from [its] precedent.”
Williams,
A state court decision involves an unreasonable application of Supreme Court precedent if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts оf a particular prisoner’s case,”
id.
at 407-08,
In this case, Bates argues that the North Carolina Supreme Court’s decision was an unreasonable application of clearly established federal law because (1) the trial court erroneously failed to instruct the jury on second degree murder; (2) the prosecutor’s closing comments during the penalty phase violated the defendant’s Fifth Amendment right to remain silent *418 and his due process rights; and (3) the jury instructions on the “heinous, atrocious or cruel” aggravating circumstance wеre vague and overbroad in violation of the Fifth, Eighth and Fourteenth Amendments. We address each argument in turn.
III.
First, Bates contends that the North Carolina courts unreasonably applied federal law by failing to instruct the jury on the lesser included offense of second degree murder. Bates argues that Jenkins provoked him to commit the murder. This, in combination with other circumstances in his life at the time, constituted enough evidence to negate deliberation, and the trial court should have therefore instructed the jury on second degree murder.
In capital cases, due process requires the court to give an instruction on any lesser included offense when the evidence warrants such an instruction.
Beck v. Alabama,
North Carolina law recognizes three degrees of homicide, two of which are relevant here. Murder in the first degree is the unlawful killing of another human being with malice and with premeditation and deliberation. N.C. Gen.Stat. § 14-17 (2002);
State v. Watson,
Premeditation means that “defendant formed the specific intent to kill the victim for some period of time, however short, before the actual killing. Deliberation means that the intent to kill was formed while defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation.”
State v. Misenheimer,
Bates argues that two circumstances negate the element of premeditation and deliberation. First, he contends that the circumstances of his life at the time of the murder demonstrate that he was distressed and thus unable to form the mental state to commit first degree murder. Bates points out that he had been recently estranged from his wife, that someone had broken into and shot at his home, and that he believed Jenkins was setting him up. Second, Bates argues that his confession, where he stated thаt Jenkins made him mad by spitting on and cursing at him, in combination with the circumstances of his life at the time, negates deliberation. Bates, however, misinterprets the quantum of evidence necessary to negate this element.
Under North Carolina law, a showing of mere anger is not sufficient to prove that a defendant lost his ability to reason and thus to negate deliberation. “Anger and emotion frequently coincide with murder, but a court should instruct on murder in the second degree only when the evidence would permit a reasonable finding that the defendant’s- anger and emotion were strong enough to disturb the defendant’s ability to reason.”
State v. Perry,
Furthermore, the uncontroverted evidence at trial demonstrates premeditation and deliberation. The factors that North Carolina courts use in evaluating the existence of premeditation and deliberation strongly suggest their existence here. Bates relies on the first factor, provocation by the deceased, to negate deliberation. He ignores, however, the evidence demonstrating that before Jenkins spat on and cursed at him, Bates had already kidnapped, hogtied, and then beat and questioned Jenkins for a period of several hours. Furthermore, Bates’ conduct prior to and after the killing overwhelmingly supports the existence of premeditation and deliberation. Prior to the killing Bates told Shaver that he could kill someone, and then repeatedly told his friends that something would be “going down.” After the murder, Bates told Grimes that he killed Jenkins because Bates couldn’t let Jenkins live after Bates tortured him, and that he would get no more time for *420 murder than for kidnapping. These statements contradict any suggestion that Bates shot Jenkins because Jenkins made him so angry that he lost the ability to reason. In fact, they suggest just the opposite — that the murder was a calculated act, however twisted thаt calculus might be.
We acknowledge that under North Carolina law provocation by the deceased can suffice to negate deliberation.
See State v. Watson,
Nothing in the North Carolina jury instructions approached a due process violation. And while the parties argue extensively over state law, “[i]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”
Estelle v. McGuire,
IV.
Next, Bates argues that the prosecutor’s closing arguments at sentencing violated his Fifth Amendment right to remain silent and his due process rights. We also review these claims for whether the North Carolina Supreme Court’s decision was contrary to, or an unreasonable appliсation of, clearly established Federal law.
See Williams v. Taylor,
A.
Bates made no objection at any time to the prosecution’s sentencing argument. He contends, however, that the trial court erred by failing to intervene ex mero motu to prevent the prosecutor from commenting on his right to remain silent. Bates contends that by pointing out to the jury that other witnesses in the case had gotten on the stand and cried, and then asking the jurors whether they had observed Bates crying, the prosecutor implicitly argued that Bates should have testified.
The Constitution “forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.”
Griffin v. California,
*421 During the sentencing portion of the trial, the prosecutor argued:
Have you heard any evidence at all that • the Defendant is sorry for what he did? Think about that for a minute. Any evidence at all that he’s sorry?
[H]e was bragging about ... bragging abоut throwing this body in the river. Bragging. Is he sorry?
When he said to Hal, “It doesn’t bother me. I[t] doesn’t bother me,” was he sorry. When he talked to Gary Shaver, “Chill out. Don’t worry about it. I don’t.”
You saw three women get on the stand and cry. You saw [the victim’s mother], and briefly ... she lost her composure, and she cried. Did the Defendant shed any tears as she cried? Anybody look? Did you see any show of emotion of him as she cried for the loss of her son.
[The defendant’s] mother, his own mother got on the stand and cried. Any tears over there? Did you see any? [The defendant’s] sister, who’s done so well. She cried for her brother. Did he? Did he cry for what he’d done to her? For what he’d done to Charlie?
We do not think this closing argument, pungent though it was, violated the defendant’s Fifth Amendment right to remain silent at sentencing. And in so holding, the North Carolina Supreme Court did not unreasonably apply clearly established federal law. This court has found that prosecutorial comments about the lack of remorse demonstrated by a defendant’s demeanor during trial do not violate a defendant’s Fifth Amendment right not to testify.
Howard v.
Moore
The prosecutor’s comments in this case fall within the scope of
Howard
and
Gaskins.
The prosecutor never commented directly or indirectly on Bates’ failure to testify. Rather, as the Supreme Court of North Carolina observed, “the prosecutor commented on the demeanor of the defendant, which was before the jury at all times. Such statements are not comparable to those which this Court has previously held to be improper comments on a defendant’s failure to testify.”
State v. Bates,
Bates’ reliance on
Lesko v. Lehman,
B.
Next, Bates argues that the prosecutor’s rhetoric at sentencing deprived him of a fair trial. Specifically, Bates argues that the prosecutor commented on the exercise of his right to counsel and his right to a jury trial in a manner which penalized him for exercising those rights. Furthermore, Bates argues that the prosecutor improperly discredited defense counsel in a way that also caused severe prejudice.
In considering Bates’ argument, we first recognize that prosecutors enjoy considerable latitude in presenting arguments to a jury,
Sizemore v. Fletcher,
Bates attacks the following portion of the prosecutor’s argument:
The Defendant sits here today with the benefit of, all the benefit we can give him that this system has to grant a person on trial. He gets all the ordinary benefits of this system, and it’s not perfect, but it’s as good as we could do. Hе sits here and he has this benefit. He has the benefit of a lengthy trial. He has the benefit of placing the burden of beyond a reasonable doubt on the shoulders of the State and say, “Here carry it. And, carry it straight up that mountain.”
He’s been given the benefit of two lawyers, two good lawyers, two good men, who will stand’ in a moment and talk to you, and ask you not to return the death penalty. That’s their job.
Did [the victim] have a trial? ... But, did, did [the victim] have the benefit of people getting up and begging for his life?
These comments did not run afoul of the due process clause. They were based upon facts еstablished during trial or were aspects of the trial which were readily apparent to the jurors. That Bates had received the benefit of a lengthy trial and two good lawyers was obvious to ev
*423
eryone. And although we recognize the impropriety of a prosecutor vouching for a witness or impugning the ethics of defense counsel, we do not have that situation here.
See United States v. Moore,
Even if we assumed arguendo that the prosecutor’s comments at sentencing were improper, we cannot ignore the fact that Bates at no time objected to them. Moreover, the evidence of both the nature of the crime and the fact that Bates committed it was overwhelming. Given the indisputably gruesome circumstances attending the murder and the fact that Bates indisputably committed it, any denial of fundamental fairness from prosecutorial comments seems highly unlikely.
See, e.g., Bennett v. Angelone,
V.
Bates argues finally that the jury instructions on the “heinous, atrocious or cruel” aggravating circumstance were vague and overbroad in violation of the Fifth, Eighth and Fourteenth Amendments. We also review this claim for whether the state court adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.
Williams v. Taylor,
It has long been settled that a state’s capital sentencing scheme must be tailorеd to avoid the arbitrary and capricious infliction of the death penalty.
Furman v. Georgia,
In the case of statutory aggravating circumstances in a capital punishment scheme, the Supreme Court has held that, standing alone, an instruction to determine whether the murder was “especially heinous, atrocious, or cruel,” runs afoul of thе Eighth Amendment prohibition against the imposition of cruel and unusual punishments.
Maynard v. Cartwright,
With these principles in mind, we turn to the instruction given by the trial court at the conclusion of the sentencing phase of Bates’ trial. Under North Carolina law, a person may be sentenced to death if the jury finds, as an aggravating circumstance, that “the capital felony was especially heinous, atrocious, or cruel.” N.C. Gen.Stat. § 15A-2000(e)(9) (2002). The trial court instructed the jury as follows:
Was this murder especially heinous, atrocious or cruel?
Now, ladies and gentlemen, in this context, heinous means extremely wicked or shockingly evil. Atrocious means outrageously wicked and vile. And, cruel means designed to inflict a high degree of pain with utter indifference or even enjoyment of the suffering of others. Howеver, it’s not enough that this murder be heinous, atrocious or cruel, as those terms have just been defined to you, this murder must have been especially heinous, atrocious or cruel. And, not every murder is especially so.
For this murder to have been especially heinous, atrocious or cruel, any brutality which [was] involved in it, must have exceeded that which is normally present in any killing ... or this murder must have been a conscienceless or pitiless crime, which was unnecessarily torturous to the victim.
This court recently considered an Eighth Amendment challenge to precisely the same aggrаvating circumstance instruction in
Fullwood v. Lee,
VI.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
