                                          Filed:     February 24, 1998


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                             Nos. 96-12(L)
                 (CA-84-2135-6-2AK, CA-84-2792-6-2AK)



Larry Gilbert,

                                             Petitioner - Appellee,

           versus

Michael W. Moore, etc., et al,

                                          Respondents - Appellants.




                              O R D E R


    The Court further amends its opinion filed January 22, 1998,

and amended February 10, 1998, as follows:
    On page 4, footnote 2, line 5 -- the phrase "§ 106 of" is

deleted.

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                      Clerk
                                          Filed:     February 10, 1998


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                             Nos. 96-12(L)
                 (CA-84-2135-6-2AK, CA-84-2792-6-2AK)



Larry Gilbert,

                                             Petitioner - Appellee,

           versus

Michael W. Moore, etc., et al,

                                          Respondents - Appellants.




                              O R D E R


           The Court amends its opinion filed January 22, 1998, as

follows:
           On page 25, footnote 14, line 2 -- the citation to Barnes

v. Thompson is corrected to read "58 F.3d 971, 974 n.2."

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                      Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY GILBERT,
Petitioner-Appellee,

v.

MICHAEL W. MOORE, Director of the
South Carolina Department of
                                         No. 96-12
Corrections, in his official capacity;
CHARLES M. CONDON, Attorney
General of the State of South
Carolina,
Respondents-Appellants.

J. D. GLEATON,
Petitioner-Appellee,

v.

MICHAEL W. MOORE, Director of the
South Carolina Department of
                                         No. 96-13
Corrections, in his official capacity;
CHARLES M. CONDON, Attorney
General of the State of South
Carolina,
Respondents-Appellants.
LARRY GILBERT,
Petitioner-Appellant,

v.

MICHAEL W. MOORE, Director of the
South Carolina Department of
                                                     No. 96-15
Corrections, in his official capacity;
CHARLES M. CONDON, Attorney
General of the State of South
Carolina,
Respondents-Appellees.

J. D. GLEATON,
Petitioner-Appellant,

v.

MICHAEL W. MOORE, Director of the
South Carolina Department of
                                                     No. 96-16
Corrections, in his official capacity;
CHARLES M. CONDON, Attorney
General of the State of South
Carolina,
Respondents-Appellees.

Appeals from the United States District Court
for the District of South Carolina, at Greenville.
C. Weston Houck, Chief District Judge.
(CA-84-2135-6-2AK, CA-84-2792-6-2AK)

Argued: December 2, 1997

Decided: January 22, 1998

Before WILKINSON, Chief Judge, and WIDENER,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

                    2
Nos. 96-12 and 96-13 reversed, and Nos. 96-15 and 96-16 affirmed,
by published opinion. Judge Wilkins wrote the majority opinion, in
which Chief Judge Wilkinson and Judges Widener, Murnaghan,
Ervin, Niemeyer, Luttig, and Williams joined. Judge Hamilton joined
in the majority opinion except Parts VI A and VI B and wrote an
opinion concurring in part and concurring in the judgment. Judge
Michael and Judge Motz joined in the majority opinion except Part VI
and each wrote an opinion concurring in part and concurring in the
judgment.

_________________________________________________________________

COUNSEL

ARGUED: Charles Molony Condon, Attorney General, Columbia,
South Carolina, for Appellants. John Henry Blume, III, Columbia,
South Carolina, for Appellees. ON BRIEF: John W. McIntosh, Dep-
uty Attorney General, Donald J. Zelenka, Assistant Deputy Attorney
General, Robert F. Daley, Jr., Assistant Attorney General, Columbia,
South Carolina, for Appellants. Vance L. Cowden, William Lewis
Burke, Jr., Department of Clinical Legal Studies, UNIVERSITY OF
SOUTH CAROLINA SCHOOL OF LAW, Columbia, South Caro-
lina, for Appellee Gilbert; David P. Voisin, Hilary Sheard, CENTER
FOR CAPITAL LITIGATION, Columbia, South Carolina, for Appel-
lee Gleaton.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Half brothers Larry Gilbert and J. D. Gleaton (collectively, "Peti-
tioners") filed petitions for habeas corpus relief1 from their South Car-
_________________________________________________________________

1 Petitioners named James Aiken, Warden of Central Correctional Insti-
tution where they were then incarcerated, and the South Carolina Attor-
ney General as Respondents in their petitions. Subsequently, Michael W.
Moore, Director of the South Carolina Department of Corrections, was
substituted for Aiken. For ease of reference, we refer to Respondents col-
lectively as "the State" throughout this opinion.

                    3
olina capital murder convictions and resulting death sentences. See 28
U.S.C.A. § 2254 (West 1994).2 The district court granted the relief
sought, holding that the state trial court committed harmful error in
instructing the jurors that the element of malice necessary to prove
murder under South Carolina law was presumed from the intentional
doing of an unlawful act without just cause or excuse and from the
use of a deadly weapon. The district court determined, however, that
relief was not warranted on the basis of any of the other grounds
advanced by Petitioners. The State appealed the decision of the dis-
trict court to grant the writs on the basis of the unconstitutional
burden-shifting instruction. Petitioners cross appealed the refusal of
the district court to find that relief was warranted with respect to other
issues. A panel of this court affirmed the decision of the district court.
See Gilbert v. Moore, 121 F.3d 144 (4th Cir. 1997). Thereafter, a
majority of the judges in active service voted to rehear these appeals
en banc. We now conclude that the unconstitutional burden-shifting
instruction was harmless error and that none of the remaining claims
pressed by Petitioners provide a basis for habeas relief.

I.

On July 17, 1977, Ralph Stoudemire was working alone in his
South Congaree, South Carolina service station. High on illegal drugs,
Petitioners entered the station, shot and stabbed Stoudemire, and com-
mitted robbery. Stoudemire died a short time later. Petitioners subse-
quently were convicted of capital murder and sentenced to death. The
South Carolina Supreme Court affirmed Petitioners' convictions, but
vacated their sentences and remanded for resentencing. See State v.
_________________________________________________________________

2 Because Gilbert's and Gleaton's petitions for writs of habeas corpus
were filed in 1984, prior to the April 24, 1996 enactment of the Antiter-
rorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No.
104-132, 110 Stat. 1214, amendments to 28 U.S.C.A. § 2254 effected by
the AEDPA do not govern our resolution of this appeal. See
Lindh v. Murphy, 117 S. Ct. 2059, 2067 (1997). And, the provisions of
§ 107 of the AEDPA do not apply because Petitioners' state habeas peti-
tions were finally decided by the South Carolina Supreme Court before
June 18, 1996, the date South Carolina purports to have adopted proce-
dures adequate to satisfy the opt-in provisions of§ 107. See Howard v.
Moore, 131 F.3d 399, ___ n.1 (4th Cir. 1997) (en banc).

                     4
Gilbert, 258 S.E.2d 890, 894 (S.C. 1979). On remand, a second jury
sentenced Petitioners to death. The South Carolina Supreme Court
affirmed the sentences, and the United States Supreme Court denied
certiorari. See State v. Gilbert, 283 S.E.2d 179, 182 (S.C. 1981), cert.
denied, 456 U.S. 984 (1982). Thereafter, Petitioners sought post-
conviction relief (PCR) from their convictions and sentences in state
court. The state PCR court denied relief. The South Carolina Supreme
Court and the United States Supreme Court denied certiorari.

In late 1984, Petitioners filed § 2254 petitions in the district court.
In May 1985, a magistrate judge recommended granting the State's
motion for summary judgment as to all claims. In June 1988, the dis-
trict court initially adopted the recommendation of the magistrate
judge, granting summary judgment to the State and dismissing the
petitions. Petitioners timely filed motions seeking to have the court
vacate or reconsider its judgment and to permit them to amend their
petitions. In August 1991, the district court vacated its earlier order,
granted Petitioners' motions to amend their petitions, and remanded
the proceedings to the magistrate judge with instructions to hold the
matters in abeyance for 60 days to permit Petitioners to pursue addi-
tional state-court remedies.

Petitioners then returned to state court, filing second PCR petitions.
The state court initially dismissed as successive all except two of the
grounds because they had been, or should have been, raised in the
first PCR actions, and it conducted an evidentiary hearing with
respect to the two remaining claims--Petitioners' assertion that the
trial court committed reversible error by instructing the jury that mal-
ice is presumed from the intentional doing of an unlawful act without
just cause or excuse and from the use of a deadly weapon, see Yates
v. Evatt, 500 U.S. 391, 397 (1991), and their claim that the State
deprived them of their Sixth Amendment right to a jury composed of
a fair cross section of the community by systematically removing
black prospective jurors from the venire, see Swain v. Alabama, 380
U.S. 202, 222-28 (1965). The state PCR court concluded that these
claims provided no basis for relief, ruling in pertinent part that the
challenged jury instruction was unconstitutional but harmless and that
the Swain claim was successive. The South Carolina Supreme Court
denied certiorari. While these proceedings were pending in July 1992,
the district court granted the State's motion to expedite the federal

                    5
proceedings and to waive exhaustion as to the remaining issues pend-
ing in state court.

On August 26, 1996, the district court held that Petitioners were
entitled to habeas relief.3 The court ruled that the challenged jury
charge constituted a mandatory presumption that shifted the burden
of proof on the issue of malice from the prosecution to Petitioners in
violation of the Fourteenth Amendment and that the error was not
harmless. The court determined, however, that the remaining grounds
for relief pressed by Petitioners lacked merit.

II.

Petitioners' principal claim is that an instruction to the jurors dur-
ing the guilt phase of their capital trial shifted the burden of proof on
the element of malice from the prosecution to them in violation of the
Due Process Clause of the Fourteenth Amendment, which requires
that the State prove each element of a charged offense beyond a rea-
sonable doubt. See Yates v. Evatt, 500 U.S. 391, 400-01 (1991). We
conclude that although the challenged instruction is unconstitutional,
the error was harmless.

Under South Carolina law, "`[m]urder' is the killing of any person
with malice aforethought, either express or implied." S.C. Code Ann.
§ 16-3-10 (Law. Co-op. 1985) (emphasis omitted). And, malice is a
"wrongful intent to injure another and indicates a wicked or depraved
spirit intent on doing wrong." State v. Johnson, 352 S.E.2d 480, 481
(S.C. 1987) (per curiam); see also State v. Glenn, 492 S.E.2d 393, 398
(S.C. Ct. App. 1997) ("Malice is the doing of a wrongful act inten-
tionally and without just cause or excuse."). Although an unjustified
or inexcusable specific intent to kill constitutes malice, a specific
intent to kill is not required. See State v. Foust, 479 S.E.2d 50, 51 &
n.2 (S.C. 1996).

       In its popular sense, the term "malice" conveys the meaning
       of hatred, ill-will, or hostility toward another. In its legal
       sense, however, as it is employed in the description of mur-
_________________________________________________________________

3 The Judicial Council of the Fourth Circuit subsequently adopted time
limitations for future cases.

                    6
        der, it does not of necessity import ill-will toward the indi-
        vidual injured, but signifies rather a general malignant
        recklessness of the lives and safety of others, or a condition
        of the mind which shows a heart regardless of social duty
        and fatally bent on mischief; in other words, a malicious
        killing is where the act is done without legal justification,
        excuse, or extenuation, and malice has been frequently sub-
        stantially so defined as consisting of the intentional doing of
        a wrongful act toward another without legal justification or
        excuse.

State v. Heyward, 15 S.E.2d 669, 671 (S.C. 1941) (internal quotation
marks omitted).

Before the jury retired to deliberate Petitioners' guilt, the trial court
gave the jury what was at the time a standard instruction on the ele-
ment of malice, charging that "malice is implied or presumed from
the willful, deliberate and intentional doing of an unlawful act without
just cause or excuse" and from the use of a deadly weapon. J.A. 2275-
76. Although the trial court also instructed the jurors that the pre-
sumption of malice was rebuttable and that they were to decide based
upon all of the evidence presented whether malice had been estab-
lished beyond a reasonable doubt, Petitioners maintain that the
instruction on presumed malice impermissibly shifted the burden of
proof from the State to them on this issue. See Yates, 500 U.S. at 400-
02; Francis v. Franklin, 471 U.S. 307, 315-18 (1985); Sandstrom v.
Montana, 442 U.S. 510, 524 (1979). The State concedes that the pre-
sumed malice instruction amounted to an error of constitutional mag-
nitude. And, although we are not bound by the State's concession, see
Sibron v. New York, 392 U.S. 40, 58 (1968), we agree that the chal-
lenged instruction constituted an unconstitutional burden-shifting
instruction, see Hyman v. Aiken, 824 F.2d 1405, 1409 (4th Cir. 1987).
The dispositive issue with respect to this claim, then, is whether the
error occasioned by the unconstitutional instruction was harmless.

It is now well established that not all errors of constitutional
dimension warrant a federal court to overturn a state conviction or
sentence. See Chapman v. California, 386 U.S. 18, 23-24 (1967);
Sherman v. Smith, 89 F.3d 1134, 1137 (4th Cir. 1996) (en banc), cert.
denied, 117 S. Ct. 765 (1997); Smith v. Dixon, 14 F.3d 956, 974-75

                    7
(4th Cir. 1994) (en banc). Although federal habeas courts play an
important role in protecting the constitutional rights of state criminal
defendants, that role is circumscribed and secondary to that of state
courts. See Brecht v. Abrahamson, 507 U.S. 619, 633 (1993). Once
the principal avenue for review of a state criminal conviction and
sentence--direct review--has been completed, "`a presumption of
finality and legality attaches to the conviction and sentence.'" Id.
(quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)). Respect for
the finality of a presumptively valid state-court conviction and sen-
tence dictates that a federal court may not grant habeas corpus relief
on the basis of trial error of constitutional dimension unless the court
is convinced that "the error `had substantial and injurious effect or
influence in determining the ... verdict,'" id. at 637 (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)), or at a mini-
mum entertains grave doubt that it had such an effect, see O'Neal v.
McAninch, 513 U.S. 432, 437 (1995) (holding that when "the record
is so evenly balanced that a conscientious judge is in grave doubt as
to the harmlessness of an error," the judge must resolve that doubt in
favor of the habeas petitioner).4

In applying this standard, a federal habeas court does not ask
whether the evidence of guilt was sufficient, whether the jury would
have reached the same conclusion if the error had not occurred, or
whether the jury reached the correct result based on the evidence
presented. See Satcher v. Pruett, 126 F.3d 561, 567-68 (4th Cir.), cert.
denied, 118 S. Ct. 595 (1997). Rather, the court reviews the record de
novo to determine whether the error "substantially sway[ed] or sub-
stantially influence[d] the response" of the jury to the question put to
it--i.e., in the guilt context, whether the defendant is guilty or not
guilty. Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (en banc),
_________________________________________________________________

4 The Brecht Court left open the possibility that under unusual circum-
stances "a deliberate and especially egregious error of the trial type, or
one that is combined with a pattern of prosecutorial misconduct, might
so infect the integrity of the proceeding as to warrant the grant of habeas
relief, even if it did not substantially influence the jury's verdict." Brecht,
507 U.S. at 638 n.9. Petitioners' claim that their trial was tainted by an
unconstitutional burden-shifting instruction is not such a claim. See
Yates, 500 U.S. at 407-11 (conducting analysis of whether burden-
shifting instruction was prejudicial).

                     8
cert. denied, 118 S. Ct. 83 (1997); see O'Neal, 513 U.S. at 436
(explaining that in making the harmlessness determination, a federal
habeas judge must review the record to assess whether "the judge[ ]
think[s] that the error substantially influenced the jury's decision"
(internal quotation marks omitted)); Brecht, 507 U.S. at 637 (holding
that an error does not have a substantial and injurious effect on a jury
verdict unless "it resulted in `actual prejudice'" to the habeas peti-
tioner (quoting United States v. Lane, 474 U.S. 438, 449 (1986))); cf.
Yates, 500 U.S. at 405 (holding that harmless-error analysis of an
unconstitutional burden-shifting instruction "requires an identification
and evaluation of the evidence considered by the jury in addition to
the presumption itself"). The distinction between the type of
harmless-error review necessary on direct review compared to that
applicable in habeas review is especially well defined in the context
of an improper jury charge. The Supreme Court has instructed that in
assessing whether an improper jury instruction had a substantial and
injurious effect on the verdict, a court need not conclude that "`the
facts found by the jury establish[ ] that the jury necessarily found'"
the element on which the improper instruction was given as would be
required on direct review. California v. Roy, 117 S. Ct. 337, 338
(1996) (per curiam) (quoting Roy v. Gomez, 81 F.3d 863, 867 (9th
Cir. 1996)); see United States v. Hastings, No. 94-5670, 1998 WL
9511, at *5 (4th Cir. Jan. 14, 1998) (explaining that on direct review
of a properly objected to jury instruction, to determine whether erro-
neous instruction was harmless, a court must "ascertain[ ] what evi-
dence the jury necessarily credited in order to convict under the
erroneous instruction and then consider[ ] whether that evidence--or
facts so inextricably intertwined with the credited evidence that
acceptance of the evidence is the functional equivalent of finding
those facts--establishes an offense under a proper instruction").

Our review of the record from Petitioners' trial leaves no doubt that
the burden-shifting instruction on presumed malice had no substantial
or injurious effect on the verdicts. Confessions by both men were
introduced into evidence. Gilbert's confession indicated that he ini-
tially remained outside the store while Gleaton went inside. Gilbert
stated:

        [Stoudemire] reached into his pocket and I ran into the sta-
        tion and shot the man one time with a .22 caliber pistol.

                    9
        Then I tried to get in the cash register, but it was locked, so
        I picked up a lady's pocketbook and ran outside the door ....

J.A. 1830. Gleaton's confession provided a more detailed picture of
events. He stated that he and Gilbert decided to rob the victim after
passing the store in their automobile and noticing that Stoudemire was
alone:

        I went in and asked the man how much his cigarettes were
        and he told me and I said I could get them cheaper some-
        where else. [Gilbert] came in the door so we could rob the
        man. We decided to rob the man after we had passed by and
        saw he was by himself. I was fixing to pay the man for the
        cigarettes when [Gilbert] pulled the gun. The man said
        something and hit me and we started to scuffle. I pulled the
        knife out and stabbed him and [Gilbert] came up and shot.
        I stabbed the man more than one time. I ran out the door and
        didn't look for any money. Larry Gilbert stayed inside for
        a few minutes and came out. He said the cash register was
        locked.

J.A. 2009-10. Indeed, Gleaton did stab Stoudemire "more than one
time"--seven times in fact.

The pathologist who performed the autopsy of Stoudemire testified
without contradiction concerning the nature of the wounds inflicted,
providing a graphic picture of the attack. The pathologist described
five stab wounds to different areas of Stoudemire's chest and two
defensive slash wounds to his left arm. The two defensive slash
wounds were delivered with such force that the first was stopped only
by the bone in Stoudemire's arm and the second actually cut into his
wrist joint. The stab wounds to Stoudemire's chest were delivered
with similar or greater force. For example, one of the wounds indi-
cated that Gleaton's knife entered Stoudemire's body at the center of
his chest and left "a fairly large gaping wound that simply cut the skin
open. [The knife] was stopped by the bones of the chest." J.A. 1419.
Another injury was described as "a stab wound that came in just
toward the midline from the left nipple, went under the skin and
stopped right at this boney notch at the base of[the] neck." Id. Other
injuries were inflicted by Gleaton's knife slicing into Stoudemire's

                    10
liver and intestines. Yet another wound resulted when Gleaton's knife
"went in under the arm just behind th[e] pectoralis muscles. It went
through and actually cut, with a very clean slice, the third rib, went
into the chest cavity and through the left side of the heart." Id. This
wound was delivered with sufficient force to cleanly sever
Stoudemire's rib. The pathologist also testified that Stoudemire had
suffered a gunshot wound to the chest.

The savagery of the attack as evidenced by the number and charac-
ter of the injuries inflicted leaves no uncertainty concerning whether
Gilbert and Gleaton intended to injure Stoudemire.5 See Cooper, 103
F.3d at 370 (explaining that overwhelming impact of evidence may
render an error harmless); Correll v. Thompson, 63 F.3d 1279, 1291
(4th Cir. 1995) (holding that admission of confession, if error, was
harmless because the evidence against the defendant was overwhelm-
ing). Gilbert never maintained that he accidentally shot Stoudemire,
and it is evident from his confession that he did so intentionally. Simi-
larly, Gleaton at no time asserted that he accidentally stabbed
Stoudemire during a "scuffle."6 Rather, Gleaton stated that he
removed his knife from his pocket after the "scuffle" with Stoudemire
began. This admittedly intentional act of removing his knife after the
_________________________________________________________________

5 The state trial court charged the jury in accordance with South Caro-
lina law "that if a crime is committed by two or more persons who are
acting together in the commission of an offense, the act of one is the act
of both or all .... [A]s it is sometimes said, the hand of one is the hand
of all." J.A. 2283; see Yates v. Aiken, 349 S.E.2d 84, 87 (S.C. 1986),
rev'd on other grounds, 484 U.S. 211 (1988); State v. Hicks, 185 S.E.2d
746, 748 (S.C. 1971). Thus, if the jury concluded that Gleaton's fatal
stabbing of Stoudemire was committed with malice, and that Gilbert and
Gleaton were acting together, the jury could have found Gilbert guilty of
the murder as a principal.

6 The defense theory during the guilt phase of the trial focused on the
voluntariness of Petitioners' confessions. Petitioners maintained that
their confessions had been rendered involuntarily and that without the
confessions the evidence presented by the State was inadequate to prove
their guilt beyond a reasonable doubt. Defense counsel never asserted
that Stoudemire's death resulted from an accident or was justified and
did not request that the trial court charge the jury on self-defense or
involuntary manslaughter. Furthermore, Petitioners have never con-
tended that defense counsel was ineffective for failing to do so.

                    11
fray commenced negates any suggestion that Gleaton may have acci-
dentally stabbed Stoudemire. Moreover, the number of stab wounds
inflicted by Gleaton and the brutality with which they were delivered
overwhelmingly demonstrates malice on Gleaton's part. Indeed, no
rational juror could conclude that such wounds were inflicted by acci-
dent. Cf. Tucker v. Kemp, 762 F.2d 1496, 1502-03 (11th Cir. 1985)
(en banc) (holding burden-shifting instruction harmless because sin-
gle crushing blow delivered to victim's skull was not the type that
happens by chance). Furthermore, because they were engaged in an
armed robbery, neither Gilbert nor Gleaton possessed any legal justi-
fication for an intentional attack on Stoudemire. See State v. Brown,
467 S.E.2d 922, 924 (S.C. 1996) (per curiam) (holding that "[u]nder
the law of self-defense, one who is attacked on his own premises is
immune from the duty to retreat," but "a lawful guest has a duty to
retreat when attacked by the owner"); see also State v. Ivey, 481
S.E.2d 125, 127 (S.C. 1997) (noting that "[t]he exercise of a legal
right ... is never in law deemed a provocation sufficient to justify or
mitigate an act of violence"). Considering the totality of the overpow-
ering evidence of malice that the jury had before it, there can be no
doubt that the erroneous instruction had no effect whatsoever on the
verdicts, much less a substantial and injurious one. Compare Plath v.
Moore, 130 F.3d 595, 598-99 (4th Cir. 1997) (holding unconstitu-
tional burden-shifting instruction harmless in light of overwhelming
evidence of malice), Arnold v. Evatt, 113 F.3d 1352, 1356-57 (4th
Cir. 1997) (same), cert. denied, 66 U.S.L.W. 3456 (U.S. Jan. 12,
1998) (No. 97-6646), Cunningham v. Zant, 928 F.2d 1006, 1014-15
(11th Cir. 1991) (holding that a burden-shifting instruction on intent
was harmless when defendant struck victim approximately eight times
on the head with a wrench and victim suffered additional extensive
defensive wounds), Dickey v. Lewis, 859 F.2d 1365, 1370-76 (9th Cir.
1988) (holding instruction that intent to kill is presumed from the use
of a deadly weapon was harmless because defendant's act of shooting
victim at point-blank range and then blocking attempts to assist him
provided overwhelming evidence of intent), Williams v. Kemp, 846
F.2d 1276, 1284 (11th Cir. 1988) (holding that an instruction that
shifted the burden on intent was harmless when "victim died as a
result of ten crushing blows to the skull with a blunt object and smoke
inhalation from a fire that was intentionally ignited"), House v.
Lavoie, 843 F.2d 474, 475-76 (11th Cir. 1988) (per curiam) (conclud-

                    12
ing that any error in allegedly unconstitutional burden-shifting
instruction on intent was harmless because defendant admitted he
intended to shoot victim five times but claimed that he acted in self-
defense), Tucker, 762 F.2d at 1502-03 (holding burden-shifting
instruction harmless because crushing blow delivered to victim's skull
was not the type of injury that occurs by accident), and Lamb v.
Jernigan, 683 F.2d 1332, 1342-43 (11th Cir. 1982) (concluding that
because no reasonable juror could have found that the defendant's
intentional stabbing of 72-year-old victim 11 times, when at least
three of the wounds were immediately disabling, was self-defense or
provoked, burden-shifting instruction was harmless), with Houston v.
Dutton, 50 F.3d 381, 383, 386-87 (6th Cir. 1995) (holding unconstitu-
tional burden-shifting instruction on presumed malice was not harm-
less because it essentially prevented jury from considering
defendant's lone argument that the murder, produced by three gunshot
wounds, was accidental), Hernandez v. Rayl, 944 F.2d 794, 796-97
(10th Cir. 1991) (concluding that a burden-shifting instruction on
intent was not harmless because the evidence presented against defen-
dant was not so strong that the court could say that the jury found
intent established independently of the unconstitutional instruction),
and Hyman v. Aiken, 824 F.2d 1405, 1409-10 (4th Cir. 1987) (holding
an unconstitutional burden-shifting instruction was not harmless
where uncontradicted evidence established defendant's intoxication at
the time of the murder, the trial court instructed the jury to consider
defendant's intoxication in determining whether he could have
formed the intent necessary to be guilty of murder, but then effec-
tively removed the intoxication defense from the consideration of the
jury by instructing that intent was to be presumed from the doing of
an unlawful act).

Petitioners contend, however, that the decision of the Supreme
Court in Yates dictates a determination in their favor, arguing that
Yates is factually indistinguishable from this case and thus requires a
similar result. To the contrary, the differences between the evidence
presented in Petitioners' trial and that considered in Yates are signifi-
cant and serve only to highlight why the burden-shifting instruction
is harmless error here. See Yates, 500 U.S. at 409-11. In Yates, the
evidence demonstrated that during an armed robbery of a store,
Yates' coconspirator, Davis, who was armed with a knife, was chas-
ing the store owner, Wood, who was armed with a firearm. Wood's

                     13
mother observed the altercation and ran into the fray, grabbing Davis.
During the ensuing scuffle, Davis stabbed Mrs. Wood once, killing
her. The Supreme Court concluded that the evidence of Davis' intent
toward Mrs. Wood was unclear. Although the evidence could support
an inference that Davis intended to kill all witnesses to the crime to
avoid detection, this inference "was not compelled as a rational neces-
sity." Id. at 410. Further, the Court opined that the circumstances of
Mrs. Wood's death did not "reveal anything clear about Davis' intent
toward her." Id. In particular, the Court focused on two facts, that
Mrs. Wood was stabbed only once and that the wound was inflicted
during the struggle. See id. at 411. Thus, the Court reasoned, "She
could have been killed inadvertently by Davis, and we cannot rule out
that possibility beyond a reasonable doubt." Id.

This case is factually very different. The evidence presented in Gil-
bert and Gleaton's trial clearly rules out any possibility that
Stoudemire's death was "inadvertent." Instead, the evidence permits
no other conclusion than that Gilbert and Gleaton intentionally
inflicted numerous and serious injuries on Stoudemire without just
cause or excuse. Although there is one relevant similarity between the
evidence presented in Yates and that presented in Petitioners' trial--
in both instances the victim was still alive when the perpetrators left
the scene--this one similarity is insignificant in light of the sharp
contrast in the remaining evidence: The evidence in Yates left open
a reasonable possibility that the fatal wound may have been inflicted
accidentally, but here the evidence leaves open no such possibility.

Finally, it bears noting that in Yates the Supreme Court reviewed
the unconstitutional burden-shifting instruction to determine whether
the error was harmless beyond a reasonable doubt. See id. Subse-
quently, however, the Court expressly disavowed the application of
the beyond-a-reasonable-doubt standard adopted in Chapman v.
California, 386 U.S. 18 (1967), to analyze the harmlessness of state
trial error in habeas corpus cases and ruled that the writ will not issue
unless such an error had a substantial and injurious effect on the ver-
dict. See Brecht, 507 U.S. at 630-638 (acknowledging that Court
applied Chapman standard in Yates, but embracing Kotteakos stan-
dard henceforth). Furthermore, the Court has recognized specifically
in the context of harmlessness review of erroneous jury instructions
that the showing necessary to demonstrate that an erroneous instruc-

                    14
tion is harmless under the latter standard is not as great as that neces-
sary to establish harmlessness under the former standard. See Roy,
117 S. Ct. at 338-39; see also id. at 338 (stating that "the dissenting
judges in the Ninth Circuit [in Roy v. Gomez, 81 F.3d 863, 869-71
(9th Cir. 1996) (Wallace, Circuit Judge, concurring and dissenting),]
are correct about the proper standard"). Thus, even if we were to con-
clude that the facts of Yates were indistinguishable--which we do not
--we would not find Yates controlling given the later rejection by the
Court of the Chapman standard in habeas corpus proceedings.7

In short, we have no doubt that the instruction to the jury that mal-
ice is presumed from the willful, deliberate, and intentional doing of
an unlawful act without just cause or excuse or from the use of a
deadly weapon had no substantial and injurious effect on the verdicts.
Having accepted that Gilbert and Gleaton inflicted the multiple
wounds described by the pathologist's testimony in the manner
explained in their confessions, no reasonable jury could have failed
to find that the shooting and stabbing were intentional because no rea-
sonable jury could have found that this evidence was consistent with
a finding of inadvertence or other legal excuse. As such, the unconsti-
tutional burden-shifting instruction is harmless and provides no basis
for habeas relief.
_________________________________________________________________

7 Petitioners also contend that because the State referred to implied
malice during its closing argument, we cannot say that the presumption
did not substantially and injuriously affect the verdict. We disagree. Dur-
ing closing argument, the prosecution noted that "[m]alice can be implied
... through the use of a deadly weapon." J.A. 2218. However, the argu-
ment made by the prosecution explained that malice was a permissible
inference from the use of a dangerous weapon. The prosecution did not
argue for an unconstitutional mandatory presumption of malice. More-
over, the reference to implied malice in the closing argument comprised
less than one page in a closing argument of 35 pages and a trial transcript
exceeding 900 pages in length. Cf. Brecht, 507 U.S. at 639 (noting that
"[t]he State's references to petitioner's post-Miranda silence were infre-
quent, comprising less than two pages of the 900-page transcript"); cf.
also Cooper, 103 F.3d at 370-72, 375 (concluding that because of the
overwhelming evidence presented to the jury, the error in admitting inad-
missible confession did not have a substantial or injurious effect on the
verdict although prosecution relied heavily on the improperly admitted
confession during closing argument).

                    15
III.

Petitioners, who did not object to joint representation during the
state-court guilt and sentencing proceedings, contend that the single
attorney by whom they were jointly represented operated under an
actual conflict of interest, depriving them of their constitutionally
guaranteed right to counsel. We conclude that no conflict existed dur-
ing the guilt phase of the trial and that Petitioners waived any conflict
with respect to the sentencing phase.

The Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel, including the right to representation
free from conflicts of interest. See Strickland v. Washington, 466 U.S.
668, 688 (1984). Because joint representation is not per se violative
of the Sixth Amendment, see Holloway v. Arkansas, 435 U.S. 475,
482 (1978), and because "[a] defendant is not lightly to be deprived
of the counsel of his choice," United States v. Smith, 653 F.2d 126,
128 (4th Cir. 1981), Petitioners can prevail on their claim that they
were deprived of constitutionally guaranteed effective assistance of
counsel only by demonstrating the existence of an actual conflict of
interest, see Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). That is,
Petitioners must show that their interests "diverge[d] with respect to
a material factual or legal issue or to a course of action." Id. at 356
n.3 (Marshall, J., concurring in part and dissenting in part). Addition-
ally, Petitioners must establish that the conflict adversely affected
their attorney's performance. See id. at 348; United States v. Tatum,
943 F.2d 370, 376 (4th Cir. 1991) (holding that an actual conflict of
interest adversely affects representation when the attorney takes
action on behalf of one client that is necessarily adverse to the defense
of the other or fails to take action on behalf of one because it would
adversely affect the other). If Petitioners make these showings, preju-
dice is presumed and they are entitled to habeas relief. See Cuyler,
446 U.S. at 349-50. The question of whether counsel labored under
an actual conflict of interest that affected representation is a mixed
question of law and fact that we review de novo. See id. at 342.

Petitioners have failed to demonstrate that an actual conflict of
interest affected their attorney's representation during the guilt phase
of their trial. Petitioners' defense during the guilt phase of the trial
consisted of a unified attack on the voluntariness of their confessions.

                    16
Their interests did not diverge with respect to any legal or factual
issue, and counsel did not fail to take action on behalf of one of the
Petitioners for fear of injuring the other.

With respect to the sentencing proceedings, Petitioners waived
their right to conflict-free counsel.8 See United States v. Akinseye, 802
F.2d 740, 744-45 (4th Cir. 1986) (holding that a defendant may waive
right to conflict-free counsel if waiver is knowing, voluntary, and
intelligent). To establish in habeas corpus a deprivation of their con-
stitutional right to effective assistance of counsel, Petitioners must
show that they did not intentionally, knowingly, and voluntarily relin-
quish this right. See Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938);
Hoffman v. Leeke, 903 F.2d 280, 288 (4th Cir. 1990); see also Fare
v. Michael C., 442 U.S. 707, 724 (1979) (explaining "that the question
whether the accused waived his rights `is not one of form, but rather
whether the defendant in fact knowingly and voluntarily waived the
rights'" (quoting North Carolina v. Butler, 441 U.S. 369, 373
(1979))).

Petitioners have failed to establish that they did not intentionally,
knowingly, and voluntarily waive their right to conflict-free counsel.
See Johnson, 304 U.S. at 468-69 (instructing that habeas petitioner
carries the burden of showing the absence of a valid waiver of
conflict-free counsel). Rather, the record demonstrates that Petitioners
decided that they did not wish to cast blame upon each other and that
they instead wanted to pursue a joint defense. Defense counsel testi-
fied during the first PCR hearing that he informed Petitioners prior to
_________________________________________________________________

8 Petitioners maintain that independent counsel could have argued that
each was less culpable than the other, thereby increasing each Petition-
er's chances of avoiding the death penalty. Gleaton contends that inde-
pendent counsel could have highlighted discrepancies in the testimony of
the two men to show that Gilbert had formed an intent to rob the store
prior to their arrival, while Gleaton had no such pre-formed intent. Glea-
ton also alleges that if independent counsel had represented only him,
counsel could have argued to the jury that injuries incurred in an automo-
bile accident had led to Gleaton's drug use. Gilbert, on the other hand,
asserts that independent counsel could have argued that Gleaton initiated
the robbery and inflicted the fatal blows, and that Gilbert, as the younger
brother, was led astray by Gleaton.

                    17
the trial that "there might be [a] point where their interest[s] might be
opposed to one another and they indicated they did not think so." J.A.
4835. Counsel further stated that despite this warning, "[t]hey wanted
me to represent both of them." Id. And, prior to the 1977 sentencing
proceeding, counsel again explained to Petitioners that "the jury could
possibly find that the evidence warranted one more culpable than the
other." J.A. Supp. 7. More specifically, counsel stated:

        I explained to them that it was possible that the jury,
        although they found both of them guilty on the charges, that
        the jury could possibly find a difference in degree of culpa-
        bility which could possibly result in a different sentencing
        being handed to them. And they both indicated to me that
        they have no objections .... And certainly, the fact that I am
        representing both of them, I did discuss this matter in detail
        with them. They both indicated to me that they had no
        objection ....

J.A. Supp. 9. When the trial judge inquired about a conflict of interest
precluding counsel from representing both defendants during sentenc-
ing, and after taking a break to confer once more with his clients con-
cerning a potential conflict of interest, counsel informed the court that
there was no "conflict of interest in me representing both of them"
and that having "discussed this matter with them ... they are desirous
of me representing both of them." J.A. Supp. 14. The trial court then
questioned Petitioners individually, and each indicated that he wanted
counsel to represent both of them despite any potential conflict of
interest. The record thus unequivocally establishes that Petitioners
were advised of their right to conflict-free counsel and the potential
grounds from which a conflict might arise and that having been so
informed, Petitioners voluntarily chose to proceed with joint represen-
tation.

IV.

Petitioners next contend that they were deprived of constitutionally
required effective assistance of counsel during the guilt and sentenc-
ing phases of their trial. To prevail on this claim, Petitioners bear the
burden of demonstrating that their attorney's "representation fell
below an objective standard of reasonableness" and "that there is a

                     18
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). In assessing counsel's
performance, we bear in mind that our review is "highly deferential."
Id. at 689. Indeed, we afford a strong presumption that counsel's per-
formance was within the extremely wide range of professionally com-
petent assistance. See id. And, to eliminate the deceptive effects of
hindsight on our consideration, we look to "the reasonableness of
counsel's challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct." Id. at 690. Moreover,
even those instances in which counsel's conduct fell below an objec-
tive standard of reasonableness generally will not justify setting aside
a conviction unless the error affected the outcome of the proceeding.
See id. at 691-92. Therefore, deficiencies in Petitioners' attorney's
conduct would warrant the grant of habeas relief only if Petitioners
convince the court that in the absence of unprofessional errors by
their attorney there is a reasonable probability--i.e., one adequate to
undermine our confidence in the result--that "the result of the pro-
ceeding would have been different." See id. at 694. We review de
novo Petitioners' claim that counsel was constitutionally ineffective.
See id. at 698.

Petitioners first point to a number of alleged deficiencies in coun-
sel's performance during the guilt phase of their trial. Specifically,
Petitioners contend that prior to their trial, counsel failed to make an
appropriate independent inquiry into the circumstances of the crime;
interviewed only two of the 17 witnesses for the prosecution; failed
to examine the physical evidence; met with them for a total of less
than three and one-half hours; and failed to study sufficiently the then
newly enacted death penalty procedures. Petitioners, however, fail to
explain how their attorney's representation of them would have been
altered in any way had he done the things that they allege he failed
to do. Consequently, Petitioners have failed to show that any of these
alleged deficiencies prejudiced them.

Petitioners also assert that their attorney's representation of them
during the 1980 resentencing proceeding was constitutionally ineffec-
tive. They argue that counsel failed to retain either a pharmacological
expert to explain how their drug use would have impaired them at the
time of the crime or a psychiatric expert. In addition, Petitioners con-

                    19
tend that a proper investigation into their background would have dis-
closed a number of character witnesses who could have testified to
mitigating facts--for example, that they had maintained steady
employment and had no prior criminal background.

"[C]ounsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unneces-
sary." Id. at 691; see Satcher, 126 F.3d at 572 (explaining that "`[i]n
any ineffectiveness case, a particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel's judgments'"
(quoting Strickland, 466 U.S. at 691)). Petitioners contend that coun-
sel was ineffective for failing to retain a psychological expert to
examine them for the purpose of developing mitigating evidence.
Petitioners, however, underwent psychiatric evaluations prior to trial,
and the reports of these examinations revealed that Petitioners were
sane at the time of the crimes and were competent to stand trial. Fur-
thermore, the reports did not suggest any serious mental or emotional
problems warranting further investigation for potentially mitigating
evidence. Compare Loyd v. Smith, 899 F.2d 1416, 1426 (5th Cir.
1990) (holding that counsel was ineffective for failing to retain psy-
chiatric expert when "the record [was] replete with indications that a
further investigation of [petitioner's] mental state should have been
undertaken"), with Laws v. Armontrout, 863 F.2d 1377, 1389 (8th Cir.
1988) (en banc) (holding that counsel was not ineffective for failing
to investigate and present psychiatric mitigating evidence where
"[n]othing made known to counsel during his representation of
[defendant] ... suggested to counsel that presenting evidence of
[defendant's] psychiatric state would be of any benefit in his defense"
(internal quotation marks omitted)). At most, the reports available to
counsel established that Petitioners' mental functioning was limited,
falling short of mental retardation. We cannot say that in light of the
reports of the mental examinations performed, counsel's failure to
retain a psychiatric expert to investigate this area further or to provide
mitigating testimony fell outside the broad range of professionally
adequate conduct. See Waters v. Thomas, 46 F.3d 1506, 1512 (11th
Cir. 1995) (en banc) (noting that relevant question in determining
whether counsel's performance was constitutionally acceptable is not
"what the best lawyers would have done" nor "even what most good
lawyers would have done," but instead "whether some reasonable

                    20
lawyer ... could have acted, in the circumstances, as defense counsel
acted" (internal quotation marks omitted)).

Petitioners also claim that counsel was ineffective for failing to
locate and present the testimony of other witnesses who could have
presented mitigating evidence.9 But, counsel is not constitutionally
required to interview every family member, neighbor, and coworker
in the search for mitigating evidence. Counsel asked Petitioners and
their mother for information concerning witnesses who would be
helpful and spoke with the witnesses to whom he was directed. Coun-
sel ultimately presented the testimony of the Gilbert family's minister,
concerning Petitioners' religious devotion, and of Petitioners' mother.
Counsel also had Petitioners explain their good employment back-
ground and the circumstances surrounding the murder, including their
use of drugs. Because counsel conducted a reasonable investigation
for mitigating evidence and found nothing more that, in his profes-
sional judgment, could be employed in Petitioners' defense, we con-
clude that counsel did not perform unprofessionally in failing to
investigate further.

Moreover, even if Petitioners could overcome the presumption that
counsel's performance was within the broad range of professionally
acceptable conduct, we are not convinced that they have satisfied the
prejudice prong of Strickland. The evidence that Petitioners argue
would have been obtained if counsel had performed competently does
not undermine our confidence in the verdict. Although evidence that
a defendant suffers from a mental impairment or has abused drugs or
narcotics may diminish his blameworthiness for his crime, this evi-
dence is a two-edged sword. See Howard, 1997 WL 755428, at *17.
In sum, Petitioners were not deprived of constitutionally adequate
assistance of counsel.
_________________________________________________________________

9 Gilbert submits that counsel could have presented the testimony of
several members of the community--including a retired police chief, a
teacher, an attorney, and a former employer--to testify concerning his
background and character. And, Gleaton asserts that had counsel made
an adequate investigation, he would have discovered nine individuals
from Florida--among them Gleaton's wife, friends, coworkers, and
landlord--who would have testified to his good character.

                    21
V.

Gleaton also claims that the state trial court deprived him of his
constitutional rights guaranteed by the Sixth, Eighth, and Fourteenth
Amendments by failing to exclude for cause prospective jurors who
indicated that they could not consider lack of a criminal record as a
mitigating circumstance. None of the jurors that Gleaton contends
were improperly qualified, however, sat on the jury; they were all
struck by peremptory challenges. Thus, Gleaton was not denied his
right to an impartial jury. See Ross v. Oklahoma, 487 U.S. 81, 88
(1988) (holding that even though trial court erred in qualifying a
juror, defendant's constitutional rights were not violated because he
had to use a peremptory challenge to excuse the juror, stating, "we
reject the notion that the loss of a peremptory challenge constitutes a
violation of the constitutional right to an impartial jury"); Satcher,
126 F.3d at 573-74; Gaskins v. McKellar, 916 F.2d 941, 949 (4th Cir.
1990) (explaining that "`[a]ny claim that the jury was not impartial ...
must focus ... on the jurors who actually sat' and cannot be estab-
lished simply by showing the loss of a peremptory challenge" (second
& third alterations in original) (quoting Ross, 487 U.S. at 86)).

VI.

Finally, three additional claims are presented, each of which we
conclude is procedurally defaulted. First, Petitioners assert that their
right to due process was violated by a systematic exclusion of black
persons from the venire by the prosecution. Second, Gleaton contends
that the submission by the trial court of the aggravating circumstances
that Petitioners committed the murder during the commission of a
robbery while armed with a dangerous weapon and that Petitioners
committed the murder during the commission of a larceny while
armed with a dangerous weapon violated the Eighth and Fourteenth
Amendments because it allowed the jury to weigh twice what was
essentially the same aggravating circumstance. And, third, Gleaton
contends that the trial court should have instructed the jury sua sponte
that it should draw no adverse inference concerning Gleaton's guilt
simply from his invocation of his Fifth Amendment right to remain
silent and that the jury should not consider Gilbert's confession as
evidence of Gleaton's guilt.

                    22
Absent cause and prejudice or a miscarriage of justice, a federal
habeas court may not review constitutional claims when a state court
has declined to consider their merits on the basis of an adequate and
independent state procedural rule. See Harris v. Reed, 489 U.S. 255,
262 (1989). Such a rule is adequate if it is regularly or consistently
applied by the state court, see Johnson v. Mississippi, 486 U.S. 578,
587 (1988), and is independent if it does not "depend[ ] on a federal
constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985).10

A.

Petitioners contend that their constitutional rights were violated by
the State's systematic use of peremptory strikes to exclude blacks
from the jury. See Swain v. Alabama, 380 U.S. 202 (1965). Following
jury selection in the 1980 resentencing trial, defense counsel brought
to the attention of the court that the prosecution had struck every
black prospective juror. The trial court denied defense counsel's "mo-
tion," noting that

        a bare motion, which is nothing but an assertion, that the
        action of the State in exercising its peremptory challenges
        was the result of prejudice by reason of striking blacks,
        without any further showing, would not be adequate. I think
        what little authority there is on the subject would indicate
        that ... to be considered it must be proven that it has been
        a long established practice substantiated by statistics in
        order for it to be given any consideration at all.

J.A. 3390-91.11 In preparing his post-trial report, the state trial judge
_________________________________________________________________

10 Petitioners make no attempt to establish cause and prejudice or a fun-
damental miscarriage of justice to excuse the default, and therefore we
do not consider whether either exist. See Kornahrens v. Evatt, 66 F.3d
1350, 1361-62 (4th Cir. 1995).

11 It was not until 1986, well after Petitioners' convictions and sen-
tences became final, that the Supreme Court decided Batson v. Kentucky,
476 U.S. 79 (1986), holding that a defendant's Fourteenth Amendment
rights are violated by a prosecutor's use of a peremptory strike on the
basis of race. Petitioners advance no Batson claim in these proceedings.
See Allen v. Hardy, 478 U.S. 255 (1986) (holding that Batson rule does
not apply retroactively on collateral review of convictions that became
final before Batson was decided).

                    23
marked the box indicating "Yes" to the question, "Was there any evi-
dence that members of the defendant's race were systematically
excluded from the jury?" and added a notation "by peremptory chal-
lenges of State." J.A. 5586. Petitioners, however, did not raise this
claim on direct appeal.

Petitioners next asserted a Swain claim in their first PCR applica-
tion. The PCR court heard testimony on the issue and rejected it, find-
ing credible the lead prosecutor's testimony "that his office [did] not
have a policy of using peremptory challenges to exclude blacks." J.A.
6017. Petitioners, however, did not pursue this claim in their petitions
for writs of certiorari to the South Carolina Supreme Court. In their
second PCR application, Petitioners again raised this claim. The sec-
ond PCR court initially rejected the State's argument that this issue
should be dismissed as successive, noting that although the issue pre-
viously had been raised in the first PCR application, the failure to
consider it would result in "a gross miscarriage of justice," and conse-
quently the issue fit within an exception to the bar upon successive
petitions. J.A. 5511. After conducting an evidentiary hearing with
respect to this issue, however, the second PCR court ruled:

         In ground VI, 9(f), the applicants reasserted their com-
        plaint about the prosecutor's use of peremptory challenges.
        While initially this "Batson" issue caused me considerable
        worry, an extensive review of the record reveals that this
        issue was raised at the initial state post-conviction relief pro-
        ceeding ... and specifically denied by the state post-
        conviction relief court. No issue concerning the selection of
        the jury was in the certiorari petition to the Supreme Court.
        The applicants[ ] abandoned that issue in the appeal from
        the denial of state post-conviction relief.

J.A. 6444. The court went on to explain that in addition to the aban-
donment of the issue in the petition for certiorari, the claim did not
provide a basis for relief because further review was barred by res
judicata,12 having been determined against Petitioners in the first PCR
_________________________________________________________________

12 Under South Carolina law, the doctrine of res judicata bars consider-
ation in PCR proceedings of, inter alia, claims that have previously been
raised and decided on the merits. See Gamble v. State, 379 S.E.2d 118,
119 (S.C. 1989); Foxworth v. State, 274 S.E.2d 415, 416 (S.C. 1981).

                    24
application. Accordingly, although the second PCR court initially
refused to find the Swain claim successive, it ultimately reconsidered
that ruling and disposed of the claim on the basis that it had been
abandoned in the petition for certiorari from the first denial of PCR
and that further consideration was barred. This disposition constitutes
an adequate and independent state ground for decision. Thus, this
claim is procedurally defaulted.13

B.

Gleaton next contends that the submission by the trial court of the
aggravating circumstances that Petitioners committed the murder dur-
ing the commission of a robbery while armed with a dangerous
weapon and that Petitioners committed the murder during the com-
mission of a larceny while armed with a dangerous weapon violated
the Eighth and Fourteenth Amendments because it allowed the jury
to weigh what is essentially the same aggravating circumstance twice.
On direct appeal from the resentencing, Gleaton argued that the sub-
mission of both of these aggravating factors constituted a violation of
the Double Jeopardy Clause of the Fifth Amendment. Specifically,
Gleaton argued that during the first sentencing hearing, the jury had
not found the aggravating factor that the crime was committed during
a larceny, so the submission of that factor during the resentencing trial
constituted a violation of double jeopardy. Gleaton did not raise any
claim relating to the submission of the two aggravating circumstances
during his first PCR application. During the second PCR proceeding,
Gleaton raised his present argument for the first time. The second
PCR court dismissed the claim as successive.14 See S.C. Code Ann.
_________________________________________________________________

13 Even if we were to reach the merits, however, this claim would not
provide a basis for relief because Petitioners have failed to offer any rea-
son why the finding of the first PCR court that there was no systematic
exclusion by the State does not constitute a finding of fact to which a
presumption of correctness applies. See 28 U.S.C.A. § 2254(d) (West
1994). We could not say that this finding is unsupported by the record,
and as such, Petitioners' Swain claim would fail on the merits.

14 "[A] federal court does not have license to question a state court's
finding of procedural default ...." Barnes v. Thompson, 58 F.3d 971, 974
n.2 (4th Cir. 1995). We note, however, that although the second state
PCR court concluded that the claim was barred as successive, it incor-
rectly reasoned that this was so because the issue had been rejected on
direct appeal. It is clear that the claim was not raised on direct appeal.

                    25
§ 17-27-90 (Law. Co-op. 1985). Thus, this claim is procedurally
defaulted.15

C.

Finally, Gleaton contends that the trial court should have instructed
the jury sua sponte that it should draw no adverse inference concern-
ing his guilt simply because he invoked his right to remain silent
guaranteed by the Fifth Amendment. See Carter v. Kentucky, 450
U.S. 288, 300 (1981) (holding that a trial court must give a "no
adverse inference" instruction when requested to do so). This claim
is procedurally defaulted.
_________________________________________________________________

15 Even if this claim were not procedurally defaulted, it is without
merit. The purpose of aggravating circumstances is to narrow the class
of persons who are eligible for the death penalty to those defendants
among murderers who are most deserving of it. See Lowenfield v. Phelps,
484 U.S. 231, 244 (1988). The Eighth Amendment does not require that
aggravating circumstances be weighed against mitigating circumstances
by the jury, although some states have established such systems. See
Blystone v. Pennsylvania, 494 U.S. 299, 306-07 (1990). South Carolina
is a non-weighing state; the jury is not instructed to weigh aggravating
factors against mitigating factors. See State v. Elkins, 436 S.E.2d 178,
180 (S.C. 1993). Thus, under South Carolina law:

        Additional aggravating circumstances provide only alternative
        bases for placing a defendant in the category of persons subject
        to capital punishment. Additional aggravating circumstances do
        not, under [South Carolina law], contribute to the actual selec-
        tion of the death penalty because juries ... are not instructed to
        "weigh" circumstances of aggravation against circumstances of
        mitigation.

State v. Plath, 313 S.E.2d 619, 629 (S.C. 1984). Here, consistent with
South Carolina law, the jury was instructed that after it found one aggra-
vating circumstance beyond a reasonable doubt, the jury could impose
the death penalty, but that it need not do so; the jury could impose a life
sentence even if it was not convinced of the existence of any mitigating
circumstance. Because Gleaton's jury did not weigh the aggravating cir-
cumstances against the mitigating circumstances, it could not have given
"too much" weight to an aggravating circumstance by "counting" it
twice. Accordingly, this claim lacks merit.

                    26
During the guilt phase of the trial, the principal defense offered was
that Petitioners' confessions had been obtained involuntarily and
could not be used against them. Without the confessions, the defense
argued, the State's case was insufficient to prove Petitioners' guilt
beyond a reasonable doubt. To advance this claim, Petitioners testi-
fied to the events that occurred between the time of their arrests and
the time of their confessions. Although by taking the witness stand
Petitioners waived their Fifth Amendment right against compelled
self-incrimination, the trial court permitted them to invoke the Fifth
Amendment on cross-examination. The trial court instructed the jury
that "[t]he fact that a person invokes or takes the Fifth Amendment
raises no presumption as to the guilt or innocence of the accused."
J.A. 2281.

On direct appeal, Petitioners raised the voluntariness of their con-
fessions, but the South Carolina Supreme Court rejected the conten-
tion that the confessions were involuntary. Turning to the argument
concerning whether the procedure followed by the state trial court of
permitting Gilbert and Gleaton to take the stand to testify on direct
examination, but allowing them to invoke their Fifth Amendment
privilege on cross-examination, the South Carolina Supreme Court
continued, "We next consider an issue not raised in appellants' brief,
but which, because of the imposition of the death sentence, we review
under the doctrine of in favorem vitae." Gilbert, 258 S.E.2d at 893.
A majority of the court concluded that because Petitioners had waived
their right against self-incrimination by taking the stand, the trial
court provided them greater protection than the Constitution required
by allowing them to invoke the privilege. Therefore, the court held,
Gilbert and Gleaton "were not prejudiced by this procedure." Id. at
894. The court did not address the issue that Gleaton raises here--
whether the trial court erred in failing to give a"no adverse inference"
instruction. See id. at 891-94.

In his first PCR application, Gleaton raised the failure of the trial
judge to give a "no adverse inference" instruction. The PCR court dis-
missed the claim, holding that because it had not been raised on direct
appeal, it was procedurally defaulted. Gleaton did not raise the issue
in his petition for certiorari to the South Carolina Supreme Court from
the denial of PCR. Gleaton attempted again to raise the issue in his
second PCR proceeding, but that court held that the issue was succes-

                    27
sive. Gleaton did not raise the issue in his petition for certiorari to the
South Carolina Supreme Court. As a result, this issue is procedurally
defaulted.16

VII.

Finding no error warranting the grant of habeas relief, we reverse
in appeal numbers 96-12 and 96-13 and affirm in appeal numbers 96-
15 and 96-16.

Nos. 96-12, 96-13 - REVERSED
Nos. 96-15, 96-16 - AFFIRMED

HAMILTON, Circuit Judge, concurring in part and concurring in the
judgment:

I concur in all of Judge Wilkins' opinion except Parts VI A and B.
In my view, the claims asserted by the petitioners in Parts VI A and
B are not procedurally defaulted. However, because the claims are,
for the reasons stated in footnotes 13 and 15 of Judge Wilkins' opin-
ion, without merit, I concur in the judgment.

MICHAEL, Circuit Judge, concurring:

I concur in the judgment and in Parts I through V and Part VII of
_________________________________________________________________

16 Likewise, Gleaton's claim that the trial court should have instructed
the jury that Gilbert's confession could not be considered as evidence of
Gleaton's guilt is procedurally defaulted. Gleaton raised no argument at
trial or on direct appeal concerning the failure of the trial court to instruct
concerning the proper use of Gilbert's confession. Gleaton raised the
failure of the trial judge to give an instruction limiting the use of Gil-
bert's confession in his first PCR application. The PCR court dismissed
the claim, holding that because it had not been raised on direct appeal,
it was procedurally defaulted. Gleaton did not raise the issue in his peti-
tion for certiorari to the South Carolina Supreme Court from the denial
of PCR. Gleaton attempted again to raise the issue in his second PCR
proceeding, but that court held that the issue was successive. Gleaton did
not raise the issue in his petition for certiorari to the South Carolina
Supreme Court.

                     28
the majority opinion. I would decide the issues raised in part VI on
the merits in favor of the State.

DIANA GRIBBON MOTZ, concurring in parts I through V, part VII,
and the judgment:

I originally joined the panel opinion affirming the district court's
grant of writs of habeas corpus to Larry Gilbert and J. D. Gleaton. On
further study, I have determined that I must vote to reverse. The anal-
ysis and authorities Judge Wilkins has marshalled in part II of his
opinion for the court makes this conclusion inescapable. I am also
pleased to join the remainder of Judge Wilkins' fine opinion, except
for part VI. I agree with the majority that the State also prevails on
the grounds discussed in that portion of the opinion but, like Judge
Michael, I would decide those questions on the merits. See ante n.13,
n.15, and n.16.

                    29
