PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

EARL MATTHEWS, JR.,
Petitioner-Appellant,

v.

PARKER EVATT, Commissioner,
                                                                        No. 96-5
South Carolina Department of
Corrections; T. TRAVIS MEDLOCK,
Attorney General, State of South
Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
G. Ross Anderson, Jr., District Judge.
(CA-95-132-3-3BC)

Argued: December 2, 1996

Decided: January 28, 1997

Before WIDENER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge

_________________________________________________________________

Affirmed by published opinion. Judge Hamilton wrote the opinion, in
which Judge Widener and Senior Judge Phillips joined.

_________________________________________________________________

COUNSEL

ARGUED: John Henry Blume, III, Columbia, South Carolina; David
Paul Voison, Columbia, South Carolina, for Appellant. Lauri J. Soles,
Assistant Attorney General, Columbia, South Carolina, for Appellees.
ON BRIEF: Charles Molony Condon, Attorney General, John W.
McIntosh, Deputy Attorney General, Donald J. Zelenka, Assistant
Deputy Attorney General, Columbia, South Carolina, for Appellees.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Petitioner, Earl Matthews, Jr., appeals the district court's denial of
his petition for writ of habeas corpus, see 28 U.S.C. § 2254. Finding
no error, we affirm.

I

A

On the evening of October 29, 1984, Lucia Aimar and her boy-
friend, Eric Burn, purchased their dinner at a drive-through restaurant
in Charleston, South Carolina. While the couple was parked in a
nearby parking lot eating their dinner, Matthews approached the driv-
er's side of the car where Burn was seated. Matthews pulled out a
handgun, pointed it at Burn's head, and demanded money. While
Burn was searching for money, Matthews struck Burn across the face,
breaking his nose. After Burn found five dollars in Aimar's purse,
Burn handed the purse to Matthews.

Next, Matthews walked around to the passenger's side of the car
where Aimar was seated. Aimar locked the door and tried to roll up
the window. Matthews prevented Aimar from rolling up the window
and asked for a ride. When Burn refused, Matthews shot Aimar in the
head and shot Burn in the chest. As a result of her injuries, Aimar
died. Burn recovered from his chest wound and later testified at Mat-
thews' trial.

B

Following a jury trial, Matthews was convicted of the capital mur-
der of Aimar, armed robbery, attempted armed robbery, assault and
battery with intent to kill, and unlawful possession of a handgun.

                    2
On the murder count, on the recommendation of the jury, Matthews
was sentenced to death. For the remaining offenses, Matthews
received consecutive sentences totaling sixty-six years.

On direct appeal, the Supreme Court of South Carolina affirmed
Matthews' convictions, but vacated his death sentence because of a
Skipper violation,1 and remanded the case for a new sentencing trial.
See State v. Matthews, 353 S.E.2d 444, 450 (S.C. 1986). On remand,
the jury again recommended a sentence of death, and Matthews was
sentenced accordingly. This sentence was affirmed by the Supreme
Court of South Carolina. See State v. Matthews , 373 S.E.2d 587, 596
(S.C. 1988). Matthews then petitioned the Supreme Court of the
United States for a writ of certiorari. The Supreme Court of the
United States denied the petition. See Matthews v. South Carolina,
489 U.S. 1091 (1989).

Matthews then filed a state application for post-conviction relief,
which the state trial court denied on August 24, 1992. The Supreme
Court of South Carolina denied discretionary review, and, on May 31,
1994, the Supreme Court of the United States denied Matthews' sec-
ond petition for writ of certiorari. See Matthews v. South Carolina,
114 S. Ct. 2155 (1994).

On August 30, 1994, Matthews filed a petition for writ of habeas
corpus in the United States District Court for the District of South
Carolina. The case was assigned to a magistrate judge, who, in a 124-
page report and recommendation, recommended to the district court
that it deny the petition. After de novo review of the record, the dis-
trict court adopted the magistrate judge's report and recommendation
and denied the petition. Matthews noted a timely appeal.

II

On appeal, Matthews raises numerous assignments of error. We
shall address each of these assignments of error in turn.
_________________________________________________________________
1 In Skipper v. South Carolina , 476 U.S. 1, 4-8 (1986), the Supreme
Court held that the defendant's Eighth and Fourteenth Amendment rights
were violated by the sentencing court's refusal to admit evidence of his
adaptability to prison life.

                    3
A

Matthews argues that the Ninth Circuit Solicitor, Charles Condon,
who is now the Attorney General of South Carolina, utilized his dis-
cretion in seeking the death penalty in this case in a racially discrimi-
natory manner. In support of his contention that Mr. Condon sought
the death penalty against him in a discriminatory manner, Matthews
relies on statistical evidence and numerous alleged racist acts commit-
ted by Mr. Condon, both in his personal and professional life. In
response, the State argues that the claim is procedurally barred
because it was never presented in state court, and, in the alternative,
is without merit. We agree with the State that this claim is procedur-
ally barred and, therefore, decline to address the merits. See Karsten
v. Kaiser Found. Health Plan, 36 F.3d 8, 11 (4th Cir. 1994) (per
curiam) (noting that alternative holdings should be avoided).

In the interest of giving state courts the first opportunity to consider
alleged constitutional errors occurring in a defendant's state trial and
sentencing, a § 2254 petitioner is required to"exhaust" all state court
remedies before a federal district court can entertain his claims. 28
U.S.C. § 2254(b) & (c); see also Rose v. Lundy, 455 U.S. 509, 518
(1982) (noting that "[t]he exhaustion doctrine is principally designed
to protect the state courts' role in the enforcement of federal law and
prevent disruption of state court proceedings"). Thus, a federal habeas
court may consider only those issues which have been"fairly pres-
ented" to the state courts. Picard v. Connor , 404 U.S. 270, 275-78
(1971); see also Townes v. Murray, 68 F.3d 840, 846 (4th Cir. 1995),
cert. denied, 116 S. Ct. 831 (1996). A claim is fairly presented when
the petitioner presented to the state courts the"`substance' of his fed-
eral habeas corpus claim." Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam) (quoting Picard, 404 U.S. at 278). "`The ground relied
upon must be presented face-up and squarely; the federal question
must be plainly defined. Oblique references which hint that a theory
may be lurking in the woodwork will not'" suffice. Mallory v. Smith,
27 F.3d 991, 995 (4th Cir.) (quoting Martens v. Shannon, 836 F.2d
715, 717 (1st Cir. 1988)), cert. denied, 115 S. Ct. 644 (1994). In other
words, fair presentation contemplates that "both the operative facts
and the `controlling legal principles'" must be presented to the state
court. Verdin v. O'Leary, 972 F.2d 1467, 1474 (7th Cir. 1992) (quot-
ing Picard, 404 U.S. at 277); see also Joubert v. Hopkins, 75 F.3d

                     4
1232, 1240 (8th Cir.) ("A claim has been fairly presented when a peti-
tioner has properly raised the `same factual grounds and legal theo-
ries' in the state courts which he is attempting to raise in his federal
habeas petition."), cert. denied, 116 S. Ct. 2574 (1996).

To satisfy the exhaustion requirement, a habeas petitioner must
fairly present his claim to the state's highest court. See Spencer v.
Murray, 18 F.3d 237, 239 (4th Cir. 1994) (denying certain claims on
exhaustion principles where claims were not raised on direct appeal
to the Virginia Supreme Court); see also Levine v. Comm'r of Correc-
tional Serv., 44 F.3d 121, 124 (2d Cir. 1995); Story v. Kindt, 26 F.3d
402, 405 (3d Cir.), cert. denied, 115 S. Ct. 593 (1994); James v. Borg,
24 F.3d 20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994); Deters
v. Collins, 985 F.2d 789, 795 (5th Cir. 1993); Manning v. Alexander,
912 F.2d 878, 881 (6th Cir. 1990). The burden of proving that a claim
has been exhausted lies with the petitioner. Mallory, 27 F.3d at 994.

The exhaustion requirement, though not jurisdictional, Granberry
v. Greer, 481 U.S. 129, 131 (1987), is strictly enforced, Rose, 455
U.S. at 522. Consequently, when a petition includes both exhausted
and unexhausted claims, the district court must dismiss the entire peti-
tion. See id. ("[W]e hold that a district court must dismiss habeas peti-
tions containing both unexhausted and exhausted claims."). However,
the exhaustion requirement for claims not fairly presented to the
state's highest court is technically met when exhaustion is uncondi-
tionally waived by the state, Sweezy v. Garrison , 694 F.2d 331, 331
(4th Cir. 1982) (per curiam), cert. denied, 461 U.S. 908 (1983), or
when a state procedural rule would bar consideration if the claim was
later presented to the state court, Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989);
see also George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996) ("A
claim that has not been presented to the highest state court neverthe-
less may be treated as exhausted if it is clear that the claim would be
procedurally defaulted under state law if the petitioner attempted to
raise it at this juncture."); Bassette v. Thompson, 915 F.2d 932, 937
(4th Cir. 1990) (If "it is clear that the state law would bar state review,
exhaustion is not required, and federal review is precluded."), cert.
denied, 499 U.S. 982 (1991). The state procedural bar rule barring
federal review must be independent and adequate to support the state
court judgment. See Coleman, 501 U.S. at 729 ("This Court will not

                     5
review a question of federal law decided by a state court if the deci-
sion of that court rests on a state law ground that is independent of
the federal question and adequate to support the judgment."). A state
procedural bar rule is not adequate unless it is"consistently or regu-
larly applied." Johnson v. Mississippi, 486 U.S. 578, 589 (1988).

The district court found that although Matthews had not specifi-
cally raised the claim that the Ninth Circuit Solicitor utilized his dis-
cretion in seeking the death penalty in a racially discriminatory
manner, the claim was nonetheless exhausted for federal habeas cor-
pus purposes. Apparently, the district court reasoned that the exhaus-
tion requirement was satisfied when Matthews raised this issue in a
pre-trial motion2 and the state court denied the motion.3

For two reasons, we believe the district court erred when it con-
cluded this claim was exhausted for federal habeas corpus purposes.
First, the claim was not exhausted because it was not presented to the
Supreme Court of South Carolina. In the absence of such an attempt
by Matthews, the claim is unexhausted. See Spencer, 18 F.3d at 239;
_________________________________________________________________
2 In this motion, Matthews argued that application of the South Caro-
lina Death Penalty Statute was:

          unconstitutional, on its face, and as applied in this case, . . . as
          violative of the guarantees of due process of law and equal pro-
          tection of the law, and guarantees against cruel and unusual pun-
          ishments contained in the South Carolina Constitution and
          United States Constitution.

Appendix to Second Petition for Writ of Certiorari to the Supreme Court
of South Carolina at 1733. The motion suggests that the South Carolina
Death Penalty Statute violated the Equal Protection Clause because the
statute confers to the prosecutor "the complete and unbridled discretion
in the first instance as to whether the death penalty will be sought in any
particular case." Id. at 1734.
3 It is noteworthy that, in addition to other innumerable materials "vital
to the understanding of the basic issues on appeal," Local Rule 30(b), a
copy of this motion is not contained in the joint appendix filed in this
case. In this circuit, we consider "the coordination of preparing the
appendix to be the responsibility of both sides," Local Rule 30(c). And,
in our view, neither party, especially the State, has lived up to its respon-
sibilities.

                     6
see also Levine, 44 F.3d at 124; Story, 26 F.3d at 405; James, 24 F.3d
at 24; Deters, 985 F.2d at 795; Manning , 912 F.2d at 881. Second,
Matthews' claim--that the Ninth Circuit Solicitor utilized his discre-
tion in seeking the death penalty in a racially discriminatory manner
--was not "fairly presented" in state court. Matthews' pre-trial motion
contained a very broad assertion that the South Carolina Death Pen-
alty Statute violated the Equal Protection Clause because the statute
conferred too much discretion in seeking the penalty on the prosecu-
tor. That claim is clearly not the "substance" of the claim presently
asserted by Matthews in federal court--that the Ninth Circuit Solici-
tor's decision to seek the death penalty in this case was racially moti-
vated. Indeed, the record is bereft of evidence that"both the operative
facts and the `controlling legal principles'" of Matthews' claim raised
here were presented to the state court. Verdin , 972 F.2d at 1474 (quot-
ing Picard, 404 U.S. at 277).

Matthews argues that this claim was nonetheless exhausted for fed-
eral habeas corpus purposes because the Supreme Court of South Car-
olina reviewed his case in favorem vitae (in favor of life). Under in
favorem vitae review, the Supreme Court of South Carolina reviews
"`the entire record for legal error, and assume[s] 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.'" Kornahrens v. Evatt, 66 F.3d 1350, 1362
(4th Cir. 1995) (quoting State v. Torrence, 406 S.E.2d 315, 324 (S.C.
1991) (Toal, J., concurring for a majority of the court)), cert. denied,
116 S. Ct. 1575 (1996).4 "Under in favorem vitae review, `the appel-
late court searches the record for error without regard to whether an
objection has preserved it.'" Id. (quoting Torrence, 406 S.E.2d at 326
(Toal, J., concurring for a majority of the court)). As Matthews' argu-
ment goes, although this argument was not raised directly to the
Supreme Court of South Carolina, the claim was raised prior to trial,
and, therefore, the Supreme Court of South Carolina reviewed this
claim on direct appeal when it conducted its in favorem vitae review.

In Kornahrens, we rejected the petitioner's contention that in
favorem vitae review preserved his contentions that certain jury
_________________________________________________________________
4 In favorem vitae review has been abolished in the State of South Car-
olina. Kornahrens, 66 F.3d at 1362.

                    7
instructions at trial and sentencing were erroneous for purposes of
federal habeas corpus review. 66 F.3d at 1362-63. In reaching this
conclusion, we reasoned:

          Because our role is limited to reviewing state-court judg-
          ments, 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 deter-
          mine 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.

Id. at 1362.

The reasoning of Kornahrens is applicable here. The gist of
Kornahrens is that in favorem vitae review does not supply the neces-
sary exhaustion for claims not raised on direct appeal to the Supreme
Court of South Carolina. Therefore, because Matthews' claim that the
Ninth Circuit Solicitor utilized his discretion in seeking the death pen-
alty in a racially discriminatory manner was not raised on direct
appeal, the Supreme Court of South Carolina's in favorem vitae
review of the record of Matthews' sentencing retrial did not exhaust
this claim for purposes of federal habeas corpus review.

Matthews also argues that this claim was exhausted for federal
habeas corpus purposes because the Supreme Court of South Carolina
considered this claim pursuant to its statutory duty to determine
"[w]hether the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor." S.C. CODE ANN.
§ 16-3-25(C)(1).

The issue of whether a claim not raised on direct appeal can be
exhausted for federal habeas corpus purposes if the claim falls within
a class of claims for which the state supreme court is statutorily
required to review is a question unresolved in this circuit. See Bennett
v. Angelone, 92 F.3d 1336, 1345 & n.6. (4th Cir. 1996) (declining to
address petitioner's contention that his claims challenging the prose-
cutor's sentencing-phase arguments and the constitutionality of Vir-

                    8
ginia "vileness" aggravating circumstance were exhausted even
though not raised on direct appeal to the Virginia Supreme Court
because the court necessarily reviewed these claims as part of its
mandatory review). At least one circuit has held that a claim not
raised on direct appeal can be exhausted for federal habeas corpus
purposes if the claim falls within a class of claims for which the state
supreme court was statutorily required to review. See Beam v.
Paskett, 3 F.3d 1301, 1306-07 (9th Cir. 1993), cert. denied, 116 S. Ct.
1631 (1994). In Beam, the petitioner failed to raise his claim that the
sentencing judge's application of the "continuing threat" aggravating
circumstance to him was unconstitutional on direct appeal to the
Idaho Supreme Court. Id. at 1306. Beam's claim was based on his
contention that the sentencing judge's reliance on Beam's past non-
violent, consensual or involuntary sexual conduct rendered the appli-
cation of the "continuing threat" aggravating circumstance to him
unconstitutional. Even though this claim was not raised before the
Idaho Supreme Court, the Ninth Circuit held the claim was exhausted
for federal habeas corpus purposes because the claim fell within a
class of claims for which the Idaho Supreme Court was required to
review when examining Beam's death sentence. Id. at 1306-07. Under
Idaho law, the Idaho Supreme Court was required to determine if
Beam's death sentence was "imposed under the influence of passion,
prejudice, or any other arbitrary factor." Id. at 1306. Under this
review, Idaho law required the court to consider certain types of
errors occurring at sentencing that were not raised or objected to at
trial. Id. The Ninth Circuit interpreted the mandatory review con-
ducted by the Idaho Supreme Court in Beam's case to include a
review of the constitutionality of the sentencing judge's application
of the "continuing threat" aggravating circumstance to Beam. Id. at
1307. The court reasoned that the sentencing judge's reliance upon
Beam's past non-violent, consensual or involuntary sexual conduct in
violation of the Eighth Amendment would "clearly constitute reliance
on an arbitrary factor." Id. Accordingly, the court held that, notwith-
standing Beam's failure to raise this claim to the Idaho Supreme
Court, the claim was exhausted for purposes of federal habeas corpus
review. Id.

In Nave v. Delo, the Eighth Circuit addressed a similar claim to that
raised in Beam. 62 F.3d 1024, 1038-39 (8th Cir. 1995), cert. denied,
116 S. Ct. 1837 (1996). In Nave, the court held that a jury instruction

                    9
on mitigating circumstances was not exhausted for federal habeas cor-
pus purposes notwithstanding the existence of a state statute that
required the state supreme court to review death sentences to deter-
mine if they were "imposed under the influence of passion, prejudice,
or any other arbitrary factor." Id. at 1039. The court reached this con-
clusion because, according to the court, Missouri law, unlike Idaho
law controlling in Beam, did not require the Missouri Supreme Court
to review Nave's death sentence for "instructional or constitutional
error." Id. The court also rejected Nave's contention that the mitigat-
ing circumstance instruction was an "arbitrary factor." Id. According
to the court, the phrase "arbitrary factor" was "a catch-all that [was]
intended to describe possible improper bases for the imposition of the
death penalty. This inquiry requires the court to ensure that the aggra-
vating factors relied upon by the jury constitute permissible grounds
under state law for imposing the death penalty." Id. The court went
on to conclude that Missouri law did not require the Missouri
Supreme Court "to review death penalty cases sua sponte for constitu-
tional or instructional errors not specified in the direct appeal." Id.

Matthews asks us to hold that his claim that the Ninth Circuit
Solicitor utilized his discretion in seeking the death penalty in a
racially discriminatory manner was exhausted for federal habeas cor-
pus purposes because the Supreme Court of South Carolina necessar-
ily reviewed this claim when it reviewed his death sentence pursuant
to its mandatory review under § 16-3-25(C)(1).

For purposes of our discussion, we will assume without deciding
that a claim not raised on direct appeal can be exhausted for federal
habeas corpus purposes if the claim falls within a class of claims for
which the state supreme court is statutorily required to review.5 This
assumption, however, is of no help to Matthews.

The Supreme Court of South Carolina reviews a death sentence
under § 16-3-25(C)(1) to determine "[w]hether the sentence of death
_________________________________________________________________
5 We recognized in Bennettthat "the spirit of Kornahrens is counter"
to the notion that a claim not raised on direct appeal can be exhausted
for federal habeas corpus purposes if the claim falls within a class of
claims for which the state supreme court is statutorily required to review.
92 F.3d at 1345 n.6.

                    10
was imposed under the influence of passion, prejudice, or any other
arbitrary factor." The review conducted by the Supreme Court of
South Carolina under this mandate is for claims falling within the
class of claims covered by this statutory provision. It follows that, at
a minimum, only those claims falling within the class of claims cov-
ered by § 16-3-25(C)(1) that appear in the trial record are reviewed
by the Supreme Court of South Carolina and, consequently, exhausted
for federal habeas corpus purposes. Cf. Beam, 3 F.3d at 1306-07
(claim that the sentencing judge erroneously applied the "continuing
threat" aggravating circumstance to Beam discernible from the record
before the Idaho Supreme Court). In short, if a claim allegedly falling
within the scope of § 16-3-25(C)(1) does not appear in the trial
record, there is nothing for the Supreme Court of South Carolina to
review under that section.

Matthews' claim that the Ninth Circuit Solicitor utilized his discre-
tion in seeking the death penalty in a racially discriminatory manner
did not appear in the record before the Supreme Court of South Caro-
lina because the claim was never raised in state court. Indeed, there
were no facts developed in the trial record that suggested the Ninth
Circuit Solicitor's decision to seek the death penalty was racially
motivated. Therefore, the claim could not have been reviewed by the
Supreme Court of South Carolina through its mandatory review under
§ 16-3-25(C)(1).

Because Matthews' claim is not exhausted for purposes of federal
habeas corpus review, Matthews' habeas corpus petition should be
dismissed unless the state unconditionally waived exhaustion, see
Sweezy, 694 F.2d at 331, or a South Carolina procedural rule would
bar consideration if the claim was later presented to the South Caro-
lina state courts, see Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S.
at 297-98; George, 100 F.3d at 363; Bassette, 915 F.2d at 937. The
State has not unconditionally waived exhaustion, so we are left with
the question of whether a South Carolina procedural rule would bar
consideration of this claim if it were presented to the Supreme Court
of South Carolina.

S.C. CODE ANN. § 17-27-90 provides in relevant part:

          All grounds for relief available to an applicant under this
          chapter must be raised in his original, supplemental or

                    11
          amended application. Any ground finally adjudicated or not
          so raised . . . may not be the basis for a subsequent applica-
          tion, unless the court finds a ground for relief asserted which
          for sufficient reason was not asserted or was inadequately
          raised in the original, supplemental or amended application.

According to the Supreme Court of South Carolina,§ 17-27-90 "for-
bids a successive PCR application unless an applicant can point to a
`sufficient reason' why the new grounds for relief he asserts were not
raised, or were not raised properly" in the first post-conviction relief
application (PCR). Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). In
other words, the applicant must point to facts and circumstances that
demonstrate "why the new grounds were not and could not have been
raised" in the first PCR application. Arnold v. State, 420 S.E.2d 834,
843 (S.C. 1992), cert. denied, 507 U.S. 927 (1993); see also Hunter
v. State, 244 S.E.2d 530, 533 (S.C. 1978) (successive application
barred where applicant was aware of claim at the time of the filing
of prior applications but did not raise it); cf. Aice, 409 S.E.2d at 394
("[T]he contention that prior PCR counsel was ineffective is not per
se a `sufficient reason' allowing for a successive application under
§ 17-27-90); Land v. State, 262 S.E.2d 735, 737 (S.C. 1980) (appli-
cant's conclusory assertion that PCR counsel was"inadequate" held
not a "sufficient reason" warranting a successive application).

The Supreme Court of South Carolina, however, has entertained
successive applications in cases in which the successive claims poten-
tially could have been raised in the first PCR application. These cases
involve very rare procedural circumstances. For example, the
Supreme Court of South Carolina permitted a successive application
where the applicant did not have counsel to assist in the preparation
of his first PCR application. See Case v. State , 289 S.E.2d 413, 413-
14 (S.C. 1982) (court permitted a successive application where the
applicant's first PCR application was filed without the benefit of
counsel and was dismissed without a hearing). In another case, the
Supreme Court of South Carolina permitted a successive application
where the applicant did not have PCR counsel that differed from his
trial counsel. See Carter v. State, 362 S.E.2d 20, 20-21 (S.C. 1987)
(court permitted a successive application where the applicant raised
the issue of ineffective assistance of trial counsel in his successive
application and trial counsel represented the applicant during his first

                    12
PCR application). Finally, the Supreme Court of South Carolina per-
mitted a successive application where the applicant, due to "so many
procedural irregularities," did not have direct review of a claim he
brought in his first and second PCR applications. Washington v. State,
1996 WL 663770, at *2 (S.C. November 12, 1996). 6
_________________________________________________________________
6 In Washington, Washington's direct appeal was dismissed because his
attorney failed to file an initial brief. 1996 WL 663770, at *1. In his first
PCR application, Washington raised numerous issues including one
related to the State's misconduct in connection with a plea agreement. Id.
The PCR court found that Washington did not waive his right to direct
appeal and should be afforded the opportunity to appeal. As to the State's
misconduct, the PCR court found that the State failed to adequately
explain to the jury the State's relationship with one of its witnesses;
nonetheless, the PCR court refused to grant a new trial, opining that the
claim could be raised on direct appeal. Id. Washington sought review of
his misconduct claim before the Supreme Court of South Carolina, but
the Supreme Court of South Carolina denied his petition for writ of cer-
tiorari as to that issue. Washington then filed a second PCR application,
again raising the misconduct issue. Id. Before the PCR court, Washing-
ton also filed a motion to alter or amend the order denying his first PCR
application. The PCR court granted the motion to amend, and amended
its order to grant Washington a new trial. Id. Before the Supreme Court
of South Carolina, the State contended that § 17-27-90 barred Washing-
ton's second PCR application. The court rejected this contention.
Although the court recognized that Washington's second PCR applica-
tion was successive "under a hyper-technical analysis," the court con-
cluded that § 17-27-90 did not bar Washington's second PCR application
because of "the unique factual circumstances" presented. Id. at *2. The
"unique factual circumstances" were:

         He did not have the benefit of a direct appeal, because his attor-
         ney failed to file an appellate brief. Moreover, the first PCR
         court decided, in effect, that Washington was entitled to a new
         trial, but allowed the relief to be addressed on direct appeal;
         however, this Court denied certiorari as to the question. Addi-
         tionally, the second PCR court granted relief, but did so through
         an improper procedure, specifically, by amending the first order.
         Thus, Washington has never received the benefit of a direct
         review. Even if his application is successive, the unique combi-
         nation of facts in this case entitle him to the relief granted below.

Id.

                   13
The South Carolina case law discussed above demonstrates that,
absent sufficient reason for not raising a claim in a first PCR applica-
tion or very rare procedural circumstances, § 17-27-90 bars the claim
in a successive application. This interpretation is consistent with the
Supreme Court of South Carolina's commitment to ensure that all
defendants have a full and fair opportunity to present claims in one
PCR application, thereby preventing an applicant from receiving
more than "one bite at the apple as it were." Gamble v. State, 379
S.E.2d 118, 119 (S.C. 1989). In Case, Carter, and Washington, the
applicant never received a full bite at the apple because the applicant
was essentially prevented--through no fault of his own--from fairly
presenting his claims and/or having his claims adjudicated in the ini-
tial PCR application. In contrast, the applicants in Arnold and Hunter
had a full bite at the apple. And the applicants in Aice and Land were
presumed to have a full bite at the apple absent a specific showing of
facts and circumstances that PCR counsel was ineffective.

In this case, Matthews had a full bite at the apple. During his state
PCR proceeding, he enjoyed the benefit of competent counsel, a hear-
ing, and a full and fair adjudication of his claims. In this court, he has
not demonstrated a "sufficient reason" why his claim that the Ninth
Circuit Solicitor utilized his discretion in seeking the death penalty in
this case in a racially discriminatory manner was not raised in his
state PCR application. In addition, Matthews has failed to demon-
strate that his case is on the same procedural playing field as Case,
Carter, or Washington. Accordingly, we are convinced beyond doubt
that if this claim was presented to the Supreme Court of South Caro-
lina, the claim would be barred as successive under§ 17-27-90.

We may excuse Matthews' procedural default if he"can demon-
strate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to con-
sider the claim[ ] will result in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750. The "fundamental miscarriage of justice"
exception is available to those who are actually innocent. Murray v.
Carrier, 477 U.S. 478, 495-96 (1986). The exception is also available
to those who are actually innocent of the death penalty. Sawyer v.
Whitley, 505 U.S. 333, 350 (1992). To be actually innocent of the
death penalty, the petitioner must prove by clear and convincing evi-

                     14
dence that but for the constitutional error, no reasonable juror would
have found the petitioner eligible for the death penalty. Id.

The record is clear that Matthews has not established cause for the
default or that a fundamental miscarriage of justice would result by
our failure to consider his claim. Therefore, we cannot address the
merits of his claim that the Ninth Circuit Solicitor utilized his discre-
tion in seeking the death penalty in a racially discriminatory manner.

B

Matthews argues that the prosecutor's use of peremptory chal-
lenges to exclude black veniremen from the sentencing jury at his
sentencing retrial violated his equal protection rights. The Supreme
Court has held that it is "impermissible for a prosecutor to use his
challenges to exclude blacks from the jury `for reasons wholly unre-
lated to the outcome of the particular case on trial' or to deny blacks
`the same right and opportunity to participate in the administration of
justice enjoyed by the white population.'" Batson v. Kentucky, 476
U.S. 79, 91 (1986) (quoting Swain v. Alabama, 380 U.S. 202, 224
(1965)).

When a Batson challenge is made, the trial court must conduct a
three-part inquiry. First, the opponent of the challenge has to make
out a prima facie case of discrimination. Hernandez v. New York, 500
U.S. 352, 358 (1991) (plurality opinion); Batson , 476 U.S. at 96.7
Second, if a prima facie case of discrimination is made, the burden
then shifts to the proponent of the challenge to come forward with a
neutral explanation for the challenge. Hernandez , 500 U.S. at 358-59;
Batson, 476 U.S. at 97. The explanation need not be "persuasive, or
even plausible," as long as it is neutral. Purkett v. Elem, 115 S. Ct.
_________________________________________________________________
7 For a defendant to establish a prima facie violation of racial discrimi-
nation in the use of peremptory challenges, the defendant must show
that: (1) "he is a member of a cognizable racial group"; (2) "that the pros-
ecutor has exercised peremptory challenges to remove from the venire
members of the defendant's race"; and (3) "that these facts and any other
relevant circumstances raise an inference that the prosecutor used that
practice to exclude the veniremen from the petit jury on account of their
race." Batson, 476 U.S. at 96.

                     15
1769, 1771 (1995). In other words, unless a discriminatory intent is
inherent in the explanation offered to defend a peremptory challenge,
"`the reason offered will be deemed race neutral.'" Id. (quoting
Hernandez, 500 U.S. at 360). Third, if parts one and two are satisfied,
the trial court must then decide whether the opponent of the strike has
proved "purposeful discrimination." Id. at 1771. The ultimate burden
always rests with the opponent of the challenge to demonstrate pur-
poseful discrimination. Hernandez, 500 U.S. at 363-64. Because the
findings of the trial court turn largely on credibility determinations,
they are given great deference. Id. at 364-65.

At Matthews' sentencing retrial, the prosecutor used all of his
peremptory challenges to exclude five blacks, Carl Ellis, Nellie Fra-
zier, Joe Ann Hunt, Patricia Middleton, and Rebecca McDonald. The
prosecutor's challenges resulted in a jury of seven whites and five
blacks. Matthews' counsel then made a motion for mistrial under the
authority of Batson. The sentencing judge questioned whether a prima
facie case of discrimination was made in view of the fact that five
blacks were on the jury,8 but nonetheless required the prosecutor to
state his reasons for the challenges.

The prosecutor then explained his reasons for the challenges. Ellis
was struck because: (1) he "indicated it really wasn't his decision [to
impose the death penalty]; that he would let the Lord make that deci-
sion and whatever the Lord told him to do he would do" and (2) he
"had a criminal record." Transcript of Sentencing Retrial at 524-25.
Frazier was struck because she was the mother of a State (South Caro-
lina) Law Enforcement Division agent who was a good friend of a
prospective state witness, detective Chevy Harris. Joe Ann Hunt was
struck because she had "at least fifty fraudulent check convictions."
Id. at 526. Middleton was struck because she equivocated repeatedly
about her ability to impose the death penalty, stating once that she
_________________________________________________________________
8 A Batson violation can occur notwithstanding the fact that members
of the defendant's racial group are seated on the jury. "[S]triking only
one black prospective juror for a discriminatory reason violates a black
defendant's equal protection rights, even when other black jurors are
seated and even when valid reasons are articulated for challenges to other
black prospective jurors." United States v. Lane, 866 F.2d 103, 105 (4th
Cir. 1989).

                    16
could not impose the death penalty under any circumstances and later
stating that she thought she could. Finally, McDonald was struck
because she lived on the same street as Matthews and knew some of
his family, including Matthews' grandmother.

Matthews offered no rebuttal evidence that the prosecutor's justifi-
cations for exercising the challenges were a pretext for discrimination.
Thereafter, the sentencing judge found that the prosecutor's explana-
tion "justif[ied] the striking" of the five black veniremen. Id. at 528.

Because the prosecutor offered a race-neutral explanation in
response to Matthews' objection, the preliminary issue of whether
Matthews established a prima facie case of discrimination is moot.
See Hernandez, 500 U.S. at 359. As to the prosecutor's reasons for
the challenges, all of the reasons advanced by the prosecutor were
facially neutral--the reasons set forth by the prosecutor are clearly
unrelated to the race of the veniremen. Under Purkett and Hernandez,
that is all the law requires. Purkett, 115 S. Ct. at 1771; Hernandez,
500 U.S. at 359-60. Moreover, there has been no showing that the rea-
sons set forth by the prosecutor were pretextual. Indeed, Matthews
made no attempt to show pretext at trial.

Matthews argues that similarly situated white jurors were not
struck by the prosecutor, and, therefore, the facially neutral reasons
set forth by the prosector were a pretext for intentional discrimination.
This argument must be rejected.

To begin with, Batson is not violated whenever two veniremen of
different races provide the same responses and one is excused and the
other is not. Burks v. Borg, 27 F.3d 1424, 1427 (9th Cir. 1994), cert.
denied, 115 S. Ct. 1122 (1995). This is so because counsel must be
entitled to make credibility determinations in exercising peremptory
challenges. Indeed,

          counsel is entitled to take account of the characteristics of
          the other prospective jurors against whom peremptory chal-
          lenges might be exercised; to reevaluate the mix of jurors
          and the weight he gives to various characteristics as he
          begins to exhaust his peremptory challenges; and to take
          into account tone, demeanor, facial expression, emphasis--

                    17
          all those factors that make the words uttered by the prospec-
          tive juror convincing or not.

Id. at 1429.

In any event, the white jurors complained of by Matthews were not
similarly situated to the black jurors whom the prosecutor challenged.
As to Ellis and Hunt, the record is devoid of evidence that any white
juror seated had a criminal record. As to Frazier, there is no evidence
that any white juror had a member of their immediate family who was
friends with a prospective witness. With respect to Middleton, Mat-
thews argues that several white jurors who also expressed some reser-
vations about imposing the death penalty were not struck. However,
comparison of Middleton to these jurors is inappropriate because to
the extent that these white jurors expressed doubts about imposition
of the death penalty, their doubts were unmistakably not as strong as
Middleton's. Accordingly, Ellis, Hunt, Frazier, and Middleton were
not similarly situated to any of the white jurors seated. Finally, Mat-
thews argues that McDonald was similarly situated with a white juror
who was not struck, Athena Gazes, because Gazes was the aunt of
one of Matthews' counsel's partners. McDonald and Gazes were not
similarly situated for the obvious reason that living on the same street
of the defendant and being acquainted with his family, as McDonald
was, is dissimilar to being the aunt of one of Matthews' counsel's
partners. In summary, in the absence of any evidence of pretext, there
was simply no intentional discrimination in the selection of the sen-
tencing jury at Matthews' sentencing retrial.

C

Matthews contends that the district court erred when it concluded
that counsel provided effective assistance at his sentencing retrial.
According to Matthews, his counsel were ineffective for failing: (1)
to investigate and present evidence of his brain damage due to expo-
sure to lead and (2) to redact portions of letters written by Matthews
that were introduced into evidence.

The test for reviewing claims of ineffective assistance of counsel
is well established. First, the petitioner must demonstrate counsel's
performance fell below an objective standard of reasonableness.

                    18
Strickland v. Washington, 466 U.S. 668, 687-91 (1984). In other
words, the petitioner must demonstrate counsel's performance was
"deficient." Griffin v. Warden, 970 F.2d 1355, 1357 (4th Cir. 1992).
"`Deficient performance'" is not merely below-average performance;
rather, the attorney's actions must fall below the wide range of profes-
sionally competent performance. Id. Second,"[t]he defendant must
show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to under-
mine confidence in the outcome." Strickland , 466 U.S. at 694. "Be-
cause 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 ques-
tion." Griffin, 970 F.2d at 1357. Finally, we must presume counsel's
assistance was effective:

          Judicial scrutiny of counsel's performance must be highly
          deferential. . . . A fair assessment of attorney performance
          requires that every effort be made to eliminate the distorting
          effects of hindsight, to reconstruct the circumstances of
          counsel's challenged conduct, and to evaluate the conduct
          from counsel's perspective at the time. Because of the diffi-
          culties inherent in making the evaluation, a court must
          indulge a strong presumption that counsel's conduct falls
          within the wide range of reasonable professional assistance;
          that is, the defendant must overcome the presumption that,
          under the circumstances, the challenged action might be
          considered sound trial strategy.

Strickland, 466 U.S. at 689 (citation and internal quotes omitted).

1

Matthews claims that because he lived in "one of the most lead
contaminated houses in the most lead contaminated neighborhood[ ]
in the most lead contaminated city in the United States," Petitioner's
Brief at 51-52, and showed various signs of brain damage due to lead
exposure,9 his counsel at his sentencing retrial were constitutionally
_________________________________________________________________
9 These signs included, among others, poor school performance
records, low I.Q. scores, and Matthews' attention deficit disorder.

                     19
ineffective for failing to investigate, develop, and present evidence of
his brain damage due to lead exposure. As Matthews' argument goes,
had his counsel (Michael O'Connell and Michael Scardato) presented
evidence of his brain damage due to lead exposure, the jury would
have found this to be a mitigating factor, resulting in a sentence of life
imprisonment. We disagree.

With respect to investigating mitigating evidence, counsel's perfor-
mance is deficient if he fails to make a reasonable investigation for
possible mitigating evidence. See Lambrix v. Singletary, 72 F.3d
1500, 1504 (11th Cir. 1996). In the context of whether an attorney's
investigation into matters that might aid his client constitutes a defi-
cient performance, the Supreme Court has said:

          [S]trategic choices made after less than complete investiga-
          tion are reasonable precisely to the extent that reasonable
          professional judgments support the limitations on investiga-
          tion. In other words, counsel has a duty to make reasonable
          investigations or to make a reasonable decision that makes
          particular investigations unnecessary. In any ineffectiveness
          case, a particular decision not to investigate must be directly
          assessed for reasonableness in all the circumstances, apply-
          ing a heavy measure of deference to counsel's judgments.

          The reasonableness of counsel's actions may be determined
          or substantially influenced by the defendant's own state-
          ments or actions. Counsel's actions are usually based, quite
          properly, on informed strategic choices made by the defen-
          dant and on information supplied by the defendant. In par-
          ticular, what investigation decisions are reasonable depends
          critically upon such information. . . . [W]hen a defendant
          has given counsel reason to believe that pursuing certain
          investigations would be fruitless or even harmful, counsel's
          failure to pursue those investigations may not later be chal-
          lenged as unreasonable.

Strickland, 466 U.S. at 690-91.

In this case, counsel for Matthews undertook substantial efforts to
find mitigating evidence, enlisting the aid of two experts, a psychia-

                     20
trist, Dr. John Outz, III, and a psychologist, Dr. Gordon Kimbrell,
interviewing numerous family members, and reviewing all of Mat-
thews' school and social service records, and records of his earlier
encounters with the law. Throughout the entire investigation into miti-
gating evidence, counsel for Matthews were never given information
that Matthews suffered from brain damage due to lead exposure.

At the sentencing retrial, Matthews' case in mitigation focused on
his poor upbringing, poor performance in school, low I.Q., and adapt-
ability to prison life. Numerous witnesses testified at the sentencing
retrial regarding each of these facts. In all, approximately fifteen wit-
nesses testified on behalf of Matthews at his sentencing retrial.

At the state PCR hearing, Matthews presented voluminous evi-
dence in support of his claim that he suffers from brain damage due
to exposure to lead. The PCR court found that Matthews did not suf-
fer from brain damage due to lead exposure. See (J.A. 968) ("I find
that Applicant has failed to establish that any brain damage existed in
the Applicant at the time of the murder and has failed to establish that
the damage, if any, contributed to the Applicant's actions in commit-
ting the murder.").

Although counsel has the obligation to conduct a reasonable inves-
tigation even if the defendant is reluctant to cooperate, Blanco v.
Singletary, 943 F.2d 1477, 1503 (11th Cir. 1991), cert. denied, 504
U.S. 943, 946 (1992), counsel is not deficient for failing to find miti-
gating evidence if, after a reasonable investigation, nothing has put
the counsel on notice of the existence of that evidence, Barnes v.
Thompson, 58 F.3d 971, 980 (4th Cir.) (counsel not ineffective for
failure to discover defendant's childhood abuse or mental impairment
when petitioner and family members gave no indication that such evi-
dence existed), cert. denied, 116 S. Ct. 435 (1995); see also Lambrix,
72 F.3d at 1505-06 (counsel's performance not deficient for failing to
investigate and introduce evidence of petitioner's childhood abuse
where extensive investigation into mitigating evidence produced no
evidence of childhood abuse).

In this case, as noted above, counsels' investigation for the sentenc-
ing retrial was extensive. Even after an extensive investigation,
including interviews with numerous witnesses, including family

                     21
members, a psychiatrist and psychologist, counsel had no indication
that evidence of brain damage due to lead exposure existed. In short,
Matthews has not shown that counsels' failure to investigate and pres-
ent evidence of brain damage due to lead exposure was constitution-
ally deficient.10

2

Matthews also claims his counsel at his sentencing retrial were
ineffective for failing to move the sentencing court to further redact
letters written by him that were introduced into evidence. This argu-
ment is without merit.

Prior to Matthews' sentencing retrial, he made a motion in limine
to exclude two letters written by him following his first trial. The let-
ters covered a variety of subjects, including references to crime, Mat-
thews' potential appeals, and other, more personal information. The
sentencing judge denied the motion. Matthews then asked the sen-
tencing judge to redact any references in the letters to the first trial,
death row, and his exercise of his appellate rights. The sentencing
judge granted this request. At Matthews' sentencing retrial, the
redacted letters were introduced into evidence. As redacted, each let-
ter contained profanity and the phrases "sitting down smoking a good
joint" and "if I ever get out of this shit." Transcript of Sentencing
Retrial at 1323, 1325.

At the PCR hearing, O'Connell testified that he attempted to get
any damaging information removed from the letters but, as was evi-
denced from the sentencing judge's ruling that the letters were admis-
sible, he was not going to prevent the jury from seeing the letters.
O'Connell further testified that once the motion to suppress was
denied, he asked for redaction of as much as he believed he could get,
but preferred not to anger the sentencing judge by asking for deletions
he did not believe would be allowed. A judgment call of this kind cer-
_________________________________________________________________
10 In light of our conclusion, we need not address Matthews' argument
that the PCR court's finding that he did not suffer brain damage due to
lead exposure, which is presumed to be correct under 28 U.S.C.
§ 2254(d), "lacked even `fair support' in the record." Marshall v.
Lonberger, 459 U.S. 422, 432 (1989).

                     22
tainly falls within the range of acceptable strategic decision-making
and cannot be considered deficient. Cf. United States v. Kozinski, 16
F.3d 795, 813 (7th Cir. 1994) (decision whether to call witness
afforded "enormous deference"); Goodson v. United States, 564 F.2d
1071, 1072 (4th Cir. 1977) (decision to call witness a tactical decision).11

D

Matthews contends that the sentencing judge's refusal to answer
voir dire questions prior to his sentencing retrial violated his constitu-
tional right to a fair trial. We disagree.

Prior to his sentencing retrial, Matthews made a motion requesting
the sentencing judge to submit to voir dire examination on:

          the Court's attitude toward the death penalty in general, the
          appropriateness of the death penalty in this case, whether the
          Court has expressed public opinions about the death penalty
          and what those opinions are, whether the Court was called
          on to vote on legislation concerning the death penalty while
          the Court was a member of the legislature and what that
          vote or votes were, whether the Court has any connection
          with the family of the deceased victim in this case, whether
          the Court's knowledge of this case through any means pub-
          lic or not would have any effect on the Court's decision on
          the appropriate penalty in this case and what that effect
          would be, whether the Court could consider a sentence of
          life imprisonment in a case of this type.

Appendix to Second Petition for Writ of Certiorari to the Supreme
Court of South Carolina at 1727. According to Matthews, the purpose
of the motion was to assist him in deciding whether to be resentenced
_________________________________________________________________
11 Matthews also argues that his counsel were ineffective for failing to
investigate and present evidence of the effect of Matthews' mother's
alcoholism, neglect, and emotional abuse on him. This argument is with-
out merit. The record reflects that counsel for Matthews investigated
Matthews' background, were aware of Matthews' mother's alcoholism
and his poor upbringing, and presented evidence along these lines at the
sentencing retrial.

                     23
by a jury or a judge. See S.C. ANN. § 16-3-25(E) (providing trial by
jury for capital defendant's resentencing unless the capital defendant
waives trial by jury). The sentencing judge offered the following
response to the motion:

          The only thing I can state in that regard is I was in the legis-
          lature when the death penalty was, quote, reenacted, and I
          voted in favor of that. . . .

          I don't know anybody with the family. I've never met any-
          body in the family at all. The only knowledge I have is from
          the newspaper accounts back at that time. . . .

          How I feel about the appropriateness of the death penalty in
          this case, whether I've expressed public opinions about the
          death penalty, what those opinions are; whether I would
          consider a life imprisonment--those types of things. I would
          decline to answer that.

Transcript of Sentencing Retrial at 44-45.

Prior to the commencement of voir dire examination, the issue was
raised again. At that time, the sentencing judge stated:

          As a member of the judiciary, [I am], of course, governed
          by certain requirements. A jury in and of themselves--they
          are not subject to the rules of ethical standards that judges
          are and the case law and other requirements placed upon a
          judge.

          Because of that, I would say that I could not preside over a
          case unless--if I felt I was anything less than impartial in
          regard to the Defendant and the facts of the case. As you
          know, I would obviously be required to recuse myself.
          That's the position that I'm in in this case, that if I felt that
          I would have any reason to recuse myself then I would do
          so.

          But I am not going to establish and do not think I should or
          that it would be appropriate for me to establish precedent by

                     24
          allowing voir dire of judges. So I decline to do that but with
          the statement that if there was any question about impartial-
          ity I would recuse myself from the case.

Id. at 90-91.

On direct appeal, the Supreme Court of South Carolina rejected
Matthews' contention that the sentencing judge's refusal to answer
voir dire questions prior to his sentencing retrial violated his constitu-
tional right to a fair trial, explaining:

          This State's capital sentencing scheme contains no provision
          for voir dire examination of a trial judge, nor do we believe
          one is necessary. A judge's oath requires him to follow and
          uphold the law in all cases, including capital cases. Had
          appellant waived the jury and chosen sentencing by the
          court, the judge would have been required to consider appli-
          cable mitigating and aggravating circumstances under§ 16-
          3-20(C) before imposing a sentence. The judge is entitled to
          a presumption that he would have done so, regardless of his
          "personal beliefs" about capital punishment. The judge here
          did not abuse his discretion in refusing to submit to voir dire
          examination.

State v. Matthews, 373 S.E.2d at 590.

We agree with the Supreme Court of South Carolina that Mat-
thews' claim lacks merit. We are aware of no authority, federal or
state, that requires a trial judge to submit to voir dire examination. In
addition, we see no plausible reason to create such a rule in this case.
This is especially true since South Carolina law provides an appropri-
ate vehicle to obtain recusal of a judge if the facts and circumstances
so warrant. See Rogers v. Wilkins, 267 S.E.2d 86, 87-88 (S.C. 1980)
(motion to recuse must be made during proceeding and show actual
judicial prejudice pursuant to S.C. App. Ct. R. 501, Code of Jud. Con-
duct, Canon 3(C)). Finally, if we held that Matthews' constitutional
right to a fair trial was violated by the sentencing judge's refusal to
answer his proposed voir dire questions, such a holding would cer-
tainly constitute a new rule under Teague. See 489 U.S. at 316 (absent

                     25
two exceptions inapplicable here, new constitutional rules of criminal
procedure are not retroactive on collateral review).

E

Finally, Matthews argues that premature juror deliberations at his
sentencing retrial deprived him of a fair trial. This claim was not
raised in state court. For the reasons stated in Part IIA of this opinion,
we are procedurally barred from reviewing this claim.

III

For the reasons stated herein, the judgment of the district court is
affirmed.12

AFFIRMED
_________________________________________________________________
12 The State argues that this appeal is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, 110 Stat. 1214 (April 24, 1996) (the Act). Because Matthews'
claims are either procedurally barred or meritless under the more lenient
pre-existing standards, we have no occasion to consider whether the Act
provides a basis for relief. Indeed, we are confident the Act is of no help
to Matthews.

                     26
