                                                    Volume 1 of 2

                ON REHEARING EN BANC
                     PUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


SHAWN PAUL HUMPHRIES,                 
             Petitioner-Appellant,
                v.
JON E. OZMINT, Director, South
Carolina Department of Corrections;             No. 03-14
HENRY DARGAN MCMASTER,
Attorney General, State of South
Carolina,
            Respondents-Appellees.
                                      
          Appeal from the United States District Court
         for the District of South Carolina, at Anderson.
          Joseph F. Anderson, Jr., Chief District Judge.
                       (CA-02-4276-8-17BI)

                     Argued: October 27, 2004

                     Decided: February 4, 2005

   Before WILKINS, Chief Judge, WIDENER, WILKINSON,
    NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,
 TRAXLER, KING, GREGORY, SHEDD, and DUNCAN, Circuit
        Judges, and HAMILTON, Senior Circuit Judge.



Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Chief Judge Wilkins and Judges Widener, Nie-
meyer, Luttig, Williams, Motz, Traxler, King, and Shedd joined.
2                         HUMPHRIES v. OZMINT
Judge Luttig wrote a concurring opinion. Judge Wilkinson wrote a
dissenting opinion, in which Judges Michael, Gregory, and Duncan
joined.


                               COUNSEL

ARGUED: Teresa Lynn Norris, CENTER FOR CAPITAL LITIGA-
TION, Columbia, South Carolina, for Appellant. Donald John
Zelenka, Chief Deputy Attorney General, OFFICE OF THE ATTOR-
NEY GENERAL OF SOUTH CAROLINA, Columbia, South Caro-
lina, for Appellees. ON BRIEF: Thomas R. Haggard, Ridgeway,
South Carolina; Joseph Maggiacomo, CENTER FOR CAPITAL LIT-
IGATION, Columbia, South Carolina, for Appellant. Henry Dargan
McMaster, Attorney General, John W. McIntosh, Chief Deputy Attor-
ney General, Columbia, South Carolina, for Appellees.


                               OPINION

HAMILTON, Senior Circuit Judge:

   On August 5, 1994, Shawn Paul Humphries was convicted in the
Circuit Court for Greenville County, South Carolina of murder,
attempted robbery, possession of a firearm during the commission of
a violent crime, and criminal conspiracy. Following a sentencing
hearing, the jury recommended a sentence of death for the murder
conviction and, in accordance with the jury’s verdict, the state trial
court sentenced Humphries to death for that conviction. After
exhausting his state remedies, Humphries filed a petition for a writ of
habeas corpus in the United States District Court for the District of
South Carolina, 28 U.S.C. § 2254, which the district court dismissed.1
  1
    Initially, Humphries named Gary Maynard, former commissioner of
the South Carolina Department of Corrections, and Charles Condon,
South Carolina’s former attorney general, as respondents. Now, Jon
Ozmint and Henry McMaster, respectively, hold these positions and have
been substituted as respondents, Fed. R. Civ. P. 25(d)(1). For ease of ref-
erence, we will refer to respondents as "the State" throughout this opin-
ion.
                         HUMPHRIES v. OZMINT                          3
On July 25, 2005, the district court granted Humphries a certificate
of appealability, 28 U.S.C. § 2253. For the reasons stated below, we
affirm the district court’s dismissal of Humphries’s habeas petition.

                                   I

   As found by the South Carolina Supreme Court on direct appeal,
the facts of this case are as follows:

    On January 1, 1994, Humphries shot Dickie Smith, the
    owner of the Max-Saver convenience store in Fountain Inn,
    South Carolina. The evidence at trial established that on the
    night before the killing, Humphries and his friend Eddie
    Blackwell drove around drinking beer. They also stole a gun
    that night. Shortly after 7:00 a.m. on January 1, they entered
    the Max-Saver convenience store. Smith, who was working
    in the store, asked Humphries whether he wanted something
    hot, and Humphries flashed the stolen gun and replied that
    he wanted money.

    There was some evidence to suggest Smith then reached
    under a counter to pull out a gun. The video camera at the
    store recorded the shooting. When Smith reached under the
    counter, Humphries fired a shot in Smith’s direction and
    fled from the store. The bullet fired by Humphries struck
    Smith in the head, killing him. Meanwhile, Blackwell
    slumped to the ground in the store. The police arrested
    Blackwell at the scene and apprehended Humphries later
    that day.

State v. Humphries, 479 S.E.2d 52, 53 (S.C. 1996).

   On July 12, 1994, a Greenville County grand jury charged Humph-
ries with the following offenses: (1) murder; (2) attempted robbery;
(3) possession of a firearm during the commission of a violent crime;
and (4) criminal conspiracy. On August 1, 1994, the case went to trial
and the jury returned a verdict of guilty on all counts.

   During the separate sentencing phase of Humphries’s trial, the
solicitor proffered, and the state trial court admitted, all of the evi-
4                        HUMPHRIES v. OZMINT
dence that was admitted during the guilt phase of the trial. Following
the court’s admission of this evidence, the solicitor called two wit-
nesses from Dickie Smith’s family, his brother Randy Smith and his
wife Pat Smith. These witnesses testified about Dickie Smith’s child-
hood, upbringing, work ethic, generosity, and close relationship with
his young daughter Ashley.

   Randy Smith testified that he and Dickie Smith grew up in a poor
family that did not have hot water. When Dickie Smith was nine-
years old, his father died. After his father’s death, Smith and the other
family members began working to support the family. Randy Smith
testified that, when Dickie Smith was in the ninth grade, he took a job
after school as a meat cutter at a Bi-Lo grocery store, working until
10:00 or 11:00 p.m. at night. In the tenth grade, Dickie Smith
acquired a full-time job working second shift in a textile mill while
continuing to attend school. Randy Smith testified everyone in the
community liked Dickie Smith and he was a good person.

   During her testimony, Pat Smith described Dickie Smith as ambi-
tious, hardworking, and generous. For instance, after receiving one
technical degree and becoming a supervisor, Dickie Smith went back
to school to get his residential home builder’s license and began
building houses in 1986. Ashley was born in 1988. Pat Smith
described Dickie Smith and Ashley’s relationship as very close and
testified that Ashley was having a hard time since her father was
killed and was receiving counseling.

   Following this testimony, the state moved to admit a photograph of
the crime scene and documentary evidence demonstrating that Hum-
phries was adjudicated as delinquent in 1985 for two breaking and
enterings, convicted in 1989 in Anderson County, South Carolina of
burglary and larceny, and convicted of larceny in Alabama in 1990.

   In terms of making a case in mitigation, Humphries’s strategy was
four-fold. First, he sought to establish that there was no intent to kill
by demonstrating that: (1) he pulled the trigger after he panicked in
reaction to Dickie Smith’s attempt to reach under the counter; (2) he
did not kill Donna Brashier who was also in the store during the
shooting; (3) he drove off without Eddie Blackwell; and (4) he volun-
tarily confessed to the killing. Next, Humphries sought to demonstrate
                         HUMPHRIES v. OZMINT                           5
that he was a nonviolent person who had no significant history of
engaging in violent acts. He also sought to show that he was a young
man who had an extensive history of emotional, physical, and sub-
stance abuse. Finally, Humphries sought to show that he was a trust-
worthy, respectful, and pleasant person.

   In support of this strategy, Humphries called thirteen witnesses.
The first witness was Albert Humphries, Humphries’s paternal grand-
father. He testified that Humphries and his brother, Richard Humph-
ries, lived with him and Humphries’s grandmother from the time
Humphries was three-years old until Humphries was twelve-years
old. Albert Humphries testified that he and his wife were heavy drink-
ers and that his wife grew marijuana in their backyard. Albert Hum-
phries described his son, Humphries’s father, as unpredictably
violent, noting that he had been to prison several times. Albert Hum-
phries testified that his son had cut him on the arm with a knife and
had kicked Humphries’s grandmother in the face, knocking her false
teeth out.

   Patricia Goode, Humphries’s aunt, testified that Humphries’s father
had said on numerous occasions that he never loved his children and
that the children should have been aborted.

   Humphries’s mother, Carla Scott, testified that, after she left Hum-
phries’s father, she became pregnant with Humphries as a result of his
father raping her at knife point. She stated that she eventually left the
children with their paternal grandparents and married several more
times. She reunited with the children only after she married someone
who would allow the children to live with her.

   Scott also discussed Humphries’s criminal record. According to
Scott, Humphries was arrested in 1984 for two counts of breaking and
entering and was placed on probation. Thereafter, he was given more
probation after he was suspended from school for fighting several
times. After Humphries’s second probation revocation when he was
fifteen years old, he was sent to a state facility in Columbia, South
Carolina for thirty days and was placed on probation again. Humph-
ries was arrested in January 1989 for breaking into a church, appar-
ently looking for food because he had been living on the street for a
week. Humphries pled guilty to that charge and was placed on proba-
6                       HUMPHRIES v. OZMINT
tion. In 1990, Humphries was charged in Alabama with stealing an
automobile. As a result of that charge, Humphries was sentenced to
two years’ imprisonment followed by four years of probation.

   Debbie Humphries, Humphries’s step-mother, testified that Hum-
phries’s father used a combination of alcohol, drugs, and paint fumes
every day and had shared those substances with Humphries from
1983 to 1992. Richard Humphries, Humphries’s brother, testified
regarding the circumstances in which he and Humphries grew up,
including: (1) their father’s violence toward his own parents; (2) the
lack of hot water and sometimes running water; (3) the lack of food;
and (4) the trips taken to the dumpsters to find school clothes.2

  Preston Taylor testified that, when he was employed by the Depart-
ment of Youth Services, he had numerous contacts with Humphries,
who was thirteen at the time. According to Preston Taylor, Humphries
was a pleasant, respectful, cooperative, and nonviolent boy.

   Mary Shults, an expert witness with a degree in sociology and a
master’s degree in social work, testified regarding Humphries’s social
history. She related that Humphries had been reminded throughout his
life that he was a product of rape. Shults stated that Humphries’s
father was incredibly violent, would kick people in the face, cut peo-
ple, and would refer to himself as Satan. In addition, Shults testified
Humphries’s father introduced Humphries to drugs and alcohol
between the ages of six and ten.

   Humphries’s case in mitigation was closed with the testimony of
three witnesses, two family friends (Tammy Compton and David
Shaw) and his step-sister, Jamie Scott. Tammy Compton testified she
trusted Humphries enough to leave her children with him and David
Shaw testified Humphries was a good, nonviolent person. Jamie Scott
testified she loved her step-brother a lot and wanted to see the jury
return a life sentence.
    2
   The unfortunate circumstances of Humphries’s upbringing were fur-
ther confirmed by the testimony of two other witnesses, Ruby Badsen,
Humphries’s maternal grandmother, and Lindsay Badsen, Humphries’s
uncle.
                          HUMPHRIES v. OZMINT                            7
   Before the state trial court gave the jury its final instructions, the
solicitor and counsel for Humphries gave their closing arguments. In
his closing argument, the solicitor broke his argument down into four
parts, commenting to the jury that

      [y]ou look at four things in deciding the issue of punish-
      ment. You look at the aggravation. Is it an aggravated mur-
      der? You look at the character of the Defendant. You look
      at any mitigation, statutory mitigation or other mitigation
      they’ve presented to you. And the last thing you look at is
      the victim, his uniqueness. What harm to the community
      and to the victim and to the family did this Defendant
      cause? Those are the four things you look at.

The solicitor then turned his attention to the evidence in aggravation.
The solicitor argued that the evidence in this case clearly established
the statutory aggravating circumstance relied upon by the State, that
the murder was committed during the commission of a robbery while
Humphries was armed with a deadly weapon.3 Then, the solicitor
turned to Humphries’s character and summarized Humphries’s check-
ered past in great detail, stating:

      He’s been in trouble since he was 13 years old. When he
      was 13 years old, he committed two breaking and enterings,
      and he was given probation. He was given a chance by the
      Family Court judge at age 13.

      He missed school. He got in fights at school. He got sus-
      pended at school. He ran away. And so they brought him
      back in at age 14 on a probation revocation, and he was
      given yet another chance, stricter conditions. And again, he
      skipped school. He ran away. He was disruptive in school.
      He got suspended.
  3
   The jury was presented with one aggravating circumstance (murder
committed during the commission of a robbery while armed with a
deadly weapon) and two statutory mitigating circumstances (no signifi-
cant prior criminal history and the age of the defendant). The jury was
also instructed to consider any other circumstances it found to be mitigat-
ing.
8                       HUMPHRIES v. OZMINT
    So at age 15 he’s brought back in for another probation
    revocation. And this time the Family Court Judge said, "You
    know, enough is enough. We’re going to send you down to
    Columbia. We’re going to send you down there [to] see if
    we can’t figure out what makes you tick."

    And they do all kind[s] of psychological reports and things
    that I’ll talk about in just a moment. And he comes back,
    and at age 16 is an habitual truant, and he basically drops
    out of school, and at age 17 he burglarizes the church and
    steals from the church, and he’s given probation.

    And at age 18 he goes to Alabama, and he’s convicted of
    larceny down there, and he’s sent to jail for two years. And
    he gets out when he’s age 20, and at 21 he fails to report.
    They issue a warrant for him. He’s still on probation. And
    at age 22 he commits a murder and attempted armed rob-
    bery.

   The solicitor then addressed the evidence in mitigation presented
by Humphries. The solicitor argued to the jury that there was a com-
plete lack of mitigating evidence, arguing that Humphries had a sig-
nificant history of prior criminal convictions for crimes of violence
and that his relatively young age (twenty-two), mental capacity, and
occasional drug and alcohol use were of no moment.

   Finally, the solicitor turned to Dickie Smith’s uniqueness as an
individual. In this regard, the solicitor stated:

    Dickie Smith was born in 1950, fourth son, fifth child of a
    fellow named Alton Smith and a sweet lady named Lottie
    Mae Darnell Smith. They grew up poor. They didn’t have
    hot water. They had a spigot coming in and a tub next to the
    stove, and they had a few acres of cotton.

    Dickie Smith is as much about this case as Shawn Paul
    Humphries. When Alton Smith died when Dickie was nine,
    he pulled himself up by his bootstraps and he started con-
    tributing to the family. He got all kinds of odd jobs picking
                    HUMPHRIES v. OZMINT                          9
cotton at a penny a pound, hunting rabbits, skinning them,
dressing them out, selling them for 50 cents.

When he’s 14 years old, he gets a job in Greenville at the
Bi-Lo in the Meat Department working after school. He’s
gone to school all day. From after school til about 10:00 or
10:30 at night working at Bi-Lo, saving his money, buying
a car for the family.

When he’s in tenth grade, he goes down to Boenett’s and he
gets a full-time job, second shift. He’s going to school all
day, and he’s working until midnight, contributing. Lottie
Mae Darnell Smith with eight kids, got them all out of high
school, all at least a tech degree, some of them through col-
lege.

When Dickie Smith finished high school, he went to work
for Union Carbide, then Kemet, but he didn’t stop there. He
kept improving himself. He went to Tech, he got an engi-
neering degree, and he became a supervisor, and then he
went back to Tech because he decided he wanted to build
houses, and he got his—another degree at Tech, and he got
his builder’s license.

And in 1984 he met Pat, and they fell in love, and they got
married. That’s the same year Shawn Paul Humphries com-
mitted two house break-ins at age 13. In 1986 Dickie makes
a pretty drastic move. He decides he’s going to quit Kemet
and go build houses full-time, and he goes out, and he starts
building homes in the community he had grown up in.
That’s the same year Shawn Paul Humphries is up for his
second probation violation and sent down to Columbia.

Then in 1988, July the 4th, they have a little baby girl
named Ashley. You know, the Defense brought in a 12 year
old stepdaughter—stepsister, said, "Please don’t put Shawn
Paul Humphries in the electric chair." I’m sorry I did not
feel it was appropriate to bring in a six year old girl Ashley
and parade her in front of you.
10                        HUMPHRIES v. OZMINT
     In 1988 Ashley is born. That’s the same year Shawn Paul
     Humphries went to jail for two years. And in the spring of
     1992, I believe, Dickie Smith opens the doors to the Max-
     Saver, building a business down in that community.

     You have the right to look at the uniqueness of the individ-
     ual. I would submit to you that Dickie Smith, by every-
     body’s description to you was a unique individual. He grew
     up in that southern part of Greenville County below Simp-
     sonville that was mainly farming, cotton, agriculture area.

     And he grew up watching it change to industrial. And he
     first went to work for one of the industries at Union Carbide,
     and then he decided he was going to be part of that change,
     and he started building houses down there and building a
     business down there.

   After finishing the portion of his closing argument concerning Dic-
kie Smith’s uniqueness, the solicitor then concluded his argument by
arguing the following to the jury:

     Who is the victim here, Shawn Paul Humphries or is it Dic-
     kie Smith? Who is the victim? Is it this guy over here or is
     it Donna, Donna Brashier, who’s got to hear that gunshot
     every day of her life and who’s got to see Dickie Smith lay-
     ing on the floor every day of her life?

     Who is the victim? Is it this Defendant or is it this lady right
     here, his momma, or his wife, or Ashley, who the only way
     she can see her daddy is to go visit his grave on Sunday
     after church?

     There are a lot of reasons for punishment. Rehabilitation is
     one reason, and rehabilitation is a proper goal in some cir-
     cumstances, but you’ve got to decide about whether this
     Defendant, who at 13 is breaking the law, at 14 is breaking
     the law, at 15 is breaking the law, at 17 is going—is break-
     ing the law, at 18 is breaking the law and going to jail,
     who’s been given every chance that the system offers. You
     decide if you’re going to rehabilitate him.
                    HUMPHRIES v. OZMINT                          11
What are some other reasons for punishment? Retribution is
a reason for punishment. That may not sound good, may not
sound right, but, in fact, it is part of punishment, because
retribution is our community saying you have done some-
thing wrong and we’re going to punish you. . . .

When you look at a case like this, when you look at the
aggravation, when you look at the total lack of mitigation,
I would submit, when you look at the character of this
Defendant, and when you look at Dickie Smith, how pro-
fane when you look at all the circumstances of this crime
and of this Defendant, how profane to give this man a gift
of life under these circumstances. . . .

What punishment do you recommend when a man is
defending his co-worker, he’s defending his store, he’s
defending what he has built, and he’s ducking behind the
counter, and somebody takes a nine millimeter and executes
him? What punishment do you recommend? What punish-
ment do you recommend when you’ve got a character like
that? What punishment do you recommend when somebody
like Dickie Smith is taken from us?

If not now, then when? If not in a case that’s as aggravated
as this, then when do you do it? The defense may say,
"Well, you can think of all kinds of aggravating cases." You
can think of this and you can think of that. You look at the
circumstances of this case.

If not in a case as aggravating as this, if not in a case with
absolutely no mitigation like this, if not in a case with a
character like this, if not in a case when somebody like Dic-
kie Smith is taken, then when are you going to do it? It’s not
supposed to be easy. It’s never been easy. It won’t be easy
in the future.

Shawn Paul Humphries comes into this courtroom asking
you for mercy. Shawn Paul Humphries comes in here and
asks you for mercy, and I ask you what mercy did he give?
Shawn Paul Humphries comes in here and asks you for
12                         HUMPHRIES v. OZMINT
      mercy, and he gave none. Shawn Paul Humphries comes in
      here and asks you for life, and he gave death. Is that fair?
      Is that justice? That’s what you’re here for is justice. It’s up
      to you.

   In his closing argument, counsel for Humphries argued that the
death penalty was unwarranted for several reasons. First, counsel for
Humphries emphasized that there was no evidence of an intent to kill
because Humphries: (1) pulled the trigger after he panicked in reac-
tion to Dickie Smith’s attempt to reach under the counter; (2) did not
kill Donna Brashier; (3) drove off without Blackwell; and (4) volun-
tarily confessed to the killing. Counsel also argued that Humphries
was a nonviolent person who had no significant history of engaging
in violent acts. Counsel argued that Humphries was a young man who
had an extensive history of emotional, physical, and substance abuse.
Finally, counsel argued that Humphries was a trustworthy, respectful,
and pleasant person.

   Following the state trial court’s instructions and the jury’s delibera-
tions, the jury recommended a sentence of death for the murder con-
viction and, in accordance with the jury’s verdict, the state trial court
sentenced Humphries to death for that conviction.4 At the post-trial
motions hearing, Humphries’s counsel objected to the solicitor’s use
of comparisons between Dickie Smith and Humphries during his clos-
ing argument, and the state trial court overruled the objection.

   On direct appeal, the South Carolina Supreme Court affirmed the
state trial court’s judgment. Id. at 57. On June 9, 1997, the United
States Supreme Court denied Humphries’s petition for a writ of cer-
tiorari. Humphries v. South Carolina, 520 U.S. 1268 (1997).

   On September 16, 1997, Humphries filed an application for post-
conviction relief in state court, which he later amended. Following an
evidentiary hearing, the state habeas court dismissed the application.
On June 18, 1999, Humphries filed a petition for a writ of certiorari
in the South Carolina Supreme Court. On September 27, 2001, the
South Carolina Supreme Court granted the petition for a writ of cer-
  4
   For the other counts of conviction, Humphries received concurrent
twenty-year sentences.
                         HUMPHRIES v. OZMINT                         13
tiorari and requested the parties proceed with briefing. Humphries,
through appellate counsel, briefed the following issue in his petition
for certiorari: "Counsel did not provide petitioner effective assistance
at sentencing because they failed to object timely to the solicitor’s
closing argument suggesting that the petitioner deserved to die
because his life was worth less than the victim’s." The Supreme Court
of South Carolina affirmed the state habeas court’s judgment on
August 26, 2002. Humphries v. State, 570 S.E.2d 160, 168 (S.C.
2002).

   On December 24, 2002, Humphries filed a petition for a writ of
habeas corpus in the United States District Court for the District of
South Carolina. On January 29, 2003, the State filed a motion for
summary judgment. Humphries filed his response on February 14,
2003. On February 25, 2003, a United States Magistrate Judge
reported and recommended that Humphries’s habeas petition be
denied. On June 19, 2003, the district court, after conducting a de
novo review of the record, granted the State’s motion for summary
judgment and dismissed the petition. On July 25, 2003, the district
court granted Humphries a certificate of appealability, 28 U.S.C.
§ 2253.

   On May 3, 2004, a divided panel of this court vacated Humphries’s
death sentence and remanded the case with instructions to issue the
writ solely for the purpose of resentencing. Humphries v. Ozmint, 366
F.3d 266 (4th Cir. 2004). The State filed a timely petition for rehear-
ing with a suggestion for rehearing en banc to which Humphries filed
a response. A majority of the active circuit judges voted to rehear this
case en banc, which resulted in the vacatur of the panel opinion.

                                   II

   Our standard for collateral review of a state court’s decision on the
merits under 28 U.S.C. § 2254(d) is well-settled. A federal court may
not grant a writ of habeas corpus unless the state court’s adjudication
of the claim "resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C.
§ 2254(d)(1). The phrase "clearly established Federal law," id., "refers
to the holdings, as opposed to the dicta, of the [Supreme] Court’s
14                        HUMPHRIES v. OZMINT
decisions as of the time of the relevant state-court decision." Booth-El
v. Nuth, 288 F.3d 571, 575 (4th Cir.) (internal quotation marks omit-
ted), cert. denied, 537 U.S. 959 (2002). Further, a state court’s deci-
sion is "contrary to" clearly established federal law, as determined by
the Supreme Court, either: (1) "if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court] cases," or
(2) "if the state court confronts a set of facts that are materially indis-
tinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [Supreme Court] precedent." Wil-
liams v. Taylor, 529 U.S. 362, 405-06 (2000). Finally, "[u]nder the
‘unreasonable application’ clause, a federal habeas court may grant
the writ if the state court identifies the correct governing legal princi-
ple from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case." Id. at 413. Notably,
an "unreasonable application of federal law is different from an incor-
rect application of federal law," because an incorrect application of
federal law is not, in all instances, objectively unreasonable. Id. at
410.

                                    III

   Humphries contends that his trial counsel were constitutionally
ineffective when they failed to object to a portion of the solicitor’s
closing argument at sentencing. According to Humphries, the State
violated the dictates of Payne v. Tennessee, 501 U.S. 808 (1991),
when the solicitor in effect argued to the jury during the sentencing
phase of the trial that Humphries deserved the death penalty because
Dickie Smith (the victim) was a worthy individual and an asset to the
community while Humphries was not. Humphries posits that, not only
was his counsel deficient for failing to object, but also that he was
prejudiced by this failure as well. To properly analyze Humphries’s
Payne claim, we must take a close look at the Supreme Court’s prece-
dent concerning victim-impact evidence.

                                    A

   In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court
held that the Eighth Amendment prohibits a state from allowing a
capital sentencing jury to consider victim-impact evidence. Booth
involved the brutal murders of an elderly couple, Irvin and Rose
                         HUMPHRIES v. OZMINT                          15
Bronstein. Id. at 497. During the sentencing phase of the trial, the
prosecutor read a victim-impact statement that was compiled by a
probation officer on the basis of her interviews with the Bronsteins’
surviving family members. Id. at 498-500. The victim-impact state-
ment included all three forms of victim-impact evidence: accounts of
the emotional and psychological impact of the crime on the family,
descriptions of the Bronsteins’ personal characteristics, and the vic-
tims’ family members’ opinions and characterizations of the crimes
and the defendant. Id. at 499-500.

   In Booth, the Court held that all three forms of victim-impact evi-
dence are irrelevant to a determination of whether to impose a death
sentence, and that their admission thus risks arbitrary and capricious
imposition of the death penalty. Id. at 502-03. The Court noted that,
because victim-impact evidence includes facts about which the defen-
dant was unaware at the time of the murder, it is unrelated to the
defendant’s culpability. Id. at 505. The Court further noted that admit-
ting victim-impact evidence would yield arbitrary results because
victim-impact evidence would lead juries to impermissibly base their
decision on their evaluation of the relative worth of the victim, and
because the capital sentencing decision would partially depend upon
the degree to which the victim’s family members—if the victim
leaves any behind—are able to articulate their loss. Id. at 505-06.
Moreover, the Court stated that victim-impact evidence improperly
shifts the jury’s focus from the defendant to the victim, and, thus,
yields death sentences based on emotion rather than reason. Id. at
507-08.

   In South Carolina v. Gathers, 490 U.S. 805 (1989), the Supreme
Court extended Booth to cover a prosecutor’s comments on the mur-
der victim’s personal characteristics. Id. at 811-12. In that case, in an
attempt to enable the jury to more fully comprehend the human loss
involved in the murder of a mentally unstable homeless man, the
prosecutor made various references in his closing argument at the sen-
tencing phase about the victim’s personality and character, including
inferring from the victim’s possession of religious articles and a voter
registration card that the victim was a man of faith who cared about
his community, reading a prayer written by the victim that was found
at the murder scene, and noting that the victim had mental problems.
Id. at 808-10. The Court found that the prosecutor’s statements were
16                       HUMPHRIES v. OZMINT
"indistinguishable in any relevant respect from that in Booth" and,
thus, likewise violative of the Eighth Amendment. Id. at 811. Accord-
ing to the Court, while victim-impact evidence relevant to the circum-
stances of the crime is admissible, the prosecutor’s statements went
far beyond those facts. Id. at 811-12.

   In Payne, the Court overruled both Booth and Gathers. The Payne
case involved a brutal attack of a mother and her two small children
that left the mother and one of her children dead. Payne, 501 U.S. at
812-13. At the sentencing phase of the trial, the prosecutor presented
the testimony of the children’s grandmother, who testified about the
effect of the crimes on the now-orphaned child. Id. at 814-15. Addi-
tionally, the prosecutor commented extensively on the impact of the
murders on the orphaned child and said that the child will "want to
know what type of justice was done" when he is older. Id. at 815.

   In the Payne decision, the Court observed that "a State may prop-
erly conclude that for the jury to assess meaningfully the defendant’s
moral culpability and blameworthiness, it should have before it at the
sentencing phase evidence of the specific harm caused by the defen-
dant." Id. at 825. Furthermore, the Court observed that Booth "un-
fairly weighted the scales in a capital trial; while virtually no limits
are placed on the relevant mitigating evidence a capital defendant
may introduce concerning his own circumstances, the State is barred
from either offering ‘a glimpse of the life’ which a defendant ‘chose
to extinguish,’" id. at 822 (quoting Mills v. Maryland, 486 U.S. 367,
397 (1988) (Rehnquist, C.J., dissenting)), or "demonstrating the loss
to the victim’s family and to society which has resulted from the
defendant’s homicide." Id. Consequently, the Court concluded that,
"if the State chooses to permit the admission of victim-impact evi-
dence and prosecutorial argument on that subject, the Eighth Amend-
ment erects no per se bar." Id. at 827. Of note, the Payne Court did
not alter Booth’s holding that admitting evidence of the victims’ opin-
ions of the crime and of the appropriate sentence for the defendant
violates the Eighth Amendment; rather Payne only allows evidence
of the victim’s personal characteristics and the harm inflicted upon
the victim’s family and community. Id. at 829 n.2. The Court in
Payne noted that there was "no reason" to treat victim-impact evi-
dence "differently than other relevant evidence," id. at 827, but cau-
tioned that, "[i]n the event that evidence is introduced that is so
                         HUMPHRIES v. OZMINT                          17
unduly prejudicial that it renders the trial fundamentally unfair, the
Due Process Clause of the Fourteenth Amendment provides a mecha-
nism for relief." Id. at 825.

   The Court in Payne did not set the parameters of what type of
victim-impact evidence would render a trial fundamentally unfair
under the Due Process Clause of the Fourteenth Amendment. As
noted earlier, the Payne Court did observe that courts should handle
the admission of victim-impact evidence just like any other relevant
evidence. 501 U.S. at 827. However, the only inkling in Payne on the
limitations imposed on the admission of victim-impact evidence is the
Court’s citation to Darden v. Wainwright, 477 U.S. 168 (1986).
Payne, 501 U.S. at 825.

   In Darden, the Court addressed prosecutorial misconduct at the
guilt phase of a capital murder trial. In addressing Darden’s argument
that his trial and resulting conviction were fundamentally unfair
because of the prosecutor’s improper argument, the Court character-
ized the inquiry as whether the improper comments were so unfair as
to make the conviction a denial of due process. Darden, 477 U.S. at
181. The Darden Court based its due process standard on Donnelly
v. DeChristoforo, 416 U.S. 637 (1974), another prosecutorial miscon-
duct case. In considering DeChristoforo’s claim that his first degree
murder conviction violated his due process rights, the Court stated
that the due process analysis properly addresses more than just the
questionable prosecutorial conduct itself. Id. at 639. Instead, a court
making a due process inquiry must consider the challenged conduct
in relation to the proceeding as a whole. Id. The analysis of a due pro-
cess claim premised on unfair prosecutorial conduct may thus depend
upon numerous factors, which include the nature of the prosecutorial
misconduct, Darden, 477 U.S. at 181-82, the extent of the improper
conduct, DeChristoforo, 416 U.S. at 645, the issuance of curative
instructions from the court, Darden, 477 U.S. at 182, any defense
conduct inviting the improper prosecutorial response, id., and the
weight of the evidence. Id.; see also Boyd v. French, 147 F.3d 319,
329 (4th Cir. 1998) (holding that a prosecutorial misconduct determi-
nation requires the court to look at the nature of the comments, the
nature and quantum of the evidence before the jury, the arguments of
opposing counsel, the court’s charge, and whether the errors were iso-
lated or repeated). Based on this precedent, it is evident that both Dar-
18                       HUMPHRIES v. OZMINT
den and DeChristoforo apply to cases in which the defendant or
petitioner alleges that the admission of victim-impact evidence or pro-
secutorial comment on victim-impact evidence violated his rights
under the Due Process Clause of the Fourteenth Amendment.

                                   B

   In its decision on state habeas, the South Carolina Supreme Court
first held that Payne only prohibited comparisons between the victim
and other members (victims) of the community. Humphries, 570
S.E.2d at 167-68. Because no such victim-to-victim comparison was
made in the case, the South Carolina Supreme Court held that Payne
did not ipso facto prohibit the solicitor’s closing argument. Id.
Because Payne did not specifically prohibit victim-to defendant com-
parisons, the South Carolina Supreme Court went on to address the
question of whether the solicitor’s argument rendered Humphries’s
sentencing proceeding fundamentally unfair. The court did not view
the solicitor’s argument as improper, let alone that it rendered Hum-
phries’s sentencing proceeding fundamentally unfair. In reaching this
conclusion, the court stated:

     In our opinion, the solicitor’s closing argument did not ren-
     der sentencing fundamentally unfair as they [sic] did not
     prejudice Petitioner. The solicitor’s comments were based
     on evidence already in the record. Smith’s wife and brother
     testified during the penalty phase regarding each of the facts
     about Smith’s life upon which the solicitor commented.
     Petitioner presented the testimony of thirteen witnesses in
     mitigation during the sentencing phase who attested to Peti-
     tioner’s at-risk childhood and subsequent criminal acts as a
     juvenile and young adult, providing all the evidence of Peti-
     tioner’s character discussed by the solicitor in his closing.

     Through the testimony of Petitioner and Smith’s family
     members, both the similarities (the childhood poverty and
     adversity) and the differences (the manner in which Peti-
     tioner and Smith dealt with their circumstances) were read-
     ily apparent to the jurors, before the solicitor’s closing
     argument. As permitted by Payne, the State offered evi-
     dence of Smith’s "uniqueness" as an individual by describ-
                         HUMPHRIES v. OZMINT                           19
    ing the successful ways in which Smith dealt with adversity
    in his life. Likewise, Petitioner introduced evidence of his
    own "uniqueness" through the testimony of thirteen wit-
    nesses (compared to Smith’s two witnesses) regarding his
    own difficult childhood and background, thereby inviting a
    comparison between Petitioner and Smith’s respective char-
    acters even before the solicitor gave his closing remarks. As
    such, we do not believe the solicitor’s comments were so
    prejudicial (if prejudicial at all) that they rendered Petition-
    er’s death sentence fundamentally unfair under the Due Pro-
    cess Clause.

    To reverse the PCR court’s denial of relief, this Court must
    find, first, that counsel was ineffective, and, second, that
    counsel’s ineffectiveness resulted in prejudice. Payne does
    not prohibit character comparisons between defendants and
    victims; it prohibits comparisons that suggest that there are
    worthy and unworthy victims. Therefore, Petitioner cannot
    establish either the ineffectiveness prong or the prejudice
    prong of the test as required to overturn the PCR court’s
    denial of relief.

Humphries, 570 S.E.2d at 167-68.

                                   C

   As noted earlier, Humphries claims that the solicitor’s closing
argument at the sentencing phase of the trial, taken as a whole, in
effect asked the jury to impose the death penalty because Dickie
Smith was a worthy individual and an asset to the community while
Humphries was not. According to Humphries, such comparative
worth arguments run afoul of the dictates of Payne and the Due Pro-
cess Clause of the Fourteenth Amendment and, therefore, his trial
counsel were constitutionally ineffective for failing to object to the
solicitor’s closing argument.

   In advancing his argument, Humphries does not posit that any one
of the solicitor’s comments, standing alone, was improper or factually
inaccurate. Thus, his collectivity argument focuses on a few of the
solicitor’s comments, which he contends created an impermissible sit-
20                        HUMPHRIES v. OZMINT
uation in which the solicitor asked for a sentence of death based
solely on the relative worth of his life and the life of Dickie Smith.
In particular, Humphries objects to the year-by-year chronology,
wherein the history of his life was compared to the history of Dickie
Smith’s life.5 Humphries also takes issue with three statements made
by the solicitor near the end of his closing argument which, when
coupled with the year-by-year chronology, allegedly rendered the
solicitor’s argument constitutionally infirm. The statements are: (1)
"[W]hen you look at the aggravation, when you look at the total lack
of mitigation, I would submit, when you look at the character of this
Defendant, and when you look at Dickie Smith, how profane when you
look at all the circumstances of this crime and of this Defendant, how
profane to give this man a gift of life under these circumstances"; (2)
"What punishment do you recommend when you’ve got a character
like that? What punishment do you recommend when somebody like
Dickie Smith is taken from us?"; and (3) "If not in a case as aggravat-
ing as this, if not in a case with absolutely no mitigation like this, if
not in a case with a character like this, if not in a case when somebody
like Dickie Smith is taken, then when are you going to do it?"

   We conclude that the South Carolina Supreme Court did not unrea-
sonably apply Payne when it held that the solicitor’s closing argument
at the sentencing phase of the trial, taken as a whole, did not render
Humphries’s sentencing proceeding fundamentally unfair. First, the
record in this case simply belies Humphries’s claim that the solicitor’s
comparison of the lives of both Humphries and Dickie Smith was the
centerpiece of the solicitor’s argument. It was not. As set forth above,
the solicitor’s life history comparison contained in the year-by-year
chronology essentially was the manner in which the solicitor chose to
present to the jury the argument that Dickie Smith was a unique indi-
vidual. Within that year-by-year chronology, the solicitor referenced
Humphries four times, telling the jury that: (1) "Dickie Smith is as
much about this case as . . . Humphries"; (2) Humphries "committed
  5
    Within the year-by-year chronology, the solicitor referenced Humph-
ries four times, telling the jury that: (1) "Dickie Smith is as much about
this case as . . . Humphries"; (2) Humphries "committed two house
break-ins at age 13"; (3) in 1986 Humphries violated the terms of his
probation and was "sent down to Columbia"; and (4) in 1988 Humphries
went to prison for two years.
                         HUMPHRIES v. OZMINT                         21
two house break-ins at age 13"; (3) in 1986 Humphries violated the
terms of his probation and was "sent down to Columbia"; and (4) in
1988 Humphries went to prison for two years. The bulk of the solici-
tor’s argument was not that Humphries should die because his life
was worth less than Dickie Smith’s. Indeed, the solicitor did not use
the words "worth," "comparative worth," or "value" in his year-by-
year chronology. Rather, the bulk of the solicitor’s argument was
devoted to the evidence in aggravation, Humphries’s lack of charac-
ter, the absence of mitigating evidence in the case, and an explanation
how these facts, along with the victim-impact evidence, warranted the
imposition of a death sentence.

   To be sure, the portion of the solicitor’s argument dealing with
Dickie Smith’s unique personal characteristics is contained in less
than four pages of an approximately twenty-eight page transcript of
the solicitor’s closing argument and, during this segment of the solici-
tor’s closing argument, Humphries is mentioned just four times. Fur-
ther, after the solicitor made his final reference to Humphries in his
year-by-year chronology by telling the jury that in 1988 Humphries
"went to jail for two years," the solicitor followed two sentences later
with the reminder to the jury that it had "the right to look at the
uniqueness of the individual." The solicitor then added that "Dickie
Smith, by everybody’s description to you was a unique individual."
Moreover, the solicitor essentially concluded his argument by asking
the jury to impose a sentence of death because: (1) the evidence in
aggravation was overwhelming; (2) there was a complete lack of miti-
gating evidence; (3) Humphries’s character was poor; and (4) "some-
body like Dickie Smith [was] taken." The solicitor’s closing
argument, as outlined above, simply did not invite the jury to return
a sentence based on the relative worth of the lives of Dickie Smith
and Humphries. Rather, the solicitor invited the jury to consider all
of the evidence in the record in reaching its verdict. That being the
case, it cannot be said that the South Carolina Supreme Court unrea-
sonably applied Payne to the facts of this case.

   Second, the solicitor’s life history comparison contained in the
year-by-year chronology was based upon facts established during the
trial and were aspects of the trial which were readily apparent to the
jury. Indeed, the circumstances of Dickie Smith’s life and the impact
of his death on his family were thoroughly presented without contem-
22                       HUMPHRIES v. OZMINT
poraneous objection through the testimony of Randy and Pat Smith.
The circumstances of Humphries’s upbringing were thoroughly
explored by Humphries’s counsel in the thirteen witnesses called by
the defense. Because the solicitor’s life history comparison contained
in the year-by-year chronology was based on evidence already before
the jury, it is hard to take issue with the South Carolina Supreme
Court’s conclusion that Humphries was not prejudiced by the solici-
tor’s comments.

   Third, the facts concerning Humphries’s character referred to by
the solicitor in his comparison were already thoroughly recounted in
greater detail in an earlier portion of the solicitor’s closing argument.
No objection, even to this date, is being raised concerning this earlier
portion of the solicitor’s closing argument. As noted above, the solici-
tor’s life history comparison set forth in the year-by-year chronology
contained the following facts relating to Humphries: (1) he "commit-
ted two house break-ins at age 13"; (2) in 1986 he violated the terms
of his probation and was "sent down to Columbia"; and (3) in 1988
he went to prison for two years. Earlier, however, the solicitor had
mentioned that Humphries had, at age thirteen, "committed two
breaking and enterings" and was placed on probation. The solicitor
pointed out that, because Humphries continued to be disobedient in
school, he was brought before the family court on a probation viola-
tion and was released with stricter conditions imposed. The solicitor
added that, at age fifteen, Humphries violated the terms of his proba-
tion and was "sent down to Columbia." The solicitor also proffered
that, at age sixteen, Humphries was "an habitual truant," who "basi-
cally drop[ped] out of school." The solicitor further noted that, at age
seventeen, Humphries burglarized a church. The solicitor noted that,
at age eighteen, Humphries went to Alabama and committed a larceny
for which he was convicted and imprisoned for two years. Finally, the
solicitor noted that, upon his release, Humphries failed to report to the
probation office, a warrant was issued, and within a couple of years
of his release from prison he committed the murder at issue. Because
all of the facts concerning Humphries referred to by the solicitor in
his year-by-year chronology were facts recounted in greater detail
earlier in his closing argument, it is difficult to conclude that the
South Carolina Supreme Court acted unreasonably when it concluded
that Humphries was not in any way prejudiced by the portion of the
solicitor’s argument related to the unique character of Dickie Smith.
                          HUMPHRIES v. OZMINT                          23
   Fourth, Humphries’s attack on the three statements made by the
solicitor near the end of the solicitor’s argument misses the mark. The
statements were proper argument because the statements simply asked
the jury to focus on Dickie Smith’s uniqueness. Unquestionably, the
solicitor was entitled to argue that Dickie Smith was unique. More-
over, the solicitor equally was entitled to ask the jury to "look" at Dic-
kie Smith’s uniqueness and to ask the jury to consider the
consequences of "when" a person of Dickie Smith’s uniqueness is
"taken."6

   Fifth, the evidence in this case concerning the appropriate sentence
was not close. The evidence showed that, after Humphries and Eddie
Blackwell entered the Max-Saver convenience store, Dickie Smith
asked Humphries whether he wanted something hot, and Humphries
flashed a stolen gun and replied that he wanted money. While there
was evidence that Dickie Smith reached under a counter as though to
pull out a gun, Humphries shot Dickie Smith in the head, killing him.
This evidence clearly supported the aggravating factor in the case,
that the murder was committed during the commission of a robbery
while Humphries was armed with a deadly weapon. The evidence in
mitigation proffered by Humphries to counteract the evidence in
aggravation was carefully and meticulously attacked by the solicitor.
Moreover, that Dickie Smith was a unique person is not subject to
serious debate. In short, we harbor no doubt that, notwithstanding the
solicitor’s comparison that Humphries finds so objectionable, a sen-
tence of death would have resulted.

  Sixth, the reasonableness of the South Carolina Supreme Court’s
decision in this case becomes more evident when one examines that
court’s recent decision in Hall v. Catoe, 601 S.E.2d 335 (S.C. 2004).
  6
   We note that a consequence of Payne is that a defendant can be put
to death for the murder of a person more "unique" than another, even
though the defendant is, in fact, unaware of the victim’s uniqueness. This
does give us some pause for concern, as does the notion that, under
Payne, a sentence of death can turn on the severity of the harm caused
to the victim’s family and society, even though the defendant did not
know the victim or the victim’s family. However, these are inevitable
consequences of Payne’s comparative framework; a framework that we,
as judges of an inferior court, are without liberty to change.
24                        HUMPHRIES v. OZMINT
In Hall, the solicitor directed the jury to weigh the worth of Hall’s life
against the lives of Hall’s victims:

     I am talking about values, because a jury verdict is a state-
     ment of values. And I am not talking about dollars and cents
     as far as what the [lives of the two girls were] worth, but
     nevertheless it is a question of values. What are the lives of
     these two girls worth? Are they worth the life of this man,
     the psychopath, this killer who stabs and stabs and kills, and
     rapes and kidnaps.

Id. at 339. Hall argued that his trial counsel’s failure to object allowed
"the solicitor to charge the jury with an arbitrary, misconceived sen-
tencing analysis," violating his right to due process. Id. The South
Carolina Supreme Court agreed.

  Applying Payne, the South Carolina Supreme Court held that the
Hall case was distinguishable from the Humphries case:

     In Humphries we recognized that it is more prejudicial for
     the state to compare the worth of the life of the defendant
     with that of his victim than it is to compare their lives based
     on the evidence presented. . . . In the present case, the solici-
     tor not only suggested that Hall’s life was worth less than
     his victims’, he developed an arbitrary formula whereby if
     the jury finds Hall’s life worth less than his victims’, then
     the jury could reach no other conclusion than that the death
     penalty is justified.

     Further, while the solicitor in Humphries compared the his-
     tories of Humphries’s and his victim’s lives, the solicitor in
     Hall asked the jury to compare the worth of Hall’s life with
     that of his victims’.

Id. at 341.

   In our view, the Hall court gave a principled explanation of why
the circumstances of Hall were distinguishable from those involved
in our case. The Hall court indicated that Hall involved a direct
                         HUMPHRIES v. OZMINT                         25
"value" comparison between the defendant and the victim, asking the
jury to weigh the relative worth of the defendant and the victim. This
comparison, the court concluded, rendered Hall’s trial fundamentally
unfair. By contrast, the court concluded that the solicitor in Humph-
ries simply compared the "histories" of the defendant and the victim’s
lives "based on the evidence presented," id., and thus, Humphries’s
trial was not fundamentally unfair. In essence, the court in Hall evalu-
ated the role that the solicitor’s argument played in both Hall and
Humphries and reasonably concluded one was constitutionally proper
and the other was not.

   Finally, the reasonableness of the South Carolina Supreme Court’s
decision in this case is illustrated by examining the words of the
Payne case itself. Payne tells us that states have a legitimate interest
in introducing evidence of a victim’s personal characteristics and evi-
dence of the harm caused to the victim’s family and society by the
defendant’s actions to counteract the mitigating evidence presented by
the defendant. 501 U.S. at 825. The Payne Court was quite explicit
in this regard when it stated that the "State has a legitimate interest
in counteracting the mitigating evidence which the defendant is enti-
tled to put in, by reminding the sentencer that just as the murderer
should be considered as an individual, so too the victim is an individ-
ual whose death represents a unique loss to society and in particular
to this family." Id. (citation and internal quotation marks omitted).
Whether the victim-impact evidence counteracts the defendant’s miti-
gating evidence is a question, asking the jury to make a comparison
between the victim-impact evidence and the defendant’s mitigating
evidence. In this case, in determining the appropriate sentence, the
jury was asked to consider Dickie Smith’s personal characteristics,
the harm caused to his family and society by Humphries’s actions,
and Humphries’s mitigating evidence, which included evidence of
Humphries’s personal characteristics, both favorable and unfavorable.
Under these circumstances, it was reasonable for the South Carolina
Supreme Court to conclude that the solicitor’s life history comparison
contained in his year-by-year chronology and the solicitor’s other
comments concerning Dickie Smith’s uniqueness were within the
boundaries of a question the jury was required to consider—the
blameworthiness of Humphries.
26                        HUMPHRIES v. OZMINT
                                     D

   While paying lip service to the correct standard of review, which
we all seem to agree presents Humphries with an extremely difficult
hurdle to overcome, the dissent in this case simply does not apply it.
For if it did, it most assuredly would reach a different result. An anal-
ysis of the dissent makes this point pellucid.

   The dissent begins by characterizing the solicitor’s closing argu-
ment as one in which the solicitor asked for a death sentence because
Dickie Smith’s life was worth more than Humphries’s life. The dis-
sent tells us how the solicitor’s "climactical flourish," post at 65,
"baldly compared the general worth of the victim’s existence with
that of the defendant and urged the jury to impose a death penalty,"
post at 46, because Dickie Smith’s life was worth more than Humph-
ries’s life. In characterizing the solicitor’s argument in this light, the
dissent improperly ignores the fact that the South Carolina Supreme
Court determined that the solicitor’s argument did not involve a com-
parison of the relative worth of the lives of Dickie Smith and Humph-
ries. Under § 2254, our duty is not to determine in the first instance
if the solicitor’s argument involved a relative worth comparison, but
rather to decide whether the South Carolina Supreme Court was
unreasonable when it determined that the solicitor’s argument did not
involve such a comparison. The dissent utterly fails to carry out this
duty.

   Before turning its attention to Payne, the dissent criticizes us for
our inability "to point to no other argument that even approaches the
egregiousness of this prosecutor’s comments and no other case in
which a court has tolerated such misconduct." Post at 47. In serving
up this critique, the dissent proceeds to discuss several state cases
which have addressed Payne. Obviously, our review under § 2254
does not require us to find or rely on a state case which has upheld
a similar prosecutorial argument. Rather, our standard of review sim-
ply asks us to determine whether the South Carolina Supreme Court
unreasonably applied clearly established United States Supreme Court
precedent.7
  7
   Even if we have to accept the dissent’s distorted invitation to cite pre-
cedent other than clearly established Supreme Court precedent, cases
                          HUMPHRIES v. OZMINT                            27
   Next, the dissent turns its attention to Payne. According to the dis-
sent, Payne specifically holds that all comparative worth arguments
are unconstitutional. The fallacies in the dissent’s interpretation of
Payne are obvious.

   The Payne Court did not hold that all comparative worth argu-
ments are unconstitutional. At most, the Payne Court disapproved of
comparisons between the victim and other victims of society. 501
U.S. at 823. Indeed, the Court’s only relevant reference to compara-
tive worth arguments is the following:

     Payne echoes the concern voiced in Booth’s case that the
     admission of victim impact evidence permits a jury to find
     that defendants whose victims were assets to their commu-
     nity are more deserving of punishment than those whose
     victims are perceived to be less worthy. . . . As a general
     matter, however, victim impact evidence is not offered to
     encourage comparative judgments of this kind—for
     instance, that the killer of a hardworking, devoted parent
     deserves the death penalty, but that the murderer of a repro-
     bate does not.

Id. (emphasis added). Thus, the Payne Court was careful to note that
victim-impact evidence is not offered to encourage comparative judg-
ments involving the victim and other victims in society. More impor-
tantly, the Payne Court did not disapprove of comparisons between

more egregious than the one before this court do exist. For example, in
State v. Haselden, the prosecutor told the jury that "[i]f you let this mur-
derer walk out of this courtroom with his life then you are saying that his
life is worth more than [the victim’s] life." 577 S.E.2d 594, 610 (N.C.),
cert. denied, 540 U.S. 988 (2003). The Haselden court upheld this argu-
ment under Payne because the argument: (1) "simply reminded the jury
that in addition to considering defendant’s life, the jury should also con-
sider the life of the victim"; and (2) "was a natural and proper extension
of the prosecutor’s earlier argument concerning victim impact evidence."
Id. Thus, the Haselden court upheld the prosecutor’s argument even
though, unlike this case, the prosecutor explicitly and unmistakably
implored the jury to weigh the comparative worth of the defendant and
his victim.
28                       HUMPHRIES v. OZMINT
the defendant and the victim.8 In view of this, it is inconceivable to
conclude that the South Carolina Supreme Court unreasonably
applied Payne.

   The dissent also tells us that a search of the Payne opinion "for any
indication that the Court meant to condone" comparative worth argu-
ments would be "in vain." Post at 56. However, our task under § 2254
is not to determine whether Payne condones some, or even all, com-
parative worth arguments; rather, our task is to determine whether the
South Carolina Supreme Court was unreasonable when it determined
that Payne did not prohibit victim-to-defendant comparisons and
whether the court was unreasonable when it determined that the solic-
itor’s closing argument did not render Humphries’s trial fundamen-
tally unfair.

   Moreover, the Payne Court recognized that some comparisons
would be made between the defendant and the victim. 501 U.S. at
825. Indeed, the Payne Court noted that the "State has a legitimate
interest in counteracting the mitigating evidence which the defendant
is entitled to put in, by reminding the sentencer that just as the mur-
derer should be considered as an individual, so too the victim is an
individual whose death represents a unique loss to society and in par-
ticular to this family." Id. (citation and internal quotation marks omit-
ted). Obviously, it was reasonable for the South Carolina Supreme
Court to conclude that, to counteract Humphries’s mitigating evi-
dence, the solicitor was allowed to introduce evidence concerning
Dickie Smith’s uniqueness and the actions Humphries chose to take
during the course of his life.

  When all is said and done, the issue before this court is unmistak-
ably narrow. The issue is not whether we think all comparative worth
  8
   In view of the framework established in Payne, the Payne Court’s
decision to refrain from commenting on victim-to-defendant compari-
sons is easily understood. A victim-to-victim comparison is more perni-
cious than a victim-to-defendant comparison because, not only does it
invite a commentary on collateral evidence not properly before the jury
(the worthiness of other members (victims) of society), it does not coun-
teract the defendant’s mitigating evidence, which was one of the main
goals of Payne.
                          HUMPHRIES v. OZMINT                           29
arguments are unconstitutional or only those involving victim-to-
victim comparisons. Nor are we called upon to determine if there are
shortcomings in the Payne framework.9 Finally, whether our faithful
application of § 2254 leads us on the path toward "totalitarian[ism],"
post at 66, obviously is, as a politically philosophical proposition,
beside the point. We, as an inferior court, simply are not at liberty to
ignore our solemn constitutional responsibility to faithfully apply the
law by converting the applicable deferential § 2254 standard of
review to the de novo standard, as the dissent, through legal alchemy,
necessarily does throughout its opinion. Put simply, because the
South Carolina Supreme Court identified the correct legal standard
from the Supreme Court’s decision in Payne, we must decide whether
the South Carolina Supreme Court unreasonably applied the Payne
decision. Williams v. Taylor, 529 U.S. at 413. In this case, the South
Carolina Supreme Court thoroughly explained why it concluded that
the solicitor’s comparison of Humphries’s life to that of Dickie
Smith’s did not render Humphries’s trial fundamentally unfair. We
know from our review of Payne and other relevant Supreme Court
authority that comparisons between the defendant and the victim are
inevitable in any capital case in which the jury is asked to assess the
persuasive force of the defendant’s mitigating evidence and the
victim-impact evidence. Some comparisons, such as those based on
race or religion, unquestionably are unconstitutional. See Zant v.
Stephens, 462 U.S. 862, 865 (1983) (noting that a defendant’s race
and/or religion are "totally irrelevant" to the sentencing process).
Other comparisons are not. The South Carolina Supreme Court was
required to decide if the solicitor’s comparison of Humphries’s life
history to Dickie Smith’s life history was violative of the dictates of
Payne. After reviewing that court’s thorough opinion, we simply can-
  9
    Arguably, Payne has a few shortcomings. For example, a conse-
quence of Payne is that a defendant can be put to death for the murder
of a person more "unique" than another, even though the defendant was,
in fact, unaware of the victim’s uniqueness at the time of the crime. Also,
under Payne, a sentence of death can turn on the severity of the harm
caused to the victim’s family and society, even though the defendant did
not know the victim or the victim’s family. Whether we agree or disagree
with these consequences simply is beside the point. These consequences
are inevitable under the Payne framework; a framework that we, as
judges of an inferior court, are without liberty to change.
30                        HUMPHRIES v. OZMINT
not conclude that the South Carolina Supreme Court unreasonably
applied the Payne decision.

                                   IV

   Humphries also claims that the State’s failure to notify him prior
to trial of the State’s intended use of victim-impact evidence during
the sentencing phase of the trial violated his right to a fair trial under
the Due Process Clause of the Fourteenth Amendment. On direct
appeal, the South Carolina Supreme Court rejected this claim.

   Humphries first posits that his trial counsel reasonably believed
that South Carolina Code § 16-3-20(B) entitled the defense to receive
pre-trial written notice of the aggravating factors that would be used
at the sentencing phase of the trial, which implicitly included victim-
impact evidence. According to Humphries, his trial counsel did not
receive pre-trial notice of the intended use of victim-impact evidence
and, had such notice been given, his trial counsel would have used
different trial tactics, including, among other things, selecting jurors
differently and reconfiguring an expert witness’s testimony. Humph-
ries suggests that the State’s failure to comply with § 16-3-20(B) vio-
lated his federal due process rights.

   For several reasons, Humphries’s reliance on § 16-3-20(B) is mis-
placed. First, Humphries is raising an issue of state law, which is not
cognizable on federal habeas review. Cf. Lewis v. Jeffers, 497 U.S.
764, 780 (1990) ("[F]ederal habeas corpus relief does not lie for
errors of state law."). Second, the statute at issue does not require that
notice of the use of victim-impact evidence be given. South Carolina
Code § 16-3-20(B) provides that at the sentencing phase of the trial
"[o]nly such evidence in aggravation as the State has informed the
defendant in writing before the trial is admissible." S.C. Code Ann.
§ 16-3-20(B). The South Carolina Supreme Court on direct appeal
noted that the statute lists certain aggravating factors requiring notice.
Humphries, 479 S.E.2d at 55. Because victim-impact evidence is not
listed as an aggravating factor, the State is not required to give notice.
Id. Finally, even if the statute did require pre-trial notice, Humphries
received pre-trial written notice that the State intended to introduce
certain facts in evidence including all circumstances surrounding the
commission of the crimes. In its witness lists, the State listed the
                         HUMPHRIES v. OZMINT                          31
victim-impact witnesses and, moreover, the State asserted that it had
informed the defense that it would present victim-impact evidence
during the sentencing phase of the trial. While the pre-trial notice
could certainly have been more explicit concerning the planned intro-
duction of victim-impact evidence, unquestionably, the State was not
obligated under § 16-3-20(B) to detail the victim-impact evidence
with greater specificity.

   In a related argument, Humphries claims that his due process rights
were violated because his death sentence "was imposed, at least in
part, on the basis of information which he had no opportunity to deny
or explain." Gardner, 430 U.S. at 362. According to Humphries, he
did not receive adequate notice concerning the introduction of victim-
impact evidence and, therefore, could not adequately prepare his
defense in advance. This claim founders for the simple reason that
Humphries knew or reasonably should have known that victim-impact
evidence would be used by the State during the sentencing phase of
the trial. Therefore, he had ample opportunity to investigate and rebut
that evidence. Indeed, there is no law that clearly requires timely, spe-
cific, and express notice of victim-impact evidence, and Humphries
can point to no relevant federal authority to substantiate his claim.
Thus, the South Carolina Supreme Court reasonably interpreted fed-
eral law to find that the admission of victim-impact evidence did not
violate Humphries’s right to a fair trial under the Due Process Clause
of the Fourteenth Amendment.

                                   V

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

                                                            AFFIRMED

LUTTIG, Circuit Judge, concurring:

   The full en banc court ignores the dissent’s caricatures of both the
question of law presented and the facts giving rise to that question,
and properly decides the issue before us on the basis of the governing
legal standards and the actual facts as they appear in the record. I con-
cur in the judgment reached by the court and in its opinion.
32                       HUMPHRIES v. OZMINT
   Although the need should not have presented itself, suffice it to say
that this is not a case even remotely about "the hallmarks of totalitar-
ian governments," post at 66 (Wilkinson, J., dissenting). It does not
concern "the most terrifying regimes of the Twentieth Century" or
anything approaching such. Id. And it is not a case that bears mention
alongside "the most terrible examples of human expendability." Id.
Even to suggest these comparisons trivializes the historical events and
the victims of those events to which the dissent invokes reference.

   This case does not invite us to "set foot on a road Americans will
not recognize and our Constitution will not tolerate," id. And by deny-
ing Humphries’ petition on the grounds that the majority correctly
does is not in any sense whatsoever to "sanction executions on the
basis of extended weighings of relative human worth," id. at 51, or
to "condon[e] egregious human worth comparisons," id. at 52, of the
most "horrific sort," id. at 50. Such hyperbole only betrays the fact
that the dissent has chosen (as did the panel, mistakenly as well) to
address itself to a question of law and to a set of facts that are not
even arguably before the court.

   To decide this case, we do not need to plumb the "anciently estab-
lished principles" of federal law, see id. at 46, nor must we "ascend
to this register" of "sentencing philosophy" and its "seminal concepts"
at "a high level of generality," see id. at 58-59. And neither are we
invited or required to conduct a far-reaching "survey[ of] American
sentencing practice" and "historic sentencing procedure," id. at 60, 65.
Tellingly, not even the dissent undertakes in actual analysis anything
of the sort.

   We have before us, instead, a rather straightforward question of
law, one as to which our scope of review, as a court of law, is clearly
and narrowly circumscribed by congressional enactment and binding
Supreme Court precedent. Contrary to the dissent’s characterization,
we do not even have before us, as we would on direct appeal of a case
in which an explicit human worth comparison were made, the ques-
tion of whether it would violate the Constitution for the government
to resort to such comparisons in appealing for a higher sentence of
one convicted of crime. Before us is nothing less, but nothing more
either, than an ineffective assistance of counsel claim under Strick-
land v. Washington, raised on collateral review of a state court judg-
                          HUMPHRIES v. OZMINT                           33
ment that fully considered that claim. As such, the precise question
of law with which we are confronted is whether, within the meaning
of 28 U.S.C. § 2254, it was contrary to or an unreasonable application
of clearly established holdings of the Supreme Court of the United
States for the South Carolina state court to conclude that Humphries’
counsel at sentencing were not constitutionally ineffective under Str-
ickland for failing to object to the portion of the state solicitor’s argu-
ment that allegedly violated Payne v. Tennessee, 501 U.S. 808
(1991).

   The dissent is at pains to avoid even as much as the articulation of
this narrow legal question because its precise articulation draws into
stark focus not only the dissent’s exaggeration of the question pre-
sented, but, ultimately, the indefensibility of the dissent under the
legal standards that govern disposition of this case.

   Because of the particular posture of this case, we are required to
accord extraordinary deference to trial counsel’s failure to object.
First, as the dissent concedes, Strickland requires the state court and
this court to treat with great deference trial counsel’s real-time deci-
sions with respect to objections at trial. Second, as the dissent also
concedes, section 2254(d) requires us to defer to the state court’s
application of Strickland. Thus, the great deference owed to trial
counsel’s contemporaneous decisions implicating trial strategy is
compounded on collateral review, where we are to defer to the state
court’s highly deferential review of these decisions. Furthermore,
under AEDPA, we are bound to uphold the judgment of the state
court unless it was unreasonable in its application of both Strickland
and Payne, not just the one or the other. And on top of all this, the
chief case upon which the dissent relies, namely Payne, does not even
address the issue presented in this case — namely victim-to-defendant
value comparisons — thus making it utterly implausible to suggest
that the South Carolina court’s treatment of that case constituted an
unreasonable application of any clearly established holding in Payne.

   In short, we are reviewing with substantial deference the state
court’s application of the clearly established holdings of two cases,
Strickland and Payne. Even if, under such deference, we were to con-
clude that the state court erred in its understanding of the holding
and/or application of Payne, in order to grant Humphries’ petition we
34                       HUMPHRIES v. OZMINT
would still have to conclude that, under the same deference, the state
court erred in its application of Strickland — which itself requires the
state court to defer to trial counsel. Therefore, we face the following
four, separate, plainly valid, alternative grounds compelling affir-
mance of the denial of Humphries’ petition: (1) it was not contrary
to or an unreasonable application of Payne for South Carolina to hold
that Payne erects no per se bar against victim-to-defendant value
comparisons, because Payne does not address that issue at all; (2)
even if Payne did address such comparisons, it was not an unreason-
able application of Payne for South Carolina to conclude that no such
human-worth comparison occurred in this case; (3) even if such were
an unreasonable application of Payne, it would not be an unreason-
able application of Strickland for South Carolina to conclude that
counsel’s failure to object did not constitute objectively unreasonable
performance; and (4) even if failure to object were an unreasonable
application of Strickland, it was nevertheless not an unreasonable
application of Strickland for South Carolina to conclude that Humph-
ries was not prejudiced by counsel’s failure to object. Each of these
four grounds is individually compelling and each is individually suffi-
cient to compel affirmance in this case. Because, as a consequence of
its exaggeration, the dissent fails to effectively address any of these
four grounds, much less all of them, its errors are compounded across
multiple layers of the required legal analysis.

                                  A.

   As Humphries concedes, in order to prevail on his Strickland claim
premised on counsel’s failure to object, he must first establish that
what occurred at trial without objection was improper, illegal, or
unconstitutional. See Appellant’s Br. at 12-13. Humphries argues and
the dissent urges that the four brief references to Humphries during
the solicitor’s narrative of Dickie Smith’s life created an objection-
able person-to-person value comparison in violation of Payne. On
post-conviction review, the South Carolina Supreme Court held, inter
alia, that victim-to-defendant value comparisons were not clearly
unconstitutional because "Payne does not indicate any concern about
comparisons between the victim and the defendant." Humphries v.
State, 570 S.E.2d 160, 167 (S.C. 2002) ("Humphries II"). Our task in
this habeas proceeding is to determine whether this state-court ruling
was "contrary to, or involved an unreasonable application of" the
                           HUMPHRIES v. OZMINT                            35
holding (rather than the dicta) of Payne. 28 U.S.C. § 2254(d)(1); Wil-
liams v. Taylor, 529 U.S. 362, 412 (2000) (holding that the phrase
"clearly established federal law in section 2254(d)(1) refers to "the
holdings, as opposed to the dicta, of [the Supreme] Court’s decisions
as of the time of the relevant state-court decision").

   Plainly it was not, because Payne never once even mentions
victim-to-defendant value comparisons. Humphries’ claim thus falters
at its very first step. On our strictly circumscribed review of Humph-
ries’ state-court conviction, this elementary observation is sufficient
to dispose of the petition, because, as a threshold matter, Humphries
was required to show in state court that the challenged portion of the
argument was unconstitutional.*

   Nevertheless, the dissent raises three flatly untenable arguments
that Payne somehow clearly established "the ban on such compari-
sons" as its holding — without even mentioning such comparisons.
Post at 46. First, the dissent argues that, because Payne does not
explicitly condone human-worth comparisons, it thereby condemns
them. See post at 56 ("Notably absent from the Court’s discussion is
any hint of imprimatur for human worth comparisons. . . . Indeed, one
searches the Payne opinion in vain for any indication that the Court
meant to condone such comparative judgments."). But, of course,
under law we do not ascertain the holding of a case by inquiring into
what is absent from the Court’s discussion. Rather, the holding of a
case is found in what is actually present in the Court’s discussion.
The dissent’s "negative inference" approach to Supreme Court prece-

   *Payne does explicitly state (though not in holding) that "[i]n the event
that evidence is introduced that is so unduly prejudicial that it renders the
trial fundamentally unfair, the Due Process Clause of the Fourteenth
Amendment provides a mechanism for relief." Payne, 501 U.S. at 825
(citing Darden v. Wainwright, 477 U.S. 168, 179-83 (1986)). Given that
Payne erects no per se bar against value comparisons, and given that the
solicitor’s use of victim-impact evidence in this case was apparently oth-
erwise unobjectionable, it was clearly not contrary to or an unreasonable
application of Darden for South Carolina to conclude that Humphries’
trial was not rendered fundamentally unfair by the brief challenged por-
tion of the solicitor’s argument. See Humphries II, 570 S.E.2d at 167-68.
Thus, for the reasons discussed thoroughly by the majority, Darden like-
wise fails to provide Humphries with any avenue of relief.
36                       HUMPHRIES v. OZMINT
dent would find reversible error in every trial argument of the sligh-
test novelty as-yet unaddressed by the Court — turning AEDPA on
its head.

  Second, the dissent references the following passage as its sole evi-
dence from the text of Payne that Payne "condemn[ed]" human-worth
comparisons:

     Payne echoes the concern voiced in Booth’s case that the
     admission of victim impact evidence permits a jury to find
     that defendants whose victims were assets to their commu-
     nity are more deserving of punishment than those whose
     victims are perceived to be less worthy. As a general matter,
     however, victim impact evidence is not offered to encourage
     comparative judgments of this kind — for instance, that the
     killer of a hardworking, devoted parent deserves the death
     penalty, but that the murderer of a reprobate does not. It is
     designed to show instead each victim’s uniqueness as an
     individual human being . . . .

Payne, 501 U.S. at 823 (emphasis in original) (citation and quotation
marks omitted). As an initial matter, the dissent’s treatment of this
text from Payne is disingenuous, in a way that exactly mirrors the
error of the vacated panel opinion. Compare post at 56 with Humph-
ries v. Ozmint, 366 F.3d 266, 272 (4th Cir. 2004). In particular, both
the dissent and the panel opinion introduce the "concern" about
victim-to-victim value comparisons as if it were the Court’s concern,
instead of a concern raised by the litigant. Then, both proceed to
quote the sentence beginning "[a]s a general matter" out of context,
omitting the key word "however" that denotes contrast between the
concern raised by the litigant and the Court’s subsequent remark —
thereby twisting the Court’s language to imply that the Court was
expressing explicit disapproval of such value comparisons in this pas-
sage. See post at 56 (arguing that the Court "professes incredulity"
about victim-to-victim value comparisons in this passage, and that it
thus "signals a clear disapproval for the kind of interpersonal compar-
ison that occurred here"). Of course, as is plain from the text quoted
fully above, the passage says something quite different than the dis-
sent’s tortured quotation would suggest. In this key passage, the Court
simply (1) noted that the litigant Payne had raised a concern about
                          HUMPHRIES v. OZMINT                           37
value comparisons, and then (2) made a normatively neutral observa-
tion that, in contrast to this concern, victim impact evidence is not
generally admitted for such purposes. Therefore, this key passage —
the only passage from Payne upon which the dissent can possibly rely
— does not "condemn" or otherwise express disapproval of any
human-value comparisons at all; and, needless to say, neither did the
Court, through this passage, "profess incredulity" at such compari-
sons. Instead, it simply makes the neutral observation that the general
purpose of victim-impact evidence is not to create victim-to-victim
comparisons.

   Moreover, even if this passage from Payne did express disapproval
of value comparisons, it would nevertheless be inadequate for the dis-
sent’s purposes for three further reasons. First, as the South Carolina
court held, the passage addresses only victim-to-victim value compari-
sons, not victim-to-defendant value comparisons, and therefore does
not establish a bar against (or otherwise comment upon) the latter. See
Humphries II, 570 S.E.2d at 375 ("According to this passage, the
comparison prohibited by Payne is one between the victim and other
members of society; Payne does not indicate any concern about com-
parisons between the victim and the defendant."). Second, because
there was apparently no allegation in Payne that any victim-to-victim
value comparison had been made, the passage is clearly in dicta, not
in holding, and thus irrelevant under AEDPA. See Williams, 529 U.S.
at 412; United States v. Washington, No. 03-4867, Slip op. at ___ (4th
Cir. 2005) ("[T]he holding . . . is limited to sets of facts that are mate-
rially indistinguishable from the facts before the court in that case."
(emphasis in original)). Third, in addition to all this, we are reviewing
the South Carolina court’s interpretation of this passage under the def-
erential "unreasonable application" standard of section 2254(d)(1).
See Williams v. Taylor, 529 U.S. at 411 ("[A] federal habeas court
may not issue the writ simply because that court concludes in its inde-
pendent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that appli-
cation must also be unreasonable."); see also Booth-El v. Nuth, 288
F.3d 571, 575-76 (4th Cir. 2002) (Wilkinson, C.J.) ("The Court has
stressed that, in section 2254(d)(1), Congress specifically used the
word ‘unreasonable,’ and not a term like ‘erroneous’ or ‘incorrect.’"
(alteration and quotation marks omitted)). Patently, under this stan-
dard and in light of this evidence, it was not unreasonable for South
38                       HUMPHRIES v. OZMINT
Carolina to conclude that Payne erected no per se bar to victim-to-
defendant value comparisons.

   Finally, in a virtual concession that the language of Payne provides
no basis for its argument, the dissent grasps at lofty abstractions in an
attempt to salvage its position. Turning from its self-described "tex-
tual dissection" of Payne, which actually includes virtually no refer-
ence to the text of Payne, the dissent appeals to "an overview of
Payne and its sentencing philosophy," admittedly "ascending to th[e]
register" of "a high level of generality." Post at 58. That the dissent
must reference such ethereal concepts as the "overview" and "sen-
tencing philosophy" of Payne to support its argument effectively
demonstrates, not only that Payne did not clearly establish in holding
a rule against human-worth comparisons, but also, and even more cer-
tainly, that it was not unreasonable under section 2254(d)(1) for
South Carolina to so conclude.

   Because South Carolina was not even arguably unreasonable in
determining that Payne did not establish a per se rule against victim-
to-defendant value comparisons, Humphries’ Strickland claim fails on
this ground alone.

  But Humphries’ claim fails on three other compelling grounds as
well.

                                   B.

   Even if Payne had clearly established, in holding, a per se rule
against victim-to-defendant value comparisons (which it plainly did
not), South Carolina’s determination that no such human-worth com-
parison occurred here would not be an "unreasonable application" of
Payne. See Humphries II, 570 S.E.2d at 374 ("We agree with the PCR
court’s finding that the solicitor’s argument does not suggest that
Smith’s life is worth more than the Petitioner’s life." (emphasis in
original)).

   The challenged portion of the solicitor’s argument consists primar-
ily of the following three sentences, interspersed in the solicitor’s
summation of Dickie Smith’s life history: "That’s the same year
                         HUMPHRIES v. OZMINT                          39
Shawn Paul Humphries committed two house break-ins at age 13. .
. . That’s the same year Shawn Paul Humphries is up for his second
probation violation and sent down to Columbia. . . . That’s the same
year Shawn Paul Humphries went to jail for two years." J.A. 107. The
solicitor thus juxtaposed positive and happy events in the victim’s life
— his marriage, his decision to start a homebuilding business, and the
birth of his daughter — with contemporaneous misdeeds in Humph-
ries’ life. J.A. 107.

   The dissent contends that the only possible purpose and effect of
such a juxtaposition was to convey the conclusion that Humphries’
life was worth less than Dickie Smith’s life. See post at 49-50 ("The
solicitor’s comparisons simply leave no room for explanations of
inadvertence, or of an unintentional verbalization of an errant train of
thought. . . . Rather, the prosecution sought point-by-point, side-by-
side, and year-by-year to demonstrate to the jury that at the very
instant one life was being put to worthwhile use, the other was not.").
But of course it does not follow that, because the references to Hum-
phries were not inadvertent, they must have deliberately created a
human-worth comparison. On the contrary, the apparent purpose and
effect of the solicitor’s references to Humphries was to deflate the
exculpatory version of Humphries’ life history presented by the
defense — which was the prosecution’s main task at the sentencing
hearing, a task openly endorsed by Payne.

   By far, the bulk of the sentencing hearing and the bulk of the solici-
tor’s closing argument were concerned with the defense’s attempt to
present an exculpatory story about Humphries’ culpability for the
murder by portraying the hardships of Humphries’ past life. The
defense attempted to show that Humphries’ moral guilt for the murder
was attenuated due to the misfortunes of his past: poverty, parental
abuse, drugs and alcohol, and juvenile crimes and punishment. To this
end, the defense presented thirteen witnesses in mitigation — as com-
pared to the two victim-impact witnesses that the prosecution offered.
In his closing argument, the solicitor’s discussion of this issue of
Humphries’ culpability spans twelve full pages of the transcript — as
compared to the three and a half pages devoted to the narrative of
Dickie Smith’s life. Compare J.A. 92-104 with J.A. 105-08. The dom-
inant theme of the solicitor’s argument was that, despite the hardships
he faced in his childhood and youth, Humphries still bore moral
40                       HUMPHRIES v. OZMINT
responsibility for his choices. The following excerpt summarizes his
twelve-page discussion of Humphries’ personal culpability:

        A lot of people come from broken homes. A lot of people
     come from single parent homes. Dickie Smith came from a
     single parent home. Ashley Smith is now from a single par-
     ent home. If everybody who came from a single parent
     home or a blended family or a home with violence, if every
     person went out and murdered, we couldn’t fill this jury box
     with people.

       There’s no question [Humphries’] daddy was violent.
     There’s no question violence is a learned behavior. . . .

        And that’s a problem in America. There’s no question
     about it, but violence as a learned behavior does not come
     close to explaining what happened here. It just doesn’t do it.

       . . . Violence as a learned behavior does not explain lar-
     ceny. Violence as a learned behavior does not explain evil
     malice killing. Simply doesn’t do it.

   . . . That’s the mitigation that they’re throwing at you. That’s the
crux of the defense.

        Why is it the crux of the defense? Because you’ve got an
     aggravated, senseless killing. No question about it. And
     you’ve got a kid who’s been in trouble since he was 13, hor-
     rible record.

       So the only thing that is left is to try to take this alcohol
     use and marijuana use, and poverty background and sort of
     bootstrap yourself up into some sort of mental mitigation.
     And I would submit to you that it fails horribly.

J.A. 100-01, 103. Like the reference to Dickie Smith in the above pas-
sage, the challenged references to Humphries in the solicitor’s brief
narrative of Dickie Smith’s life underlined the main theme of the
solicitor’s whole argument, namely that Humphries should bear moral
                         HUMPHRIES v. OZMINT                          41
responsibility for the choices he made. Both references, by contrast-
ing the two men, suggest that Humphries could have made other
choices that he did not make. Like Dickie Smith, Humphries could
have chosen to build houses in spite of the adversity he faced; instead,
he chose to break into houses. Compare post at 60 ("That Dickie
Smith happened to be building houses while Shawn Paul Humphries
happened to be breaking into houses is a judgment freighted with
comparative moral import."). Because Humphries could have made
better choices, including the choice not to kill Dickie Smith, he
should be held morally accountable for his actions, despite the
defense’s attempt to argue that the difficulties of Humphries’ life
exculpated Humphries for the murder of Dickie Smith. Such was the
tenor of the solicitor’s argument, and the clearest import of the con-
trasting references to events in Humphries’ and Dickie Smith’s lives.
To say that Humphries and Dickie Smith are both morally responsible
for their choices is not to say that Smith’s life was "worth more" than
Humphries or that Smith was a "more valuable person" than Humph-
ries.

   Clearly, the solicitor’s argument about Humphries’ moral account-
ability, and his use of victim-impact evidence to highlight it, were
unobjectionable under Payne. The Payne Court openly countenanced
the juxtaposition of victim-impact evidence with the defense’s evi-
dence in mitigation for the purpose of deflating the exculpatory life
story presented at sentencing by many capital defendants:

    [T]he state has a legitimate interest in counteracting the mit-
    igating evidence which the defendant is entitled to put in, by
    reminding the sentencer that just as the murderer should be
    considered as an individual, so too the victim is an individ-
    ual whose death represents a unique loss to society and in
    particular to his family.

Payne, 501 U.S. at 825 (alteration in original) (quotation marks and
citation omitted). Here, the solicitor used victim-impact evidence to
"counteract the mitigating evidence" presented by the defendant by
suggesting that the unfortunate circumstances of Humphries’ back-
ground did not absolve him of moral responsibility for his crimes.
Thus, on the most natural reading of the solicitor’s argument, the
challenged portion did not constitute a human-worth comparison at
42                        HUMPHRIES v. OZMINT
all. Rather, it was a statement by contrast of the defendant’s moral
accountability for his actions. Therefore, it was not an unreasonable
application of Payne for South Carolina to determine that, even if
Payne did bar victim-to-defendant value comparisons, no such value
comparison occurred in this case.

   The dissent’s highly imaginative re-dramatization of the solicitor’s
argument from that in the printed appellate record thus misses the
mark. See post at 50, 51, 65 ("comparisons . . . took on the air of a
refrain"; "concluding flourish"; "the affective qualities of the oratory";
"the piece-de-resistance"; "build[ing] inexorably towards this apex";
"the plaintive repetition . . . in his ultimate exhortation"; "a climactical
flourish"). At bottom, the dissent’s argument must rest entirely on the
speculative assumption that the solicitor’s juxtaposition of events in
fact implied such a human-worth comparison to the jury. If so, the
implication was indirect and not implied necessarily at all: to say that
two people from unfortunate circumstances should bear moral respon-
sibility for the good and bad choices that they make simply is not to
say that one is more valuable than the other.)

                                    C.

   Third, even if South Carolina had erred in its treatment or applica-
tion of Payne, we could not hold that it would be unreasonable for
South Carolina to determine that trial counsel’s failure to object nev-
ertheless constituted constitutionally acceptable performance under
Strickland. As noted above, here we owe compounded deference to
trial counsel’s decision: we defer to the South Carolina court’s highly
deferential review of trial counsel’s performance. And the deference
that trial counsel must be afforded under Strickland is appropriately
extensive, because appellate courts are poorly suited to second-guess
trial strategy and on-the-fly decisions of trial counsel. See Strickland
v. Washington, 466 U.S. 668, 689 (1984) ("[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 over-
come the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy."). Indeed, it is well
established that failure to object to inadmissible or objectionable
material for tactical reasons can constitute objectively reasonable trial
strategy under Strickland. See, e.g., Booth-El v. Nuth, 288 F.3d 571,
                         HUMPHRIES v. OZMINT                          43
584 (4th Cir. 2002) (Wilkinson, C.J.) (counsel’s failure to object to
objectionable jury panel that may have been favorable for other rea-
sons was not objectively unreasonable) ("Defense counsel made a tac-
tical decision to preserve the jury that had already been selected.");
Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 562 (4th Cir. 1999)
(opinion joined by Wilkinson, C.J.) (counsel’s failure to object at trial
to the testimony of an eyewitness was not objectively unreasonable
because counsel may have preferred cross-examination to exclusion
of the witness); Arnold v. Evatt, 113 F.3d 1352 (4th Cir. 1997) (fail-
ure to object at trial to evidence discrediting a witness’ testimony
could reasonably have been part of a trial strategy).

   In this case, even if Payne clearly established a rule against victim-
to-defendant human-worth comparisons and even if the solicitor had
clearly made such a comparison, it would not constitute an unreason-
able application of Strickland for South Carolina to conclude that
Humphries’ counsel were not constitutionally ineffective for failing to
object. After all, the allegedly objectionable portion of the solicitor’s
argument was quite brief. An objectively adequate defense attorney
might easily have judged that he would lose face with the jury by pos-
ing an objection that caviled at an emotionally charged point in the
argument, and that this harm might outweigh any benefit to his client
from having a few sentences stricken from the record. Indeed, given
that there was no clearly established law on which to rely, trial coun-
sel may have reasonably feared that the jury would view his very
probably unsuccessful and unjustified objection at that point as mere
pettifogging — and discounted his credibility accordingly. Also,
given the brief, indirect nature of the alleged comparison, an objec-
tively reasonable attorney might even have feared that his objection
would actually draw the jurors’ minds into a human-worth compari-
son, rather than the solicitor’s fleeting references to Humphries. After
all, absent objection, the jury might well have missed the alleged sig-
nificance of these references as a supposed human-worth comparison,
as did the South Carolina court and the majority of judges in this cir-
cuit, all of whom are unwilling to hold that an explicit human-worth
comparison occurred in this case. Likewise, a reasonable attorney
might have judged that an objection at that point might have high-
lighted the solicitor’s effective debunking of the exculpatory version
of Humphries’ life history presented by the defense.
44                       HUMPHRIES v. OZMINT
   In sum, given the deference owed to real-time, tactically significant
decisions about objections made by trial counsel, it is unlikely that we
could hold that trial counsel’s failure to object was objectively unrea-
sonable under Strickland — even if we were considering this Strick-
land claim in the first instance and even if Payne had clearly
established a rule against human-worth comparisons. Considering the
fact that counsel had no explicit grounds for objection under Payne
because Payne does not address such comparisons, and the fact that
the deference we owe trial counsel is compounded by the deference
we owe South Carolina’s judgment under AEDPA, it is evident that
Humphries’ petition must be denied on the first prong of Strickland.

                                  D.

   Fourth, it was not an unreasonable application of Strickland for
South Carolina to hold that Humphries did not suffer prejudice from
the challenged portion of the solicitor’s argument. See Humphries II,
570 S.E.2d at 168 ("In our opinion, the solicitor’s closing argument
. . . did not prejudice Petitioner."). The challenged references were
brief and referred to evidence that had been admitted into the record,
submitted to the jury, and extensively commented upon earlier in the
solicitor’s argument. See ante at 21-23. Humphries bases his chal-
lenge primarily on three sentences in a twenty-eight page closing
argument. All three referred fleetingly to evidence that he had dis-
cussed extensively only a few minutes before. As the majority con-
cludes, there was no reasonable probability that the solicitor’s use of
those few sentences at that point changed the outcome of the proceed-
ings. See ante at 23 ("[W]e harbor no doubt that, notwithstanding the
solicitor’s comparison that Humphries finds so objectionable, a sen-
tence of death would have resulted."). Far less did it constitute an
unreasonable application of Strickland for South Carolina thus to con-
clude.

  The denial of Humphries’ Strickland claim, thus, is independently
supported by four distinct, compelling, and individually sufficient
grounds for affirmance. It is for this reason that I concur in the judg-
ment and opinion of the court.
HUMPHRIES v. OZMINT              45
                      Volume 2 of 2
46                       HUMPHRIES v. OZMINT




WILKINSON, Circuit Judge, dissenting:

   No person should be executed in America on the theory that his life
is of less worth than that of someone else. This principle is not only
clearly established in federal law; it is anciently so. Neither a defense
attorney, nor a state court judge, nor his federal counterpart should
need any prompting to object to a death sentence that is premised on
a principle of comparative human worth. Because the majority’s opin-
ion fails to respect the ban on such comparisons, and in the process
strays perilously close to endorsing them, I respectfully dissent.

   There should be no doubt that this case presents a violation of this
sort. The prosecutor made no bones about what he did. He baldly
compared the general worth of the victim’s existence with that of the
defendant and urged the jury to impose a death penalty on that basis.
This sort of argument should not serve as a prelude to any sort of pun-
ishment, much less to a capital sentence.

   In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court
made clear the many good and legitimate uses of victim impact evi-
dence. Without a doubt, victim impact evidence serves an important
role in our criminal justice system. It affords a multitude of avenues
for impressing on the jury the peculiar anguish of the loss from vio-
lent crime. Indeed, victim impact evidence may become more impor-
tant as the severity of the offense increases. It is certainly warranted
in a capital sentencing proceeding, where the loss to family and
friends is most profound and where the murder has robbed the prose-
cution of a critical witness.

   But what happened here was a perversion of all that is proper under
Payne. Punishment in our system reflects those things for which an
individual defendant is responsible, not notions of the relative value
of respective human lives. The prosecutor took leave of the bedrock
principle that punishment rests on the circumstances of the crime, the
                          HUMPHRIES v. OZMINT                           47
consequences for its victims, and the defendant’s criminal history.
Rather than seek a capital sentence on these traditional and wholly
defensible bases, the prosecutor strayed into territory whose forbidden
nature should have been self-evident.

   Indeed, the majority is able to point to no other argument that even
approaches the egregiousness of this prosecutor’s comments and no
other case in which a court has tolerated such misconduct. There is
a reason for this telling lacuna in the majority opinion — the wrong-
fulness of putting people to death on the basis of comparative human
worth arguments is now, and was at the time of Humphries’ sentenc-
ing, clearly forbidden. I would therefore affirm Humphries’ convic-
tion, but I would issue the writ for purposes of resentencing. I regret
that I take such exception to the views of my distinguished colleagues
and able concurring brother on this issue, but I do.*

                                    I.

   The majority’s defense of the state solicitor’s closing argument
begins with the claim that it contains no transgression that would war-
rant our censure. My colleagues claim that this argument "simply did
not invite the jury to return a sentence based on the relative worth of
the lives of Dickie Smith and Humphries." Maj. Op. at 21. To support
this proposition, the majority attempts to submerge the prosecutor’s
improper weighing of human worth at the end of his argument in the
sea of legitimate evidence already before the jury. But close examina-
tion of the solicitor’s final presentation to the jury betrays the futility
of this apology.

  The solicitor began his closing arguments at the sentencing phase
by sketching the contours of the evidence he would discuss. He
announced:

     You look at four things in deciding the issue of punishment.
     You look at the aggravation. Is it an aggravated murder?

  *My views have not changed in any respect from those I expressed in
the vacated panel opinion, Humphries v. Ozmint, 366 F.3d 266 (4th Cir.
2004). This dissent relies upon that opinion as supplemented by points
debated during the process of en banc rehearing.
48                        HUMPHRIES v. OZMINT
     You look at the character of the Defendant. You look at any
     mitigation, statutory mitigation or other mitigation they’ve
     presented to you. And the last thing you look at is the vic-
     tim, his uniqueness. What harm to the community and to the
     victim and to the family did this Defendant cause? Those are
     the four things you look at.

   This outline of the evidence was entirely unremarkable. Indeed, the
Supreme Court has generally endorsed the propriety of each of its ele-
ments. See, e.g., Simmons v. South Carolina, 512 U.S. 154, 163
(1994) (aggravating factors including the defendant’s "prior criminal
history"); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (mitigating evi-
dence).

   The prosecutor was therefore well within constitutional bounds in
his exegesis of the first three sections. The trial evidence received, the
witness testimony at sentencing, and the prosecution’s closing argu-
ment discussed in turn the aggravating circumstances of the crime,
Humphries’ criminal history, and the mitigating evidence offered by
the defendant. The testimony the prosecutor elicited for the final ele-
ment of his presentation, concerning the victim’s uniqueness, was
similarly sound. Dickie Smith’s relatives appeared before the jury
without objection and recounted their recollections of the victim and
what he had meant to each of them. Indeed, had the solicitor stopped
at this juncture, his actions would have been beyond scrutiny.

   The problem was that the solicitor did not stop. In his commentary
on the victim impact evidence, the prosecutor took leave of his
announced intention to discuss "the victim, his uniqueness" and the
"harm to the community and to the victim and to the family" that the
defendant’s crime had caused. Instead, he launched into a general
human worth comparison that could not have been more removed
from his stated purpose of showing Dickie Smith as a unique and
individual human being. This stark detour should have been obvious
from the solicitor’s first mention of the defendant in the narrative of
the victim’s own life:

     [I]n 1984 [Dickie Smith] met Pat, and they fell in love, and
     they got married. That’s the same year Shawn Paul Humph-
     ries committed two house break-ins at age 13. 1986 Dickie
                         HUMPHRIES v. OZMINT                         49
    makes a pretty drastic move. He decides he’s going to quit
    Kemet and go build homes full-time, and he goes out, and
    he starts building homes in the community he had grown up
    in. That’s the same year Shawn Paul Humphries is up for his
    second probation violation and sent down to Columbia.

    Then in 1988, July the 4th, they have a little baby girl
    named Ashley. You know, the Defense brought in a 12 year
    old stepdaughter — stepsister, said, "Please don’t put Shawn
    Paul Humphries in the electric chair." I’m sorry I did not
    feel it was appropriate to bring in a six year old girl Ashley
    and parade her in front of you.

    In 1988 Ashley is born. That’s the same year Shawn Paul
    Humphries went to jail for two years. And in the spring of
    1992, I believe, Dickie Smith opens the doors to the Max-
    Saver, building a business down in that community.

   The majority claims that the solicitor meant only to foreground
"Dickie Smith’s uniqueness as an individual" in this part of his clos-
ing argument and contends that the vignettes from the victim’s life
did nothing more than further this purpose. Maj. Op. at 8-9, 20. The
majority keeps repeating that the prosecutor’s comments did not
involve a human worth comparison. But it never begins to explain
why not. Indeed, the majority never tells us why Shawn Paul Humph-
ries’ full name needed to occur at all — let alone three times — in
the part of the closing argument that was expressly previewed to the
jury as an entirely legitimate discussion of Dickie Smith as an indi-
vidual human being. Because the prosecutor avoided using words
such as "compare" or "value" or "worth," my colleagues also assert
that this portion of his argument cannot credibly be regarded as one
of comparative human worth. Id. at 21, 24. I cannot accept this char-
acterization. Indeed, if this argument is not deemed to be one of com-
parative human worth, then I cannot conceive of an argument that
would merit that designation.

   The solicitor’s comparisons simply leave no room for explanations
of inadvertence, or of an unintentional verbalization of an errant train
of thought. Indeed, such glancing or implicit comparisons may be all
but unavoidable in a sentencing proceeding focused on the persons of
50                       HUMPHRIES v. OZMINT
the victim and the perpetrator. Yet the prosecution here uttered
identically-phrased comparisons for three separate occasions — com-
parisons that took on the air of a refrain. All of these comparisons
mentioned the defendant by his full name and all employed the same
dramatic construction, "[t]hat’s the same year Shawn Paul Humphries
. . . ." The record thus presents no general, oblique, or inadvertent
comparisons of the victim and defendant. Rather, the prosecution
sought point-by-point, side-by-side, and year-by-year to demonstrate
to the jury that at the very instant one life was being put to worthwhile
use, the other was not.

   Thus, far from showing the victim as an individual, the prosecution
presented two largely separate lives in tandem. In this regard, the
comparison went far beyond the only two cases raised by the State
that purport to reconcile Payne with comparative worth arguments,
State v. Haselden, 577 S.E.2d 594, 610 (N.C. 2003), and Jackson v.
State, 33 S.W.3d 828, 843 (Tex. Crim. App. 2000). Neither of those
cases sought to advance the sort of human time chart the prosecution
ventured here. Neither deliberately sought to take past events in two
unrelated lives for the sole purpose of comparing the general worth
of the victim’s and the defendant’s existence. Indeed, in Haselden, the
case on which the majority chiefly relies, Maj. Op. at 26-27 n.7, the
most it can muster up is a single sentence which did not begin to
approach the prosecutor’s extensive exploration of relative worth in
the Humphries’ case.

   Other courts have not hesitated to censure violations of a less hor-
rific sort than that which happened here. In State v. Koskovich, 776
A.2d 144 (N.J. 2001), the court held that a "directive to jurors that
they balance the victim’s background against that of defendant was
akin to asking the jury to compare the worth of each person," which
is "inherently prejudicial" and "might prompt jurors to impose the
death penalty arbitrarily." Id. at 182. Likewise the court in State v.
Muhammad, 678 A.2d 164 (N.J. 1996), emphasized that "[v]ictim
impact testimony may not be used . . . as a means of weighing the
worth of the defendant against the worth of the victim." Id. at 179.
State v. Storey, 901 S.W.2d 886 (Mo. 1995) (en banc), meanwhile,
found ineffective assistance of counsel in the failure to object to pros-
ecutor’s argument, "[w]hose life is more important to you? Whose life
has more value? The Defendant or [the victim’s]?" Id. at 902. And the
                         HUMPHRIES v. OZMINT                          51
South Carolina Supreme Court only recently overturned a capital sen-
tence which had been returned after a prosecutor asked the jury
whether "the lives" of the victims were "worth" that of the "killer."
Hall v. Catoe, 601 S.E.2d 335, 339 (S.C. 2004). While the prosecutor
may have used the word "worth" in his argument, his comments did
not rise to the level of a studied and comparative chronology of two
peoples’ lives, as we have before us here.

   In the face of these precedents, I am surprised the majority clings
to its defense of the prosecutor’s peroration in this trial. For the case
law leaves the majority literally alone in its willingness to sanction
executions on the basis of extended weighings of relative human
worth.

   Any lingering doubts one might have about the State’s purpose
should be thoroughly dispelled by considering how the solicitor drew
his comments to a close. He returned to the notion that "Dickie Smith
is as much about this case as Shawn Paul Humphries" by rhetorically
asking "[w]ho is the victim here, Shawn Paul Humphries or is it Dic-
kie Smith?" He legitimately implored the jury to return a capital sen-
tence by asking "if not in a case with a character like this, if not in
a case when somebody like Dickie Smith is taken, then when are you
going to do it?" It was another ending exhortation, however, that left
the jury in no doubt: "[W]hen you look at the character of this Defen-
dant, and when you look at Dickie Smith, how profane when you look
at all the circumstances of this crime and of this Defendant, how pro-
fane to give this man a gift of life under these circumstances." This
concluding flourish served only one purpose: to hammer home the
point that already infused the multiple specific comparisons of epi-
sodes from those two lives that the solicitor had just set forth: Shawn
Humphries had led a worthless life, Dickie Smith had led a worthy
one, and a death sentence was warranted on this basis.

   The majority contends finally that the prosecution’s argument in its
entirety involved no more than permissible comments on the evi-
dence. My colleagues emphasize that all of the discussion of the past
lives of the victim and the defendant had already been submitted into
evidence at the sentencing hearing. The majority notes that "the solic-
itor’s life history comparison contained in the year-by-year chronol-
52                       HUMPHRIES v. OZMINT
ogy was based upon facts established during the trial [that] were
readily apparent to the jury." Maj. Op. at 21.

   I do not suggest this evidence was inadmissible. To the contrary,
the victim impact evidence was properly submitted. The testimony of
Dickie Smith’s brother, Randy, and his wife, Pat, was all legitimately
designed to underscore the importance of the victim’s life to his fam-
ily members, to his friends, and to the community he served. Com-
ment upon this evidence would clearly conform to the strictures of
Payne and the rhetorical embellishment of the evidence would be well
within the latitude afforded closing arguments.

   But that is not what occurred in this case. That the facts from which
the prosecutor drew his comparison were already in the record does
not cure the prejudice resulting from the format in which the prosecu-
tor chose to present a significant portion of his close. The comparison
between the victim and perpetrator that formed the focus of this clos-
ing argument reached the point at which differences in degree ripen
into differences in kind. The State did not seek simply to comment on
the evidence. The State did not seek simply to explore the terrible
consequences of this crime for the victim’s family and community or
to lay out the victim’s uniqueness as an individual. The State sought
to present two peoples’ lives in a crafted invitation to the jury to com-
pare their relative worth. This side-by-side comparison of the relative
value of two lives was calculatedly incendiary and rendered the sen-
tencing fundamentally infirm.

   Viewed against the backdrop of this message, the majority’s sug-
gestion that the prosecutor obeyed the prohibition on judgments of
comparative human worth by avoiding the words "compare" and
"value" or "worth" is a simple invitation to subterfuge, condoning
egregious human worth comparisons in substance so long as certain
phrases are avoided. Likewise, the concurrence’s suggestion that the
prosecution was doing no more here than saying Humphries "could
have made better choices" is untenable. Conc. Op. at 41. The prosecu-
tor could have argued the tragic nature of Humphries’ choices, under-
scored his responsibility for those choices, and attacked Humphries’
mitigating evidence all day long without indulging an argument of
relative human worth. Left with no explanation for the comparison
that occurred here, let alone a plausible one, I can only state again
                         HUMPHRIES v. OZMINT                          53
what appears so obvious from the record: that the prosecutor told the
jury that the intrinsic value of one life over time was less than that
of another, and that a sentence of death was warranted on that basis.

                                   II.

   This case comes to us on collateral review. In reviewing a state
court judgment on collateral attack, our obligations of deference to
state court proceedings are quite plain. Congress has declared that a
federal court may not grant a writ of habeas corpus unless the state
court’s holding "was contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by the
Supreme Court of the United States," 28 U.S.C. § 2254(d)(1) (2000),
or "resulted in a decision that was based on an unreasonable determi-
nation of the facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d)(2). The question before us is simply
whether the state court’s decision in this case violated clearly estab-
lished federal law by applying "a rule that contradicts the governing
law set forth in [the Supreme Court’s] cases." Williams v. Taylor, 529
U.S. 362, 405 (2000).

   The majority and I agree that the pivotal case in this analysis is
Payne v. Tennessee, 501 U.S. 808 (1991). But while we agree that
Payne is the applicable case, we could not disagree more on what
Payne plainly holds. Payne unequivocally endorsed the use of victim
impact evidence in capital proceedings, but it never came close to
placing any imprimatur on the sort of closing argument the prosecutor
offered here. In fact, the Supreme Court issued plain warnings to steer
clear of human worth comparisons, warnings which I regret to say the
majority has not heeded.

                                   A.

   Payne itself provides a good example of the uses to which victim
impact evidence may be put. The case involved the murder of a
twenty-eight-year-old mother and her two-year-old daughter whom
the defendant viciously stabbed to death with a butcher knife. The
Payne Court approved the introduction of victim impact evidence
concerning the physical and psychological harm inflicted on the vic-
tim’s three-year-old son who was also stabbed repeatedly, yet sur-
54                       HUMPHRIES v. OZMINT
vived, and who thus witnessed the murder of his mother and sister.
Testimony by surviving relatives of the victim provides a paradigm
case for the use of victim impact evidence, regardless of whether
those survivors actually witnessed, as the young boy did in Payne, the
commission of the crime.

   Payne made clear that victim impact evidence, or "evidence relat-
ing to the personal characteristics of the victim and the emotional
impact of the crimes on the victim’s family," has an important and
legitimate place in capital sentencing. 501 U.S. at 817. States are per-
mitted to introduce such evidence to offer the jury "a quick glimpse
of the life which a defendant chose to extinguish, or [to demonstrate]
the loss to the victim’s family and to society which has resulted from
the defendant’s homicide." Id. at 822 (quoting Mills v. Maryland, 486
U.S. 367, 397 (1988) (Rehnquist, C.J., dissenting))(internal quotations
omitted). Grounding a capital sentence in considerations of this sort
does not violate the traditional precepts of sentencing. On the con-
trary, victim impact evidence informs the jury of the "specific harm
caused by the crime in question," id. at 825, and the consequences of
a criminal act have long been a factor on which punishment may
properly rest. Id. at 819-20, 825. For this reason, forbidding states
from allowing victim impact evidence in sentencing proceedings
would reduce the deceased to a "faceless stranger at the penalty phase
of a capital trial [and] may prevent the jury from having before it all
the information necessary to determine the proper punishment for a
first-degree murder." Id. at 825 (quoting South Carolina v. Gathers,
490 U.S. 805, 821 (O’Connor, J., dissenting)) (internal quotations
omitted).

   Payne also rebutted in turn each argument against victim impact
evidence that had informed the earlier decisions of Booth v. Mary-
land, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S.
805 (1989). While Booth and Gathers asserted that such evidence led
to arbitrary imposition of the death penalty, the Payne Court found
that any effect on the incidence of capital sentences was consonant
with the principle that punishment may be calibrated to fit the harm
a crime had caused. See Payne, 501 U.S. at 825. While Booth and
Gathers were concerned that victim impact evidence would frustrate
the defendant by forcing a diversion of attention from his case in miti-
gation to the victim’s character, the Payne Court concluded that this
                         HUMPHRIES v. OZMINT                         55
was no more prejudicial than the many tactical decisions that must be
made in the course of capital litigation. Id. at 823. While Booth and
Gathers believed that the individualized consideration of a defendant
required in a capital case prohibited victim impact evidence, the
Payne Court protested that the victim should likewise be accorded
individual respect. Id. at 822, 825. Finally, the Payne Court deter-
mined that the approach to sentencing underlying Booth and Gathers
had been too narrow, criticizing the premise of those cases that victim
impact evidence "do[es] not in general reflect on the defendant’s
‘blameworthiness,’ and that only evidence relating to ‘blameworthi-
ness’ is relevant to the capital sentencing decision." Id. at 819.

   Payne thus endorses, explicitly and unequivocally, the use of vic-
tim impact evidence at the punishment phase of a capital trial. Yet,
while the states plainly "remain free, in capital cases, as well as oth-
ers, to devise new procedures and new remedies to meet felt needs,"
id. at 824-25, neither Payne nor any other Supreme Court case has
suggested that victim impact evidence may be used without limit,
constraint, or without reference to the harm caused by the crime to
those aggrieved. This fundamental idea of harm caused the victim and
his family by the crime of the defendant pervades the Payne opinion.
Indeed, it is mentioned by the Court as the rationale for victim impact
evidence no fewer than ten times. See id. at 819 (victim impact evi-
dence is relevant for the "harm caused by the defendant as a result of
the crime"); id. at 820 (sentences are commonly calibrated to the
"harm done by the criminal"); id. (sentencing judge’s discretion is
properly guided by consideration of the "harm caused by the crime");
id. at 821 (describing federal and state sentencing reform that enables
"the sentencing authority to consider information about the harm
caused by the crime committed by the defendant"); id. (victim impact
evidence is "designed to portray for the sentencing authority the
actual harm caused by a particular crime"); id. at 825 (factors gener-
ally relating to "specific harm" caused by crime have long been "con-
sidered by sentencing authorities"); id. (evidence submitted was
"illustrative of the harm caused by Payne’s double-murder"); id.
(states may properly authorize consideration of "specific harm caused
by the defendant" in assessing punishment); id. at 826 (evidence sub-
mitted "illustrated quite poignantly some of the harm that Payne’s
killing had caused"); id. (sentencer may "bear in mind" such "harm"
while also considering defendant’s mitigating evidence).
56                       HUMPHRIES v. OZMINT
   Notably absent from the Court’s discussion is any hint of imprima-
tur for human worth comparisons, let alone of the naked variety that
occurred here. For human worth comparisons are so far removed from
the Court’s central concern of harm that it is inconceivable that the
Court somehow meant to allow them. Indeed the human worth com-
parison offered in this case presents the very antithesis of Payne’s
rationale for victim impact evidence. Evidence introduced to inform
the sentencing authority of the "specific harm" caused by the crime
in question, id. at 825, is the very opposite of comment weighing the
general value of the victim’s and defendant’s entire lives. Testimony
focusing on the consequences of the crime in question ensures that
victim impact evidence promotes rather than retards the fundamental
purposes of the sentencing function. Argument drawing a compara-
tive judgment of human life roams far afield from the consequences
of the criminal act.

   Indeed, one searches the Payne opinion in vain for any indication
that the Court meant to condone such comparative judgments. In the
one part of the opinion where the Court considers comparative
appeals of this sort, it does so only to condemn them. Payne considers
the question, raised in Booth, of whether victim impact evidence
might permit "a jury to find that defendants whose victims were assets
to their community are more deserving of punishment than those
whose victims are perceived to be less worthy." Id. at 823 (citing
Booth, 482 U.S. at 506 n.8). In response to this possibility, the Court
professes incredulity, noting that

     [a]s a general matter . . . victim impact evidence is not
     offered to encourage comparative judgments of this kind —
     for instance, that the killer of a hardworking, devoted parent
     deserves the death penalty, but that the murderer of a repro-
     bate does not. It is designed to show instead each victim’s
     ‘uniqueness as an individual human being,’ whatever the
     jury might think the loss to the community resulting from
     his death might be.

Id. at 823. The Court noted that "[i]n the majority of cases . . . victim
impact evidence serves entirely legitimate purposes." Id. at 825. But
it chose to conclude its discussion in precise terms. It stated that "if
the State chooses to permit the admission of victim impact evidence"
                         HUMPHRIES v. OZMINT                         57
— previously defined as the "personal characteristics of the victim
and the emotional impact" of the crime, see id. at 817 — "and pro-
secutorial argument on that subject, the Eighth Amendment erects no
per se bar." Id. at 827.

   The Court’s discussion of victim impact evidence in Payne there-
fore signals a clear disapproval for the kind of inter-personal compari-
son that occurred here. The South Carolina Supreme Court held (and
the majority appears to agree) that Payne only prohibited comparisons
between the relative worth of victims, rather than comparisons
between victims and perpetrators. See Humphries v. State, 570 S.E.2d
160, 167-68 (S.C. 2002). It is true that a comparison of one victim to
another may differ from a comparison of a victim to a defendant. The
former permits the introduction of collateral evidence — the worthi-
ness of other members of society — while the latter invites commen-
tary on evidence already before the jury. Nonetheless, distinguishing
these two types of human worth comparisons splits an awfully thin
hair.

   In fact, contrary to the majority’s claim that comparative worth
judgments are "inevitable" after Payne, Maj. Op. at 23 n.6, 29 n.9, a
fair examination of the case reveals that the Court did not even
believe that arguments of this sort would be raised in capital proceed-
ings, much less proffered as the basis for the death sentence. The pair-
ing of two people, one actual and one supposed, contemplated by the
example which Payne condemns, see 501 U.S. at 823, does not sud-
denly become acceptable when the hypothetical element of the dyad
is replaced by the prosecutor with the person of the defendant.

   Quite the opposite, it is the relative nature of these sorts of judg-
ments that provoked the Court’s disapproval, not the imaginative leap
that resort to a conjectural comparator requires. Life in our society is
not the relative matter that the prosecutor tried to make it. Each life
stands instead on a footing of its own. This is the essential point the
Court expresses. Otherwise it is impossible to imagine why the Court
would tether its overruling of Booth and Gathers to their holdings
"that evidence and argument relating to the victim and the impact of
the victim’s death on the victim’s family are inadmissible at a capital
sentencing hearing," id. at 830 n.2, why it would take pains to empha-
size that some victim impact evidence, otherwise proper, might be so
58                       HUMPHRIES v. OZMINT
prejudicial that "it renders the trial fundamentally unfair," id. at 825,
and why it would see fit to emphasize that proper victim impact evi-
dence shows "each victim’s ‘uniqueness as an individual human
being.’" Id. at 823 (emphasis added in part).

   To this point, I have confined myself to a textual analysis of the
Payne opinion. But an overview of Payne leads to the very same con-
clusion as a textual dissection, namely that a victim’s status as "an
individual human being," id., does not allow human worth compari-
sons, let alone approve them. An overview of Payne and its sentenc-
ing philosophy is necessary because it likewise forfends the
majority’s conclusion.

   The Payne Court had to proceed at a high level of generality
because the decisions it overruled had already ascended to this regis-
ter. Booth, for instance, held that sentencing evidence must relate only
to the defendant’s blameworthiness. See id. at 818-19 (citing Booth,
482 U.S. at 504, 505). But Payne criticizes the conception of punish-
ment set forth in Booth and Gathers as too cramped. Instead, a sen-
tencer can properly consider the "harm caused by the defendant as a
result of the crime charged." Id. at 819. The Court thus explicitly
extends the preoccupation in Booth with "the subjective guilt of the
defendant" to encompass also "the harm caused by his acts." Id. at
820.

   The significance of Payne is that it added harm to Booth’s discred-
ited insistence that sentencing evidence must relate solely to the
defendant’s blameworthiness. See id. at 818-19 (citing Booth, 482
U.S. at 504, 505). Payne envisions blame and harm as the two orga-
nizing categories of sentencing evidence. Indeed, Payne stands for the
proposition that the relevance of arguments in capital sentencing
should be grounded in at least one of these two principles. And it is
possible, no doubt, to reconstruct the chain of reasoning that supports
such a relationship for every category of evidence that state and fed-
eral sentencing law permits. Criminal history, for instance, relates to
blame. See, e.g., U.S.S.G. Ch. 4, intro. comment ("A defendant with
a record of prior criminal behavior is more culpable than a first
offender and thus deserving of greater punishment.") Victim impact
evidence of the sort Payne contemplated, meanwhile, relates in like
manner to harm.
                         HUMPHRIES v. OZMINT                          59
   Comparative human worth judgments, in stark contrast, defy classi-
fication under this rubric. For in their general resort to the respective
worthiness of human lives, they do not bear in the slightest on the
defendant’s culpability or the deleterious consequences of his crimi-
nal act. Indeed, the majority offers not one argument that relates
human worth comparisons to either of these seminal concepts.
Instead, the majority retreats behind nebulous pronouncements about
"the boundaries of a question the jury was required to consider," Maj.
Op. at 25, and observations that "[t]he bulk of the solicitor’s argument
was not that Humphries should die because his life was worth less
than Dickie Smith’s." Id. at 21. Propositions such as these simply
ignore both what the prosecutor said and what he did in breaching the
principles that Payne was all about.

   The majority concludes its own review of Payne by saying that the
opinion has "a few shortcomings," Maj. Op. at 29 n.9, and that it has
made human worth comparisons "inevitable." Id., 23 n.6. For its part,
the concurrence likewise finds fault with Payne, because it dismisses
inconvenient statements in that opinion as "dicta," Conc. Op. at 35,
37, thus ignoring the Supreme Court’s explanation of the basis for its
own decision. I do not think Payne has any "shortcomings." Far from
making human worth comparisons "inevitable," Payne condemns
them by stressing the quality of a victim as an individual human
being. See Payne, 501 U.S. at 825. Thus there was nothing at all "in-
evitable" about this prosecutor’s decision to take leave of the focus
on Dickie Smith and Shawn Paul Humphries as individuals and
launch into an argument which, by laying their two lives side-by-side,
undermined that individuality. If this were all so "inevitable," one
wonders why it is the only argument in this country to indulge such
an extended and explicit weighing of the relative worth of human life.

   The extent of the State’s transgression is, sadly, beyond salvaging
through the aforementioned standard of review. For due process at its
core contains a commitment to treat all litigants as individuals of
equal dignity. See Lyng v. Castillo, 477 U.S. 635, 636 n.2 (1986).
This individuality is compromised, however, when prosecutors
implore juries to hand down sentences on theories of comparative
human worth. The past lives this jury was exhorted to balance bore
no connection or relation, save for the tragic events which brought the
parties into court. Yet the State engaged in sweeping comparisons of
60                       HUMPHRIES v. OZMINT
the life histories of the victim and the defendant, coopting, in the pro-
cess, events far removed in time and place and relevance from the
proper inquiry at hand. The very concept of a sentence should have
operated to preclude this misadventure. One does not receive a sen-
tence for leading a less valuable life than someone else. One receives
a sentence under our system for having committed a crime. Violating
this principle, the prosecutor’s human worth comparison defies my
colleagues’ justification just as it did the Payne decision.

                                   B.

   When one steps back and surveys American sentencing practice,
the fact that the majority faces so hard a task in accommodating
Payne to comparisons of human worth is not surprising.

   The comparative worth argument relied on here fell within the cat-
egory of factors that the Supreme Court has prohibited as unduly prej-
udicial in the death penalty sentencing context. See Johnson v.
Mississippi, 486 U.S. 578, 584-85 (1988) (quoting Zant v. Stephens,
462 U.S. 862, 885 (1983)) (prohibiting death penalty decisions "pred-
icated on mere ‘caprice’ or on ‘factors that are constitutionally imper-
missible or totally irrelevant to the sentencing process’"). The
comparison of what Humphries and Smith happened to be doing in
1984 or 1986 or 1988 or at some fortuitous past point in their separate
lives is the essence of an arbitrary and capricious circumstance. That
Dickie Smith happened to be building houses while Shawn Paul
Humphries happened to be breaking into houses is a judgment
freighted with comparative moral import. It was not, however, a per-
missible basis under the Due Process Clause on which to condemn the
defendant to death. Juries are free to mete out capital verdicts based
on the evidence before them, the consequences of the crime for the
victim’s family and loved ones, the presence or absence of a variety
of aggravating or mitigating circumstances, or the sheer heinousness
of the offense. See, e.g., South Carolina Code § 16-3-20(C). All of
these factors are focused on individuals qua individuals and are not
comparative in nature. But one thing the centerpiece of closing argu-
ment cannot invite is a sentence on the basis that one person is of
more intrinsic value than someone else. A defendant may not be con-
demned simply for being deemed, over the long trajectory of life, a
less estimable human being than his victim.
                         HUMPHRIES v. OZMINT                         61
   In the wake of Payne, the federal government, the military, and
thirty-three of the thirty-eight states with the death penalty have
authorized the use of victim impact evidence in capital sentencing.
John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capi-
tal Cases, 88 Cornell L. Rev. 257, 267 (2003). Unsurprisingly, while
these jurisdictions allow a broad range of victim impact evidence,
none sanctions the sort of comparative worth arguments advanced in
this proceeding. To place the matter in perspective, the United States
Sentencing Guidelines, made advisory after Booker, contemplate a
multitude of enhancements and departures for a variety of factors
relating to the crime. These include the knowing selection of a vulner-
able victim, U.S.S.G. § 3A1.1, the perpetrator’s aggravating role in
the offense, U.S.S.G. § 3B1.1, the abuse of a position of trust or use
of a special skill in committing the offense, U.S.S.G. § 3B1.3, the
infliction of significant physical or extreme psychological injury on
the victim, U.S.S.G. § 5K.2.2, 5K2.3, the use of a weapon or danger-
ous instrumentality in the commission of the crime, U.S.S.G. § 5K2.6,
and the crime’s purpose of facilitating or concealing another offense,
U.S.S.G. § 5K2.9. One can look in vain among these enhancements
and departures for any factor remotely resembling the relative worth
of the victim’s and defendant’s lives. Such a factor would hardly form
the basis of a two-level increase, much less the imposition of a sen-
tence of death.

    If we ignore Payne’s condemnation of the use of comparative
human worth arguments, we invite future abuses. As the trial judge
exclaimed, this was "one of the best arguments I have ever heard in
my life given in a closing argument . . . in terms of the technique, .
. . delivery, effectiveness." The argument was so effective, however,
precisely because it was so improperly prejudicial to Humphries, and
ignored the bedrock premise that "punishment should be directly
related to the personal culpability of the criminal defendant," Califor-
nia v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring).

   My concurring brother seeks repeatedly to condemn the dissent’s
discussion of sentencing principles without ever trying to rebut it.
Indeed, the concurrence fails to come to grips with the fact that what
transpired in this case was a profound departure from traditional
American sentencing practice as it existed both before, during, and
after the Payne decision. By breaking from sentencing regimes which
62                        HUMPHRIES v. OZMINT
relate punishment to the defendant’s actions, the majority also departs
from the historic understanding that punishment is not a matter of sta-
tus, but rather a function of the legal wrong a citizen has committed
and his responsibility therefor. The majority allows this defendant to
be executed, not for doing, but for being a less worthy person than
someone else. Such a sentence strays so far from the normal ambit of
a court of law as to strain human faculties. Measuring the relative
value of human beings on whatever ineffable scale that applies could
not be a more dangerous exercise. Thankfully, American sentencing
practice has until now limited itself to the more manageable domain
of crimes and their consequences.

                                   III.

   The application of the federal habeas statute here requires us to
inquire whether the state court applied the governing legal rule "un-
reasonably to the facts of a particular prisoner’s case." Williams v.
Taylor, 529 U.S. 362, 407-08 (2000). The federal law that governs
Humphries’ claim of ineffective assistance of counsel is Strickland v.
Washington, 466 U.S. 668 (1984). The majority devotes the lion’s
share of its attention to whether the prosecutor’s comments respected
Payne. Payne is of course central to this case. But it provides a rule
of decision here only insofar as this record presents a glaring violation
of its dictates, which the defense should have noticed and complained
of forthwith. The failure to do so here was a constitutional wrong
under the Sixth Amendment.

   The standards in this area are well settled. Under Strickland, the
defendant must first "show that counsel’s performance was deficient."
Id. at 687. To establish this deficiency, the defendant must produce
evidence that the "counsel’s representation fell below an objective
standard of reasonableness." Id. at 688. Second, the defendant must
show that the deficient performance resulted in actual prejudice to his
case. A showing of prejudice requires the defendant to prove that
"counsel’s errors were so serious as to deprive the defendant of a fair
trial." Id. at 687. In the context of a capital sentencing proceeding, the
question is whether "there is a reasonable probability that, but for the
counsel’s unprofessional errors, the result of the proceeding would
have been different." Id. at 694. Prejudice is established in a capital
case where the jury is considering both aggravating and mitigating
                        HUMPHRIES v. OZMINT                         63
evidence during sentencing if "there is a reasonable probability that
at least one juror would have struck a different balance," but for the
constitutional error. Wiggins v. Smith, 539 U.S. 510, 537 (2003).
Under Strickland, the failure of Humphries’ counsel to cry foul when
the prosecutor compared the victim’s general value to that of the
defendant clearly supports a Sixth Amendment violation.

   I have already described the degree to which the prosecutor’s
human worth comparisons flew in the face of existing federal law and
established sentencing practice. I do recognize that state law on sen-
tencing evidence is permissive. See State v. Gulledge, 487 S.E.2d 590,
594 (S.C. 1997). But there are boundaries to be respected, and the
prosecutorial comments here travelled well beyond them. Coming, as
they did, at the close of proceedings, and nestled among several
explicit requests to put his client to death, the comparative worth
exhortations in these comments should have struck defense counsel
instanter.

   I realize that counsel’s decisions should not be picked apart by
hindsight. Caution is particularly needed in collateral proceedings,
when issues that appear plain to a habeas court have only become so
after several rounds of anterior review. Advocates must often make
instantaneous decisions with imperfect information and without the
benefit of considered judgment. And, although correcting every error
of counsel might yield some benefit, it would also create far more
substantial costs going forward. In particular, second-guessing coun-
sel’s decision not to object at closing argument would encourage a
slew of vexatious challenges that would needlessly distract the court
and jury. Worse still, such hindsight might discourage tactical choices
to remain silent, prompting lawyers to off-putting interjections that
would needlessly imperil their client’s defense. Mindful of ill possi-
bilities such as these, this circuit has always indulged a "strong pre-
sumption that counsel’s conduct falls within the wide range of
reasonable professional assistance." Truesdale v. Moore, 142 F.3d
749, 753-54 (4th. Cir. 1998).

   That having been said, there are some occasions when counsel
must object or lose all claim to his defined Sixth Amendment role as
representative of the accused. I emphasize yet once more the unprece-
dented character of the prosecution’s closing argument and the extent
64                       HUMPHRIES v. OZMINT
of its departure from the most settled principles of American sentenc-
ing. For a lawyer to allow his client to be put to death on the basis
of such an argument is to deprive the defendant of any semblance of
effective assistance at the precise moment when he needed that assis-
tance most.

   Neither of Humphries’ two counsel objected to the State’s compar-
ative worth arguments at trial. They did lodge a general challenge to
the admissibility of victim impact evidence without prior notice,
which they reserved for appeal. But they were remarkably silent dur-
ing the comparative worth arguments, and admitted after trial that
their failure to object constituted ineffective assistance of counsel.
Their post-trial admission here must be taken as more than a mere tac-
tic. While the concurrence contends that the failure of an objection
was "objectively reasonable trial strategy," Conc. Op. at 42, this is a
creative reconstruction of counsels’ thought processes that neither the
majority, nor the South Carolina Supreme Court, nor the State, nor
counsel itself has ever sought to advance. The failure to object was,
in counsel’s words, "not a matter of trial strategy or tactics," J.A. at
219, but of simply dropping the ball. The State’s argument, which
was at once without precedent and at odds with traditional precepts
of due process, called for Humphries’ counsel to exercise those skills
which had led to their appointment.

   There is also no doubt that this record presents a "reasonable prob-
ability that at least one juror would have struck a different balance,"
but for the constitutional error. Wiggins, 539 U.S. at 537. The trial
judge recognized as much when he profusely complimented the pros-
ecutor’s close. Counsel’s failure to object to the prosecutor’s com-
ments therefore prejudiced Humphries under the second prong of
Strickland. Comments of this sort represent the types of appeal to
jurors whose potential for prejudice the Supreme Court has long con-
demned in the death penalty context. See Eddings v. Oklahoma, 455
U.S. 104, 118 (1982) (O’Connor, J., concurring); Gardner v. Florida,
430 U.S. 349, 358 (1977) (plurality opinion). Coming, as it did, just
before the jury began its deliberations, the emotionally charged
human worth comparison made by the prosecutor could only have
caused Humphries improper prejudice.

   The majority attempts to deny this conclusion by maintaining that
these comments were quantitatively and qualitatively unimportant in
                         HUMPHRIES v. OZMINT                         65
the totality of the prosecutor’s closing. But this argument is flawed on
at least two grounds. First, it is simplistic. The offensive portions of
the prosecutor’s final presentation may well take up "less than four
pages of [the] approximately twenty-eight" that it occupies in full.
Maj. Op. at 21. But we would be automata, not judges, if we under-
took inquiries of the sort mandated by the second prong of Strickland
with the kind of approach the majority’s computation represents.
Indeed, the product of those inquiries would be reduced to arbitrari-
ness were we to dilute the judicial enterprise in such a manner.

   Second, my colleagues’ position fails to appreciate the affective
qualities of the oratory in which the human worth comparison
occurred. Contrary to the claim that the "solicitor’s comparison of the
lives of both Humphries and Dickie Smith" was not "the centerpiece
of the solicitor’s argument," Maj. Op. at 20, this comparison was in
fact the piece-de-resistance of the prosecutor’s presentation to the
jury. One simply cannot review the argument without seeing that it
builds inexorably towards this apex. The devices the prosecutor
employs while making the comparison — dramatic repetition of the
words "[t]hat’s the same year," punctuation of a plea to the jury with
the phrase "how profane," the plaintive repetition of "if not" in his
ultimate exhortation, and the series of rhetorical questions — all stand
in stark contrast to the prosaic remainder of the record. Appreciation
of an argument’s dynamic compels the conclusion that the solicitor’s
human worth comparison was intended to be, and was, a climactical
flourish designed to move the jury to a sentence of death.

   I respect fully the prerogative of lawyers to make an emotional
close. The prosecutor’s position as advocate must also afford him
wide latitude of tactic. But the objective must at times extend beyond
securing the State’s wishes at any cost. To a juror unschooled in the
ways of the law, the solicitor’s human worth comparison may have
appeared a legitimate legal appeal, not the departure from historic
sentencing procedure that it was. Thus assured that the State’s invidi-
ous invitation was permitted, at least one juror may well have con-
sciously engaged what would otherwise have remained only faintly
implicit in the evidence. Under Wiggins, this possibility satisfies the
prejudice prong of Strickland and supports resentencing.
66                       HUMPHRIES v. OZMINT
                                  IV.

   Capital procedure in our system must remain largely the province
of the states. And victim impact has many good and legitimate uses,
among them awakening juries to the tragic toll of serious crime. But
the comparison here was an abuse of this powerful prosecutorial tool,
an abuse that no reasonable attorney would sit and greet with silence.
To argue that a defendant should be sent to death because his life was
of less intrinsic value than his victim is to ask a jury to decide, not
on the character of the crime, not on the consequences of the crime,
not on the criminal record of the perpetrator of the crime, but on some
unfettered evaluation of human worth that works improper prejudice.

   Victim impact evidence may play an especially important part in
capital proceedings where the crime has caused almost unfathomable
pain. But no state sentencing practice nor precept of federal law
should be read to permit a capital sentence to be based on a compari-
son of the relative value of human life or worth of human beings.
Human worth comparisons are the hallmarks of totalitarian govern-
ments. They do not belong in our country. Societies have gotten into
the deepest sort of trouble by making these comparisons an explicit
basis for the imposition of death. The most terrifying regimes of the
Twentieth Century were those in which governments weighted the
value of the lives of their citizens as a prelude to executing them.

   I realize that the transgression before us today does not even
approach the most terrible examples of human expendability. I appre-
ciate that the sentence Humphries challenges was preceded by an
adjudication of guilt. And I am well aware that a variety of safeguards
in federal and state law work to protect the legitimacy of such convic-
tions.

  But to say that Humphries was properly found guilty is one thing
and to say that he can properly be executed is quite another, when his
sentence is based on the kind of extraordinary arguments that the
prosecutor’s presentation represents. To accept this sentence is to set
foot on a road Americans will not recognize and our Constitution will
not tolerate. With great respect for my friends in the majority, I would
not take a single step along this path.
                  HUMPHRIES v. OZMINT              67
  Judge MICHAEL, Judge GREGORY, and Judge DUNCAN join
me in this dissent.
