UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANK MIDDLETON, JR.,
Petitioner-Appellant,

v.

PARKER EVATT, Commissioner,
                                                                  No. 94-4015
South Carolina Department of
Corrections; T. TRAVIS MEDLOCK,
Attorney General, State of South
Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Solomon Blatt, Jr., Senior District Judge.
(Ca-92-944-3-8AJ)

Argued: September 27, 1995

Decided: February 14, 1996

Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: David Isaac Bruck, Columbia, South Carolina, for Appel-
lant. Donald John Zelenka, Assistant Deputy Attorney General,
Columbia, South Carolina, for Appellees. ON BRIEF: John H.
Blume, POST CONVICTION DEFENDER ORGANIZATION OF
SOUTH CAROLINA, Columbia, South Carolina; Philip W. Horton,
Kathleen A. Behan, ARNOLD & PORTER, Washington, D.C., for
Appellant. Lauri J. Soles, Assistant Attorney General, Columbia,
South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Frank Middleton of murder, criminal sexual con-
duct, and armed robbery and sentenced him to death. Raising numer-
ous challenges to his sentence, Middleton unsuccessfully sought a
writ of habeas corpus from the United States District Court for the
District of South Carolina. See 28 U.S.C.A.§ 2254 (West 1994). Mid-
dleton appeals, again challenging the imposition of the death penalty.
We affirm the denial of the writ.

I.

In 1984, Middleton escaped from prison and murdered Janell Gar-
ner and Shirley Mack. For purposes of the instant appeal, we are con-
cerned only with Middleton's prosecution, conviction, and death
sentence for the murder, criminal sexual conduct, and armed robbery
of Mack. After a jury convicted Middleton, and he was sentenced to
death for Mack's murder, the Supreme Court of South Carolina
affirmed the convictions and sentence, and the Supreme Court of the
United States declined to issue a writ of certiorari. See State v.
Middleton, 368 S.E.2d 457 (S.C.) (Middleton I), cert. denied, 488
U.S. 872 (1988). Subsequently, Middleton sought post-conviction
relief. The state post-conviction relief (PCR) court denied his petition,
with prejudice, in its entirety, concluding that it was without merit.
The Supreme Court of South Carolina denied his petition, as did the
Supreme Court of the United States, see 502 U.S. 854 (1991).

                     2
Thereafter, Middleton filed a petition for a writ of habeas corpus
in federal district court, alleging that the imposition of the death pen-
alty was unconstitutional on a number of grounds: (1) the jury instruc-
tions respecting the aggravating circumstances violated the Ex Post
Facto and Due Process Clauses; (2) his state trial counsel was ineffec-
tive, in violation of the Sixth and Fourteenth Amendments; (3) the
state trial judge erred in failing to instruct the jury sua sponte at the
sentencing phase of Middleton's trial that it could draw no adverse
inference from his failure to testify, in violation of the Fifth and Four-
teenth Amendments; (4) the jury did not realize that it was responsi-
ble for imposing the death penalty, in violation of the Eighth and
Fourteenth Amendments; (5) the jury instructions regarding reason-
able doubt lowered the State's burden of proving guilt beyond reason-
able doubt, in violation of the Fifth and Fourteenth Amendments; and
(6) the jury instructions with respect to mitigating circumstances mis-
led the jury into concluding that a finding of mitigating circumstances
had to be unanimous, in violation of the Eighth and Fourteenth
Amendments.

The district court referred Middleton's petition to a magistrate
judge, see 28 U.S.C.A. § 636(b)(1)(B) (West 1993), who rejected all
of Middleton's challenges and recommended that summary judgment
be granted in favor of the State. After a hearing on the petition and
de novo review of the magistrate judge's recommendation, the district
court concluded that Middleton was not entitled to a writ of habeas
corpus. See Middleton v. Evatt, 855 F. Supp. 837 (D.S.C. 1994)
(Middleton II). Middleton challenges the district court's ruling on
numerous grounds. We address Middleton's contentions seriatim.
Successive courts freely review the denial of a writ of habeas corpus
and mixed questions of fact and law, see Washington v. Murray, 4
F.3d 1285, 1288 (4th Cir. 1993), but the factual findings of the state
court are presumed correct, see 28 U.S.C.A.§ 2254(d).

II.

Middleton first contends that the jury instructions respecting the
aggravating circumstances of armed robbery and rape violated the
Due Process Clause, arguing that the state trial court improperly
instructed the jury to weigh the aggravating circumstances against the
mitigating circumstances. To resolve this issue, we must determine

                     3
whether the challenged jury instructions regarding imposition of the
death penalty based on aggravating circumstances were improper.
South Carolina law provides for the death penalty if a single aggravat-
ing circumstance exists. See S.C. Code Ann.§ 16-3-20(C) (Law. Co-
op. Cum. Supp. 1994). Armed robbery and criminal sexual conduct,
both of which Middleton committed according to the jury, are aggra-
vating factors supporting imposition of the death penalty. See S.C.
Code Ann. § 16-3-20(C)(a)(1)(a), (d). Under South Carolina law, a
jury need not, and indeed should not, weigh the aggravating circum-
stances against the mitigating circumstances. See State v. Bellamy,
359 S.E.2d 63, 65 (S.C. 1987), overruled in part on other grounds by
State v. Torrence, 406 S.E.2d 315 (S.C. 1991). Rather, "[t]he jury
should be instructed to `consider' any mitigating circumstances as
well as any aggravating circumstances." Id. South Carolina, therefore,
is not a "weighing" state. Compare Sochor v. Florida, 504 U.S. 527,
532-33 (1992) (noting the differences between weighing states and
non-weighing states and explaining that in a weighing state like Flor-
ida, the jury is instructed to weigh aggravating circumstances against
mitigating circumstances and noting further that in a weighing state
if a jury considers an invalid aggravating circumstance in determining
to impose the death penalty, an Eighth Amendment violation occurs),
with Zant v. Stephens, 462 U.S. 862, 873-74 (1983) (discussing that
in Georgia, a non-weighing state like South Carolina, the jury is not
to assign any special weight to aggravating circumstances and that the
death penalty can, under certain circumstances, be properly imposed
despite the jury's consideration of an improper aggravating circum-
stance).

In Boyde v. California, 494 U.S. 370, 378 (1990), the Court
explained that jury instructions are not viewed in a vacuum but must
be examined based on the overall charge. According to the Court, in
examining jury instructions that may be "ambiguous and therefore
subject to an erroneous interpretation," the relevant inquiry "is
whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consideration of con-
stitutionally relevant evidence." Id. at 380; see also Estelle v.
McGuire, 502 U.S. 62, 72 & n.4 (1991) (reaffirming the Boyde analy-
sis for examining jury instructions and applying it in a habeas pro-
ceeding). Similarly, in Victor v. Nebraska, 114 S. Ct. 1239, 1251
(1994), the Court concluded that the standard for reviewing the con-

                    4
stitutionality of jury instructions is whether there is a "reasonable
likelihood that the jurors . . . applied the instructions in a way that
violated the Constitution." Victor explained that offending language
in jury instructions can be neutralized by language that explains the
proper duty of the jury.

With these principles in mind, we examine the challenged jury
instructions, which provided in pertinent part:

          [R]ape, which means criminal sexual conduct, first
          degree . . . .

          ....

          . . . [Y]ou may consider the following statutory aggravat-
          ing circumstance: One, murder was committed while in the
          commission of the following crimes or acts: Criminal sexual
          conduct, first degree, and or armed robbery.

          ....

          Now, should you find beyond a reasonable doubt that one
          of the circumstances listed on this sheet of statutory instruc-
          tions existed at the time of the murder, and should you then
          decide after weighing such finding against the elements in
          favor of a recommendation of life imprisonment about
          which I will instruct you later, then the recommendation of
          the jury is to be that [Middleton] be sentenced to death.

          ....

          In reaching your decision as to which sentence to recom-
          mend, you will weigh the aggravating and mitigating cir-
          cumstances.

          ....

          In your deliberations you will consider any statutory or
          non-statutory mitigating circumstance which are[sic] sup-

                     5
          ported by the evidence. You will weigh the aggravating cir-
          cumstance or circumstances you found against the
          mitigating circumstance, and you will then decide whether
          you will recommend the death penalty or life imprisonment.

          You may also consider any other factor in mitigation of
          the offense, and you can recommend a sentence of life
          imprisonment for no reason at all.

(J.A. at 1502-08.) Here, the state trial judge erroneously used the
word "weigh" when instructing the jury concerning aggravating and
mitigating circumstances, but, as explained below, when viewed in
context, there is no reasonable likelihood that the jury misunderstood
the instructions.

As the Supreme Court of South Carolina explained on direct
appeal, while the trial judge should not have used the word "weigh,"
"[h]e clearly instructed the jury, however, it could consider any other
factor in mitigation and could recommend a life sentence for no rea-
son at all. Considering the charge as a whole, we find no error."
Middleton I, 368 S.E.2d at 460. We agree with the Supreme Court of
South Carolina and conclude that, based on the instructions as a
whole, the jury understood the term "weigh" to mean that the jury was
to consider both aggravating and mitigating circumstances. Cf. Adams
v. Aiken, 41 F.3d 175, 179-82 (4th Cir. 1994) (applying the analysis
of Victor and Boyde to defective jury instructions and holding that the
instructions were not "fatally defective" because there was no reason-
able likelihood that the jury misapplied the instructions), cert. denied,
115 S. Ct. 2281 (1995). We find no due process violation. There is
no reasonable likelihood that the jury applied the instructions in an
unconstitutional manner.

III.

Middleton next posits that the Ex Post Facto Clause was violated
because the jury instructions at the sentencing phase of his trial con-
cerning South Carolina's criminal sexual conduct laws in relation to
aggravating circumstances for imposing the death penalty were
improper. Middleton contends that the state trial court's instructions
retroactively applied a definition of "criminal sexual conduct" that

                     6
was inapplicable at the time of the murder. Also, Middleton contends
that if the Supreme Court of South Carolina retroactively applied a
judicially-adopted definition of "rape" that subsumed the definition of
"criminal sexual conduct," then the Due Process Clause was violated
because the death penalty is being imposed based on improper jury
instructions. To establish a violation of the Ex Post Facto Clause,
Middleton must demonstrate that any change in the law retroactively
alters the definition of criminal conduct or increases the penalty by
which a crime is punishable. See Collins v. Youngblood, 497 U.S. 37,
49-52 (1990). To resolve this claim, we must examine the history of
the South Carolina death penalty and criminal sexual conduct statutes
and the challenged jury instructions.

When Middleton murdered Mack in June 1984, South Carolina law
provided by statute that rape during the course of a murder was an
aggravating circumstance. See S.C. Code Ann.§ 16-3-20(C)(a)(1)(a)
(Law. Co-op. 1976). Under South Carolina law, rape required that the
defendant have "carnal knowledge" of the victim, i.e., that the male
genital organ penetrate the female genital organ. See State v. Fleming,
175 S.E.2d 624, 626-27 (S.C. 1970). In 1977, the General Assembly
of South Carolina amended the laws regarding sexual conduct and
replaced the definition of "rape" with "criminal sexual conduct," sta-
tutorily defined in part as "sexual battery," which included "cunnilin-
gus, fellatio, anal intercourse, or any intrusion, however slight, of any
part of a person's body or of any object into the genital or anal open-
ings of another person's body . . . ." See 1977 S.C. Acts 157.

When Middleton committed the crimes, however, the death penalty
statute provided that "rape," with its concomitant carnal knowledge
requirement, not "criminal sexual conduct," was an aggravating cir-
cumstance. The death penalty statute did not specifically incorporate
the criminal sexual conduct amendments until June 1986. Thus, in
June 1984, the death penalty statute provided in pertinent part:

          (C) The judge [or jury shall consider] . . . any of the fol-
          lowing statutory aggravating . . . circumstances . . . .:

          (a) Aggravating circumstances:

          (1) Murder was committed while in the com-
          mission of the following crimes or acts: (a) rape,

                     7
          (b) assault with intent to ravish, (c) kidnapping, (d)
          burglary, (e) robbery while armed with a deadly
          weapon . . . .

S.C. Code Ann. § 16-3-20(C)(a)(1) (Law. Co-op. 1976). Not until
1986 did the aggravating circumstances section of the statute substi-
tute the term "criminal sexual conduct in any degree" for the term
"rape" and delete the phrase "assault with intent to ravish."

According to Middleton, because the death penalty statute was not
amended until 1986 to substitute "criminal sexual conduct" for "rape,"
he cannot be sentenced to death because the state failed to prove he
had carnal knowledge of Mack, which was required to sustain a rape
conviction prior to the amendments. Middleton contends, therefore,
that his criminal sexual conduct thus could not have been an aggravat-
ing circumstance. According to Middleton, the State's attempt to
impose the death penalty on that basis violates the Ex Post Facto
Clause.

The Supreme Court of South Carolina addressed the interplay of
the terms "rape" and "criminal sexual conduct" in State v. Stewart,
320 S.E.2d 447 (S.C. 1984). Relying on State v. Elmore, 308 S.E.2d
781 (S.C. 1983) (per curiam), overruled in part on other grounds by
State v. Torrence, 406 S.E.2d 315 (S.C. 1991), the Stewart court
explained that the terms "criminal sexual conduct" and "rape" were
synonymous:

          In [Elmore], this Court held that the legislature intended the
          terms "rape" and "criminal sexual conduct" be interchange-
          able. Likewise, "assault with intent to ravish" and "assault
          with intent to commit criminal sexual conduct" are inter-
          changeable. We conclude the aggravating circumstances of
          rape and assault with intent to ravish do not require as an
          essential element the intent to accomplish penetration by the
          male genital organ.

Stewart, 320 S.E.2d at 451. At first blush, Stewart appears to resolve
conclusively this issue against Middleton, but a close examination of
Stewart does not support this conclusion because Stewart was deliv-
ered in September 1984, and Middleton committed the crime in June

                    8
1984. Hence, Stewart provides no basis for concluding that the aggra-
vating circumstance of "rape" had been construed not to require car-
nal knowledge prior to Middleton's crime. We, therefore, must
consult Elmore.

In 1983 -- one year before Middleton murdered Mack-- the
Supreme Court of South Carolina opined in Elmore :

          S.C. Code Ann. (1976) § 16-3-20(c)(a) lists rape as one
          of the aggravating circumstances which would allow consid-
          eration of the death penalty. Subsequent to the enactment of
          this statute the legislature enacted S.C.Code Ann.§ 16-3-
          651 et seq. (1976 as amended) which established three
          degrees of the crime of criminal sexual conduct. First degree
          criminal sexual conduct requires proof of sexual battery,
          which by S.C. Code Ann. § 16-3-351(h) (1982 Cum. Supp.)
          is defined in pertinent part as "sexual intercourse, . . ., or any
          intrusion, . . . of any part of a person's body or of any object
          into the genital or anal openings of another person's body
          . . ." Rape, which is still considered an aggravating circum-
          stance under S.C.Code Ann. § 16-3-20(C)(a) requires carnal
          knowledge.

          It is evident that it was the intent of the legislature that
          these terms be interchangeable and that criminal sexual con-
          duct be an aggravated circumstance.

          We hold a conviction of criminal sexual conduct in any
          degree constitutes the offense of rape where the facts on
          which the conviction was based are sufficient to support a
          conviction under the previous statutory or common law
          offense of rape.

Elmore, 308 S.E.2d at 785 (citations omitted) (emphasis added).

The State contends that under Elmore, the terms "rape" and "crimi-
nal sexual conduct" are synonymous; accordingly, Middleton com-
mitted a crime that constituted an aggravating circumstance and thus
was eligible for the death sentence. According to the State, if the stat-

                     9
utory amendments changed the law regarding rape or criminal sexual
conduct, that change was recognized judicially in 1983. Because Mid-
dleton committed his crimes and was prosecuted in 1984, there was
no retroactive application; hence, there is no ex post facto violation.
Finally, as the State notes, the state PCR court and the magistrate
judge relied on Elmore to conclude that Middleton's Ex Post Facto
claim has no merit.

Elmore, however, provides no solace for the State's contention.
While Elmore acknowledged that the General Assembly of South
Carolina intended that "rape" and "criminal sexual conduct" be synon-
ymous and used interchangeably, Elmore recognized further that
criminal sexual conduct could satisfy the aggravating circumstance of
rape, provided the underlying conduct also supported a conviction
under the prior rape statute or the common-law definition of rape.
Because Elmore explained that criminal sexual conduct that consti-
tuted "rape" under prior law will support a conclusion of the aggravat-
ing circumstance of rape, Elmore cannot be read to hold that all
degrees of criminal sexual conduct will satisfy the aggravated circum-
stance of rape prior to the statutory amendments in 1986.1
_________________________________________________________________
1 The State argues that even maintaining the distinction between "rape"
and "criminal sexual conduct," i.e., the carnal knowledge requirement,
Middleton raped Mack; thus, he was properly sentenced to death. In his
confession, Middleton stated, "I did screw her." (J.A. at 919.) A law
enforcement officer testified that Middleton made the following oral con-
fession to him:

          I did do something to her. . . . [W]ell, like, man, you know, it's
          kind of hard and I wanted some ass so I grab and got a piece of
          ass, and [Middleton told me] like I pull her and like I push her
          down, and like I got piece of ass . . . .

(J.A. at 967.) Dr. Sandra Conradi testified that the victim was wearing
a bra and jacket, but was otherwise unclothed and that the acid phosphate
levels in her mouth were three times greater than the normal acidity
level, which revealed a possibility of oral sex. Based on all of this evi-
dence, the Supreme Court of South Carolina stated:

          [Middleton's] statement indicated he had sexual relations with
          the victim. The State's pathologist testified a chemical analysis
          of the victim's mouth revealed fellatio had occurred. Vaginal

                    10
Here, the jury instructions respecting rape provided in pertinent
part:

          [R]ape, which means criminal sexual conduct, first degree
          ....

          ....

          . . . [Y]ou may consider the following statutory aggravat-
          ing circumstance: One, murder was committed while in the
          commission of the following crimes or acts: Criminal sexual
          conduct, first degree, and or armed robbery.

(J.A. at 1502.) Even if we were to assume that the jury instructions
were erroneous, we conclude that any error was harmless. A writ of
habeas corpus is inappropriate unless the jury instructions "`had a
substantial and injurious effect or influence in determining the jury's
verdict.'" Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 (1993) (quot-
ing Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

In Zant, the Supreme Court held that if one aggravating factor sup-
ports a death sentence and the jury need not weigh it against mitigat-
_________________________________________________________________
           intercourse was not excluded although there was no evidence of
           vaginal trauma. At the guilt phase of trial, appellant was con-
           victed of first degree criminal sexual conduct. The same evi-
           dence supporting the conviction for first degree criminal sexual
           conduct supports submission of the aggravating circumstances of
           rape.

Middleton I, 368 S.E.2d at 460. The state PCR court found that Mid-
dleton raped Mack:

          In [Middleton's] confession, he states, "I did screw her. It took
          about eight minutes." I take judicial notice that"screw" in the
          vernacular means genital sex. This was accomplished, according
          to [Middleton's] confession, after the victim had taken her
          clothes off at knife point. A rational finder of act could conclude
          that this act was rape, as defined in the common law.

(J.A. at 316-17.)

                    11
ing factors, as in South Carolina, the sentence need not be vacated
merely because the jury also found an invalid aggravating factor. See
Zant, 462 U.S. at 884. Thus, even if an invalid factor, e.g., criminal
sexual conduct, is considered in tandem with a valid factor, e.g.,
armed robbery, the death penalty nevertheless can be imposed.
Recently, in the context of examining jury instructions concerning
aggravating factors in non-weighing states, the Court explained:

          Zant was thus predicated on the fact that even after elimina-
          tion of the invalid aggravator, the death sentence rested on
          firm ground. Two unimpeachable aggravating factors
          remained and there was no claim that inadmissible evidence
          was before the jury during its sentencing deliberations or
          that the defendant had been precluded from adducing rele-
          vant mitigating evidence.

Tuggle v. Netherland, 116 S. Ct. 283, 285 (1995) (per curiam).
According to Tuggle, while Zant permits imposition of the death pen-
alty in non-weighing states if an invalid aggravating factor is consid-
ered, "that holding does not support the quite different proposition
that the existence of a valid aggravator always excuses a constitu-
tional error in the admission or exclusion of evidence." Id. The grava-
men of Tuggle, therefore, is that if after eliminating from
consideration an invalid aggravating circumstance there remains "firm
ground" on which the death penalty can be imposed, then imposition
of the death penalty is proper.

The circumstances in this case are more like those in Zant than
Tuggle because, even eliminating the rape aggravating factor, one
must conclude that the death penalty rests on firm ground, namely,
the armed robbery aggravating factor. First, we are not confronted
with a situation, as in Tuggle, where the jury had before it inadmissi-
ble evidence. Therefore, no evidence before the jury became more or
less persuasive as a result of inadmissible evidence. Second, Middle-
ton, unlike Tuggle, was not precluded from adducing relevant mitigat-
ing evidence. Third, the evidence supports the jury's finding that the
murder was committed during the commission of an armed robbery
-- Middleton was armed with a knife as he stole her money -- and
Middleton does not contest this. Fourth, the alleged error in no way
contaminated the jury's consideration of evidence supporting the

                    12
armed robbery aggravating circumstance or the jury's conclusion as
to its existence. Thus, the instructions on criminal sexual conduct had
no "substantial and injurious effect" as defined in Brecht on the jury's
ultimate determination to sentence Middleton to death on the basis of
the armed robbery aggravating factor, which, under South Carolina
law, is a valid aggravating factor, see S.C. Code Ann. § 16-3-
20(c)(a)(1)(d). Like the Court in Zant, we are left with an unimpeach-
able aggravating circumstance; thus, the death penalty was properly
imposed.

IV.

Next, Middleton contends that he was denied effective assistance
of counsel in violation of the Sixth and Fourteenth Amendments.
According to Middleton, his trial counsel, Joseph Kent, Public
Defender for Charleston County, who was experienced in defending
capital murder cases, rendered ineffective assistance because Kent
was an alleged alcoholic, and his alleged alcoholism rendered him
unfit to mount an effective defense. In advancing this claim, Middle-
ton offers seven specific instances of Kent's alleged constitutionally
deficient performance: (1) Rather than conceding guilt as allegedly
originally planned, Kent stated in his opening statement that the State
would fail to prove that Middleton committed the murder; (2) Kent
attacked Mack's husband on cross-examination, implying that the
Macks' marriage was in shambles, Mr. Mack was unconcerned with
his wife's safety, and Mack abused alcohol; (3) Middleton's insanity
defense was presented shoddily because the experts Kent called to
testify presented conflicting evidence; (4) Kent failed to capitalize on
available evidence to challenge the only expert testimony questioning
Middleton's mental retardation; (5) Kent mischaracterized Middleton
as "dumb" in closing argument, thereby trivializing the extent of Mid-
dleton's mental incapabilities; (6) Kent did not request a jury instruc-
tion respecting the jury's responsibility in imposing sentence; (7)
Kent's inadequate pretrial preparation resulted in his failure to orches-
trate the compelling mitigating circumstances surrounding Middleton,
thereby culminating in a piece-meal, fractured defense. At the hearing
on Middleton's habeas petition, much of the testimony respecting this
claim was Kent's own self-condemnation concerning his representa-
tion of Middleton.

                     13
The district court analyzed specifically each of these alleged errors
and ultimately concluded that none fell outside the ambit of constitu-
tionally adequate performance. On appeal, Middleton imputes error to
the district court for analyzing independently each instance of alleged
ineffective assistance and chastises the district court for failing to
undertake a complete analysis of this claim. The gravamen of this
argument is that the district court did not consider the cumulative
effect of Kent's alleged defective performance, which, when viewed
in whole, culminated in ineffective assistance of counsel.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court articulated a two-prong test that Middleton must satisfy in order
to prevail on his ineffective-assistance-of-counsel claim. First, Mid-
dleton must establish that his counsel's performance"fell below an
objective standard of reasonableness." Id. at 688. We commence our
review with the premise that "a strong presumption [exists] that coun-
sel's conduct falls within the wide range of reasonable professional
assistance," id. at 689, and that counsel"made all significant deci-
sions in the exercise of reasonable professional judgment," id. at 690.
In analyzing reasonableness under the performance prong, the mate-
rial inquiry is whether the performance was reasonable considering
the totality of the circumstances at the time the performance was ren-
dered. See id. Given this individualized inquiry into reasonableness,
"specific guidelines are not appropriate," id. at 688, because a rigid
regimen of guidelines "would interfere with the constitutionally pro-
tected independence of counsel and restrict the wide latitude counsel
must have in making tactical decisions," id. at 689. Recognizing that
post hoc rationalizations for a conviction must not be transmuted into
putative ineffective-assistance claims by aggrieved defendants who
are tempted "to second-guess counsel's assistance," Strickland
admonished that "[j]udicial scrutiny of counsel's performance must
be highly deferential." Id. We must, therefore, be vigilant in avoiding
hindsight. Accordingly, we are loath to inject "[i]ntensive scrutiny of
counsel and rigid requirements for acceptable assistance" into
ineffective-assistance claims. Id. at 690.

Second, Middleton must demonstrate that he was prejudiced by his
counsel's deficient performance to such a degree"that there is a rea-
sonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at 694.

                    14
According to Strickland, "[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. In analyzing
the prejudice prong, we "presume, absent challenge to the judgment
on grounds of evidentiary insufficiency, that the judge or jury acted
according to law." Id. Middleton, therefore, has an extremely heavy
burden to bear if he is to succeed on his ineffective-assistance-of-
counsel claim. As the Eleventh Circuit explained,"the cases in which
habeas petitioners can properly prevail on the ground of ineffective
assistance of counsel are few and far between." Rogers v. Zant, 13
F.3d 384, 386 (11th Cir.), cert. denied, 115 S. Ct. 255 (1994).

We find no merit to Middleton's ineffective-assistance-of-counsel
claim. First, the district court conducted "an exhaustive review of the
record and of the in-depth testimony given by Mr. Kent as to each
alleged error" and concluded that Kent's performance was reasonable.
Middleton II, 855 F. Supp. at 842 (emphasis added). At least implicit
in this analysis is the fact that the cumulative effect of the evidence
was considered, even if the term "cumulative effect" was not
expressly employed by the district court. Second, the fact that the dis-
trict court analyzed all of the alleged errors separately does not neces-
sarily mean that it viewed them in a vacuum, but merely that it
specifically addressed each alleged error. The district court's recogni-
tion of each alleged error necessarily entailed an evaluation for cumu-
lative effect. Third, Middleton's reliance on Kyles v. Whitley, 115 S.
Ct. 1555 (1995), as dictating reversal is misplaced. In Kyles, the
Supreme Court reversed on the issue of evaluation of evidence for the
cumulative effect because on numerous instances the Fifth Circuit
specifically analyzed separately and dismissed separately each piece
of evidence. See id. at 1569. Such is simply not the case here because
we believe that the district court did consider the cumulative effect of
the alleged errors. Finally, Kent's self-condemnation is not persuasive
evidence of ineffective assistance of counsel because it is nothing but
a post hoc rationalization intended to defeat imposition of the death
penalty. See Atkins v. Singletary, 965 F.2d 952, 959-60 (11th Cir.
1992).

Nonetheless, our review of the entire record on appeal compels us
to conclude that Kent's alleged errors, whether viewed singularly or
cumulatively, did not fall outside the purview of the objective stan-
dard of reasonableness. Because we conclude that Middleton's state

                     15
trial counsel's actions were not objectively unreasonable, "we need
not evaluate trial counsel's actions under the second prong of
Strickland." Bell v. Evatt, No. 94-4016, 1995 WL 746811, at *6 (4th
Cir. Dec. 18, 1995).2

V.

Next, Middleton complains that his Fifth and Fourteenth Amend-
ment rights against compelled self-incrimination were violated
because at the sentencing phase of his trial, the state trial court failed
to instruct the jury sua sponte that it could draw no adverse inference
from Middleton's failure to testify at the sentencing hearing. Bra-
zenly, Middleton advances this contention despite the fact that the
state trial court issued such an instruction at the guilt phase of his trial
and despite the fact that Middleton failed to request the instruction at
the sentencing phase.

Middleton unsuccessfully advanced this contention to the Supreme
Court of South Carolina on direct appeal. See Middleton I, 368 S.E.2d
at 461. While the Supreme Court of South Carolina opined that "this
charge applies to the sentencing phase as well as the guilt phase of
a capital trial, [i]t is not reversible error[if] no request is made absent
other circumstances such as prejudice from the [prosecutor's] refer-
ence to the defendant's silence." Id. The court concluded that because
the prosecutor made no negative inference from Middleton's silence
and because defense counsel failed to request the instruction at the
sentencing phase, the failure to give the instruction was "error harm-
less beyond a reasonable doubt." Id.

In Carter v. Kentucky, 450 U.S. 288, 303 (1981), the Supreme
Court opined that a state trial "judge can, and must, if requested to do
so, use the unique power of the [no-adverse-inference] instruction to
reduce that speculation to a minimum." (emphasis added). The
_________________________________________________________________
2 Our review of the record reveals that many of the alleged "errors"
were trial strategies. Middleton's basis for asserting that he was denied
effective assistance of counsel was that he received a life sentence for the
murder of Janell Garner, but the death penalty for the murder of Mack.
This does not prove that Middleton had ineffective counsel, but merely
that different juries mete out different punishment.

                     16
instruction, therefore, is mandatory, provided it is requested. To dis-
pel any doubt that the instruction must be requested, the Court
repeated "that a state trial judge has the constitutional obligation,
upon proper request, to minimize the danger that the jury will give
evidentiary weight to a defendant's failure to testify." Id. at 305
(emphasis added). The Court has not retreated from the requirement
that the instruction be requested. See, e.g., James v. Kentucky, 466
U.S. 341, 350 (1984) ("The Constitution obliges the trial judge to tell
the jury . . . not to draw the inference if the defendant so requests[.]")
(emphasis added). Failure to give the instruction is subject to harm-
less error analysis. See, e.g., Hunter v. Clark, 934 F.2d 856, 860-61
(7th Cir.) (en banc), cert. denied, 502 U.S. 945 (1991); Finney v.
Rothgerber, 751 F.2d 858, 864 (6th Cir.), cert. denied, 471 U.S. 1020
(1985); Richardson v. Lucas, 741 F.2d 753, 756 (5th Cir. 1984).

We find no merit to Middleton's claim that his Fifth and Four-
teenth Amendment rights against compelled self-incrimination were
violated by failure to give the instruction at the sentencing phase of
the trial. First, the instruction was given at the guilt phase of the trial
to the same jury that sentenced Middleton. Second, Middleton's coun-
sel failed to request the instruction at sentencing, and Middleton can-
not impute error to the state trial court based on his own failure to
request an instruction, particularly where, as here, the prosecution
made no allusion that Middleton's failure to testify connoted guilt or
gave rise to any other adverse inference. Middleton, therefore, has not
satisfied the requirement of Carter and cannot now complain. Even
if there were any error in failing to give the instruction, like many of
our sister circuits, we conclude that such error was harmless. Here,
there was overwhelming evidence of guilt, there was no suggestion
that Middleton's failure to testify implied guilt or any other adverse
inference, and the instruction was given at the guilt phase of his trial.

Despite the force of precedent, or perhaps because of it, Middleton
argues that under in favorem vitae review, we must construe the
record as though the instruction was requested and denied. This argu-
ment, however, misperceives federal habeas law and principles of
federalism because in favorem vitae review is a state procedural doc-
trine by which a state appellate court reviews the entire record in a
capital murder case for error, regardless of whether any error was pre-
served by proper objection. See Drayton v. Evatt , 430 S.E.2d 517, 519

                     17
(S.C.), cert. denied, 114 S. Ct. 607 (1993). In favorem vitae review,
which South Carolina abolished subsequent to Middleton's convic-
tion, see State v. Torrence, 406 S.E.2d 315, 324 (S.C. 1991), does not
invoke any federal constitutional protections. Middleton's argument
confuses procedural default with examination of the merits of a con-
stitutional claim. We conclude, therefore, that absent any request for
the instruction or prejudicial commentary, there is no merit to Middle-
ton's contention that the state trial judge's failure to instruct the jury
that no adverse inference may be drawn from Middleton's failure to
testify at the sentencing phase violated his Fifth and Fourteenth
Amendment rights.

VI.

Asserting that the state trial court erred in instructing the jury with
respect to Middleton's sentence when it characterized -- forty-seven
times by Middleton's count -- the jury's sentencing responsibility as
a "recommendation," rather than as binding, Middleton contends that
his sentence cannot stand. According to Middleton, this mischaracter-
ization violates the Eighth and Fourteenth Amendments because it
relieved the jury of its understanding that it would be responsible for
imposing the death penalty.

In Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985), the Court
concluded that a jury laboring under the impression that its sentence
was only advisory, not binding, results in a violation of the Eighth and
Fourteenth Amendments because the jury's sense of responsibility for
imposing the death penalty is greatly diminished. Caldwell held,
therefore, that a jury must be fully cognizant that it is responsible for
determining punishment. In Dugger v. Adams, 489 U.S. 401, 407
(1989), however, the Court explained that "if the challenged instruc-
tions accurately described the role of the jury under state law, there
is no basis for a Caldwell claim. To establish a Caldwell violation, a
defendant necessarily must show that the remarks to the jury improp-
erly described the role assigned to the jury by local law."

Applying the principles of Caldwell and Dugger, we resolved the
issue presented here in Gaskins v. McKellar, 916 F.2d 941 (4th Cir.
1990), cert. denied, 500 U.S. 961 (1991). Gaskins, a habeas peti-
tioner, contended that the sentencing instructions at his trial violated

                     18
the Eighth and Fourteenth Amendments because the state trial judge
cast the sentencing instructions in terms of "recommendation," or
some variation thereof, in over forty instances. See id. at 953. Based
on the instructions, Gaskins maintained, as does Middleton, that the
jury did not understand that it was responsible for determining pun-
ishment. See id. Rejecting Gaskins's challenge, we concluded that the
instructions were constitutional. While observing that the instructions
would have been preferable had they stated "binding recommenda-
tion," we eschewed Gaskins's contention that the instructions failed
to pass constitutional muster because the instructions "`had no effect
on the sentencing decision.'" Id. (quoting Caldwell, 472 U.S. at 341).
We reached this conclusion because at voir dire, the jurors were
informed that they could impose the death penalty or life imprison-
ment and that they had to make this decision. See id. There was no
effect on the sentence because the jury understood that its decision
was binding, not advisory.

The challenged jury instructions in this appeal provided in perti-
nent part:

          [I]t now becomes your duty to decide what sentence you
          will recommend that this court impose upon [Middleton].

          There are two verdicts you are to consider in this case.
          One, the death penalty . . . . The other is life imprisonment.

          The order in which I explain these two sentences is in no
          way a recommendation by this Court as to which sentence
          you should choose to recommend. It is simply that one must
          be stated first.

          By this recommendation of sentence form which I hold in
          my hand, you, the jury, may recommend that this Court sen-
          tence [Middleton] to death. . . .

          It is the law . . . that a recommendation for the imposition
          of the death penalty must be a unanimous recommendation,
          and that each and every juror sign his or her name to the rec-
          ommendation form.

                    19
          ....

          Now, for this [death penalty] recommendation to be
          made, that is, that [Middleton] be sentenced to death, you
          must first find that a statutory aggravating circumstance
          existed beyond a reasonable doubt.

(J.A. at 1500-01.) Additionally, the state trial court informed the jury
at voir dire that "the ultimate punishment of[Middleton] will be in
your hands if you as a member of the trial jury have found [him]
guilty." (J.A. at 119.) (emphasis added). On direct appeal, the
Supreme Court of South Carolina held that there was no constitutional
violation because "[t]he trial judge . . . clearly explained to all pro-
spective jurors" that they would be responsible for imposing the death
penalty. Middleton I, 368 S.E.2d at 461. We find Gaskins dispositive
and mandating affirmance on this issue. When viewed in context, the
voir dire colloquy and the jury instructions as a whole impressed upon
the jury that it had the sole responsibility for determining the sen-
tence.

VII.

Relying on Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam),
overruled in part by Estelle v. McGuire, 502 U.S. 62 (1991), Middle-
ton asserts that the jury instructions violated his Fifth and Fourteenth
Amendment rights to due process of law because the instructions low-
ered the State's burden of proving that Middleton was guilty beyond
a reasonable doubt of the crimes for which he was charged. The jury
instructions provided in pertinent part:

          The term reasonable doubt is a common, legal term used
          for many, many years and yet it still is difficult to define.
          The word reasonable means moderate, fair, not extreme or
          excessive.

          Now, a reasonable doubt is not an imaginary doubt or a
          fanciful doubt or a weak doubt or a slight doubt. As I previ-
          ously said, a reasonable doubt is a substantial doubt which
          arises out of the evidence or the lack of evidence in the case

                    20
          for which a person honestly seeking to find the truth can
          give a reason.

          Now, if you have such a doubt in your mind, you must
          resolve that doubt in favor of [Middleton] and write a ver-
          dict of not guilty.

(J.A. at 1282-83.) The gravamen of Middleton's assertion is that these
instructions misdefined "reasonable doubt" as a "substantial doubt,"
thereby misleading the jurors into believing that doubt would not
qualify as "reasonable" unless they could articulate a reason for the
doubt.

We eschewed the argument that Middleton seeks to advance here
in Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir. 1995). Like Middleton,
habeas petitioner Kornahrens contended that the state trial court's
characterizing reasonable doubt as "substantial doubt" in the jury
instructions violated his due process rights. Relying on Victor v.
Nebraska, 114 S. Ct. 1239 (1994), and Adams v. Aiken, 41 F.3d 175
(4th Cir. 1994), cert. denied, 115 S. Ct. 2281 (1995), we rejected
Kornahrens's contention:

          Although the Supreme Court did hold in [Cage ] that the use
          of the term "substantial doubt" as a substitute for "reason-
          able doubt" violates due process, we have since recognized
          that in conducting a Cage analysis, courts must look to the
          entire context of the jury charge and not just the offending
          language, reversing only if there is a "reasonable likelihood"
          that the jury would have applied the instruction in an uncon-
          stitutional manner. Under this framework, we do not believe
          that the jury charge violated Kornahrens's constitutional
          rights. Although the trial judge used the term "substantial
          doubt," his charge was almost identical to the one we
          affirmed in Adams: it explained that a reasonable doubt is
          not an imaginary doubt, but is a lack of evidence or a doubt
          for which a person could give a reason. Here, like in Adams,
          the full instruction tempered any risk of confusion from the
          substantial doubt language.

Kornahrens, 66 F.3d at 1363 (citation omitted).

                    21
Middleton's contention that the jury instructions violated his due
process rights cannot prevail. Under Victor, Adams, and Kornahrens,
the instructions used in the present appeal are constitutionally sound.
Here, the term "substantial doubt" was remedied by the phrase "a rea-
sonable doubt is not an imaginary doubt or a fanciful doubt or a weak
doubt or a slight doubt." The use of these terms precluded any reason-
able likelihood that the jurors would misunderstand the concept of
reasonable doubt. Any infirmity introduced into the instructions by
the term "substantial doubt" was neutralized by the explanation that
"substantial doubt" was not a fleeting, vague doubt, but a genuine
doubt. Properly viewed in context, the instructions here dispelled any
infirmity that the term "substantial doubt" may have injected into the
trial. Likewise, there is no merit to Middleton's assertion that the
phrase "doubt for which the jury can give a reason" is invalid; various
courts have sustained such language. See, e.g. , Robinson v. Callahan,
694 F.2d 6, 7 (1st Cir. 1982) (like instruction held not to be constitu-
tional error on collateral review); United States v. Cruz, 603 F.2d 673,
675 (7th Cir. 1979) (per curiam) (same on direct review), cert. denied,
444 U.S. 1071 (1980); United States v. Muckenstrum, 515 F.2d 568,
570 (5th Cir.) (same), cert. denied, 423 U.S. 1032 (1975). We hold
that the jury instructions did not lower the State's burden of proving
that Middleton was guilty beyond a reasonable doubt.

VIII.

Finally, Middleton asserts that the state trial court erred with
respect to instructing the jury concerning consideration of mitigating
circumstances in violation of Eddings v. Oklahoma, 455 U.S. 104
(1982), and Lockett v. Ohio, 438 U.S. 586 (1978) (plurality opinion).
Specifically, he argues that because the state trial court instructed the
jury that its verdict and finding of aggravating circumstances must be
unanimous, the jury concluded that the finding of mitigating circum-
stances likewise must be unanimous.

Middleton's assertion is belied by the facts. In pertinent part, the
jury instructions read:

          You may also consider any non-statutory mitigating cir-
          cumstances. . . .

                     22
          I tell you that while there must be some evidence which
          supports a finding by you that a statutory or non-statutory
          mitigating circumstance exists, you need not find the exis-
          tence of such a circumstance beyond a reasonable doubt.

          . . . While an aggravating circumstance must be found
          before you can even consider recommending the death pen-
          alty, once such finding is made beyond a reasonable doubt
          you may recommend the death sentence even though you
          find the existence of a statutory mitigating circumstance.

          In other words, the existence of an alleged statutory miti-
          gating circumstance is not a bar to the imposition of the
          death penalty.

          . . . [You may sentence Middleton] to life imprisonment
          for any reason or for no reason at all. . . .

          In other words, you may choose to recommend life
          imprisonment if you find a statutory or non-statutory miti-
          gating circumstance, or you may choose to recommend life
          imprisonment as an act of mercy.

          In any instance, should you choose to recommend life
          imprisonment your decision must be a unanimous one and
          the foreman alone would be required to sign the recommen-
          dation form.

(J.A. at 1506-07.) (emphasis added). The state trial court concluded
by instructing the jury: "Whatever your recommendation is, it must
be a unanimous one; that is to say, it must be the verdict of each and
every juror." (J.A. at 1508.)

The state trial court did not state or imply that mitigating circum-
stances had to be unanimous; rather, the word "unanimous," or a vari-
ation thereof, was used to instruct the jury in connection with
imposing the death penalty, finding aggravating -- not mitigating --
circumstances, or sentencing Middleton to life imprisonment. The
charge, viewed as a whole, was not improper.

                    23
Likewise, Middleton's assertion has no legal basis. Kornahrens is
dispositive of the argument Middleton seeks to advance here and
compels us to reject it:

          Kornahrens contends that the trial court's jury instructions
          during the sentencing phase were so confusing that a"sub-
          stantial probability" exists that "reasonable jurors . . . well
          may have thought they were precluded from considering any
          mitigating evidence unless all 12 jurors agreed on the exis-
          tence of a particular such circumstance." Mills v. Maryland,
          486 U.S. 367, 384 (1988). We disagree. Unlike in Mills or
          its direct descendant, McKoy v. North Carolina , 494 U.S.
          433 (1990), the state trial judge in Kornahrens's sentencing
          case never informed the jury that it had to find a mitigating
          factor unanimously. Instead, the judge stressed the impor-
          tance of unanimity for aggravating factors and never for
          mitigating factors. Additionally, the judge emphasized that
          the jury could recommend a life sentence based on its find-
          ing of a mitigating factor or for no reason at all. Therefore,
          because we do not believe that the probability of jury confu-
          sion on the issue of unanimity was substantial, we reject this
          claim on its merits as well.

Kornahrens, 66 F.3d at 1364.

Middleton's argument with respect to this issue is eleventh-hour;
it has no basis in fact. There is simply no reasonable likelihood, espe-
cially when the charge is considered as a whole, that the jury misap-
plied the instructions.

IX.

The order denying Middleton a writ of habeas corpus is affirmed.

AFFIRMED

                    24
