UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS TRESHAWN IVEY, 

Petitioner-Appellant,

v.

WILLIAM D. CATOE, Commissioner,  No. 01-11 South Carolina Department of

Corrections; CHARLES M. CONDON,

Attorney General, State of South

Carolina,

Respondents-Appellees. 

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

G. Ross Anderson, Jr., District Judge.

(CA-00-1294-3-13BD)

Argued: January 24, 2002

Decided: March 26, 2002

Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.

Dismissed by unpublished opinion. Judge Wilkins wrote the opinion,

in which Judge Widener and Judge Niemeyer joined. 

COUNSEL

ARGUED: William Harry Ehlies, II, Greenville, South Carolina, for

Appellant. Donald John Zelenka, Assistant Deputy Attorney General,

SOUTH CAROLINA OFFICE OF THE ATTORNEY GENERAL,
Columbia, South Carolina, for Appellees. ON BRIEF: Teresa L.

Norris, CENTER FOR CAPITAL LITIGATION, Columbia, South

Carolina, for Appellant. Charles M. Condon, Attorney General, John

W. McIntosh, Chief Deputy Attorney General, SOUTH CAROLINA

OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Appellees. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

WILKINS, Circuit Judge: 

Thomas Treshawn Ivey seeks leave to appeal an order of the district court denying his petition for habeas corpus relief from his conviction and death sentence for the murder of Thomas Harrison.1

See

28 U.S.C.A. § 2254 (West 1994 & Supp. 2001). Because we conclude

that Ivey has failed to make "a substantial showing of the denial of

a constitutional right," 28 U.S.C.A. § 2253(c)(2) (West Supp. 2001),

with respect to any of his claims, we deny his application for a certificate of appealability and dismiss the appeal. 

I.

In early January 1993, Ivey and Vincent Neumon escaped from a

prison in Alabama, where Ivey was detained pending trial for murder.

The pair traveled to Columbia, South Carolina, where they kidnaped

Robert Montgomery. Ivey and Neumon forced Montgomery to drive

them to North, South Carolina, where Ivey shot and killed Montgomery.2

1

Ivey named William D. Catoe, Commissioner of the South Carolina

Department of Corrections, and Charles M. Condon, Attorney General of

South Carolina, as Respondents. For ease of reference, we will refer to

Respondents as "the State" throughout this opinion. 

2

In a separate proceeding, Ivey was convicted of Montgomery’s murder and sentenced to death. The conviction and sentence were affirmed

on direct appeal. See State v. Ivey, 502 S.E.2d 92 (S.C. 1998). 

2 IVEY v. CATOE
The following day, Ivey and Neumon abandoned Montgomery’s vehicle and stole another, in which they found the owner’s identification

and some blank checks. 

On January 15, Ivey, Neumon, and Patricia Perkins (whom Ivey

and Neumon had met in Columbia) traveled to Orangeburg, South

Carolina. All three entered a department store located in a shopping

mall, where Neumon made purchases using one of the stolen checks.

Ivey then left the store while Perkins and Neumon continued to

"shop." When Neumon attempted to make another purchase, the clerk

became suspicious and informed Neumon that she would have to

obtain approval. Neumon left the store and spoke with Ivey, who then

went inside to find Perkins.

In the meantime, the clerk had contacted a store security officer,

who in turn contacted the police. A police officer and an investigator

located Ivey and Perkins in the mall and questioned them. Upon

determining that Ivey was not the one who had attempted to make the

suspicious purchase, they informed Ivey that he could leave. At that

point the victim, Orangeburg Police Officer Thomas Harrison, arrived

and began to question Ivey. During the conversation, a .357 Magnum

that was in Ivey’s coat pocket discharged (Ivey testified that the

weapon discharged accidentally). The bullet hit the floor and fragmented, wounding Officer Harrison in the leg. Officer Harrison

reached for his own firearm, whereupon Ivey pulled out his weapon

and shot Officer Harrison five times at close range, killing him. Ivey

fled the store but was soon apprehended. 

Ivey was subsequently tried, convicted, and sentenced to death for

the murder of Officer Harrison. Ivey appealed, maintaining, inter alia,

that the trial court had erred in refusing to charge the jury on voluntary manslaughter and in admitting victim impact testimony from

Officer Harrison’s mother (Mrs. Harrison). The South Carolina

Supreme Court affirmed, rejecting the former claim on the merits and

the latter claim on both procedural and substantive grounds. See State

v. Ivey, 481 S.E.2d 125, 127-28 (S.C. 1997). 

Ivey thereafter filed an application for post-conviction relief

(PCR), claiming that trial counsel were ineffective for failing to

object to a number of statements made by the State in its penaltyIVEY v. CATOE 3
phase closing argument. Following a hearing, the PCR court denied

relief. 

Ivey filed this habeas action on October 30, 2000, claiming that: 

1. The refusal to charge the jury on voluntary manslaughter violated his Eighth and Fourteenth Amendment

rights; 

2. A portion of Mrs. Harrison’s victim impact testimony

violated his Eighth and Fourteenth Amendment rights;

3. Trial counsel were constitutionally ineffective for failing to object to a portion of the State’s closing argument

that allegedly referred to Ivey’s failure to testify; 

4. Trial counsel were constitutionally ineffective for failing to object to 

(a) cross examination of corrections officer

Audie Hudson regarding prison conditions,

and 

(b) closing argument based on Hudson’s testimony on cross-examination; and 

5. Trial counsel were constitutionally ineffective for failing to object to the State’s improper bolstering of Vincent Neumon’s testimony. 

The petition was referred to a magistrate judge, who recommended

denying habeas relief. Specifically, the magistrate judge concluded

that claims 1, 3, and 4(b) were without merit and that claims 2, 4(a),

and 5 were procedurally defaulted and, even if not defaulted, without

merit. 

Shortly before the magistrate judge issued his report and recommendation, Ivey moved the district court to stay the proceedings, noting that he had filed a second PCR application in state court for the

4 IVEY v. CATOE
purpose of exhausting claims 4(a) and 5, which had not previously

been presented to the state court. The district court denied the motion.

After the issuance of the magistrate judge’s report, Ivey filed objections in which he reiterated his assertion that the district court should

stay the proceedings pending the resolution of his second PCR application.3

 The district court adopted the report and recommendation of the

magistrate judge and denied Ivey’s renewed motion for a stay. The

district court subsequently denied Ivey’s application for a certificate

of appealability. 

II.

In order to demonstrate his entitlement to a certificate of appealability, Ivey must make "a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2). As the Supreme Court

has explained, a habeas petitioner may make such a showing by demonstrating "that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong." Slack v.

McDaniel, 529 U.S. 473, 484 (2000). When the district court has

rested its denial of a claim on a procedural ground without considering the merits of a constitutional claim, the petitioner must show "that

jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of

reason would find it debatable whether the district court was correct

in its procedural ruling." Id. The assessment of whether a certificate

of appealability should be granted must be made on an issue-by-issue

basis. See 28 U.S.C.A. § 2253(c)(3) (West Supp. 2001). 

When, as here, the habeas petition was filed in the district court

after the enactment of the AEDPA, there is an additional layer to our

analysis: Claims adjudicated on the merits in state court must be

reviewed according to the deferential standard set forth in 28

U.S.C.A. § 2254(d). Section 2254(d) requires the district court (and

this court, on de novo review of the ruling of the district court) to

determine whether 

3At oral argument, counsel informed us that the case has been assigned

to a judge but that counsel have not yet been appointed for Ivey. 

IVEY v. CATOE 5
the adjudication of the claim [by the state court]— 

(1) 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; or 

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

28 U.S.C.A. § 2254(d); see Frye v. Lee, 235 F.3d 897, 903 (4th Cir.

2000), cert. denied, 121 S. Ct. 2614 (2001).4 A state court decision

is "contrary to" clearly established Supreme Court precedent when

"the state court arrives at a conclusion opposite to that reached by [the

Supreme] Court on a question of law or . . . the state court decides

a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A

state court decision rests on an "unreasonable application" of clearly

established Supreme Court precedent when "the state court identifies

the correct governing legal principle from [the] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case."5

Id.

4The mere fact that the district court makes such a determination does

not automatically entitle the petitioner to habeas relief. Rather, upon

determining that the adjudication of a claim by a state court contravened

or unreasonably applied Supreme Court precedent, the district court must

then independently assess the claim to determine whether the petitioner

"is in custody in violation of the Constitution or laws or treaties of the

United States," 28 U.S.C.A. § 2254(a). See Rose v. Lee, 252 F.3d 676,

689-91 (4th Cir.), cert. denied, 122 S. Ct. 318 (2001). 

5When the state court does not articulate the rationale for its decision,

the district court must conduct an independent review of the record and

the applicable law to determine whether the result reached by the state

court "contravenes or unreasonably applies clearly established federal

law." Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en banc) (internal

quotation marks omitted), cert. denied, 122 S. Ct. 74 (2001). 

6 IVEY v. CATOE
In sum, when ruling on an application for certificate of appealability, we must conduct a de novo review to determine whether the

resolution of each claim by the district court was at least debatable

among reasonable jurists. For claims rejected on procedural grounds

without consideration of the merits, we may not grant a certificate of

appealability unless (1) reasonable jurists could debate the correctness

of the procedural ruling by the district court, and (2) reasonable jurists

could debate the validity of the constitutional claim stated by the petitioner. When a district court has rejected a constitutional claim on the

merits (whether as the sole basis for rejecting a claim or as an alternative to a procedural ruling) in a post-AEDPA petition, our review will

take one of two courses. If a state court adjudicated the claim on the

merits, we must decide whether reasonable jurists could debate the

propriety of the decision of the district court to defer to the state court

ruling under § 2254(d). If the claim has not been adjudicated on the

merits by a state court, we must decide whether reasonable jurists

could debate the correctness of the ruling of the district court that the

petitioner’s constitutional rights were not violated. 

III.

Ivey makes only a single claim regarding the guilt/innocence phase

of his trial: He maintains that the refusal of the trial court to instruct

the jury on the lesser-included offense of voluntary manslaughter violated his Fourteenth Amendment right to due process.6

 On direct

appeal, the South Carolina Supreme Court concluded that because the

evidence presented at trial did not justify a voluntary manslaughter

charge, the denial of the charge did not violate Ivey’s constitutional

rights. The district court determined that this ruling was entitled to

deference under § 2254(d)(1).7 Because we conclude that reasonable

6

Ivey also maintains that the refusal to give the requested instruction

violated his Eighth Amendment rights, but he provides no argument in

support of this assertion. Accordingly, we disregard it. See Fed. R. App.

P. 28(a)(9)(A); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th

Cir. 1999). This omission does not reflect adversely on Ivey’s counsel,

who performed their duties ably. 

7

Ivey argues that the State Supreme Court unreasonably determined

the facts in light of the record evidence. See 28 U.S.C.A. § 2254(d)(2).

The record reveals no disputed factual questions, however, but rather

IVEY v. CATOE 7
jurists would not find the correctness of the district court ruling debatable, we deny a certificate of appealability as to this claim. 

During the trial, Ivey presented evidence that his firearm discharged accidentally and that he shot Officer Harrison only after the

latter reached for his weapon in response to the accidental discharge

of Ivey’s weapon. Based on this evidence, Ivey requested an instruction on the lesser offense of voluntary manslaughter. The trial court

refused to give the requested instruction, reasoning that the evidence

presented at trial was insufficient to demonstrate either heat of passion or sufficient legal provocation, both of which are required for a

voluntary manslaughter charge under South Carolina law. On direct

appeal, the South Carolina Supreme Court affirmed on the basis that

even if Ivey had presented evidence that he acted in the heat of passion, he had failed to establish any evidence of sufficient legal provocation. See Ivey, 481 S.E.2d at 127. The court specifically

acknowledged its prior holding in State v. Linder, 278 S.E.2d 335

(S.C. 1981), where it held that the use of unnecessary force by a law

enforcement officer in the course of his duties could constitute the

provocation necessary for a voluntary manslaughter charge, see

Linder, 278 S.E.2d at 337. The South Carolina Supreme Court concluded that Linder was of no assistance to Ivey, however, because

Officer Harrison had the right to reach for his firearm in self-defense

after Ivey’s weapon discharged.8See Ivey, 481 S.E.2d at 127. 

Ivey contends that the denial of his request for a voluntary manslaughter instruction violated the Due Process Clause of the Fourteenth Amendment. In support of this argument, Ivey cites Beck v.

Alabama, 447 U.S. 625, 638 (1980), in which the Supreme Court

indicates that the only question before the state court was the legal significance of an undisputed sequence of events. Accordingly, the ruling of

the South Carolina Supreme Court is properly reviewed under

§ 2254(d)(1). 

8

In a petition for rehearing, Ivey maintained that he was entitled to a

voluntary manslaughter instruction under the doctrine of imperfect selfdefense, a contention he raises again in his appellate brief. South Carolina, however, does not recognize imperfect self-defense. See State v.

Finley, 290 S.E.2d 808, 809 (S.C. 1982). 

8 IVEY v. CATOE
struck down an Alabama statute that prohibited juries in capital cases

from convicting the defendant of a lesser offense than capital murder.

Ivey maintains that Beck stands for the proposition that the jury must

be given the option of convicting on a lesser-included offense in all

capital cases. The rule in Beck is not so broad, however. As the

Supreme Court subsequently clarified, "due process requires that a

lesser included offense instruction be given only when the evidence

warrants such an instruction." Hopper v. Evans, 456 U.S. 605, 611

(1982). 

Here, the South Carolina Supreme Court determined that, as a matter of state law, the evidence did not support the giving of a voluntary

manslaughter instruction because there was no legal provocation. This

determination is fatal to Ivey’s due process claim.9

IV.

During the penalty phase, the State presented victim impact testimony from Officer Harrison’s parents and his widow. Ivey contends

that the following portion of Mrs. Harrison’s testimony exceeded the

bounds of constitutionally permissible victim-impact testimony: 

Q. What’s the hardest part now about his death and the

way he died? 

A. Well, when I think about the way he died, I can’t help

but feel sort of angry because I just feel like it was so

useless. 

Mr. Johnson [defense counsel]: Your Honor, I sincerely apologize, but I think we’re going out of the

bounds now. 

9

Ivey challenges the correctness of the ruling of the South Carolina

Supreme Court, maintaining that he was entitled to the voluntary manslaughter instruction as a matter of state law. However, we are bound by

the interpretation of state law by the South Carolina Supreme Court. See

Thomas v. Davis, 192 F.3d 445, 449 n.1 (4th Cir. 1999). 

IVEY v. CATOE 9
The court: All right, Sir. I’ll allow it. Go ahead. 

A. Somebody — this man who shot my son — said that

he ran out of the store, and when he realized he was

going to be arrested, he laid down on the ground and

said, "Don’t shoot; don’t kill me; don’t kill me." But he

didn’t think about that when my son was lying on the

floor in front of him in the store saying "Don’t do this;

don’t do this." And — well, it hurts. 

J.A. 662-63. 

On direct appeal, Ivey asserted that the admission of the abovequoted testimony violated the Constitution because it amounted to a

statement of opinion that Ivey should be put to death. The South Carolina Supreme Court rejected this argument on the bases that it was

barred by Ivey’s failure to specifically object to the testimony and that

the argument was without merit. See Ivey, 481 S.E.2d at 127-28. The

district court, in turn, concluded that the claim was procedurally

defaulted and, alternatively, that the ruling of the South Carolina

Supreme Court did not contravene or unreasonably apply Supreme

Court precedent. We deny a certificate of appealability as to this

claim. 

A.

Absent cause and prejudice or a miscarriage of justice, a federal

habeas court may not review constitutional claims when a state court

has declined to consider their merits on the basis of an adequate and

independent state procedural rule. See Harris v. Reed, 489 U.S. 255,

262 (1989). Such a rule is adequate if it is regularly or consistently

applied by the state court, see Johnson v. Mississippi, 486 U.S. 578,

587 (1988), and is independent if it does not "depend[ ] on a federal

constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985). 

Here, the South Carolina Supreme Court ruled that Ivey’s challenge to Mrs. Harrison’s testimony was barred by his failure to make

a specific objection. See Ivey, 481 S.E.2d at 127 (citing State v.

Tucker, 462 S.E.2d 263, 265 (S.C. 1995)). Ivey does not dispute that

10 IVEY v. CATOE
the requirement of a specific objection is an adequate and independent

state procedural rule, nor does he assert cause and prejudice to excuse

the default. Rather, he maintains that the state court erred in ruling

that the claim was procedurally barred. However, "[a] basic tenet of

federal habeas review is that a federal court does not have license to

question a state court’s finding of procedural default, if based upon

an adequate and independent state ground." Barnes v. Thompson, 58

F.3d 971, 974 n.2 (4th Cir. 1995). Accordingly, we conclude that reasonable jurists could not debate the correctness of the ruling by the

district court that this claim is procedurally defaulted. 

B.

Even if Ivey’s challenge to the victim impact testimony of Mrs.

Harrison were not procedurally defaulted, Ivey still would not be entitled to habeas relief. The district court held that the rejection of the

merits of the claim by the South Carolina Supreme Court neither was

contrary to, nor involved an unreasonable application of, clearly

established Supreme Court precedent. We conclude that the correctness of this ruling is not debatable among reasonable jurists. 

In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court

held that the Eighth Amendment does not impose a per se bar on "evidence about the victim and about the impact of the murder on the victim’s family." Payne, 501 U.S. at 827; see id. at 830 (overruling

Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989)). There are two limitations on victim impact

testimony, however. First, Payne left intact Booth’s prohibition on

"family members’ characterizations and opinions about the crime, the

defendant, and the appropriate sentence." Payne, 501 U.S. at 830 n.2;

see Booth, 482 U.S. at 508-09; see also United States v. McVeigh, 153

F.3d 1166, 1217 (10th Cir. 1998). Second, the Due Process Clause

prohibits the introduction of victim impact testimony "that is so

unduly prejudicial that it renders the trial fundamentally unfair."

Payne, 501 U.S. at 825. 

The South Carolina Supreme Court did not rule unreasonably in

concluding that Mrs. Harrison’s testimony did not contravene either

of these constitutional limitations on victim impact testimony. Contrary to Ivey’s assertion, Mrs. Harrison did not opine that Ivey should

IVEY v. CATOE 11
be sentenced to death. In the challenged statement, she simply

expressed her grief, pain, and anger arising from the manner of her

son’s death. Cf. Booth, 482 U.S. at 508-09 (holding that testimony

that victims were "butchered like animals" and that victims’ son

"doesn’t think anyone should be able to do something like that and

get away with it" violated the Eighth Amendment (internal quotation

marks omitted)). Additionally, Mrs. Harrison’s testimony was not so

unduly prejudicial that it violated the Due Process Clause. Cf. Payne,

501 U.S. at 832 (O’Connor, J., concurring) (noting that victim impact

testimony does not offend due process when it does not inflame the

jury "more than . . . the facts of the crime"). 

V.

Ivey next maintains that trial counsel were constitutionally deficient in several respects during the penalty phase of his trial. In order

to establish that his constitutional right to the effective assistance of

counsel was violated, Ivey must demonstrate that his attorneys’ "representation fell below an objective standard of reasonableness" and

"that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different."

Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Review of

counsel’s performance is "highly deferential." Id. at 689. And, competency is measured against what an objectively reasonable attorney

would have done under the circumstances. See id. at 687-88. Counsel

are afforded a strong presumption that their performance was within

the broad range of professionally competent assistance. See id. at 689.

In the context of a capital sentencing proceeding, the question with

respect to prejudice is "whether there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant

death." Id. at 695. 

A.

During the penalty phase, Ivey presented evidence from former

teachers and counselors that he was an intelligent but quiet child who

was apt to fall under the influence of others. Most notably, Ivey presented evidence of his relationship with Willie Smart, a childhood

friend. This evidence—which included testimony from Smart himself

12 IVEY v. CATOE
—tended to show that although Ivey had gotten in trouble with the

law, he had been trying to straighten out his life when Smart got him

involved in the crime (the murder of a young woman) for which he

was incarcerated in Alabama prior to his escape. During closing argument, the State commented on this evidence: 

Has any psychiatrist or psychologist gotten up here and told

you all under oath that his background caused some kind of

mental condition that caused him to do something he didn’t

want to do? 

MR. JOHNSON: Objection, your Honor. The defendant

has no burden. 

THE COURT: I give a lot of leeway to summations by

both sides, but I will tell you, as I have always told you, the

defendant doesn’t have to prove anything in this case. Go

ahead, Solicitor. 

CONT’D CLOSING STATEMENT BY MR. BAILEY

Thomas Ivey did what he did, according to the testimony,

of his own free will and accord because he wanted to do it.

There’s no testimony to the contrary. All of the good things

that were told to you all by Mrs. Retzlaff, the school teacher,

Lee Ashford and Derrick Boling and Johnathan Davis from

Mt. Meggs’ Center; the good impressions he gave . . . them,

the opinions they formed of him, were all formed before he

went on this crime spree that you all heard about over the

last week. He fooled these people. Don’t let him fool you.

J.A. 506 (internal quotation marks omitted) (emphasis added by PCR

court). 

Ivey contends that the State’s argument led the jury to believe "that

Ivey carried the burden of providing such evidence as psychiatric

experts in order for them to find that he suffered from a mental disability and was . . . therefore entitled to mercy." Br. of Appellant at

39. Ivey acknowledges that trial counsel objected to the statement

IVEY v. CATOE 13
regarding the absence of psychiatric testimony and that the trial court

gave an appropriate curative instruction. He argues, however, that

counsel should have objected to the statement "There’s no testimony

to the contrary." 

The state PCR court rejected this claim, first ruling that 

the comment "no testimony to the contrary" when read in

context of the argument as a whole, was not intended to be

a comment on Ivey’s failure to testify, but rather was a comment on the evidence that was presented by the defense that

showed he had the capacity to act on his own free will and

accord. 

J.A. 507. Based on this finding, the PCR court held that counsel were

not ineffective for failing to object. Second, the court concluded that

even if counsel’s failure to object were constitutionally deficient, Ivey

suffered no prejudice. The district court concluded that the decision

of the PCR court neither contravened nor unreasonably applied

Strickland. 

The ruling of the district court was indisputably correct, and thus

Ivey is not entitled to a certificate of appealability on this claim. First,

the challenged comment was not improper, and thus trial counsel

were not ineffective for failing to object.10 It is true that comment by

10Although the PCR court did not rely on this as a basis for rejecting

Ivey’s claim, we note that one of Ivey’s trial attorneys testified during

the PCR hearing that, although he could not specifically recall why he

did not object, his failure to do so likely stemmed from strategic considerations: 

But in all candor, . . . my strategy in closing arguments is [to]

minimize objections . . . because I think the . . . jurors get turned

off by it and it highlights it. And you usually want to object to

something that’s really hurting you. And when you do that you

accentuate and exacerbate the problem. 

And so, I want you all to know that just strategy wise, I usually am very reluctant . . . to object during closing argument

unless it’s so [blatant] that it’s obvious because . . . when I get

14 IVEY v. CATOE
the prosecution on the defendant’s failure to testify violates the Fifth

Amendment. See Griffin v. California, 380 U.S. 609, 615 (1965). But,

no constitutional violation occurs "when a prosecutor’s comments are

merely ‘a fair response to a claim made by defendant or his counsel.’"

Howard v. Moore, 131 F.3d 399, 421 (4th Cir. 1997) (en banc) (quoting United States v. Robinson, 485 U.S. 25, 32 (1988)). Here, the

PCR court reasonably determined that the prosecutor’s statement was

simply a response to the evidence presented by Ivey during the penalty phase and hence was not improper. Cf. United States v. Senn, 129

F.3d 886, 894 (7th Cir. 1997) (holding that prosecutor’s statement

that defendants’ case "is based upon no evidence, no testimony" was

not improper because statement was "permissible comment on the

reasonableness of theories and inferences urged by the defense"

(internal quotation marks omitted)). 

In any event, Ivey suffered no prejudice from counsel’s failure to

object. Even if the comment was improper, it did not "so infect[ ] the

[proceeding] with unfairness as to make the resulting [sentence] a

denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974). Any possibility of undue prejudice was minimized by the

instruction immediately before the challenged comment that Ivey bore

no burden of proof and the instruction given during the jury charge

that the jury should not draw any inference from Ivey’s failure to testify. Cf. Senn, 129 F.3d at 894 (noting, in context of holding that Government’s comments did not violate Griffin, that "[t]he judge

instructed the jury during the prosecutor’s closing argument that the

defense had no burden of proof, and the judge gave the usual jury

instructions at the end of the trial regarding the defendants’ refusal to

testify"). 

up and make my closing argument, I’m going to try to slip in as

much as I can within the rules. 

J.A. 482. "[R]efraining from objecting in order to avoid irritating the jury

is a standard trial tactic." Bennett v. Angelone, 92 F.3d 1336, 1349 (4th

Cir. 1996). Strategic decisions are entitled to great deference on habeas

review. See McCarver v. Lee, 221 F.3d 583, 594 (4th Cir. 2000), cert.

denied, 531 U.S. 1089 (2001). 

IVEY v. CATOE 15
B.

During the sentencing phase, defense counsel called correctional

officer Audie Hudson, who testified that Ivey was not a behavioral

problem and that, in Hudson’s opinion, Ivey had adapted well to

prison life. On cross-examination, the State elicited testimony from

Hudson that inmates at Broad River Correctional Facility (where Ivey

would be incarcerated if sentenced to life imprisonment) had access

to a softball field, indoor and outdoor basketball courts, workout

equipment, educational programs, paid employment opportunities,

and television. Hudson also stated that the facility was airconditioned; that inmates were provided with food, clothing, and personal hygiene items; and that the cells were a little smaller than a

room at a hotel. Defense counsel did not object to any of this testimony. 

During closing argument, the State relied on Hudson’s testimony

to argue that a life sentence would not be a hardship on Ivey: 

[L]et’s look at life imprisonment as an alternative [to a death

sentence] and decide whether that’s an acceptable punishment, whether that’s justice for the things this man has done.

And you know Mr. Hudson who was a defense witness —

I didn’t call Mr. Hudson up; the defense did. . . . And he told

you all about life in prison [at Broad River]. He told you all

they’ve got two man cells there. They’ve got T.V., and

they’ve got radio; they’ve got stereos; and they’ve got an

exercise yard with a softball field; they’ve got a gym that’s

got free weights and a nautilus type machine[ ] in it; it’s got

indoor and outdoor basketball courts; the entire prison is airconditioned; they get three hot meals a day free of charge;

they’re given all the clothing; they’re given all the personal

hygiene items; they’re given dental care and medical care;

and they’ve got to work, but they pay them for working.

That’s life in prison in South Carolina. And in the meantime, Tommy Harrison is in his grave. Now, is that justice?

J.A. 952-53. 

Before the PCR court, Ivey claimed that defense counsel were constitutionally ineffective for failing to object to the portion of the

16 IVEY v. CATOE
State’s closing argument that referred to Hudson’s testimony. The

court rejected this claim, concluding first that the cross-examination

of Hudson was proper because evidence regarding the circumstances

of prison life is relevant in determining whether the defendant will

adapt to such a life. Second, the PCR court concluded that the State’s

reference to Hudson’s testimony was a fair comment on the evidence

in the record, and thus that defense counsel were not ineffective for

failing to object. 

In his federal habeas petition, Ivey maintained that defense counsel

were constitutionally deficient for failing to object to the crossexamination of Hudson and for failing to object to the State’s reference to Hudson’s testimony during closing argument. The district

court determined that the claim regarding cross-examination of Hudson was defaulted and that both assertions were without merit.

Because we conclude that the district court was indisputably correct

in its procedural ruling regarding the first portion of the claim and

was equally correct in concluding that the ruling of the PCR court on

the second portion of the claim was entitled to deference under

§ 2254(d)(1), we deny a certificate of appealability. 

1.

Ivey failed to raise the first portion of his claim regarding Hudson’s

testimony—that counsel were ineffective for failing to object to the

State’s cross-examination of Hudson—before the PCR court. Because

Ivey did not fairly present this claim to the state court, he failed to satisfy the exhaustion requirement of 28 U.S.C.A. § 2254(c).11 See

O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). However, if the

claim is now procedurally barred under state law, this court will deem

it exhausted. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996);

George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996). But, because

11In his petition for certiorari from the denial of PCR, Ivey did argue

to the South Carolina Supreme Court that trial counsel were ineffective

for failing to object to the cross-examination of Hudson. This presentation of the claim was not sufficient to exhaust it, however. See Castille

v. Peoples, 489 U.S. 346, 351 (1989) (holding that raising claim for first

time in procedural context where consideration of merits is discretionary

does not satisfy federal exhaustion requirement). 

IVEY v. CATOE 17
"the procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence,"

we will be precluded from considering the merits of the claim unless

Ivey demonstrates cause and prejudice to excuse his default. Gray,

518 U.S. at 162. 

South Carolina law severely limits successive PCR applications: 

All grounds for relief available to an applicant under this

chapter must be raised in his original, supplemental or

amended [PCR] application. Any ground . . . not so raised

. . . may not be the basis for a subsequent application, unless

the court finds a ground for relief asserted which for sufficient reason was not asserted . . . in the original, supplemental or amended application. 

S.C. Code Ann. § 17-27-90 (Law. Co-op. 1985). In accordance with

this provision, the South Carolina Supreme Court is generally reluctant to consider successive PCR applications, and will do so only if

it was not possible for the applicant to raise the issue in his first application. See Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). The South

Carolina Supreme Court has allowed successive PCR applications in

only three circumstances: when the initial application was filed without the assistance of counsel, see Case v. State, 289 S.E.2d 413, 413-

14 (S.C. 1982) (per curiam); when PCR counsel was the same as trial

counsel, see Carter v. State, 362 S.E.2d 20, 21 (S.C. 1987); and when

procedural irregularities were so egregious as to result in a denial of

due process, see Washington v. State, 478 S.E.2d 833, 835 (S.C.

1996). The mere fact that PCR counsel was ineffective is not sufficient grounds for a successive PCR application. See Aice, 409 S.E.2d

at 394. 

Ivey argues that the procedural bar of § 17-27-90 does not apply

here because lead PCR counsel was ineffective. As evidence for this

assertion, Ivey notes that the lead PCR counsel was not qualified

under S.C. Code Ann. § 17-27-160(B) (Law. Co-op. Supp. 2001),

which was enacted for the purpose of "opting into" the more restrictive habeas procedures set forth in Chapter 154 of Title 28 of the

United States Code, see Tucker v. Catoe, 221 F.3d 600, 603-04 (4th

Cir.), cert. denied, 531 U.S. 1054 (2000). Ivey also points out that

18 IVEY v. CATOE
lead counsel repeatedly referred to the victim by the wrong name during the PCR hearing and was subsequently disbarred for improper

handling of office accounts, see In re Banks, 542 S.E.2d 721, 722-23

(S.C. 2001) (per curiam). Even if we were to agree with Ivey that lead

counsel was ineffective, however, under Aice that fact alone would

not be sufficient to allow the filing of a successive PCR application.12

Accordingly, this claim is procedurally barred as a matter of South

Carolina law and is thus defaulted. 

Ivey maintains that PCR counsel’s ineffectiveness constitutes cause

for his procedural default. However, in order for ineffective assistance

of counsel to constitute cause for a procedural default, the petitioner

must first demonstrate a constitutional right to counsel in the proceeding at issue. See Mackall v. Angelone, 131 F.3d 442, 448 (4th Cir.

1997) (en banc). However, a state habeas petitioner does not possess

a constitutional right to counsel. See id. at 447. Accordingly, Ivey has

not demonstrated cause for his procedural default. 

2.

The PCR court held that the State’s argument regarding Hudson’s

testimony was "fair comment on the evidence," J.A. 512, and hence

was not violative of the Due Process Clause; therefore, trial counsel

were not ineffective for failing to object to this portion of the argument. The district court agreed and accordingly deferred to the state

court ruling under § 2254(d)(1). 

A prosecutor’s improper closing argument may constitute a denial

of due process if it renders the proceeding "fundamentally unfair."

Bennett v. Angelone, 92 F.3d 1336, 1345 (4th Cir. 1996) (internal

quotation marks omitted); see Donnelly, 416 U.S. at 643. In determining whether a defendant’s due process rights were violated by a prosecutor’s closing argument, we must first determine whether the

remarks were, in fact, improper. See United States v. Morsley, 64 F.3d

907, 913 (4th Cir. 1995). If so, we then must decide whether the

12Ivey makes much of the fact that the South Carolina Supreme Court

assigned a judge to handle Ivey’s second PCR application, an action it

took in response to Ivey’s motion. We fail to see the significance of the

action of the South Carolina Supreme Court. 

IVEY v. CATOE 19
improper remarks "so prejudiced the defendant’s substantial rights

that the defendant was denied a fair trial." Id. "This determination

requires the court to look to the nature of the comments, the nature

and quantum of the evidence before the jury, the arguments of opposing counsel, the judge’s charge, and whether the errors were isolated

or repeated." Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998)

(internal quotation marks omitted). 

Here, the remarks by the prosecutor were not improper because

they were simply a fair comment on the evidence.13 See Bell v. Evatt,

72 F.3d 421, 437 (4th Cir. 1995) (holding that remarks that "were

consistent with the record and . . . rationally inferred from the . . . evidence" were not improper). Because the remarks were not improper,

trial counsel could not be considered ineffective for failing to object.

C.

During the penalty phase, the State presented testimony from Vincent Neumon, Ivey’s accomplice, regarding the murder of Robert

Montgomery. As is relevant here, Neumon testified that Ivey was the

triggerman in Montgomery’s murder. On cross-examination, defense

counsel probed the extent of Neumon’s involvement in Montgomery’s murder and his guilty plea, suggesting that Neumon, not Ivey,

was the triggerman.14 Defense counsel also explored the fact that Neumon had agreed to plead guilty to Montgomery’s murder in exchange

for the dismissal of numerous charges, including the murder of Officer Harrison; defense counsel asserted through questioning that Neumon had changed his story regarding the Montgomery murder in

exchange for the benefits of the plea agreement. In response to this

questioning, Neumon stated that he had pleaded guilty to Montgomery’s murder because he was an accomplice to that crime; Neumon

13Having defaulted his challenge to the admission of Hudson’s testimony regarding prison conditions, Ivey cannot now complain that the

State’s comments were improper on the basis that the testimony to which

the State referred was inadmissible. 

14For example, defense counsel’s first question on cross-examination

was, "Mr. Vincent Neumon, you have admitted that you murdered Robert Montgomery; isn’t that true?" J.A. 643. 

20 IVEY v. CATOE
also stated that his previous story to law enforcement officers had

been a lie and that his trial testimony was truthful. 

On redirect, the State elicited testimony from Neumon that no

police officer had ever accused him of being the triggerman in Montgomery’s murder; that Neumon’s attorneys had advised him on "the

law regarding accomplice liability," J.A. 651; and that he had testified

truthfully. On recross-examination, defense counsel discussed the

provision of Neumon’s plea agreement that required him to tell the

truth and obtained Neumon’s acknowledgment that the solicitor

would decide whether he had told the truth or not. 

During closing argument, the State made the following statement

concerning Neumon’s guilty plea to the Montgomery murder: 

Vincent Neumon testified here under oath that he’s pleading

to the Montgomery murder under that hand of one, hand of

all, under the advice of the two lawyers he had in court here

with him. . . . That’s what Neumon is doing. . . . And . . .

the defense[ ] wants you to infer that maybe it was Neumon

who did the shooting of Robert Montgomery; maybe it

wasn’t Ivey. Maybe it was Neumon since he’s pleading

guilty to murder. There’s no evidence anywhere in this

record that Vincent Neumon shot Robert Montgomery. He

was part of the deal, part of the kidnapping, part of the robbery, right up there with [Ivey], but there’s no evidence that

he’s the trigger man — no evidence. There’s no evidence in

this record . . . that any law enforcement officer has ever

accused Vincent Neumon of being the trigger man in this

killing.

Id. at 946-47 (emphasis added). 

Ivey maintains that trial counsel were constitutionally ineffective

for failing to object to (1) the question regarding whether any law

enforcement officer had suggested that Neumon was the triggerman

in the Montgomery murder, and (2) the statement in closing argument

that no evidence supported the suggestion that Neumon was the triggerman in the Montgomery murder.15 According to Ivey, both the

15In connection with this argument, Ivey asserts in passing that the

prosecutor "insinuated himself onto this jury" through certain comments

IVEY v. CATOE 21
questions and the closing argument constituted improper prosecutorial

vouching for Neumon’s credibility. 

The district court first concluded that because Ivey had failed to

present this claim to the state PCR court, it was defaulted. For the reasons set forth in Part V.B.1., we hold that this ruling was indisputably

correct. Although this procedural ruling is a sufficient basis for the

denial of a certificate of appealability, the district court also addressed

the merits of the "vouching" claim and found them lacking, and thus

determined that trial counsel were not ineffective for failing to object.

This holding, too, is not subject to debate among reasonable jurists,

and it provides an additional basis for the denial of a certificate of

appealability. 

The State may not vouch for or bolster the credibility of its own

witness. See United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.

1993). "[T]he prosecutor may not, among other things, make explicit

personal assurances that a witness is trustworthy or implicitly bolster

the witness by indicating that information not presented to the jury

supports the testimony." Id. Vouching "jeopardize[s] the defendant’s

right to be tried solely on the basis of the evidence presented to the

jury" and "may induce the jury to trust the Government’s judgment

rather than its own view of the evidence" because "the prosecutor’s

opinion carries with it the imprimatur of the Government." United

States v. Young, 470 U.S. 1, 18-19 (1985). As with other forms of

prosecutorial misconduct, vouching violates due process if it renders

a proceeding fundamentally unfair. See United States v. Sanchez, 118

F.3d 192, 198 (4th Cir. 1997). 

No improper vouching or bolstering occurred here, and therefore

defense counsel were not ineffective for failing to object to the quesduring closing argument. Br. of Appellant at 48. This argument, too, is

defaulted by virtue of Ivey’s failure to raise it before the state PCR court.

In any event, Ivey provides no support for his assertion that the comments in question were improper. And, even if the comments were

improper, our examination of the relevant factors persuades us that the

comments did not render Ivey’s sentencing so unfair as to deny him due

process. 

22 IVEY v. CATOE
tions on redirect or the comments during closing argument. The

State’s question regarding whether Neumon had ever been accused of

being the triggerman in Montgomery’s murder was a fair response to

defense counsel’s repeated attempts to establish that Neumon was the

triggerman. See United States v. Garcia-Guizar, 160 F.3d 511, 522

(9th Cir. 1998) (stating that when "the defendant opens the door to an

argument, it is fair advocacy for the prosecution to enter" (internal

quotation marks omitted)). The State’s comment during closing argument that there was no evidence in the record that Neumon had ever

been accused of being the triggerman in the Montgomery murder was

also a fair response to the cross-examination of Neumon. Moreover,

the comment did not in any way suggest that the State had personal

knowledge not before the jury regarding Neumon’s role in the Montgomery murder. See id. at 521 (holding that comment regarding

absence of evidence to support defendant’s claims did not imply that

evidence outside record supported prosecution’s case). And, even if

the State’s questions on redirect and comments during closing argument were improper, Ivey suffered no due process violation. In light

of the submission to the jury of Ivey’s detailed confession to the

Montgomery murder, the prosecutor’s comments did not render the

sentencing proceeding fundamentally unfair. 

VI.

As noted above, Ivey failed to raise his claims regarding the crossexamination of Hudson and the alleged "vouching" for Neumon in his

initial PCR application. While this action was pending in the district

court, Ivey filed a successive PCR application in state court; he then

moved for a stay of the federal proceedings. The district court denied

this motion. 

We conclude that the denial of the motion was not an abuse of discretion. See Evans v. Smith, 220 F.3d 306, 321-22 (4th Cir. 2000)

(stating standard of review), cert. denied, 532 U.S. 925 (2001). Ivey

contends that the stay should have been granted because there is a

possibility that the state PCR court will review the claims on the merits. For the reasons previously mentioned, we think this possibility is

extremely remote. However, even if the PCR court ultimately reviews

the claims on the merits, the denial of the motion for stay would not

be erroneous. The ruling of the district court that the claims were

IVEY v. CATOE 23
without merit in no way precludes the state court from reaching a contrary conclusion and granting relief. 

VII.

For the reasons set forth above, we conclude that Ivey has failed

to make a substantial showing of the denial of a constitutional right.

Accordingly, we deny a certificate of appealability and dismiss the

appeal. 

DISMISSED

24 IVEY v. CATOE