Volume 1 of 2

ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHAWN PAUL HUMPHRIES, 

Petitioner-Appellant,

v.

JON E. OZMINT, Director, South  No. 03-14 Carolina Department of Corrections;

HENRY DARGAN MCMASTER,

Attorney General, State of South

Carolina,

Respondents-Appellees. 

Appeal from the United States District Court

for the District of South Carolina, at Anderson.

Joseph F. Anderson, Jr., Chief District Judge.

(CA-02-4276-8-17BI)

Argued: October 27, 2004

Decided: February 4, 2005

Before WILKINS, Chief Judge, WIDENER, WILKINSON,

NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ,

TRAXLER, KING, GREGORY, SHEDD, and DUNCAN, Circuit

Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Hamilton wrote the

opinion, in which Chief Judge Wilkins and Judges Widener, Niemeyer, Luttig, Williams, Motz, Traxler, King, and Shedd joined.
Judge Luttig wrote a concurring opinion. Judge Wilkinson wrote a

dissenting opinion, in which Judges Michael, Gregory, and Duncan

joined. 

COUNSEL

ARGUED: Teresa Lynn Norris, CENTER FOR CAPITAL LITIGATION, Columbia, South Carolina, for Appellant. Donald John

Zelenka, Chief Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. ON BRIEF: Thomas R. Haggard, Ridgeway,

South Carolina; Joseph Maggiacomo, CENTER FOR CAPITAL LITIGATION, Columbia, South Carolina, for Appellant. Henry Dargan

McMaster, Attorney General, John W. McIntosh, Chief Deputy Attorney General, Columbia, South Carolina, for Appellees. 

OPINION

HAMILTON, Senior Circuit Judge: 

On August 5, 1994, Shawn Paul Humphries was convicted in the

Circuit Court for Greenville County, South Carolina of murder,

attempted robbery, possession of a firearm during the commission of

a violent crime, and criminal conspiracy. Following a sentencing

hearing, the jury recommended a sentence of death for the murder

conviction and, in accordance with the jury’s verdict, the state trial

court sentenced Humphries to death for that conviction. After

exhausting his state remedies, Humphries filed a petition for a writ of

habeas corpus in the United States District Court for the District of

South Carolina, 28 U.S.C. § 2254, which the district court dismissed.1

1

Initially, Humphries named Gary Maynard, former commissioner of

the South Carolina Department of Corrections, and Charles Condon,

South Carolina’s former attorney general, as respondents. Now, Jon

Ozmint and Henry McMaster, respectively, hold these positions and have

been substituted as respondents, Fed. R. Civ. P. 25(d)(1). For ease of reference, we will refer to respondents as "the State" throughout this opinion. 

2 HUMPHRIES v. OZMINT
On July 25, 2005, the district court granted Humphries a certificate

of appealability, 28 U.S.C. § 2253. For the reasons stated below, we

affirm the district court’s dismissal of Humphries’s habeas petition.

I

As found by the South Carolina Supreme Court on direct appeal,

the facts of this case are as follows: 

On January 1, 1994, Humphries shot Dickie Smith, the

owner of the Max-Saver convenience store in Fountain Inn,

South Carolina. The evidence at trial established that on the

night before the killing, Humphries and his friend Eddie

Blackwell drove around drinking beer. They also stole a gun

that night. Shortly after 7:00 a.m. on January 1, they entered

the Max-Saver convenience store. Smith, who was working

in the store, asked Humphries whether he wanted something

hot, and Humphries flashed the stolen gun and replied that

he wanted money. 

There was some evidence to suggest Smith then reached

under a counter to pull out a gun. The video camera at the

store recorded the shooting. When Smith reached under the

counter, Humphries fired a shot in Smith’s direction and

fled from the store. The bullet fired by Humphries struck

Smith in the head, killing him. Meanwhile, Blackwell

slumped to the ground in the store. The police arrested

Blackwell at the scene and apprehended Humphries later

that day.

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

On July 12, 1994, a Greenville County grand jury charged Humphries with the following offenses: (1) murder; (2) attempted robbery;

(3) possession of a firearm during the commission of a violent crime;

and (4) criminal conspiracy. On August 1, 1994, the case went to trial

and the jury returned a verdict of guilty on all counts. 

During the separate sentencing phase of Humphries’s trial, the

solicitor proffered, and the state trial court admitted, all of the eviHUMPHRIES v. OZMINT 3
dence that was admitted during the guilt phase of the trial. Following

the court’s admission of this evidence, the solicitor called two witnesses from Dickie Smith’s family, his brother Randy Smith and his

wife Pat Smith. These witnesses testified about Dickie Smith’s childhood, upbringing, work ethic, generosity, and close relationship with

his young daughter Ashley. 

Randy Smith testified that he and Dickie Smith grew up in a poor

family that did not have hot water. When Dickie Smith was nineyears old, his father died. After his father’s death, Smith and the other

family members began working to support the family. Randy Smith

testified that, when Dickie Smith was in the ninth grade, he took a job

after school as a meat cutter at a Bi-Lo grocery store, working until

10:00 or 11:00 p.m. at night. In the tenth grade, Dickie Smith

acquired a full-time job working second shift in a textile mill while

continuing to attend school. Randy Smith testified everyone in the

community liked Dickie Smith and he was a good person. 

During her testimony, Pat Smith described Dickie Smith as ambitious, hardworking, and generous. For instance, after receiving one

technical degree and becoming a supervisor, Dickie Smith went back

to school to get his residential home builder’s license and began

building houses in 1986. Ashley was born in 1988. Pat Smith

described Dickie Smith and Ashley’s relationship as very close and

testified that Ashley was having a hard time since her father was

killed and was receiving counseling. 

Following this testimony, the state moved to admit a photograph of

the crime scene and documentary evidence demonstrating that Humphries was adjudicated as delinquent in 1985 for two breaking and

enterings, convicted in 1989 in Anderson County, South Carolina of

burglary and larceny, and convicted of larceny in Alabama in 1990.

In terms of making a case in mitigation, Humphries’s strategy was

four-fold. First, he sought to establish that there was no intent to kill

by demonstrating that: (1) he pulled the trigger after he panicked in

reaction to Dickie Smith’s attempt to reach under the counter; (2) he

did not kill Donna Brashier who was also in the store during the

shooting; (3) he drove off without Eddie Blackwell; and (4) he voluntarily confessed to the killing. Next, Humphries sought to demonstrate

4 HUMPHRIES v. OZMINT
that he was a nonviolent person who had no significant history of

engaging in violent acts. He also sought to show that he was a young

man who had an extensive history of emotional, physical, and substance abuse. Finally, Humphries sought to show that he was a trustworthy, respectful, and pleasant person. 

In support of this strategy, Humphries called thirteen witnesses.

The first witness was Albert Humphries, Humphries’s paternal grandfather. He testified that Humphries and his brother, Richard Humphries, lived with him and Humphries’s grandmother from the time

Humphries was three-years old until Humphries was twelve-years

old. Albert Humphries testified that he and his wife were heavy drinkers and that his wife grew marijuana in their backyard. Albert Humphries described his son, Humphries’s father, as unpredictably

violent, noting that he had been to prison several times. Albert Humphries testified that his son had cut him on the arm with a knife and

had kicked Humphries’s grandmother in the face, knocking her false

teeth out. 

Patricia Goode, Humphries’s aunt, testified that Humphries’s father

had said on numerous occasions that he never loved his children and

that the children should have been aborted.

Humphries’s mother, Carla Scott, testified that, after she left Humphries’s father, she became pregnant with Humphries as a result of his

father raping her at knife point. She stated that she eventually left the

children with their paternal grandparents and married several more

times. She reunited with the children only after she married someone

who would allow the children to live with her. 

Scott also discussed Humphries’s criminal record. According to

Scott, Humphries was arrested in 1984 for two counts of breaking and

entering and was placed on probation. Thereafter, he was given more

probation after he was suspended from school for fighting several

times. After Humphries’s second probation revocation when he was

fifteen years old, he was sent to a state facility in Columbia, South

Carolina for thirty days and was placed on probation again. Humphries was arrested in January 1989 for breaking into a church, apparently looking for food because he had been living on the street for a

week. Humphries pled guilty to that charge and was placed on probaHUMPHRIES v. OZMINT 5
tion. In 1990, Humphries was charged in Alabama with stealing an

automobile. As a result of that charge, Humphries was sentenced to

two years’ imprisonment followed by four years of probation. 

Debbie Humphries, Humphries’s step-mother, testified that Humphries’s father used a combination of alcohol, drugs, and paint fumes

every day and had shared those substances with Humphries from

1983 to 1992. Richard Humphries, Humphries’s brother, testified

regarding the circumstances in which he and Humphries grew up,

including: (1) their father’s violence toward his own parents; (2) the

lack of hot water and sometimes running water; (3) the lack of food;

and (4) the trips taken to the dumpsters to find school clothes.2

Preston Taylor testified that, when he was employed by the Department of Youth Services, he had numerous contacts with Humphries,

who was thirteen at the time. According to Preston Taylor, Humphries

was a pleasant, respectful, cooperative, and nonviolent boy. 

Mary Shults, an expert witness with a degree in sociology and a

master’s degree in social work, testified regarding Humphries’s social

history. She related that Humphries had been reminded throughout his

life that he was a product of rape. Shults stated that Humphries’s

father was incredibly violent, would kick people in the face, cut people, and would refer to himself as Satan. In addition, Shults testified

Humphries’s father introduced Humphries to drugs and alcohol

between the ages of six and ten. 

Humphries’s case in mitigation was closed with the testimony of

three witnesses, two family friends (Tammy Compton and David

Shaw) and his step-sister, Jamie Scott. Tammy Compton testified she

trusted Humphries enough to leave her children with him and David

Shaw testified Humphries was a good, nonviolent person. Jamie Scott

testified she loved her step-brother a lot and wanted to see the jury

return a life sentence. 

2The unfortunate circumstances of Humphries’s upbringing were further confirmed by the testimony of two other witnesses, Ruby Badsen,

Humphries’s maternal grandmother, and Lindsay Badsen, Humphries’s

uncle. 

6 HUMPHRIES v. OZMINT
Before the state trial court gave the jury its final instructions, the

solicitor and counsel for Humphries gave their closing arguments. In

his closing argument, the solicitor broke his argument down into four

parts, commenting to the jury that

[y]ou look at four things in deciding the issue of punishment. You look at the aggravation. Is it an aggravated murder? You look at the character of the Defendant. You look

at any mitigation, statutory mitigation or other mitigation

they’ve presented to you. And the last thing you look at is

the victim, his uniqueness. What harm to the community

and to the victim and to the family did this Defendant

cause? Those are the four things you look at. 

The solicitor then turned his attention to the evidence in aggravation.

The solicitor argued that the evidence in this case clearly established

the statutory aggravating circumstance relied upon by the State, that

the murder was committed during the commission of a robbery while

Humphries was armed with a deadly weapon.3 Then, the solicitor

turned to Humphries’s character and summarized Humphries’s checkered past in great detail, stating: 

He’s been in trouble since he was 13 years old. When he

was 13 years old, he committed two breaking and enterings,

and he was given probation. He was given a chance by the

Family Court judge at age 13. 

He missed school. He got in fights at school. He got suspended at school. He ran away. And so they brought him

back in at age 14 on a probation revocation, and he was

given yet another chance, stricter conditions. And again, he

skipped school. He ran away. He was disruptive in school.

He got suspended. 

3The jury was presented with one aggravating circumstance (murder

committed during the commission of a robbery while armed with a

deadly weapon) and two statutory mitigating circumstances (no significant prior criminal history and the age of the defendant). The jury was

also instructed to consider any other circumstances it found to be mitigating. 

HUMPHRIES v. OZMINT 7
So at age 15 he’s brought back in for another probation

revocation. And this time the Family Court Judge said, "You

know, enough is enough. We’re going to send you down to

Columbia. We’re going to send you down there [to] see if

we can’t figure out what makes you tick." 

And they do all kind[s] of psychological reports and things

that I’ll talk about in just a moment. And he comes back,

and at age 16 is an habitual truant, and he basically drops

out of school, and at age 17 he burglarizes the church and

steals from the church, and he’s given probation. 

And at age 18 he goes to Alabama, and he’s convicted of

larceny down there, and he’s sent to jail for two years. And

he gets out when he’s age 20, and at 21 he fails to report.

They issue a warrant for him. He’s still on probation. And

at age 22 he commits a murder and attempted armed robbery. 

The solicitor then addressed the evidence in mitigation presented

by Humphries. The solicitor argued to the jury that there was a complete lack of mitigating evidence, arguing that Humphries had a significant history of prior criminal convictions for crimes of violence

and that his relatively young age (twenty-two), mental capacity, and

occasional drug and alcohol use were of no moment. 

Finally, the solicitor turned to Dickie Smith’s uniqueness as an

individual. In this regard, the solicitor stated: 

Dickie Smith was born in 1950, fourth son, fifth child of a

fellow named Alton Smith and a sweet lady named Lottie

Mae Darnell Smith. They grew up poor. They didn’t have

hot water. They had a spigot coming in and a tub next to the

stove, and they had a few acres of cotton. 

Dickie Smith is as much about this case as Shawn Paul

Humphries. When Alton Smith died when Dickie was nine,

he pulled himself up by his bootstraps and he started contributing to the family. He got all kinds of odd jobs picking

8 HUMPHRIES v. OZMINT
cotton at a penny a pound, hunting rabbits, skinning them,

dressing them out, selling them for 50 cents. 

When he’s 14 years old, he gets a job in Greenville at the

Bi-Lo in the Meat Department working after school. He’s

gone to school all day. From after school til about 10:00 or

10:30 at night working at Bi-Lo, saving his money, buying

a car for the family. 

When he’s in tenth grade, he goes down to Boenett’s and he

gets a full-time job, second shift. He’s going to school all

day, and he’s working until midnight, contributing. Lottie

Mae Darnell Smith with eight kids, got them all out of high

school, all at least a tech degree, some of them through college. 

When Dickie Smith finished high school, he went to work

for Union Carbide, then Kemet, but he didn’t stop there. He

kept improving himself. He went to Tech, he got an engineering degree, and he became a supervisor, and then he

went back to Tech because he decided he wanted to build

houses, and he got his—another degree at Tech, and he got

his builder’s license. 

And in 1984 he met Pat, and they fell in love, and they got

married. That’s the same year Shawn Paul Humphries committed two house break-ins at age 13. In 1986 Dickie makes

a pretty drastic move. He decides he’s going to quit Kemet

and go build houses full-time, and he goes out, and he starts

building homes in the community he had grown up in.

That’s the same year Shawn Paul Humphries is up for his

second probation violation and sent down to Columbia. 

Then in 1988, July the 4th, they have a little baby girl

named Ashley. You know, the Defense brought in a 12 year

old stepdaughter—stepsister, said, "Please don’t put Shawn

Paul Humphries in the electric chair." I’m sorry I did not

feel it was appropriate to bring in a six year old girl Ashley

and parade her in front of you. 

HUMPHRIES v. OZMINT 9
In 1988 Ashley is born. That’s the same year Shawn Paul

Humphries went to jail for two years. And in the spring of

1992, I believe, Dickie Smith opens the doors to the MaxSaver, building a business down in that community. 

You have the right to look at the uniqueness of the individual. I would submit to you that Dickie Smith, by everybody’s description to you was a unique individual. He grew

up in that southern part of Greenville County below Simpsonville that was mainly farming, cotton, agriculture area. 

And he grew up watching it change to industrial. And he

first went to work for one of the industries at Union Carbide,

and then he decided he was going to be part of that change,

and he started building houses down there and building a

business down there. 

After finishing the portion of his closing argument concerning Dickie Smith’s uniqueness, the solicitor then concluded his argument by

arguing the following to the jury: 

Who is the victim here, Shawn Paul Humphries or is it Dickie Smith? Who is the victim? Is it this guy over here or is

it Donna, Donna Brashier, who’s got to hear that gunshot

every day of her life and who’s got to see Dickie Smith laying on the floor every day of her life? 

Who is the victim? Is it this Defendant or is it this lady right

here, his momma, or his wife, or Ashley, who the only way

she can see her daddy is to go visit his grave on Sunday

after church? 

There are a lot of reasons for punishment. Rehabilitation is

one reason, and rehabilitation is a proper goal in some circumstances, but you’ve got to decide about whether this

Defendant, who at 13 is breaking the law, at 14 is breaking

the law, at 15 is breaking the law, at 17 is going—is breaking the law, at 18 is breaking the law and going to jail,

who’s been given every chance that the system offers. You

decide if you’re going to rehabilitate him. 

10 HUMPHRIES v. OZMINT
What are some other reasons for punishment? Retribution is

a reason for punishment. That may not sound good, may not

sound right, but, in fact, it is part of punishment, because

retribution is our community saying you have done something wrong and we’re going to punish you. . . . 

When you look at a case like this, when you look at the

aggravation, when you look at the total lack of mitigation,

I would submit, when you look at the character of this

Defendant, and when you look at Dickie Smith, how profane when you look at all the circumstances of this crime

and of this Defendant, how profane to give this man a gift

of life under these circumstances. . . . 

What punishment do you recommend when a man is

defending his co-worker, he’s defending his store, he’s

defending what he has built, and he’s ducking behind the

counter, and somebody takes a nine millimeter and executes

him? What punishment do you recommend? What punishment do you recommend when you’ve got a character like

that? What punishment do you recommend when somebody

like Dickie Smith is taken from us? 

If not now, then when? If not in a case that’s as aggravated

as this, then when do you do it? The defense may say,

"Well, you can think of all kinds of aggravating cases." You

can think of this and you can think of that. You look at the

circumstances of this case. 

If not in a case as aggravating as this, if not in a case with

absolutely no mitigation like this, if not in a case with a

character like this, if not in a case when somebody like Dickie Smith is taken, then when are you going to do it? It’s not

supposed to be easy. It’s never been easy. It won’t be easy

in the future. 

Shawn Paul Humphries comes into this courtroom asking

you for mercy. Shawn Paul Humphries comes in here and

asks you for mercy, and I ask you what mercy did he give?

Shawn Paul Humphries comes in here and asks you for

HUMPHRIES v. OZMINT 11
mercy, and he gave none. Shawn Paul Humphries comes in

here and asks you for life, and he gave death. Is that fair?

Is that justice? That’s what you’re here for is justice. It’s up

to you. 

In his closing argument, counsel for Humphries argued that the

death penalty was unwarranted for several reasons. First, counsel for

Humphries emphasized that there was no evidence of an intent to kill

because Humphries: (1) pulled the trigger after he panicked in reaction to Dickie Smith’s attempt to reach under the counter; (2) did not

kill Donna Brashier; (3) drove off without Blackwell; and (4) voluntarily confessed to the killing. Counsel also argued that Humphries

was a nonviolent person who had no significant history of engaging

in violent acts. Counsel argued that Humphries was a young man who

had an extensive history of emotional, physical, and substance abuse.

Finally, counsel argued that Humphries was a trustworthy, respectful,

and pleasant person. 

Following the state trial court’s instructions and the jury’s deliberations, the jury recommended a sentence of death for the murder conviction and, in accordance with the jury’s verdict, the state trial court

sentenced Humphries to death for that conviction.4 At the post-trial

motions hearing, Humphries’s counsel objected to the solicitor’s use

of comparisons between Dickie Smith and Humphries during his closing argument, and the state trial court overruled the objection. 

On direct appeal, the South Carolina Supreme Court affirmed the

state trial court’s judgment. Id. at 57. On June 9, 1997, the United

States Supreme Court denied Humphries’s petition for a writ of certiorari. Humphries v. South Carolina, 520 U.S. 1268 (1997). 

On September 16, 1997, Humphries filed an application for postconviction relief in state court, which he later amended. Following an

evidentiary hearing, the state habeas court dismissed the application.

On June 18, 1999, Humphries filed a petition for a writ of certiorari

in the South Carolina Supreme Court. On September 27, 2001, the

South Carolina Supreme Court granted the petition for a writ of cer4For the other counts of conviction, Humphries received concurrent

twenty-year sentences. 

12 HUMPHRIES v. OZMINT
tiorari and requested the parties proceed with briefing. Humphries,

through appellate counsel, briefed the following issue in his petition

for certiorari: "Counsel did not provide petitioner effective assistance

at sentencing because they failed to object timely to the solicitor’s

closing argument suggesting that the petitioner deserved to die

because his life was worth less than the victim’s." The Supreme Court

of South Carolina affirmed the state habeas court’s judgment on

August 26, 2002. Humphries v. State, 570 S.E.2d 160, 168 (S.C.

2002). 

On December 24, 2002, Humphries filed a petition for a writ of

habeas corpus in the United States District Court for the District of

South Carolina. On January 29, 2003, the State filed a motion for

summary judgment. Humphries filed his response on February 14,

2003. On February 25, 2003, a United States Magistrate Judge

reported and recommended that Humphries’s habeas petition be

denied. On June 19, 2003, the district court, after conducting a de

novo review of the record, granted the State’s motion for summary

judgment and dismissed the petition. On July 25, 2003, the district

court granted Humphries a certificate of appealability, 28 U.S.C.

§ 2253. 

On May 3, 2004, a divided panel of this court vacated Humphries’s

death sentence and remanded the case with instructions to issue the

writ solely for the purpose of resentencing. Humphries v. Ozmint, 366

F.3d 266 (4th Cir. 2004). The State filed a timely petition for rehearing with a suggestion for rehearing en banc to which Humphries filed

a response. A majority of the active circuit judges voted to rehear this

case en banc, which resulted in the vacatur of the panel opinion. 

II

Our standard for collateral review of a state court’s decision on the

merits under 28 U.S.C. § 2254(d) is well-settled. A federal court may

not grant a writ of habeas corpus unless the state court’s adjudication

of the claim "resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States." 28 U.S.C.

§ 2254(d)(1). The phrase "clearly established Federal law," id., "refers

to the holdings, as opposed to the dicta, of the [Supreme] Court’s

HUMPHRIES v. OZMINT 13
decisions as of the time of the relevant state-court decision." Booth-El

v. Nuth, 288 F.3d 571, 575 (4th Cir.) (internal quotation marks omitted), cert. denied, 537 U.S. 959 (2002). Further, a state court’s decision is "contrary to" clearly established federal law, as determined by

the Supreme Court, either: (1) "if the state court applies a rule that

contradicts the governing law set forth in [Supreme Court] cases," or

(2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless

arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Finally, "[u]nder the

‘unreasonable application’ clause, a federal habeas court may grant

the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case." Id. at 413. Notably,

an "unreasonable application of federal law is different from an incorrect application of federal law," because an incorrect application of

federal law is not, in all instances, objectively unreasonable. Id. at

410. 

III

Humphries contends that his trial counsel were constitutionally

ineffective when they failed to object to a portion of the solicitor’s

closing argument at sentencing. According to Humphries, the State

violated the dictates of Payne v. Tennessee, 501 U.S. 808 (1991),

when the solicitor in effect argued to the jury during the sentencing

phase of the trial that Humphries deserved the death penalty because

Dickie Smith (the victim) was a worthy individual and an asset to the

community while Humphries was not. Humphries posits that, not only

was his counsel deficient for failing to object, but also that he was

prejudiced by this failure as well. To properly analyze Humphries’s

Payne claim, we must take a close look at the Supreme Court’s precedent concerning victim-impact evidence. 

A

In Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court

held that the Eighth Amendment prohibits a state from allowing a

capital sentencing jury to consider victim-impact evidence. Booth

involved the brutal murders of an elderly couple, Irvin and Rose

14 HUMPHRIES v. OZMINT
Bronstein. Id. at 497. During the sentencing phase of the trial, the

prosecutor read a victim-impact statement that was compiled by a

probation officer on the basis of her interviews with the Bronsteins’

surviving family members. Id. at 498-500. The victim-impact statement included all three forms of victim-impact evidence: accounts of

the emotional and psychological impact of the crime on the family,

descriptions of the Bronsteins’ personal characteristics, and the victims’ family members’ opinions and characterizations of the crimes

and the defendant. Id. at 499-500. 

In Booth, the Court held that all three forms of victim-impact evidence are irrelevant to a determination of whether to impose a death

sentence, and that their admission thus risks arbitrary and capricious

imposition of the death penalty. Id. at 502-03. The Court noted that,

because victim-impact evidence includes facts about which the defendant was unaware at the time of the murder, it is unrelated to the

defendant’s culpability. Id. at 505. The Court further noted that admitting victim-impact evidence would yield arbitrary results because

victim-impact evidence would lead juries to impermissibly base their

decision on their evaluation of the relative worth of the victim, and

because the capital sentencing decision would partially depend upon

the degree to which the victim’s family members—if the victim

leaves any behind—are able to articulate their loss. Id. at 505-06.

Moreover, the Court stated that victim-impact evidence improperly

shifts the jury’s focus from the defendant to the victim, and, thus,

yields death sentences based on emotion rather than reason. Id. at

507-08. 

In South Carolina v. Gathers, 490 U.S. 805 (1989), the Supreme

Court extended Booth to cover a prosecutor’s comments on the murder victim’s personal characteristics. Id. at 811-12. In that case, in an

attempt to enable the jury to more fully comprehend the human loss

involved in the murder of a mentally unstable homeless man, the

prosecutor made various references in his closing argument at the sentencing phase about the victim’s personality and character, including

inferring from the victim’s possession of religious articles and a voter

registration card that the victim was a man of faith who cared about

his community, reading a prayer written by the victim that was found

at the murder scene, and noting that the victim had mental problems.

Id. at 808-10. The Court found that the prosecutor’s statements were

HUMPHRIES v. OZMINT 15
"indistinguishable in any relevant respect from that in Booth" and,

thus, likewise violative of the Eighth Amendment. Id. at 811. According to the Court, while victim-impact evidence relevant to the circumstances of the crime is admissible, the prosecutor’s statements went

far beyond those facts. Id. at 811-12. 

In Payne, the Court overruled both Booth and Gathers. The Payne

case involved a brutal attack of a mother and her two small children

that left the mother and one of her children dead. Payne, 501 U.S. at

812-13. At the sentencing phase of the trial, the prosecutor presented

the testimony of the children’s grandmother, who testified about the

effect of the crimes on the now-orphaned child. Id. at 814-15. Additionally, the prosecutor commented extensively on the impact of the

murders on the orphaned child and said that the child will "want to

know what type of justice was done" when he is older. Id. at 815.

In the Payne decision, the Court observed that "a State may properly conclude that for the jury to assess meaningfully the defendant’s

moral culpability and blameworthiness, it should have before it at the

sentencing phase evidence of the specific harm caused by the defendant." Id. at 825. Furthermore, the Court observed that Booth "unfairly weighted the scales in a capital trial; while virtually no limits

are placed on the relevant mitigating evidence a capital defendant

may introduce concerning his own circumstances, the State is barred

from either offering ‘a glimpse of the life’ which a defendant ‘chose

to extinguish,’" id. at 822 (quoting Mills v. Maryland, 486 U.S. 367,

397 (1988) (Rehnquist, C.J., dissenting)), or "demonstrating the loss

to the victim’s family and to society which has resulted from the

defendant’s homicide." Id. Consequently, the Court concluded that,

"if the State chooses to permit the admission of victim-impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." Id. at 827. Of note, the Payne Court did

not alter Booth’s holding that admitting evidence of the victims’ opinions of the crime and of the appropriate sentence for the defendant

violates the Eighth Amendment; rather Payne only allows evidence

of the victim’s personal characteristics and the harm inflicted upon

the victim’s family and community. Id. at 829 n.2. The Court in

Payne noted that there was "no reason" to treat victim-impact evidence "differently than other relevant evidence," id. at 827, but cautioned that, "[i]n the event that evidence is introduced that is so

16 HUMPHRIES v. OZMINT
unduly prejudicial that it renders the trial fundamentally unfair, the

Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Id. at 825. 

The Court in Payne did not set the parameters of what type of

victim-impact evidence would render a trial fundamentally unfair

under the Due Process Clause of the Fourteenth Amendment. As

noted earlier, the Payne Court did observe that courts should handle

the admission of victim-impact evidence just like any other relevant

evidence. 501 U.S. at 827. However, the only inkling in Payne on the

limitations imposed on the admission of victim-impact evidence is the

Court’s citation to Darden v. Wainwright, 477 U.S. 168 (1986).

Payne, 501 U.S. at 825. 

In Darden, the Court addressed prosecutorial misconduct at the

guilt phase of a capital murder trial. In addressing Darden’s argument

that his trial and resulting conviction were fundamentally unfair

because of the prosecutor’s improper argument, the Court characterized the inquiry as whether the improper comments were so unfair as

to make the conviction a denial of due process. Darden, 477 U.S. at

181. The Darden Court based its due process standard on Donnelly

v. DeChristoforo, 416 U.S. 637 (1974), another prosecutorial misconduct case. In considering DeChristoforo’s claim that his first degree

murder conviction violated his due process rights, the Court stated

that the due process analysis properly addresses more than just the

questionable prosecutorial conduct itself. Id. at 639. Instead, a court

making a due process inquiry must consider the challenged conduct

in relation to the proceeding as a whole. Id. The analysis of a due process claim premised on unfair prosecutorial conduct may thus depend

upon numerous factors, which include the nature of the prosecutorial

misconduct, Darden, 477 U.S. at 181-82, the extent of the improper

conduct, DeChristoforo, 416 U.S. at 645, the issuance of curative

instructions from the court, Darden, 477 U.S. at 182, any defense

conduct inviting the improper prosecutorial response, id., and the

weight of the evidence. Id.; see also Boyd v. French, 147 F.3d 319,

329 (4th Cir. 1998) (holding that a prosecutorial misconduct determination requires the court to look at the nature of the comments, the

nature and quantum of the evidence before the jury, the arguments of

opposing counsel, the court’s charge, and whether the errors were isolated or repeated). Based on this precedent, it is evident that both DarHUMPHRIES v. OZMINT 17
den and DeChristoforo apply to cases in which the defendant or

petitioner alleges that the admission of victim-impact evidence or prosecutorial comment on victim-impact evidence violated his rights

under the Due Process Clause of the Fourteenth Amendment. 

B

In its decision on state habeas, the South Carolina Supreme Court

first held that Payne only prohibited comparisons between the victim

and other members (victims) of the community. Humphries, 570

S.E.2d at 167-68. Because no such victim-to-victim comparison was

made in the case, the South Carolina Supreme Court held that Payne

did not ipso facto prohibit the solicitor’s closing argument. Id.

Because Payne did not specifically prohibit victim-to defendant comparisons, the South Carolina Supreme Court went on to address the

question of whether the solicitor’s argument rendered Humphries’s

sentencing proceeding fundamentally unfair. The court did not view

the solicitor’s argument as improper, let alone that it rendered Humphries’s sentencing proceeding fundamentally unfair. In reaching this

conclusion, the court stated: 

In our opinion, the solicitor’s closing argument did not render sentencing fundamentally unfair as they [sic] did not

prejudice Petitioner. The solicitor’s comments were based

on evidence already in the record. Smith’s wife and brother

testified during the penalty phase regarding each of the facts

about Smith’s life upon which the solicitor commented.

Petitioner presented the testimony of thirteen witnesses in

mitigation during the sentencing phase who attested to Petitioner’s at-risk childhood and subsequent criminal acts as a

juvenile and young adult, providing all the evidence of Petitioner’s character discussed by the solicitor in his closing. 

Through the testimony of Petitioner and Smith’s family

members, both the similarities (the childhood poverty and

adversity) and the differences (the manner in which Petitioner and Smith dealt with their circumstances) were readily apparent to the jurors, before the solicitor’s closing

argument. As permitted by Payne, the State offered evidence of Smith’s "uniqueness" as an individual by describ18 HUMPHRIES v. OZMINT
ing the successful ways in which Smith dealt with adversity

in his life. Likewise, Petitioner introduced evidence of his

own "uniqueness" through the testimony of thirteen witnesses (compared to Smith’s two witnesses) regarding his

own difficult childhood and background, thereby inviting a

comparison between Petitioner and Smith’s respective characters even before the solicitor gave his closing remarks. As

such, we do not believe the solicitor’s comments were so

prejudicial (if prejudicial at all) that they rendered Petitioner’s death sentence fundamentally unfair under the Due Process Clause. 

To reverse the PCR court’s denial of relief, this Court must

find, first, that counsel was ineffective, and, second, that

counsel’s ineffectiveness resulted in prejudice. Payne does

not prohibit character comparisons between defendants and

victims; it prohibits comparisons that suggest that there are

worthy and unworthy victims. Therefore, Petitioner cannot

establish either the ineffectiveness prong or the prejudice

prong of the test as required to overturn the PCR court’s

denial of relief. 

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

C

As noted earlier, Humphries claims that the solicitor’s closing

argument at the sentencing phase of the trial, taken as a whole, in

effect asked the jury to impose the death penalty because Dickie

Smith was a worthy individual and an asset to the community while

Humphries was not. According to Humphries, such comparative

worth arguments run afoul of the dictates of Payne and the Due Process Clause of the Fourteenth Amendment and, therefore, his trial

counsel were constitutionally ineffective for failing to object to the

solicitor’s closing argument. 

In advancing his argument, Humphries does not posit that any one

of the solicitor’s comments, standing alone, was improper or factually

inaccurate. Thus, his collectivity argument focuses on a few of the

solicitor’s comments, which he contends created an impermissible sitHUMPHRIES v. OZMINT 19
uation in which the solicitor asked for a sentence of death based

solely on the relative worth of his life and the life of Dickie Smith.

In particular, Humphries objects to the year-by-year chronology,

wherein the history of his life was compared to the history of Dickie

Smith’s life.5 Humphries also takes issue with three statements made

by the solicitor near the end of his closing argument which, when

coupled with the year-by-year chronology, allegedly rendered the

solicitor’s argument constitutionally infirm. The statements are: (1)

"[W]hen you look at the aggravation, when you look at the total lack

of mitigation, I would submit, when you look at the character of this

Defendant, and when you look at Dickie Smith, how profane when you

look at all the circumstances of this crime and of this Defendant, how

profane to give this man a gift of life under these circumstances"; (2)

"What punishment do you recommend when you’ve got a character

like that? What punishment do you recommend when somebody like

Dickie Smith is taken from us?"; and (3) "If not in a case as aggravating as this, if not in a case with absolutely no mitigation like this, if

not in a case with a character like this, if not in a case when somebody

like Dickie Smith is taken, then when are you going to do it?" 

We conclude that the South Carolina Supreme Court did not unreasonably apply Payne when it held that the solicitor’s closing argument

at the sentencing phase of the trial, taken as a whole, did not render

Humphries’s sentencing proceeding fundamentally unfair. First, the

record in this case simply belies Humphries’s claim that the solicitor’s

comparison of the lives of both Humphries and Dickie Smith was the

centerpiece of the solicitor’s argument. It was not. As set forth above,

the solicitor’s life history comparison contained in the year-by-year

chronology essentially was the manner in which the solicitor chose to

present to the jury the argument that Dickie Smith was a unique individual. Within that year-by-year chronology, the solicitor referenced

Humphries four times, telling the jury that: (1) "Dickie Smith is as

much about this case as . . . Humphries"; (2) Humphries "committed

5Within the year-by-year chronology, the solicitor referenced Humphries four times, telling the jury that: (1) "Dickie Smith is as much about

this case as . . . Humphries"; (2) Humphries "committed two house

break-ins at age 13"; (3) in 1986 Humphries violated the terms of his

probation and was "sent down to Columbia"; and (4) in 1988 Humphries

went to prison for two years. 

20 HUMPHRIES v. OZMINT
two house break-ins at age 13"; (3) in 1986 Humphries violated the

terms of his probation and was "sent down to Columbia"; and (4) in

1988 Humphries went to prison for two years. The bulk of the solicitor’s argument was not that Humphries should die because his life

was worth less than Dickie Smith’s. Indeed, the solicitor did not use

the words "worth," "comparative worth," or "value" in his year-byyear chronology. Rather, the bulk of the solicitor’s argument was

devoted to the evidence in aggravation, Humphries’s lack of character, the absence of mitigating evidence in the case, and an explanation

how these facts, along with the victim-impact evidence, warranted the

imposition of a death sentence. 

To be sure, the portion of the solicitor’s argument dealing with

Dickie Smith’s unique personal characteristics is contained in less

than four pages of an approximately twenty-eight page transcript of

the solicitor’s closing argument and, during this segment of the solicitor’s closing argument, Humphries is mentioned just four times. Further, after the solicitor made his final reference to Humphries in his

year-by-year chronology by telling the jury that in 1988 Humphries

"went to jail for two years," the solicitor followed two sentences later

with the reminder to the jury that it had "the right to look at the

uniqueness of the individual." The solicitor then added that "Dickie

Smith, by everybody’s description to you was a unique individual."

Moreover, the solicitor essentially concluded his argument by asking

the jury to impose a sentence of death because: (1) the evidence in

aggravation was overwhelming; (2) there was a complete lack of mitigating evidence; (3) Humphries’s character was poor; and (4) "somebody like Dickie Smith [was] taken." The solicitor’s closing

argument, as outlined above, simply did not invite the jury to return

a sentence based on the relative worth of the lives of Dickie Smith

and Humphries. Rather, the solicitor invited the jury to consider all

of the evidence in the record in reaching its verdict. That being the

case, it cannot be said that the South Carolina Supreme Court unreasonably applied Payne to the facts of this case. 

Second, the solicitor’s life history comparison contained in the

year-by-year chronology was based upon facts established during the

trial and were aspects of the trial which were readily apparent to the

jury. Indeed, the circumstances of Dickie Smith’s life and the impact

of his death on his family were thoroughly presented without contemHUMPHRIES v. OZMINT 21
poraneous objection through the testimony of Randy and Pat Smith.

The circumstances of Humphries’s upbringing were thoroughly

explored by Humphries’s counsel in the thirteen witnesses called by

the defense. Because the solicitor’s life history comparison contained

in the year-by-year chronology was based on evidence already before

the jury, it is hard to take issue with the South Carolina Supreme

Court’s conclusion that Humphries was not prejudiced by the solicitor’s comments. 

Third, the facts concerning Humphries’s character referred to by

the solicitor in his comparison were already thoroughly recounted in

greater detail in an earlier portion of the solicitor’s closing argument.

No objection, even to this date, is being raised concerning this earlier

portion of the solicitor’s closing argument. As noted above, the solicitor’s life history comparison set forth in the year-by-year chronology

contained the following facts relating to Humphries: (1) he "committed two house break-ins at age 13"; (2) in 1986 he violated the terms

of his probation and was "sent down to Columbia"; and (3) in 1988

he went to prison for two years. Earlier, however, the solicitor had

mentioned that Humphries had, at age thirteen, "committed two

breaking and enterings" and was placed on probation. The solicitor

pointed out that, because Humphries continued to be disobedient in

school, he was brought before the family court on a probation violation and was released with stricter conditions imposed. The solicitor

added that, at age fifteen, Humphries violated the terms of his probation and was "sent down to Columbia." The solicitor also proffered

that, at age sixteen, Humphries was "an habitual truant," who "basically drop[ped] out of school." The solicitor further noted that, at age

seventeen, Humphries burglarized a church. The solicitor noted that,

at age eighteen, Humphries went to Alabama and committed a larceny

for which he was convicted and imprisoned for two years. Finally, the

solicitor noted that, upon his release, Humphries failed to report to the

probation office, a warrant was issued, and within a couple of years

of his release from prison he committed the murder at issue. Because

all of the facts concerning Humphries referred to by the solicitor in

his year-by-year chronology were facts recounted in greater detail

earlier in his closing argument, it is difficult to conclude that the

South Carolina Supreme Court acted unreasonably when it concluded

that Humphries was not in any way prejudiced by the portion of the

solicitor’s argument related to the unique character of Dickie Smith.

22 HUMPHRIES v. OZMINT
Fourth, Humphries’s attack on the three statements made by the

solicitor near the end of the solicitor’s argument misses the mark. The

statements were proper argument because the statements simply asked

the jury to focus on Dickie Smith’s uniqueness. Unquestionably, the

solicitor was entitled to argue that Dickie Smith was unique. Moreover, the solicitor equally was entitled to ask the jury to "look" at Dickie Smith’s uniqueness and to ask the jury to consider the

consequences of "when" a person of Dickie Smith’s uniqueness is

"taken."6

Fifth, the evidence in this case concerning the appropriate sentence

was not close. The evidence showed that, after Humphries and Eddie

Blackwell entered the Max-Saver convenience store, Dickie Smith

asked Humphries whether he wanted something hot, and Humphries

flashed a stolen gun and replied that he wanted money. While there

was evidence that Dickie Smith reached under a counter as though to

pull out a gun, Humphries shot Dickie Smith in the head, killing him.

This evidence clearly supported the aggravating factor in the case,

that the murder was committed during the commission of a robbery

while Humphries was armed with a deadly weapon. The evidence in

mitigation proffered by Humphries to counteract the evidence in

aggravation was carefully and meticulously attacked by the solicitor.

Moreover, that Dickie Smith was a unique person is not subject to

serious debate. In short, we harbor no doubt that, notwithstanding the

solicitor’s comparison that Humphries finds so objectionable, a sentence of death would have resulted. 

Sixth, the reasonableness of the South Carolina Supreme Court’s

decision in this case becomes more evident when one examines that

court’s recent decision in Hall v. Catoe, 601 S.E.2d 335 (S.C. 2004).

6We note that a consequence of Payne is that a defendant can be put

to death for the murder of a person more "unique" than another, even

though the defendant is, in fact, unaware of the victim’s uniqueness. This

does give us some pause for concern, as does the notion that, under

Payne, a sentence of death can turn on the severity of the harm caused

to the victim’s family and society, even though the defendant did not

know the victim or the victim’s family. However, these are inevitable

consequences of Payne’s comparative framework; a framework that we,

as judges of an inferior court, are without liberty to change. 

HUMPHRIES v. OZMINT 23
In Hall, the solicitor directed the jury to weigh the worth of Hall’s life

against the lives of Hall’s victims: 

I am talking about values, because a jury verdict is a statement of values. And I am not talking about dollars and cents

as far as what the [lives of the two girls were] worth, but

nevertheless it is a question of values. What are the lives of

these two girls worth? Are they worth the life of this man,

the psychopath, this killer who stabs and stabs and kills, and

rapes and kidnaps. 

Id. at 339. Hall argued that his trial counsel’s failure to object allowed

"the solicitor to charge the jury with an arbitrary, misconceived sentencing analysis," violating his right to due process. Id. The South

Carolina Supreme Court agreed. 

Applying Payne, the South Carolina Supreme Court held that the

Hall case was distinguishable from the Humphries case: 

In Humphries we recognized that it is more prejudicial for

the state to compare the worth of the life of the defendant

with that of his victim than it is to compare their lives based

on the evidence presented. . . . In the present case, the solicitor not only suggested that Hall’s life was worth less than

his victims’, he developed an arbitrary formula whereby if

the jury finds Hall’s life worth less than his victims’, then

the jury could reach no other conclusion than that the death

penalty is justified. 

Further, while the solicitor in Humphries compared the histories of Humphries’s and his victim’s lives, the solicitor in

Hall asked the jury to compare the worth of Hall’s life with

that of his victims’.

Id. at 341. 

In our view, the Hall court gave a principled explanation of why

the circumstances of Hall were distinguishable from those involved

in our case. The Hall court indicated that Hall involved a direct

24 HUMPHRIES v. OZMINT
"value" comparison between the defendant and the victim, asking the

jury to weigh the relative worth of the defendant and the victim. This

comparison, the court concluded, rendered Hall’s trial fundamentally

unfair. By contrast, the court concluded that the solicitor in Humphries simply compared the "histories" of the defendant and the victim’s

lives "based on the evidence presented," id., and thus, Humphries’s

trial was not fundamentally unfair. In essence, the court in Hall evaluated the role that the solicitor’s argument played in both Hall and

Humphries and reasonably concluded one was constitutionally proper

and the other was not. 

Finally, the reasonableness of the South Carolina Supreme Court’s

decision in this case is illustrated by examining the words of the

Payne case itself. Payne tells us that states have a legitimate interest

in introducing evidence of a victim’s personal characteristics and evidence of the harm caused to the victim’s family and society by the

defendant’s actions to counteract the mitigating evidence presented by

the defendant. 501 U.S. at 825. The Payne Court was quite explicit

in this regard when it stated that the "State has a legitimate interest

in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer

should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular

to this family." Id. (citation and internal quotation marks omitted).

Whether the victim-impact evidence counteracts the defendant’s mitigating evidence is a question, asking the jury to make a comparison

between the victim-impact evidence and the defendant’s mitigating

evidence. In this case, in determining the appropriate sentence, the

jury was asked to consider Dickie Smith’s personal characteristics,

the harm caused to his family and society by Humphries’s actions,

and Humphries’s mitigating evidence, which included evidence of

Humphries’s personal characteristics, both favorable and unfavorable.

Under these circumstances, it was reasonable for the South Carolina

Supreme Court to conclude that the solicitor’s life history comparison

contained in his year-by-year chronology and the solicitor’s other

comments concerning Dickie Smith’s uniqueness were within the

boundaries of a question the jury was required to consider—the

blameworthiness of Humphries. 

HUMPHRIES v. OZMINT 25
D

While paying lip service to the correct standard of review, which

we all seem to agree presents Humphries with an extremely difficult

hurdle to overcome, the dissent in this case simply does not apply it.

For if it did, it most assuredly would reach a different result. An analysis of the dissent makes this point pellucid. 

The dissent begins by characterizing the solicitor’s closing argument as one in which the solicitor asked for a death sentence because

Dickie Smith’s life was worth more than Humphries’s life. The dissent tells us how the solicitor’s "climactical flourish," post at 65,

"baldly compared the general worth of the victim’s existence with

that of the defendant and urged the jury to impose a death penalty,"

post at 46, because Dickie Smith’s life was worth more than Humphries’s life. In characterizing the solicitor’s argument in this light, the

dissent improperly ignores the fact that the South Carolina Supreme

Court determined that the solicitor’s argument did not involve a comparison of the relative worth of the lives of Dickie Smith and Humphries. Under § 2254, our duty is not to determine in the first instance

if the solicitor’s argument involved a relative worth comparison, but

rather to decide whether the South Carolina Supreme Court was

unreasonable when it determined that the solicitor’s argument did not

involve such a comparison. The dissent utterly fails to carry out this

duty. 

Before turning its attention to Payne, the dissent criticizes us for

our inability "to point to no other argument that even approaches the

egregiousness of this prosecutor’s comments and no other case in

which a court has tolerated such misconduct." Post at 47. In serving

up this critique, the dissent proceeds to discuss several state cases

which have addressed Payne. Obviously, our review under § 2254

does not require us to find or rely on a state case which has upheld

a similar prosecutorial argument. Rather, our standard of review simply asks us to determine whether the South Carolina Supreme Court

unreasonably applied clearly established United States Supreme Court

precedent.7

7Even if we have to accept the dissent’s distorted invitation to cite precedent other than clearly established Supreme Court precedent, cases

26 HUMPHRIES v. OZMINT
Next, the dissent turns its attention to Payne. According to the dissent, Payne specifically holds that all comparative worth arguments

are unconstitutional. The fallacies in the dissent’s interpretation of

Payne are obvious. 

The Payne Court did not hold that all comparative worth arguments are unconstitutional. At most, the Payne Court disapproved of

comparisons between the victim and other victims of society. 501

U.S. at 823. Indeed, the Court’s only relevant reference to comparative worth arguments is the following: 

Payne echoes the concern voiced in Booth’s case that the

admission of victim impact evidence permits a jury to find

that defendants whose victims were assets to their community are more deserving of punishment than those whose

victims are perceived to be less worthy. . . . As a general

matter, however, victim impact evidence is not offered to

encourage comparative judgments of this kind—for

instance, that the killer of a hardworking, devoted parent

deserves the death penalty, but that the murderer of a reprobate does not. 

Id. (emphasis added). Thus, the Payne Court was careful to note that

victim-impact evidence is not offered to encourage comparative judgments involving the victim and other victims in society. More importantly, the Payne Court did not disapprove of comparisons between

more egregious than the one before this court do exist. For example, in

State v. Haselden, the prosecutor told the jury that "[i]f you let this murderer walk out of this courtroom with his life then you are saying that his

life is worth more than [the victim’s] life." 577 S.E.2d 594, 610 (N.C.),

cert. denied, 540 U.S. 988 (2003). The Haselden court upheld this argument under Payne because the argument: (1) "simply reminded the jury

that in addition to considering defendant’s life, the jury should also consider the life of the victim"; and (2) "was a natural and proper extension

of the prosecutor’s earlier argument concerning victim impact evidence."

Id. Thus, the Haselden court upheld the prosecutor’s argument even

though, unlike this case, the prosecutor explicitly and unmistakably

implored the jury to weigh the comparative worth of the defendant and

his victim. 

HUMPHRIES v. OZMINT 27
the defendant and the victim.8

 In view of this, it is inconceivable to

conclude that the South Carolina Supreme Court unreasonably

applied Payne. 

The dissent also tells us that a search of the Payne opinion "for any

indication that the Court meant to condone" comparative worth arguments would be "in vain." Post at 56. However, our task under § 2254

is not to determine whether Payne condones some, or even all, comparative worth arguments; rather, our task is to determine whether the

South Carolina Supreme Court was unreasonable when it determined

that Payne did not prohibit victim-to-defendant comparisons and

whether the court was unreasonable when it determined that the solicitor’s closing argument did not render Humphries’s trial fundamentally unfair. 

Moreover, the Payne Court recognized that some comparisons

would be made between the defendant and the victim. 501 U.S. at

825. Indeed, the Payne Court noted that the "State has a legitimate

interest in counteracting the mitigating evidence which the defendant

is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an

individual whose death represents a unique loss to society and in particular to this family." Id. (citation and internal quotation marks omitted). Obviously, it was reasonable for the South Carolina Supreme

Court to conclude that, to counteract Humphries’s mitigating evidence, the solicitor was allowed to introduce evidence concerning

Dickie Smith’s uniqueness and the actions Humphries chose to take

during the course of his life. 

When all is said and done, the issue before this court is unmistakably narrow. The issue is not whether we think all comparative worth

8

In view of the framework established in Payne, the Payne Court’s

decision to refrain from commenting on victim-to-defendant comparisons is easily understood. A victim-to-victim comparison is more pernicious than a victim-to-defendant comparison because, not only does it

invite a commentary on collateral evidence not properly before the jury

(the worthiness of other members (victims) of society), it does not counteract the defendant’s mitigating evidence, which was one of the main

goals of Payne. 

28 HUMPHRIES v. OZMINT
arguments are unconstitutional or only those involving victim-tovictim comparisons. Nor are we called upon to determine if there are

shortcomings in the Payne framework.9 Finally, whether our faithful

application of § 2254 leads us on the path toward "totalitarian[ism],"

post at 66, obviously is, as a politically philosophical proposition,

beside the point. We, as an inferior court, simply are not at liberty to

ignore our solemn constitutional responsibility to faithfully apply the

law by converting the applicable deferential § 2254 standard of

review to the de novo standard, as the dissent, through legal alchemy,

necessarily does throughout its opinion. Put simply, because the

South Carolina Supreme Court identified the correct legal standard

from the Supreme Court’s decision in Payne, we must decide whether

the South Carolina Supreme Court unreasonably applied the Payne

decision. Williams v. Taylor, 529 U.S. at 413. In this case, the South

Carolina Supreme Court thoroughly explained why it concluded that

the solicitor’s comparison of Humphries’s life to that of Dickie

Smith’s did not render Humphries’s trial fundamentally unfair. We

know from our review of Payne and other relevant Supreme Court

authority that comparisons between the defendant and the victim are

inevitable in any capital case in which the jury is asked to assess the

persuasive force of the defendant’s mitigating evidence and the

victim-impact evidence. Some comparisons, such as those based on

race or religion, unquestionably are unconstitutional. See Zant v.

Stephens, 462 U.S. 862, 865 (1983) (noting that a defendant’s race

and/or religion are "totally irrelevant" to the sentencing process).

Other comparisons are not. The South Carolina Supreme Court was

required to decide if the solicitor’s comparison of Humphries’s life

history to Dickie Smith’s life history was violative of the dictates of

Payne. After reviewing that court’s thorough opinion, we simply can9Arguably, Payne has a few shortcomings. For example, a consequence of Payne is that a defendant can be put to death for the murder

of a person more "unique" than another, even though the defendant was,

in fact, unaware of the victim’s uniqueness at the time of the crime. Also,

under Payne, a sentence of death can turn on the severity of the harm

caused to the victim’s family and society, even though the defendant did

not know the victim or the victim’s family. Whether we agree or disagree

with these consequences simply is beside the point. These consequences

are inevitable under the Payne framework; a framework that we, as

judges of an inferior court, are without liberty to change. 

HUMPHRIES v. OZMINT 29
not conclude that the South Carolina Supreme Court unreasonably

applied the Payne decision. 

IV

Humphries also claims that the State’s failure to notify him prior

to trial of the State’s intended use of victim-impact evidence during

the sentencing phase of the trial violated his right to a fair trial under

the Due Process Clause of the Fourteenth Amendment. On direct

appeal, the South Carolina Supreme Court rejected this claim. 

Humphries first posits that his trial counsel reasonably believed

that South Carolina Code § 16-3-20(B) entitled the defense to receive

pre-trial written notice of the aggravating factors that would be used

at the sentencing phase of the trial, which implicitly included victimimpact evidence. According to Humphries, his trial counsel did not

receive pre-trial notice of the intended use of victim-impact evidence

and, had such notice been given, his trial counsel would have used

different trial tactics, including, among other things, selecting jurors

differently and reconfiguring an expert witness’s testimony. Humphries suggests that the State’s failure to comply with § 16-3-20(B) violated his federal due process rights. 

For several reasons, Humphries’s reliance on § 16-3-20(B) is misplaced. First, Humphries is raising an issue of state law, which is not

cognizable on federal habeas review. Cf. Lewis v. Jeffers, 497 U.S.

764, 780 (1990) ("[F]ederal habeas corpus relief does not lie for

errors of state law."). Second, the statute at issue does not require that

notice of the use of victim-impact evidence be given. South Carolina

Code § 16-3-20(B) provides that at the sentencing phase of the trial

"[o]nly such evidence in aggravation as the State has informed the

defendant in writing before the trial is admissible." S.C. Code Ann.

§ 16-3-20(B). The South Carolina Supreme Court on direct appeal

noted that the statute lists certain aggravating factors requiring notice.

Humphries, 479 S.E.2d at 55. Because victim-impact evidence is not

listed as an aggravating factor, the State is not required to give notice.

Id. Finally, even if the statute did require pre-trial notice, Humphries

received pre-trial written notice that the State intended to introduce

certain facts in evidence including all circumstances surrounding the

commission of the crimes. In its witness lists, the State listed the

30 HUMPHRIES v. OZMINT
victim-impact witnesses and, moreover, the State asserted that it had

informed the defense that it would present victim-impact evidence

during the sentencing phase of the trial. While the pre-trial notice

could certainly have been more explicit concerning the planned introduction of victim-impact evidence, unquestionably, the State was not

obligated under § 16-3-20(B) to detail the victim-impact evidence

with greater specificity. 

In a related argument, Humphries claims that his due process rights

were violated because his death sentence "was imposed, at least in

part, on the basis of information which he had no opportunity to deny

or explain." Gardner, 430 U.S. at 362. According to Humphries, he

did not receive adequate notice concerning the introduction of victimimpact evidence and, therefore, could not adequately prepare his

defense in advance. This claim founders for the simple reason that

Humphries knew or reasonably should have known that victim-impact

evidence would be used by the State during the sentencing phase of

the trial. Therefore, he had ample opportunity to investigate and rebut

that evidence. Indeed, there is no law that clearly requires timely, specific, and express notice of victim-impact evidence, and Humphries

can point to no relevant federal authority to substantiate his claim.

Thus, the South Carolina Supreme Court reasonably interpreted federal law to find that the admission of victim-impact evidence did not

violate Humphries’s right to a fair trial under the Due Process Clause

of the Fourteenth Amendment. 

V

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

affirmed. 

AFFIRMED

LUTTIG, Circuit Judge, concurring: 

The full en banc court ignores the dissent’s caricatures of both the

question of law presented and the facts giving rise to that question,

and properly decides the issue before us on the basis of the governing

legal standards and the actual facts as they appear in the record. I concur in the judgment reached by the court and in its opinion. 

HUMPHRIES v. OZMINT 31
Although the need should not have presented itself, suffice it to say

that this is not a case even remotely about "the hallmarks of totalitarian governments," post at 66 (Wilkinson, J., dissenting). It does not

concern "the most terrifying regimes of the Twentieth Century" or

anything approaching such. Id. And it is not a case that bears mention

alongside "the most terrible examples of human expendability." Id.

Even to suggest these comparisons trivializes the historical events and

the victims of those events to which the dissent invokes reference. 

This case does not invite us to "set foot on a road Americans will

not recognize and our Constitution will not tolerate," id. And by denying Humphries’ petition on the grounds that the majority correctly

does is not in any sense whatsoever to "sanction executions on the

basis of extended weighings of relative human worth," id. at 51, or

to "condon[e] egregious human worth comparisons," id. at 52, of the

most "horrific sort," id. at 50. Such hyperbole only betrays the fact

that the dissent has chosen (as did the panel, mistakenly as well) to

address itself to a question of law and to a set of facts that are not

even arguably before the court. 

To decide this case, we do not need to plumb the "anciently established principles" of federal law, see id. at 46, nor must we "ascend

to this register" of "sentencing philosophy" and its "seminal concepts"

at "a high level of generality," see id. at 58-59. And neither are we

invited or required to conduct a far-reaching "survey[ of] American

sentencing practice" and "historic sentencing procedure," id. at 60, 65.

Tellingly, not even the dissent undertakes in actual analysis anything

of the sort. 

We have before us, instead, a rather straightforward question of

law, one as to which our scope of review, as a court of law, is clearly

and narrowly circumscribed by congressional enactment and binding

Supreme Court precedent. Contrary to the dissent’s characterization,

we do not even have before us, as we would on direct appeal of a case

in which an explicit human worth comparison were made, the question of whether it would violate the Constitution for the government

to resort to such comparisons in appealing for a higher sentence of

one convicted of crime. Before us is nothing less, but nothing more

either, than an ineffective assistance of counsel claim under Strickland v. Washington, raised on collateral review of a state court judg32 HUMPHRIES v. OZMINT
ment that fully considered that claim. As such, the precise question

of law with which we are confronted is whether, within the meaning

of 28 U.S.C. § 2254, it was contrary to or an unreasonable application

of clearly established holdings of the Supreme Court of the United

States for the South Carolina state court to conclude that Humphries’

counsel at sentencing were not constitutionally ineffective under Strickland for failing to object to the portion of the state solicitor’s argument that allegedly violated Payne v. Tennessee, 501 U.S. 808

(1991). 

The dissent is at pains to avoid even as much as the articulation of

this narrow legal question because its precise articulation draws into

stark focus not only the dissent’s exaggeration of the question presented, but, ultimately, the indefensibility of the dissent under the

legal standards that govern disposition of this case. 

Because of the particular posture of this case, we are required to

accord extraordinary deference to trial counsel’s failure to object.

First, as the dissent concedes, Strickland requires the state court and

this court to treat with great deference trial counsel’s real-time decisions with respect to objections at trial. Second, as the dissent also

concedes, section 2254(d) requires us to defer to the state court’s

application of Strickland. Thus, the great deference owed to trial

counsel’s contemporaneous decisions implicating trial strategy is

compounded on collateral review, where we are to defer to the state

court’s highly deferential review of these decisions. Furthermore,

under AEDPA, we are bound to uphold the judgment of the state

court unless it was unreasonable in its application of both Strickland

and Payne, not just the one or the other. And on top of all this, the

chief case upon which the dissent relies, namely Payne, does not even

address the issue presented in this case — namely victim-to-defendant

value comparisons — thus making it utterly implausible to suggest

that the South Carolina court’s treatment of that case constituted an

unreasonable application of any clearly established holding in Payne.

In short, we are reviewing with substantial deference the state

court’s application of the clearly established holdings of two cases,

Strickland and Payne. Even if, under such deference, we were to conclude that the state court erred in its understanding of the holding

and/or application of Payne, in order to grant Humphries’ petition we

HUMPHRIES v. OZMINT 33
would still have to conclude that, under the same deference, the state

court erred in its application of Strickland — which itself requires the

state court to defer to trial counsel. Therefore, we face the following

four, separate, plainly valid, alternative grounds compelling affirmance of the denial of Humphries’ petition: (1) it was not contrary

to or an unreasonable application of Payne for South Carolina to hold

that Payne erects no per se bar against victim-to-defendant value

comparisons, because Payne does not address that issue at all; (2)

even if Payne did address such comparisons, it was not an unreasonable application of Payne for South Carolina to conclude that no such

human-worth comparison occurred in this case; (3) even if such were

an unreasonable application of Payne, it would not be an unreasonable application of Strickland for South Carolina to conclude that

counsel’s failure to object did not constitute objectively unreasonable

performance; and (4) even if failure to object were an unreasonable

application of Strickland, it was nevertheless not an unreasonable

application of Strickland for South Carolina to conclude that Humphries was not prejudiced by counsel’s failure to object. Each of these

four grounds is individually compelling and each is individually sufficient to compel affirmance in this case. Because, as a consequence of

its exaggeration, the dissent fails to effectively address any of these

four grounds, much less all of them, its errors are compounded across

multiple layers of the required legal analysis.

A.

As Humphries concedes, in order to prevail on his Strickland claim

premised on counsel’s failure to object, he must first establish that

what occurred at trial without objection was improper, illegal, or

unconstitutional. See Appellant’s Br. at 12-13. Humphries argues and

the dissent urges that the four brief references to Humphries during

the solicitor’s narrative of Dickie Smith’s life created an objectionable person-to-person value comparison in violation of Payne. On

post-conviction review, the South Carolina Supreme Court held, inter

alia, that victim-to-defendant value comparisons were not clearly

unconstitutional because "Payne does not indicate any concern about

comparisons between the victim and the defendant." Humphries v.

State, 570 S.E.2d 160, 167 (S.C. 2002) ("Humphries II"). Our task in

this habeas proceeding is to determine whether this state-court ruling

was "contrary to, or involved an unreasonable application of" the

34 HUMPHRIES v. OZMINT
holding (rather than the dicta) of Payne. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412 (2000) (holding that the phrase

"clearly established federal law in section 2254(d)(1) refers to "the

holdings, as opposed to the dicta, of [the Supreme] Court’s decisions

as of the time of the relevant state-court decision"). 

Plainly it was not, because Payne never once even mentions

victim-to-defendant value comparisons. Humphries’ claim thus falters

at its very first step. On our strictly circumscribed review of Humphries’ state-court conviction, this elementary observation is sufficient

to dispose of the petition, because, as a threshold matter, Humphries

was required to show in state court that the challenged portion of the

argument was unconstitutional.*

Nevertheless, the dissent raises three flatly untenable arguments

that Payne somehow clearly established "the ban on such comparisons" as its holding — without even mentioning such comparisons.

Post at 46. First, the dissent argues that, because Payne does not

explicitly condone human-worth comparisons, it thereby condemns

them. See post at 56 ("Notably absent from the Court’s discussion is

any hint of imprimatur for human worth comparisons. . . . Indeed, one

searches the Payne opinion in vain for any indication that the Court

meant to condone such comparative judgments."). But, of course,

under law we do not ascertain the holding of a case by inquiring into

what is absent from the Court’s discussion. Rather, the holding of a

case is found in what is actually present in the Court’s discussion.

The dissent’s "negative inference" approach to Supreme Court prece-

*Payne does explicitly state (though not in holding) that "[i]n the event

that evidence is introduced that is so unduly prejudicial that it renders the

trial fundamentally unfair, the Due Process Clause of the Fourteenth

Amendment provides a mechanism for relief." Payne, 501 U.S. at 825

(citing Darden v. Wainwright, 477 U.S. 168, 179-83 (1986)). Given that

Payne erects no per se bar against value comparisons, and given that the

solicitor’s use of victim-impact evidence in this case was apparently otherwise unobjectionable, it was clearly not contrary to or an unreasonable

application of Darden for South Carolina to conclude that Humphries’

trial was not rendered fundamentally unfair by the brief challenged portion of the solicitor’s argument. See Humphries II, 570 S.E.2d at 167-68.

Thus, for the reasons discussed thoroughly by the majority, Darden likewise fails to provide Humphries with any avenue of relief. 

HUMPHRIES v. OZMINT 35
dent would find reversible error in every trial argument of the slightest novelty as-yet unaddressed by the Court — turning AEDPA on

its head. 

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

comparisons:

Payne echoes the concern voiced in Booth’s case that the

admission of victim impact evidence permits a jury to find

that defendants whose victims were assets to their community are more deserving of punishment than those whose

victims are perceived to be less worthy. As a general matter,

however, victim impact evidence is not offered to encourage

comparative judgments of this kind — for instance, that the

killer of a hardworking, devoted parent deserves the death

penalty, but that the murderer of a reprobate does not. It is

designed to show instead each victim’s uniqueness as an

individual human being . . . .

Payne, 501 U.S. at 823 (emphasis in original) (citation and quotation

marks omitted). As an initial matter, the dissent’s treatment of this

text from Payne is disingenuous, in a way that exactly mirrors the

error of the vacated panel opinion. Compare post at 56 with Humphries v. Ozmint, 366 F.3d 266, 272 (4th Cir. 2004). In particular, both

the dissent and the panel opinion introduce the "concern" about

victim-to-victim value comparisons as if it were the Court’s concern,

instead of a concern raised by the litigant. Then, both proceed to

quote the sentence beginning "[a]s a general matter" out of context,

omitting the key word "however" that denotes contrast between the

concern raised by the litigant and the Court’s subsequent remark —

thereby twisting the Court’s language to imply that the Court was

expressing explicit disapproval of such value comparisons in this passage. See post at 56 (arguing that the Court "professes incredulity"

about victim-to-victim value comparisons in this passage, and that it

thus "signals a clear disapproval for the kind of interpersonal comparison that occurred here"). Of course, as is plain from the text quoted

fully above, the passage says something quite different than the dissent’s tortured quotation would suggest. In this key passage, the Court

simply (1) noted that the litigant Payne had raised a concern about

36 HUMPHRIES v. OZMINT
value comparisons, and then (2) made a normatively neutral observation that, in contrast to this concern, victim impact evidence is not

generally admitted for such purposes. Therefore, this key passage —

the only passage from Payne upon which the dissent can possibly rely

— does not "condemn" or otherwise express disapproval of any

human-value comparisons at all; and, needless to say, neither did the

Court, through this passage, "profess incredulity" at such comparisons. Instead, it simply makes the neutral observation that the general

purpose of victim-impact evidence is not to create victim-to-victim

comparisons. 

Moreover, even if this passage from Payne did express disapproval

of value comparisons, it would nevertheless be inadequate for the dissent’s purposes for three further reasons. First, as the South Carolina

court held, the passage addresses only victim-to-victim value comparisons, not victim-to-defendant value comparisons, and therefore does

not establish a bar against (or otherwise comment upon) the latter. See

Humphries II, 570 S.E.2d at 375 ("According to this passage, the

comparison prohibited by Payne is one between the victim and other

members of society; Payne does not indicate any concern about comparisons between the victim and the defendant."). Second, because

there was apparently no allegation in Payne that any victim-to-victim

value comparison had been made, the passage is clearly in dicta, not

in holding, and thus irrelevant under AEDPA. See Williams, 529 U.S.

at 412; United States v. Washington, No. 03-4867, Slip op. at ___ (4th

Cir. 2005) ("[T]he holding . . . is limited to sets of facts that are materially indistinguishable from the facts before the court in that case."

(emphasis in original)). Third, in addition to all this, we are reviewing

the South Carolina court’s interpretation of this passage under the deferential "unreasonable application" standard of section 2254(d)(1).

See Williams v. Taylor, 529 U.S. at 411 ("[A] federal habeas court

may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."); see also Booth-El v. Nuth, 288

F.3d 571, 575-76 (4th Cir. 2002) (Wilkinson, C.J.) ("The Court has

stressed that, in section 2254(d)(1), Congress specifically used the

word ‘unreasonable,’ and not a term like ‘erroneous’ or ‘incorrect.’"

(alteration and quotation marks omitted)). Patently, under this standard and in light of this evidence, it was not unreasonable for South

HUMPHRIES v. OZMINT 37
Carolina to conclude that Payne erected no per se bar to victim-todefendant value comparisons. 

Finally, in a virtual concession that the language of Payne provides

no basis for its argument, the dissent grasps at lofty abstractions in an

attempt to salvage its position. Turning from its self-described "textual dissection" of Payne, which actually includes virtually no reference to the text of Payne, the dissent appeals to "an overview of

Payne and its sentencing philosophy," admittedly "ascending to th[e]

register" of "a high level of generality." Post at 58. That the dissent

must reference such ethereal concepts as the "overview" and "sentencing philosophy" of Payne to support its argument effectively

demonstrates, not only that Payne did not clearly establish in holding

a rule against human-worth comparisons, but also, and even more certainly, that it was not unreasonable under section 2254(d)(1) for

South Carolina to so conclude. 

Because South Carolina was not even arguably unreasonable in

determining that Payne did not establish a per se rule against victimto-defendant value comparisons, Humphries’ Strickland claim fails on

this ground alone. 

But Humphries’ claim fails on three other compelling grounds as

well.

B.

Even if Payne had clearly established, in holding, a per se rule

against victim-to-defendant value comparisons (which it plainly did

not), South Carolina’s determination that no such human-worth comparison occurred here would not be an "unreasonable application" of

Payne. See Humphries II, 570 S.E.2d at 374 ("We agree with the PCR

court’s finding that the solicitor’s argument does not suggest that

Smith’s life is worth more than the Petitioner’s life." (emphasis in

original)). 

The challenged portion of the solicitor’s argument consists primarily of the following three sentences, interspersed in the solicitor’s

summation of Dickie Smith’s life history: "That’s the same year

38 HUMPHRIES v. OZMINT
Shawn Paul Humphries committed two house break-ins at age 13. .

. . That’s the same year Shawn Paul Humphries is up for his second

probation violation and sent down to Columbia. . . . That’s the same

year Shawn Paul Humphries went to jail for two years." J.A. 107. The

solicitor thus juxtaposed positive and happy events in the victim’s life

— his marriage, his decision to start a homebuilding business, and the

birth of his daughter — with contemporaneous misdeeds in Humphries’ life. J.A. 107.

The dissent contends that the only possible purpose and effect of

such a juxtaposition was to convey the conclusion that Humphries’

life was worth less than Dickie Smith’s life. See post at 49-50 ("The

solicitor’s comparisons simply leave no room for explanations of

inadvertence, or of an unintentional verbalization of an errant train of

thought. . . . Rather, the prosecution sought point-by-point, side-byside, and year-by-year to demonstrate to the jury that at the very

instant one life was being put to worthwhile use, the other was not.").

But of course it does not follow that, because the references to Humphries were not inadvertent, they must have deliberately created a

human-worth comparison. On the contrary, the apparent purpose and

effect of the solicitor’s references to Humphries was to deflate the

exculpatory version of Humphries’ life history presented by the

defense — which was the prosecution’s main task at the sentencing

hearing, a task openly endorsed by Payne. 

By far, the bulk of the sentencing hearing and the bulk of the solicitor’s closing argument were concerned with the defense’s attempt to

present an exculpatory story about Humphries’ culpability for the

murder by portraying the hardships of Humphries’ past life. The

defense attempted to show that Humphries’ moral guilt for the murder

was attenuated due to the misfortunes of his past: poverty, parental

abuse, drugs and alcohol, and juvenile crimes and punishment. To this

end, the defense presented thirteen witnesses in mitigation — as compared to the two victim-impact witnesses that the prosecution offered.

In his closing argument, the solicitor’s discussion of this issue of

Humphries’ culpability spans twelve full pages of the transcript — as

compared to the three and a half pages devoted to the narrative of

Dickie Smith’s life. Compare J.A. 92-104 with J.A. 105-08. The dominant theme of the solicitor’s argument was that, despite the hardships

he faced in his childhood and youth, Humphries still bore moral

HUMPHRIES v. OZMINT 39
responsibility for his choices. The following excerpt summarizes his

twelve-page discussion of Humphries’ personal culpability:

A lot of people come from broken homes. A lot of people

come from single parent homes. Dickie Smith came from a

single parent home. Ashley Smith is now from a single parent home. If everybody who came from a single parent

home or a blended family or a home with violence, if every

person went out and murdered, we couldn’t fill this jury box

with people. 

There’s no question [Humphries’] daddy was violent.

There’s no question violence is a learned behavior. . . . 

And that’s a problem in America. There’s no question

about it, but violence as a learned behavior does not come

close to explaining what happened here. It just doesn’t do it.

. . . Violence as a learned behavior does not explain larceny. Violence as a learned behavior does not explain evil

malice killing. Simply doesn’t do it. 

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

crux of the defense. 

Why is it the crux of the defense? Because you’ve got an

aggravated, senseless killing. No question about it. And

you’ve got a kid who’s been in trouble since he was 13, horrible record. 

So the only thing that is left is to try to take this alcohol

use and marijuana use, and poverty background and sort of

bootstrap yourself up into some sort of mental mitigation.

And I would submit to you that it fails horribly.

J.A. 100-01, 103. Like the reference to Dickie Smith in the above passage, the challenged references to Humphries in the solicitor’s brief

narrative of Dickie Smith’s life underlined the main theme of the

solicitor’s whole argument, namely that Humphries should bear moral

40 HUMPHRIES v. OZMINT
responsibility for the choices he made. Both references, by contrasting the two men, suggest that Humphries could have made other

choices that he did not make. Like Dickie Smith, Humphries could

have chosen to build houses in spite of the adversity he faced; instead,

he chose to break into houses. Compare post at 60 ("That Dickie

Smith happened to be building houses while Shawn Paul Humphries

happened to be breaking into houses is a judgment freighted with

comparative moral import."). Because Humphries could have made

better choices, including the choice not to kill Dickie Smith, he

should be held morally accountable for his actions, despite the

defense’s attempt to argue that the difficulties of Humphries’ life

exculpated Humphries for the murder of Dickie Smith. Such was the

tenor of the solicitor’s argument, and the clearest import of the contrasting references to events in Humphries’ and Dickie Smith’s lives.

To say that Humphries and Dickie Smith are both morally responsible

for their choices is not to say that Smith’s life was "worth more" than

Humphries or that Smith was a "more valuable person" than Humphries. 

Clearly, the solicitor’s argument about Humphries’ moral accountability, and his use of victim-impact evidence to highlight it, were

unobjectionable under Payne. The Payne Court openly countenanced

the juxtaposition of victim-impact evidence with the defense’s evidence in mitigation for the purpose of deflating the exculpatory life

story presented at sentencing by many capital defendants: 

[T]he state has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by

reminding the sentencer that just as the murderer should be

considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in

particular to his family.

Payne, 501 U.S. at 825 (alteration in original) (quotation marks and

citation omitted). Here, the solicitor used victim-impact evidence to

"counteract the mitigating evidence" presented by the defendant by

suggesting that the unfortunate circumstances of Humphries’ background did not absolve him of moral responsibility for his crimes.

Thus, on the most natural reading of the solicitor’s argument, the

challenged portion did not constitute a human-worth comparison at

HUMPHRIES v. OZMINT 41
all. Rather, it was a statement by contrast of the defendant’s moral

accountability for his actions. Therefore, it was not an unreasonable

application of Payne for South Carolina to determine that, even if

Payne did bar victim-to-defendant value comparisons, no such value

comparison occurred in this case. 

The dissent’s highly imaginative re-dramatization of the solicitor’s

argument from that in the printed appellate record thus misses the

mark. See post at 50, 51, 65 ("comparisons . . . took on the air of a

refrain"; "concluding flourish"; "the affective qualities of the oratory";

"the piece-de-resistance"; "build[ing] inexorably towards this apex";

"the plaintive repetition . . . in his ultimate exhortation"; "a climactical

flourish"). At bottom, the dissent’s argument must rest entirely on the

speculative assumption that the solicitor’s juxtaposition of events in

fact implied such a human-worth comparison to the jury. If so, the

implication was indirect and not implied necessarily at all: to say that

two people from unfortunate circumstances should bear moral responsibility for the good and bad choices that they make simply is not to

say that one is more valuable than the other.)

C.

Third, even if South Carolina had erred in its treatment or application of Payne, we could not hold that it would be unreasonable for

South Carolina to determine that trial counsel’s failure to object nevertheless constituted constitutionally acceptable performance under

Strickland. As noted above, here we owe compounded deference to

trial counsel’s decision: we defer to the South Carolina court’s highly

deferential review of trial counsel’s performance. And the deference

that trial counsel must be afforded under Strickland is appropriately

extensive, because appellate courts are poorly suited to second-guess

trial strategy and on-the-fly decisions of trial counsel. See Strickland

v. Washington, 466 U.S. 668, 689 (1984) ("[A] court must indulge a

strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy."). Indeed, it is well

established that failure to object to inadmissible or objectionable

material for tactical reasons can constitute objectively reasonable trial

strategy under Strickland. See, e.g., Booth-El v. Nuth, 288 F.3d 571,

42 HUMPHRIES v. OZMINT
584 (4th Cir. 2002) (Wilkinson, C.J.) (counsel’s failure to object to

objectionable jury panel that may have been favorable for other reasons was not objectively unreasonable) ("Defense counsel made a tactical decision to preserve the jury that had already been selected.");

Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 562 (4th Cir. 1999)

(opinion joined by Wilkinson, C.J.) (counsel’s failure to object at trial

to the testimony of an eyewitness was not objectively unreasonable

because counsel may have preferred cross-examination to exclusion

of the witness); Arnold v. Evatt, 113 F.3d 1352 (4th Cir. 1997) (failure to object at trial to evidence discrediting a witness’ testimony

could reasonably have been part of a trial strategy). 

In this case, even if Payne clearly established a rule against victimto-defendant human-worth comparisons and even if the solicitor had

clearly made such a comparison, it would not constitute an unreasonable application of Strickland for South Carolina to conclude that

Humphries’ counsel were not constitutionally ineffective for failing to

object. After all, the allegedly objectionable portion of the solicitor’s

argument was quite brief. An objectively adequate defense attorney

might easily have judged that he would lose face with the jury by posing an objection that caviled at an emotionally charged point in the

argument, and that this harm might outweigh any benefit to his client

from having a few sentences stricken from the record. Indeed, given

that there was no clearly established law on which to rely, trial counsel may have reasonably feared that the jury would view his very

probably unsuccessful and unjustified objection at that point as mere

pettifogging — and discounted his credibility accordingly. Also,

given the brief, indirect nature of the alleged comparison, an objectively reasonable attorney might even have feared that his objection

would actually draw the jurors’ minds into a human-worth comparison, rather than the solicitor’s fleeting references to Humphries. After

all, absent objection, the jury might well have missed the alleged significance of these references as a supposed human-worth comparison,

as did the South Carolina court and the majority of judges in this circuit, all of whom are unwilling to hold that an explicit human-worth

comparison occurred in this case. Likewise, a reasonable attorney

might have judged that an objection at that point might have highlighted the solicitor’s effective debunking of the exculpatory version

of Humphries’ life history presented by the defense. 

HUMPHRIES v. OZMINT 43
In sum, given the deference owed to real-time, tactically significant

decisions about objections made by trial counsel, it is unlikely that we

could hold that trial counsel’s failure to object was objectively unreasonable under Strickland — even if we were considering this Strickland claim in the first instance and even if Payne had clearly

established a rule against human-worth comparisons. Considering the

fact that counsel had no explicit grounds for objection under Payne

because Payne does not address such comparisons, and the fact that

the deference we owe trial counsel is compounded by the deference

we owe South Carolina’s judgment under AEDPA, it is evident that

Humphries’ petition must be denied on the first prong of Strickland.

D.

Fourth, it was not an unreasonable application of Strickland for

South Carolina to hold that Humphries did not suffer prejudice from

the challenged portion of the solicitor’s argument. See Humphries II,

570 S.E.2d at 168 ("In our opinion, the solicitor’s closing argument

. . . did not prejudice Petitioner."). The challenged references were

brief and referred to evidence that had been admitted into the record,

submitted to the jury, and extensively commented upon earlier in the

solicitor’s argument. See ante at 21-23. Humphries bases his challenge primarily on three sentences in a twenty-eight page closing

argument. All three referred fleetingly to evidence that he had discussed extensively only a few minutes before. As the majority concludes, there was no reasonable probability that the solicitor’s use of

those few sentences at that point changed the outcome of the proceedings. See ante at 23 ("[W]e harbor no doubt that, notwithstanding the

solicitor’s comparison that Humphries finds so objectionable, a sentence of death would have resulted."). Far less did it constitute an

unreasonable application of Strickland for South Carolina thus to conclude. 

The denial of Humphries’ Strickland claim, thus, is independently

supported by four distinct, compelling, and individually sufficient

grounds for affirmance. It is for this reason that I concur in the judgment and opinion of the court. 

44 HUMPHRIES v. OZMINT
Volume 2 of 2

HUMPHRIES v. OZMINT 45
WILKINSON, Circuit Judge, dissenting: 

No person should be executed in America on the theory that his life

is of less worth than that of someone else. This principle is not only

clearly established in federal law; it is anciently so. Neither a defense

attorney, nor a state court judge, nor his federal counterpart should

need any prompting to object to a death sentence that is premised on

a principle of comparative human worth. Because the majority’s opinion fails to respect the ban on such comparisons, and in the process

strays perilously close to endorsing them, I respectfully dissent. 

There should be no doubt that this case presents a violation of this

sort. The prosecutor made no bones about what he did. He baldly

compared the general worth of the victim’s existence with that of the

defendant and urged the jury to impose a death penalty on that basis.

This sort of argument should not serve as a prelude to any sort of punishment, much less to a capital sentence. 

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

made clear the many good and legitimate uses of victim impact evidence. Without a doubt, victim impact evidence serves an important

role in our criminal justice system. It affords a multitude of avenues

for impressing on the jury the peculiar anguish of the loss from violent crime. Indeed, victim impact evidence may become more important as the severity of the offense increases. It is certainly warranted

in a capital sentencing proceeding, where the loss to family and

friends is most profound and where the murder has robbed the prosecution of a critical witness. 

But what happened here was a perversion of all that is proper under

Payne. Punishment in our system reflects those things for which an

individual defendant is responsible, not notions of the relative value

of respective human lives. The prosecutor took leave of the bedrock

principle that punishment rests on the circumstances of the crime, the

46 HUMPHRIES v. OZMINT
consequences for its victims, and the defendant’s criminal history.

Rather than seek a capital sentence on these traditional and wholly

defensible bases, the prosecutor strayed into territory whose forbidden

nature should have been self-evident. 

Indeed, the majority is able to point to no other argument that even

approaches the egregiousness of this prosecutor’s comments and no

other case in which a court has tolerated such misconduct. There is

a reason for this telling lacuna in the majority opinion — the wrongfulness of putting people to death on the basis of comparative human

worth arguments is now, and was at the time of Humphries’ sentencing, clearly forbidden. I would therefore affirm Humphries’ conviction, but I would issue the writ for purposes of resentencing. I regret

that I take such exception to the views of my distinguished colleagues

and able concurring brother on this issue, but I do.*

I.

The majority’s defense of the state solicitor’s closing argument

begins with the claim that it contains no transgression that would warrant our censure. My colleagues claim that this argument "simply did

not invite the jury to return a sentence based on the relative worth of

the lives of Dickie Smith and Humphries." Maj. Op. at 21. To support

this proposition, the majority attempts to submerge the prosecutor’s

improper weighing of human worth at the end of his argument in the

sea of legitimate evidence already before the jury. But close examination of the solicitor’s final presentation to the jury betrays the futility

of this apology. 

The solicitor began his closing arguments at the sentencing phase

by sketching the contours of the evidence he would discuss. He

announced: 

You look at four things in deciding the issue of punishment.

You look at the aggravation. Is it an aggravated murder?

*My views have not changed in any respect from those I expressed in

the vacated panel opinion, Humphries v. Ozmint, 366 F.3d 266 (4th Cir.

2004). This dissent relies upon that opinion as supplemented by points

debated during the process of en banc rehearing. 

HUMPHRIES v. OZMINT 47
You look at the character of the Defendant. You look at any

mitigation, statutory mitigation or other mitigation they’ve

presented to you. And the last thing you look at is the victim, his uniqueness. What harm to the community and to the

victim and to the family did this Defendant cause? Those are

the four things you look at. 

This outline of the evidence was entirely unremarkable. Indeed, the

Supreme Court has generally endorsed the propriety of each of its elements. See, e.g., Simmons v. South Carolina, 512 U.S. 154, 163

(1994) (aggravating factors including the defendant’s "prior criminal

history"); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (mitigating evidence). 

The prosecutor was therefore well within constitutional bounds in

his exegesis of the first three sections. The trial evidence received, the

witness testimony at sentencing, and the prosecution’s closing argument discussed in turn the aggravating circumstances of the crime,

Humphries’ criminal history, and the mitigating evidence offered by

the defendant. The testimony the prosecutor elicited for the final element of his presentation, concerning the victim’s uniqueness, was

similarly sound. Dickie Smith’s relatives appeared before the jury

without objection and recounted their recollections of the victim and

what he had meant to each of them. Indeed, had the solicitor stopped

at this juncture, his actions would have been beyond scrutiny. 

The problem was that the solicitor did not stop. In his commentary

on the victim impact evidence, the prosecutor took leave of his

announced intention to discuss "the victim, his uniqueness" and the

"harm to the community and to the victim and to the family" that the

defendant’s crime had caused. Instead, he launched into a general

human worth comparison that could not have been more removed

from his stated purpose of showing Dickie Smith as a unique and

individual human being. This stark detour should have been obvious

from the solicitor’s first mention of the defendant in the narrative of

the victim’s own life: 

[I]n 1984 [Dickie Smith] met Pat, and they fell in love, and

they got married. That’s the same year Shawn Paul Humphries committed two house break-ins at age 13. 1986 Dickie

48 HUMPHRIES v. OZMINT
makes a pretty drastic move. He decides he’s going to quit

Kemet and go build homes full-time, and he goes out, and

he starts building homes in the community he had grown up

in. That’s the same year Shawn Paul Humphries is up for his

second probation violation and sent down to Columbia. 

Then in 1988, July the 4th, they have a little baby girl

named Ashley. You know, the Defense brought in a 12 year

old stepdaughter — stepsister, said, "Please don’t put Shawn

Paul Humphries in the electric chair." I’m sorry I did not

feel it was appropriate to bring in a six year old girl Ashley

and parade her in front of you. 

In 1988 Ashley is born. That’s the same year Shawn Paul

Humphries went to jail for two years. And in the spring of

1992, I believe, Dickie Smith opens the doors to the MaxSaver, building a business down in that community. 

The majority claims that the solicitor meant only to foreground

"Dickie Smith’s uniqueness as an individual" in this part of his closing argument and contends that the vignettes from the victim’s life

did nothing more than further this purpose. Maj. Op. at 8-9, 20. The

majority keeps repeating that the prosecutor’s comments did not

involve a human worth comparison. But it never begins to explain

why not. Indeed, the majority never tells us why Shawn Paul Humphries’ full name needed to occur at all — let alone three times — in

the part of the closing argument that was expressly previewed to the

jury as an entirely legitimate discussion of Dickie Smith as an individual human being. Because the prosecutor avoided using words

such as "compare" or "value" or "worth," my colleagues also assert

that this portion of his argument cannot credibly be regarded as one

of comparative human worth. Id. at 21, 24. I cannot accept this characterization. Indeed, if this argument is not deemed to be one of comparative human worth, then I cannot conceive of an argument that

would merit that designation. 

The solicitor’s comparisons simply leave no room for explanations

of inadvertence, or of an unintentional verbalization of an errant train

of thought. Indeed, such glancing or implicit comparisons may be all

but unavoidable in a sentencing proceeding focused on the persons of

HUMPHRIES v. OZMINT 49
the victim and the perpetrator. Yet the prosecution here uttered

identically-phrased comparisons for three separate occasions — comparisons that took on the air of a refrain. All of these comparisons

mentioned the defendant by his full name and all employed the same

dramatic construction, "[t]hat’s the same year Shawn Paul Humphries

. . . ." The record thus presents no general, oblique, or inadvertent

comparisons of the victim and defendant. Rather, the prosecution

sought point-by-point, side-by-side, and year-by-year to demonstrate

to the jury that at the very instant one life was being put to worthwhile

use, the other was not. 

Thus, far from showing the victim as an individual, the prosecution

presented two largely separate lives in tandem. In this regard, the

comparison went far beyond the only two cases raised by the State

that purport to reconcile Payne with comparative worth arguments,

State v. Haselden, 577 S.E.2d 594, 610 (N.C. 2003), and Jackson v.

State, 33 S.W.3d 828, 843 (Tex. Crim. App. 2000). Neither of those

cases sought to advance the sort of human time chart the prosecution

ventured here. Neither deliberately sought to take past events in two

unrelated lives for the sole purpose of comparing the general worth

of the victim’s and the defendant’s existence. Indeed, in Haselden, the

case on which the majority chiefly relies, Maj. Op. at 26-27 n.7, the

most it can muster up is a single sentence which did not begin to

approach the prosecutor’s extensive exploration of relative worth in

the Humphries’ case. 

Other courts have not hesitated to censure violations of a less horrific sort than that which happened here. In State v. Koskovich, 776

A.2d 144 (N.J. 2001), the court held that a "directive to jurors that

they balance the victim’s background against that of defendant was

akin to asking the jury to compare the worth of each person," which

is "inherently prejudicial" and "might prompt jurors to impose the

death penalty arbitrarily." Id. at 182. Likewise the court in State v.

Muhammad, 678 A.2d 164 (N.J. 1996), emphasized that "[v]ictim

impact testimony may not be used . . . as a means of weighing the

worth of the defendant against the worth of the victim." Id. at 179.

State v. Storey, 901 S.W.2d 886 (Mo. 1995) (en banc), meanwhile,

found ineffective assistance of counsel in the failure to object to prosecutor’s argument, "[w]hose life is more important to you? Whose life

has more value? The Defendant or [the victim’s]?" Id. at 902. And the

50 HUMPHRIES v. OZMINT
South Carolina Supreme Court only recently overturned a capital sentence which had been returned after a prosecutor asked the jury

whether "the lives" of the victims were "worth" that of the "killer."

Hall v. Catoe, 601 S.E.2d 335, 339 (S.C. 2004). While the prosecutor

may have used the word "worth" in his argument, his comments did

not rise to the level of a studied and comparative chronology of two

peoples’ lives, as we have before us here. 

In the face of these precedents, I am surprised the majority clings

to its defense of the prosecutor’s peroration in this trial. For the case

law leaves the majority literally alone in its willingness to sanction

executions on the basis of extended weighings of relative human

worth. 

Any lingering doubts one might have about the State’s purpose

should be thoroughly dispelled by considering how the solicitor drew

his comments to a close. He returned to the notion that "Dickie Smith

is as much about this case as Shawn Paul Humphries" by rhetorically

asking "[w]ho is the victim here, Shawn Paul Humphries or is it Dickie Smith?" He legitimately implored the jury to return a capital sentence by asking "if not in a case with a character like this, if not in

a case when somebody like Dickie Smith is taken, then when are you

going to do it?" It was another ending exhortation, however, that left

the jury in no doubt: "[W]hen you look at the character of this Defendant, and when you look at Dickie Smith, how profane when you look

at all the circumstances of this crime and of this Defendant, how profane to give this man a gift of life under these circumstances." This

concluding flourish served only one purpose: to hammer home the

point that already infused the multiple specific comparisons of episodes from those two lives that the solicitor had just set forth: Shawn

Humphries had led a worthless life, Dickie Smith had led a worthy

one, and a death sentence was warranted on this basis. 

The majority contends finally that the prosecution’s argument in its

entirety involved no more than permissible comments on the evidence. My colleagues emphasize that all of the discussion of the past

lives of the victim and the defendant had already been submitted into

evidence at the sentencing hearing. The majority notes that "the solicitor’s life history comparison contained in the year-by-year chronolHUMPHRIES v. OZMINT 51
ogy was based upon facts established during the trial [that] were

readily apparent to the jury." Maj. Op. at 21. 

I do not suggest this evidence was inadmissible. To the contrary,

the victim impact evidence was properly submitted. The testimony of

Dickie Smith’s brother, Randy, and his wife, Pat, was all legitimately

designed to underscore the importance of the victim’s life to his family members, to his friends, and to the community he served. Comment upon this evidence would clearly conform to the strictures of

Payne and the rhetorical embellishment of the evidence would be well

within the latitude afforded closing arguments. 

But that is not what occurred in this case. That the facts from which

the prosecutor drew his comparison were already in the record does

not cure the prejudice resulting from the format in which the prosecutor chose to present a significant portion of his close. The comparison

between the victim and perpetrator that formed the focus of this closing argument reached the point at which differences in degree ripen

into differences in kind. The State did not seek simply to comment on

the evidence. The State did not seek simply to explore the terrible

consequences of this crime for the victim’s family and community or

to lay out the victim’s uniqueness as an individual. The State sought

to present two peoples’ lives in a crafted invitation to the jury to compare their relative worth. This side-by-side comparison of the relative

value of two lives was calculatedly incendiary and rendered the sentencing fundamentally infirm. 

Viewed against the backdrop of this message, the majority’s suggestion that the prosecutor obeyed the prohibition on judgments of

comparative human worth by avoiding the words "compare" and

"value" or "worth" is a simple invitation to subterfuge, condoning

egregious human worth comparisons in substance so long as certain

phrases are avoided. Likewise, the concurrence’s suggestion that the

prosecution was doing no more here than saying Humphries "could

have made better choices" is untenable. Conc. Op. at 41. The prosecutor could have argued the tragic nature of Humphries’ choices, underscored his responsibility for those choices, and attacked Humphries’

mitigating evidence all day long without indulging an argument of

relative human worth. Left with no explanation for the comparison

that occurred here, let alone a plausible one, I can only state again

52 HUMPHRIES v. OZMINT
what appears so obvious from the record: that the prosecutor told the

jury that the intrinsic value of one life over time was less than that

of another, and that a sentence of death was warranted on that basis.

II.

This case comes to us on collateral review. In reviewing a state

court judgment on collateral attack, our obligations of deference to

state court proceedings are quite plain. Congress has declared that a

federal court may not grant a writ of habeas corpus unless the state

court’s holding "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States," 28 U.S.C. § 2254(d)(1) (2000),

or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court

proceeding." 28 U.S.C. § 2254(d)(2). The question before us is simply

whether the state court’s decision in this case violated clearly established federal law by applying "a rule that contradicts the governing

law set forth in [the Supreme Court’s] cases." Williams v. Taylor, 529

U.S. 362, 405 (2000). 

The majority and I agree that the pivotal case in this analysis is

Payne v. Tennessee, 501 U.S. 808 (1991). But while we agree that

Payne is the applicable case, we could not disagree more on what

Payne plainly holds. Payne unequivocally endorsed the use of victim

impact evidence in capital proceedings, but it never came close to

placing any imprimatur on the sort of closing argument the prosecutor

offered here. In fact, the Supreme Court issued plain warnings to steer

clear of human worth comparisons, warnings which I regret to say the

majority has not heeded.

A.

Payne itself provides a good example of the uses to which victim

impact evidence may be put. The case involved the murder of a

twenty-eight-year-old mother and her two-year-old daughter whom

the defendant viciously stabbed to death with a butcher knife. The

Payne Court approved the introduction of victim impact evidence

concerning the physical and psychological harm inflicted on the victim’s three-year-old son who was also stabbed repeatedly, yet surHUMPHRIES v. OZMINT 53
vived, and who thus witnessed the murder of his mother and sister.

Testimony by surviving relatives of the victim provides a paradigm

case for the use of victim impact evidence, regardless of whether

those survivors actually witnessed, as the young boy did in Payne, the

commission of the crime. 

Payne made clear that victim impact evidence, or "evidence relating to the personal characteristics of the victim and the emotional

impact of the crimes on the victim’s family," has an important and

legitimate place in capital sentencing. 501 U.S. at 817. States are permitted to introduce such evidence to offer the jury "a quick glimpse

of the life which a defendant chose to extinguish, or [to demonstrate]

the loss to the victim’s family and to society which has resulted from

the defendant’s homicide." Id. at 822 (quoting Mills v. Maryland, 486

U.S. 367, 397 (1988) (Rehnquist, C.J., dissenting))(internal quotations

omitted). Grounding a capital sentence in considerations of this sort

does not violate the traditional precepts of sentencing. On the contrary, victim impact evidence informs the jury of the "specific harm

caused by the crime in question," id. at 825, and the consequences of

a criminal act have long been a factor on which punishment may

properly rest. Id. at 819-20, 825. For this reason, forbidding states

from allowing victim impact evidence in sentencing proceedings

would reduce the deceased to a "faceless stranger at the penalty phase

of a capital trial [and] may prevent the jury from having before it all

the information necessary to determine the proper punishment for a

first-degree murder." Id. at 825 (quoting South Carolina v. Gathers,

490 U.S. 805, 821 (O’Connor, J., dissenting)) (internal quotations

omitted). 

Payne also rebutted in turn each argument against victim impact

evidence that had informed the earlier decisions of Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S.

805 (1989). While Booth and Gathers asserted that such evidence led

to arbitrary imposition of the death penalty, the Payne Court found

that any effect on the incidence of capital sentences was consonant

with the principle that punishment may be calibrated to fit the harm

a crime had caused. See Payne, 501 U.S. at 825. While Booth and

Gathers were concerned that victim impact evidence would frustrate

the defendant by forcing a diversion of attention from his case in mitigation to the victim’s character, the Payne Court concluded that this

54 HUMPHRIES v. OZMINT
was no more prejudicial than the many tactical decisions that must be

made in the course of capital litigation. Id. at 823. While Booth and

Gathers believed that the individualized consideration of a defendant

required in a capital case prohibited victim impact evidence, the

Payne Court protested that the victim should likewise be accorded

individual respect. Id. at 822, 825. Finally, the Payne Court determined that the approach to sentencing underlying Booth and Gathers

had been too narrow, criticizing the premise of those cases that victim

impact evidence "do[es] not in general reflect on the defendant’s

‘blameworthiness,’ and that only evidence relating to ‘blameworthiness’ is relevant to the capital sentencing decision." Id. at 819. 

Payne thus endorses, explicitly and unequivocally, the use of victim impact evidence at the punishment phase of a capital trial. Yet,

while the states plainly "remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs,"

id. at 824-25, neither Payne nor any other Supreme Court case has

suggested that victim impact evidence may be used without limit,

constraint, or without reference to the harm caused by the crime to

those aggrieved. This fundamental idea of harm caused the victim and

his family by the crime of the defendant pervades the Payne opinion.

Indeed, it is mentioned by the Court as the rationale for victim impact

evidence no fewer than ten times. See id. at 819 (victim impact evidence is relevant for the "harm caused by the defendant as a result of

the crime"); id. at 820 (sentences are commonly calibrated to the

"harm done by the criminal"); id. (sentencing judge’s discretion is

properly guided by consideration of the "harm caused by the crime");

id. at 821 (describing federal and state sentencing reform that enables

"the sentencing authority to consider information about the harm

caused by the crime committed by the defendant"); id. (victim impact

evidence is "designed to portray for the sentencing authority the

actual harm caused by a particular crime"); id. at 825 (factors generally relating to "specific harm" caused by crime have long been "considered by sentencing authorities"); id. (evidence submitted was

"illustrative of the harm caused by Payne’s double-murder"); id.

(states may properly authorize consideration of "specific harm caused

by the defendant" in assessing punishment); id. at 826 (evidence submitted "illustrated quite poignantly some of the harm that Payne’s

killing had caused"); id. (sentencer may "bear in mind" such "harm"

while also considering defendant’s mitigating evidence). 

HUMPHRIES v. OZMINT 55
Notably absent from the Court’s discussion is any hint of imprimatur for human worth comparisons, let alone of the naked variety that

occurred here. For human worth comparisons are so far removed from

the Court’s central concern of harm that it is inconceivable that the

Court somehow meant to allow them. Indeed the human worth comparison offered in this case presents the very antithesis of Payne’s

rationale for victim impact evidence. Evidence introduced to inform

the sentencing authority of the "specific harm" caused by the crime

in question, id. at 825, is the very opposite of comment weighing the

general value of the victim’s and defendant’s entire lives. Testimony

focusing on the consequences of the crime in question ensures that

victim impact evidence promotes rather than retards the fundamental

purposes of the sentencing function. Argument drawing a comparative judgment of human life roams far afield from the consequences

of the criminal act. 

Indeed, one searches the Payne opinion in vain for any indication

that the Court meant to condone such comparative judgments. In the

one part of the opinion where the Court considers comparative

appeals of this sort, it does so only to condemn them. Payne considers

the question, raised in Booth, of whether victim impact evidence

might permit "a jury to find that defendants whose victims were assets

to their community are more deserving of punishment than those

whose victims are perceived to be less worthy." Id. at 823 (citing

Booth, 482 U.S. at 506 n.8). In response to this possibility, the Court

professes incredulity, noting that

[a]s a general matter . . . victim impact evidence is not

offered to encourage comparative judgments of this kind —

for instance, that the killer of a hardworking, devoted parent

deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s

‘uniqueness as an individual human being,’ whatever the

jury might think the loss to the community resulting from

his death might be. 

Id. at 823. The Court noted that "[i]n the majority of cases . . . victim

impact evidence serves entirely legitimate purposes." Id. at 825. But

it chose to conclude its discussion in precise terms. It stated that "if

the State chooses to permit the admission of victim impact evidence"

56 HUMPHRIES v. OZMINT
— previously defined as the "personal characteristics of the victim

and the emotional impact" of the crime, see id. at 817 — "and prosecutorial argument on that subject, the Eighth Amendment erects no

per se bar." Id. at 827. 

The Court’s discussion of victim impact evidence in Payne therefore signals a clear disapproval for the kind of inter-personal comparison that occurred here. The South Carolina Supreme Court held (and

the majority appears to agree) that Payne only prohibited comparisons

between the relative worth of victims, rather than comparisons

between victims and perpetrators. See Humphries v. State, 570 S.E.2d

160, 167-68 (S.C. 2002). It is true that a comparison of one victim to

another may differ from a comparison of a victim to a defendant. The

former permits the introduction of collateral evidence — the worthiness of other members of society — while the latter invites commentary on evidence already before the jury. Nonetheless, distinguishing

these two types of human worth comparisons splits an awfully thin

hair. 

In fact, contrary to the majority’s claim that comparative worth

judgments are "inevitable" after Payne, Maj. Op. at 23 n.6, 29 n.9, a

fair examination of the case reveals that the Court did not even

believe that arguments of this sort would be raised in capital proceedings, much less proffered as the basis for the death sentence. The pairing of two people, one actual and one supposed, contemplated by the

example which Payne condemns, see 501 U.S. at 823, does not suddenly become acceptable when the hypothetical element of the dyad

is replaced by the prosecutor with the person of the defendant. 

Quite the opposite, it is the relative nature of these sorts of judgments that provoked the Court’s disapproval, not the imaginative leap

that resort to a conjectural comparator requires. Life in our society is

not the relative matter that the prosecutor tried to make it. Each life

stands instead on a footing of its own. This is the essential point the

Court expresses. Otherwise it is impossible to imagine why the Court

would tether its overruling of Booth and Gathers to their holdings

"that evidence and argument relating to the victim and the impact of

the victim’s death on the victim’s family are inadmissible at a capital

sentencing hearing," id. at 830 n.2, why it would take pains to emphasize that some victim impact evidence, otherwise proper, might be so

HUMPHRIES v. OZMINT 57
prejudicial that "it renders the trial fundamentally unfair," id. at 825,

and why it would see fit to emphasize that proper victim impact evidence shows "each victim’s ‘uniqueness as an individual human

being.’" Id. at 823 (emphasis added in part). 

To this point, I have confined myself to a textual analysis of the

Payne opinion. But an overview of Payne leads to the very same conclusion as a textual dissection, namely that a victim’s status as "an

individual human being," id., does not allow human worth comparisons, let alone approve them. An overview of Payne and its sentencing philosophy is necessary because it likewise forfends the

majority’s conclusion. 

The Payne Court had to proceed at a high level of generality

because the decisions it overruled had already ascended to this register. Booth, for instance, held that sentencing evidence must relate only

to the defendant’s blameworthiness. See id. at 818-19 (citing Booth,

482 U.S. at 504, 505). But Payne criticizes the conception of punishment set forth in Booth and Gathers as too cramped. Instead, a sentencer can properly consider the "harm caused by the defendant as a

result of the crime charged." Id. at 819. The Court thus explicitly

extends the preoccupation in Booth with "the subjective guilt of the

defendant" to encompass also "the harm caused by his acts." Id. at

820. 

The significance of Payne is that it added harm to Booth’s discredited insistence that sentencing evidence must relate solely to the

defendant’s blameworthiness. See id. at 818-19 (citing Booth, 482

U.S. at 504, 505). Payne envisions blame and harm as the two organizing categories of sentencing evidence. Indeed, Payne stands for the

proposition that the relevance of arguments in capital sentencing

should be grounded in at least one of these two principles. And it is

possible, no doubt, to reconstruct the chain of reasoning that supports

such a relationship for every category of evidence that state and federal sentencing law permits. Criminal history, for instance, relates to

blame. See, e.g., U.S.S.G. Ch. 4, intro. comment ("A defendant with

a record of prior criminal behavior is more culpable than a first

offender and thus deserving of greater punishment.") Victim impact

evidence of the sort Payne contemplated, meanwhile, relates in like

manner to harm. 

58 HUMPHRIES v. OZMINT
Comparative human worth judgments, in stark contrast, defy classification under this rubric. For in their general resort to the respective

worthiness of human lives, they do not bear in the slightest on the

defendant’s culpability or the deleterious consequences of his criminal act. Indeed, the majority offers not one argument that relates

human worth comparisons to either of these seminal concepts.

Instead, the majority retreats behind nebulous pronouncements about

"the boundaries of a question the jury was required to consider," Maj.

Op. at 25, and observations that "[t]he bulk of the solicitor’s argument

was not that Humphries should die because his life was worth less

than Dickie Smith’s." Id. at 21. Propositions such as these simply

ignore both what the prosecutor said and what he did in breaching the

principles that Payne was all about. 

The majority concludes its own review of Payne by saying that the

opinion has "a few shortcomings," Maj. Op. at 29 n.9, and that it has

made human worth comparisons "inevitable." Id., 23 n.6. For its part,

the concurrence likewise finds fault with Payne, because it dismisses

inconvenient statements in that opinion as "dicta," Conc. Op. at 35,

37, thus ignoring the Supreme Court’s explanation of the basis for its

own decision. I do not think Payne has any "shortcomings." Far from

making human worth comparisons "inevitable," Payne condemns

them by stressing the quality of a victim as an individual human

being. See Payne, 501 U.S. at 825. Thus there was nothing at all "inevitable" about this prosecutor’s decision to take leave of the focus

on Dickie Smith and Shawn Paul Humphries as individuals and

launch into an argument which, by laying their two lives side-by-side,

undermined that individuality. If this were all so "inevitable," one

wonders why it is the only argument in this country to indulge such

an extended and explicit weighing of the relative worth of human life.

The extent of the State’s transgression is, sadly, beyond salvaging

through the aforementioned standard of review. For due process at its

core contains a commitment to treat all litigants as individuals of

equal dignity. See Lyng v. Castillo, 477 U.S. 635, 636 n.2 (1986).

This individuality is compromised, however, when prosecutors

implore juries to hand down sentences on theories of comparative

human worth. The past lives this jury was exhorted to balance bore

no connection or relation, save for the tragic events which brought the

parties into court. Yet the State engaged in sweeping comparisons of

HUMPHRIES v. OZMINT 59
the life histories of the victim and the defendant, coopting, in the process, events far removed in time and place and relevance from the

proper inquiry at hand. The very concept of a sentence should have

operated to preclude this misadventure. One does not receive a sentence for leading a less valuable life than someone else. One receives

a sentence under our system for having committed a crime. Violating

this principle, the prosecutor’s human worth comparison defies my

colleagues’ justification just as it did the Payne decision. 

B.

When one steps back and surveys American sentencing practice,

the fact that the majority faces so hard a task in accommodating

Payne to comparisons of human worth is not surprising. 

The comparative worth argument relied on here fell within the category of factors that the Supreme Court has prohibited as unduly prejudicial in the death penalty sentencing context. See Johnson v.

Mississippi, 486 U.S. 578, 584-85 (1988) (quoting Zant v. Stephens,

462 U.S. 862, 885 (1983)) (prohibiting death penalty decisions "predicated on mere ‘caprice’ or on ‘factors that are constitutionally impermissible or totally irrelevant to the sentencing process’"). The

comparison of what Humphries and Smith happened to be doing in

1984 or 1986 or 1988 or at some fortuitous past point in their separate

lives is the essence of an arbitrary and capricious circumstance. That

Dickie Smith happened to be building houses while Shawn Paul

Humphries happened to be breaking into houses is a judgment

freighted with comparative moral import. It was not, however, a permissible basis under the Due Process Clause on which to condemn the

defendant to death. Juries are free to mete out capital verdicts based

on the evidence before them, the consequences of the crime for the

victim’s family and loved ones, the presence or absence of a variety

of aggravating or mitigating circumstances, or the sheer heinousness

of the offense. See, e.g., South Carolina Code § 16-3-20(C). All of

these factors are focused on individuals qua individuals and are not

comparative in nature. But one thing the centerpiece of closing argument cannot invite is a sentence on the basis that one person is of

more intrinsic value than someone else. A defendant may not be condemned simply for being deemed, over the long trajectory of life, a

less estimable human being than his victim. 

60 HUMPHRIES v. OZMINT
In the wake of Payne, the federal government, the military, and

thirty-three of the thirty-eight states with the death penalty have

authorized the use of victim impact evidence in capital sentencing.

John H. Blume, Ten Years of Payne: Victim Impact Evidence in Capital Cases, 88 Cornell L. Rev. 257, 267 (2003). Unsurprisingly, while

these jurisdictions allow a broad range of victim impact evidence,

none sanctions the sort of comparative worth arguments advanced in

this proceeding. To place the matter in perspective, the United States

Sentencing Guidelines, made advisory after Booker, contemplate a

multitude of enhancements and departures for a variety of factors

relating to the crime. These include the knowing selection of a vulnerable victim, U.S.S.G. § 3A1.1, the perpetrator’s aggravating role in

the offense, U.S.S.G. § 3B1.1, the abuse of a position of trust or use

of a special skill in committing the offense, U.S.S.G. § 3B1.3, the

infliction of significant physical or extreme psychological injury on

the victim, U.S.S.G. § 5K.2.2, 5K2.3, the use of a weapon or dangerous instrumentality in the commission of the crime, U.S.S.G. § 5K2.6,

and the crime’s purpose of facilitating or concealing another offense,

U.S.S.G. § 5K2.9. One can look in vain among these enhancements

and departures for any factor remotely resembling the relative worth

of the victim’s and defendant’s lives. Such a factor would hardly form

the basis of a two-level increase, much less the imposition of a sentence of death. 

If we ignore Payne’s condemnation of the use of comparative

human worth arguments, we invite future abuses. As the trial judge

exclaimed, this was "one of the best arguments I have ever heard in

my life given in a closing argument . . . in terms of the technique, .

. . delivery, effectiveness." The argument was so effective, however,

precisely because it was so improperly prejudicial to Humphries, and

ignored the bedrock premise that "punishment should be directly

related to the personal culpability of the criminal defendant," California v. Brown, 479 U.S. 538, 545 (1987) (O’Connor, J., concurring).

My concurring brother seeks repeatedly to condemn the dissent’s

discussion of sentencing principles without ever trying to rebut it.

Indeed, the concurrence fails to come to grips with the fact that what

transpired in this case was a profound departure from traditional

American sentencing practice as it existed both before, during, and

after the Payne decision. By breaking from sentencing regimes which

HUMPHRIES v. OZMINT 61
relate punishment to the defendant’s actions, the majority also departs

from the historic understanding that punishment is not a matter of status, but rather a function of the legal wrong a citizen has committed

and his responsibility therefor. The majority allows this defendant to

be executed, not for doing, but for being a less worthy person than

someone else. Such a sentence strays so far from the normal ambit of

a court of law as to strain human faculties. Measuring the relative

value of human beings on whatever ineffable scale that applies could

not be a more dangerous exercise. Thankfully, American sentencing

practice has until now limited itself to the more manageable domain

of crimes and their consequences. 

III.

The application of the federal habeas statute here requires us to

inquire whether the state court applied the governing legal rule "unreasonably to the facts of a particular prisoner’s case." Williams v.

Taylor, 529 U.S. 362, 407-08 (2000). The federal law that governs

Humphries’ claim of ineffective assistance of counsel is Strickland v.

Washington, 466 U.S. 668 (1984). The majority devotes the lion’s

share of its attention to whether the prosecutor’s comments respected

Payne. Payne is of course central to this case. But it provides a rule

of decision here only insofar as this record presents a glaring violation

of its dictates, which the defense should have noticed and complained

of forthwith. The failure to do so here was a constitutional wrong

under the Sixth Amendment. 

The standards in this area are well settled. Under Strickland, the

defendant must first "show that counsel’s performance was deficient."

Id. at 687. To establish this deficiency, the defendant must produce

evidence that the "counsel’s representation fell below an objective

standard of reasonableness." Id. at 688. Second, the defendant must

show that the deficient performance resulted in actual prejudice to his

case. A showing of prejudice requires the defendant to prove that

"counsel’s errors were so serious as to deprive the defendant of a fair

trial." Id. at 687. In the context of a capital sentencing proceeding, the

question is whether "there is a reasonable probability that, but for the

counsel’s unprofessional errors, the result of the proceeding would

have been different." Id. at 694. Prejudice is established in a capital

case where the jury is considering both aggravating and mitigating

62 HUMPHRIES v. OZMINT
evidence during sentencing if "there is a reasonable probability that

at least one juror would have struck a different balance," but for the

constitutional error. Wiggins v. Smith, 539 U.S. 510, 537 (2003).

Under Strickland, the failure of Humphries’ counsel to cry foul when

the prosecutor compared the victim’s general value to that of the

defendant clearly supports a Sixth Amendment violation. 

I have already described the degree to which the prosecutor’s

human worth comparisons flew in the face of existing federal law and

established sentencing practice. I do recognize that state law on sentencing evidence is permissive. See State v. Gulledge, 487 S.E.2d 590,

594 (S.C. 1997). But there are boundaries to be respected, and the

prosecutorial comments here travelled well beyond them. Coming, as

they did, at the close of proceedings, and nestled among several

explicit requests to put his client to death, the comparative worth

exhortations in these comments should have struck defense counsel

instanter. 

I realize that counsel’s decisions should not be picked apart by

hindsight. Caution is particularly needed in collateral proceedings,

when issues that appear plain to a habeas court have only become so

after several rounds of anterior review. Advocates must often make

instantaneous decisions with imperfect information and without the

benefit of considered judgment. And, although correcting every error

of counsel might yield some benefit, it would also create far more

substantial costs going forward. In particular, second-guessing counsel’s decision not to object at closing argument would encourage a

slew of vexatious challenges that would needlessly distract the court

and jury. Worse still, such hindsight might discourage tactical choices

to remain silent, prompting lawyers to off-putting interjections that

would needlessly imperil their client’s defense. Mindful of ill possibilities such as these, this circuit has always indulged a "strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance." Truesdale v. Moore, 142 F.3d

749, 753-54 (4th. Cir. 1998). 

That having been said, there are some occasions when counsel

must object or lose all claim to his defined Sixth Amendment role as

representative of the accused. I emphasize yet once more the unprecedented character of the prosecution’s closing argument and the extent

HUMPHRIES v. OZMINT 63
of its departure from the most settled principles of American sentencing. For a lawyer to allow his client to be put to death on the basis

of such an argument is to deprive the defendant of any semblance of

effective assistance at the precise moment when he needed that assistance most. 

Neither of Humphries’ two counsel objected to the State’s comparative worth arguments at trial. They did lodge a general challenge to

the admissibility of victim impact evidence without prior notice,

which they reserved for appeal. But they were remarkably silent during the comparative worth arguments, and admitted after trial that

their failure to object constituted ineffective assistance of counsel.

Their post-trial admission here must be taken as more than a mere tactic. While the concurrence contends that the failure of an objection

was "objectively reasonable trial strategy," Conc. Op. at 42, this is a

creative reconstruction of counsels’ thought processes that neither the

majority, nor the South Carolina Supreme Court, nor the State, nor

counsel itself has ever sought to advance. The failure to object was,

in counsel’s words, "not a matter of trial strategy or tactics," J.A. at

219, but of simply dropping the ball. The State’s argument, which

was at once without precedent and at odds with traditional precepts

of due process, called for Humphries’ counsel to exercise those skills

which had led to their appointment. 

There is also no doubt that this record presents a "reasonable probability that at least one juror would have struck a different balance,"

but for the constitutional error. Wiggins, 539 U.S. at 537. The trial

judge recognized as much when he profusely complimented the prosecutor’s close. Counsel’s failure to object to the prosecutor’s comments therefore prejudiced Humphries under the second prong of

Strickland. Comments of this sort represent the types of appeal to

jurors whose potential for prejudice the Supreme Court has long condemned in the death penalty context. See Eddings v. Oklahoma, 455

U.S. 104, 118 (1982) (O’Connor, J., concurring); Gardner v. Florida,

430 U.S. 349, 358 (1977) (plurality opinion). Coming, as it did, just

before the jury began its deliberations, the emotionally charged

human worth comparison made by the prosecutor could only have

caused Humphries improper prejudice. 

The majority attempts to deny this conclusion by maintaining that

these comments were quantitatively and qualitatively unimportant in

64 HUMPHRIES v. OZMINT
the totality of the prosecutor’s closing. But this argument is flawed on

at least two grounds. First, it is simplistic. The offensive portions of

the prosecutor’s final presentation may well take up "less than four

pages of [the] approximately twenty-eight" that it occupies in full.

Maj. Op. at 21. But we would be automata, not judges, if we undertook inquiries of the sort mandated by the second prong of Strickland

with the kind of approach the majority’s computation represents.

Indeed, the product of those inquiries would be reduced to arbitrariness were we to dilute the judicial enterprise in such a manner. 

Second, my colleagues’ position fails to appreciate the affective

qualities of the oratory in which the human worth comparison

occurred. Contrary to the claim that the "solicitor’s comparison of the

lives of both Humphries and Dickie Smith" was not "the centerpiece

of the solicitor’s argument," Maj. Op. at 20, this comparison was in

fact the piece-de-resistance of the prosecutor’s presentation to the

jury. One simply cannot review the argument without seeing that it

builds inexorably towards this apex. The devices the prosecutor

employs while making the comparison — dramatic repetition of the

words "[t]hat’s the same year," punctuation of a plea to the jury with

the phrase "how profane," the plaintive repetition of "if not" in his

ultimate exhortation, and the series of rhetorical questions — all stand

in stark contrast to the prosaic remainder of the record. Appreciation

of an argument’s dynamic compels the conclusion that the solicitor’s

human worth comparison was intended to be, and was, a climactical

flourish designed to move the jury to a sentence of death. 

I respect fully the prerogative of lawyers to make an emotional

close. The prosecutor’s position as advocate must also afford him

wide latitude of tactic. But the objective must at times extend beyond

securing the State’s wishes at any cost. To a juror unschooled in the

ways of the law, the solicitor’s human worth comparison may have

appeared a legitimate legal appeal, not the departure from historic

sentencing procedure that it was. Thus assured that the State’s invidious invitation was permitted, at least one juror may well have consciously engaged what would otherwise have remained only faintly

implicit in the evidence. Under Wiggins, this possibility satisfies the

prejudice prong of Strickland and supports resentencing. 

HUMPHRIES v. OZMINT 65
IV.

Capital procedure in our system must remain largely the province

of the states. And victim impact has many good and legitimate uses,

among them awakening juries to the tragic toll of serious crime. But

the comparison here was an abuse of this powerful prosecutorial tool,

an abuse that no reasonable attorney would sit and greet with silence.

To argue that a defendant should be sent to death because his life was

of less intrinsic value than his victim is to ask a jury to decide, not

on the character of the crime, not on the consequences of the crime,

not on the criminal record of the perpetrator of the crime, but on some

unfettered evaluation of human worth that works improper prejudice.

Victim impact evidence may play an especially important part in

capital proceedings where the crime has caused almost unfathomable

pain. But no state sentencing practice nor precept of federal law

should be read to permit a capital sentence to be based on a comparison of the relative value of human life or worth of human beings.

Human worth comparisons are the hallmarks of totalitarian governments. They do not belong in our country. Societies have gotten into

the deepest sort of trouble by making these comparisons an explicit

basis for the imposition of death. The most terrifying regimes of the

Twentieth Century were those in which governments weighted the

value of the lives of their citizens as a prelude to executing them. 

I realize that the transgression before us today does not even

approach the most terrible examples of human expendability. I appreciate that the sentence Humphries challenges was preceded by an

adjudication of guilt. And I am well aware that a variety of safeguards

in federal and state law work to protect the legitimacy of such convictions. 

But to say that Humphries was properly found guilty is one thing

and to say that he can properly be executed is quite another, when his

sentence is based on the kind of extraordinary arguments that the

prosecutor’s presentation represents. To accept this sentence is to set

foot on a road Americans will not recognize and our Constitution will

not tolerate. With great respect for my friends in the majority, I would

not take a single step along this path. 

66 HUMPHRIES v. OZMINT
Judge MICHAEL, Judge GREGORY, and Judge DUNCAN join

me in this dissent.

HUMPHRIES v. OZMINT 67