PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-3

JOHNNY BENNETT,

Petitioner - Appellee,

v.

BRYAN P. STIRLING, Commissioner, South Carolina Department 

of Corrections; JOSEPH MCFADDEN, Warden, Lieber Correctional 

Institution,

Respondents - Appellants.

Appeal from the United States District Court for the District of 

South Carolina, at Charleston. Richard M. Gergel, District 

Judge. (2:13-cv-03191-RMG)

Argued: October 25, 2016 Decided: November 21, 2016

Before WILKINSON, KING, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the 

opinion, in which Judge King and Judge Harris joined.

ARGUED: Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL OF 

SOUTH CAROLINA, Columbia, South Carolina, for Appellants. John 

Henry Blume, III, CORNELL LAW SCHOOL, Ithaca, New York, for 

Appellee. ON BRIEF: Alan Wilson, Attorney General, John W. 

McIntosh, Chief Deputy Attorney General, Donald J. Zelenka, 

Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY 

GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for 

Appellants. Lindsey S. Vann, JUSTICE 360, Columbia, South 

Carolina, for Appellee.
2

WILKINSON, Circuit Judge:

Petitioner Johnny Bennett challenges the imposition of a 

capital sentence in the South Carolina courts. While recognizing 

full well the deferential standard of review under AEDPA, we 

nonetheless agree with the district court that the sentencing 

was suffused with racially coded references to a degree that 

made a fair proceeding impossible. We therefore affirm the 

judgment of the district court granting habeas relief.

I.

Bennett, a black man, was convicted in 1995 for murder, 

kidnapping, armed robbery, and larceny in a South Carolina trial 

court. In a separate penalty proceeding, the state, with 

Solicitor Donald Myers at the helm, emphasized the size 

difference between Bennett (6’6” and 300 pounds) and the victim 

Benton Smith, a black man with a slight build (5’7” and 135 

pounds). A mixed-race jury sentenced Bennett to death for the 

murder. On appeal, the South Carolina Supreme Court upheld 

Bennett’s convictions but reversed his death sentence, ordering 

the trial court to conduct a new sentencing. State v. Bennett, 

493 S.E.2d 845 (S.C. 1997) (Bennett I).

The second sentencing proceeding was held in 2000. As in 

the first trial, Myers led the prosecution and the jury 

sentenced Bennett to death. But this time, the jury was composed 

of white jurors only. And before this all-white jury, Myers 
3

chose to use racially charged language from the first sentence 

of his opening argument to his final soliloquy, casting aside 

the race-neutral presentation he had employed with the mixedrace jury. 

The most egregious appeals to racial prejudice came in his 

closing argument, in which he referred to Bennett using a slew 

of derogatory terms. Myers admonished the jury, “Meeting 

[Bennett] again will be like meeting King Kong on a bad day.” 

J.A. 1443. He also labeled Bennett a “caveman,” a “mountain 

man,” a “monster,” a “big old tiger,” and “[t]he beast of 

burden.” J.A. 1420-44. In addition, Myers intentionally elicited 

irrelevant, inflammatory testimony from one of the state’s 

witnesses, who recounted a dream in which he was chased by 

murderous, black Indians. While cross-examining a defense 

witness, Myers alluded to Bennett’s sexual partner as “the 

blonde-headed lady,” J.A. 1343-44, alerting the jury to the 

interracial nature of the relationship.

Bennett moved for a new trial, but the trial court denied 

his request. The court found that the “King Kong” comment “was 

not an appeal to racial prejudice” and was an “invited response” 

to the defense’s portrayal of Bennett as a peaceful and helpful 

prison citizen. J.A. 1628-29. As a result, the court concluded, 

the reference did not result in a denial of due process. The 
4

court analyzed the “caveman” comment separately and arrived at 

the same conclusions.

The South Carolina Supreme Court affirmed the death 

sentence, holding that the comments “did not improperly inject 

racial issues into the trial.” State v. Bennett, 632 S.E.2d 281, 

289 (S.C. 2006) (Bennett II). The court observed that the “King 

Kong” label “could have racial connotations” but found that 

Myers’s use of the term “was not an appeal to the passions or 

prejudices of the jury.” Id. at 288. Instead, the reference

conveyed Bennett’s “size and strength as they related to his 

past crimes” and was an invited response. Id. at 288-89. The 

court found the “caveman” comment “merely descriptive” of 

testimony that Bennett had twice pulled someone else by the 

hair. Id. at 289. The United States Supreme Court denied 

certiorari. Bennett v. South Carolina, 549 U.S. 1061 (2006) 

(mem.).

In 2008, Bennett sought post-conviction relief (PCR) in 

state court, arguing that the seating of a racially biased juror 

violated his right to an impartial jury under the Sixth and 

Fourteenth Amendments. While preparing for the PCR proceeding, 

Bennett’s counsel interviewed a former juror and asked why the 

juror thought Bennett committed the murder. The juror responded, 

“Because he was just a dumb nigger.” J.A. 1846. After hearing 

testimony from the juror, the PCR court denied relief on the 
5

grounds that the juror was not racially biased at the time of 

the actual sentencing. The South Carolina Supreme Court denied 

certiorari.

Bennett filed the instant petition for federal habeas 

relief under 28 U.S.C. § 2254 in 2014. He raised seven grounds 

for relief, including prosecutorial misconduct and juror bias. 

After a hearing, the district court granted relief independently 

on both grounds, vacated Bennett’s death sentence, and 

“return[ed] the matter to the Lexington County Court of General 

Sessions for resentencing within 180 days of [the] order.” 

Bennett v. Stirling, 170 F. Supp. 3d 851, 855 (D.S.C. 2016). 

According to the district court, the state courts unreasonably 

determined that the “King Kong” comment, “black Indians” 

testimony, and “blonde-headed lady” remark were not intentional 

appeals to racial prejudice. Id. at 861-67. The district court 

also found unreasonable the PCR court’s determination that the 

juror was not racially biased at the time of the sentencing. Id.

at 867-72. The respondents now appeal.

II.

We review de novo the district court’s decision to grant 

habeas relief under 28 U.S.C. § 2254. Winston v. Pearson, 683 

F.3d 489, 503-04 (4th Cir. 2012).
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A.

Under Section 2254(d), as amended by the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA), a federal court may 

not grant a state prisoner’s habeas petition unless the state 

court’s adjudication of the prisoner’s claim was legally or 

factually unreasonable. See 28 U.S.C. § 2254(d); Pub. L. No. 

104-132, § 104, 110 Stat. 1214, 1218-19 (codified at 28 U.S.C.

§ 2254). More precisely, Section 2254(d)(1) allows relief if the 

state court’s decision “was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court.” § 2254(d)(1). Circuit 

precedent “cannot form the basis for habeas relief.” Parker v. 

Matthews, 132 S. Ct. 2148, 2155 (2012). In addition, “[t]he more 

general the [federal] rule, the more leeway [state] courts have 

in reaching outcomes in case-by-case determinations.” Yarborough 

v. Alvarado, 541 U.S. 652, 664 (2004). Section 2254(d)(2), in 

turn, permits relief where the state court’s decision “was based 

on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.” § 2254(d)(2). 

A state court’s factual determinations are presumed correct, and 

the petitioner must rebut this presumption by clear and 

convincing evidence. § 2254(e)(1).

Federal courts thus owe state tribunals significant 

deference. In the words of the Supreme Court, “A state court’s 
7

determination that a claim lacks merit precludes federal habeas 

relief so long as ‘fairminded jurists could disagree’ on the 

correctness of the state court’s decision.” Harrington v. 

Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough, 541 U.S. 

at 664).

Section 2254 thus imposes a high yet not insurmountable 

hurdle to relief. The statute “reflects the view that habeas 

corpus is a ‘guard against extreme malfunctions in the state 

criminal justice systems,’ not a substitute for ordinary error 

correction.” Id. at 102-03 (quoting Jackson v. Virginia, 443 

U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in the 

judgment)). Federal habeas review may not be used “to secondguess the reasonable decisions of state courts.” Renico v. Lett, 

559 U.S. 766, 779 (2010). But AEDPA deference is not unlimited. 

It “does not by definition preclude relief” and “does not imply 

abandonment or abdication of judicial review.” Miller-El v. 

Cockrell, 537 U.S. 322, 340 (2003).

B.

Bennett alleges that the prosecutor appealed to racial 

prejudice in his capital sentencing proceeding. Accordingly, the 

“clearly established Federal law” that governs our analysis is 

the Supreme Court’s decision in Darden v. Wainwright, 477 U.S. 

168 (1986). Darden held that a prosecutor’s improper comments 

offend the Constitution if they “so infected the trial with 
8

unfairness as to make the resulting conviction a denial of due 

process.” Id. at 181 (quoting Donnelly v. DeChristoforo, 416 

U.S. 637, 643 (1974)); see Parker, 132 S. Ct. at 2153. Under 

this standard, it “is not enough that the prosecutors’ remarks 

were undesirable or even universally condemned.” Darden, 477 

U.S. at 180-81. Courts must conduct a fact-specific inquiry and 

examine the challenged comments in the context of the whole 

record. United States v. Young, 470 U.S. 1, 11-12 (1985).

Prosecutors, moreover, retain substantial latitude to 

present their case as they see fit. That latitude is not to be 

casually abridged. The Supreme Court has cautioned that “[t]he 

line separating acceptable from improper advocacy is not easily 

drawn.” Id. at 7. Accordingly, courts “should not lightly infer 

that a prosecutor intends an ambiguous remark to have its most 

damaging meaning” or that a jury “will draw that meaning from 

the plethora of less damaging interpretations.” Donnelly, 416 

U.S. at 647.

But while a prosecutor “may strike hard blows, he is not at 

liberty to strike foul ones.” Berger v. United States, 295 U.S. 

78, 88 (1935). It is beyond dispute that “[t]he Constitution 

prohibits racially biased prosecutorial arguments.” McCleskey v. 

Kemp, 481 U.S. 279, 309 n.30 (1987). Racial prejudice, “odious 

in all aspects, is especially pernicious in the administration 

of justice.” Rose v. Mitchell, 443 U.S. 545, 555 (1979). For 
9

this reason, the Supreme Court has “engaged in ‘unceasing 

efforts’ to eradicate racial prejudice from our criminal justice 

system.” McCleskey, 481 U.S. at 309 (quoting Batson v. Kentucky, 

476 U.S. 79, 85 (1986)).

Finally, we remain sensitive to the Court’s judgment that 

“the qualitative difference of death from all other punishments 

requires a correspondingly greater degree of scrutiny of the 

capital sentencing determination.” California v. Ramos, 463 U.S. 

992, 998-99 (1983). Courts cannot avert their eyes from the risk 

that “racial prejudice infect[ed] a capital sentencing 

proceeding . . . in light of the complete finality of the death 

sentence.” Turner v. Murray, 476 U.S. 28, 35 (1986) (plurality 

opinion).

For the reasons that follow, the prosecutor’s argument here 

exceeded all permissible bounds.

III.

The state courts unreasonably determined that the 

prosecutor’s references to Bennett during closing argument were 

not appeals to racial prejudice. Drawing on this flawed factual 

finding, the courts unreasonably concluded that Bennett’s right 

to due process was not violated.

A.

We understand that closing arguments can be florid. Vivid 

expression and exaggeration for effect are many an attorney’s 
10

stock-in-trade. But the remarks challenged here were 

unmistakably calculated to inflame racial fears and 

apprehensions on the part of the jury. Just before the jury left 

the courtroom to decide whether Bennett would receive a capital 

sentence, Myers delivered a final summation in which he 

alternated between characterizing Bennett as a primitive, 

subhuman species and a wild, vicious animal. Myers labeled 

Bennett an “old caveman,” a “mountain man” (twice), a “monster,” 

and a “big old tiger.” J.A. 1420-34. Referring to the murder and 

then to Bennett, the prosecutor remarked, “Painful, vile, cruel, 

inhuman, everywhere. Everywhere. Everywhere. The beast of 

burden.” J.A. 1444. The coup de grâce in this sad story arrived

when Myers warned the jury what would result if it did not 

impose the death penalty: “You give him life, the real Johnny 

will come back. You give him life and he’ll come back out. 

Meeting him again will be like meeting King Kong on a bad day. 

Vile Johnny. Mean Johnny. Manipulating Johnny. Murderous 

Johnny.” J.A. 1443.

The state courts, most notably the South Carolina Supreme 

Court, found that the “King Kong” comment was “not an appeal to 

the passions or prejudices of the jury.” Bennett II, 632 S.E.2d 

at 288. The state supreme court explained:

[T]he trial court properly determined that [Bennett’s] 

size and strength were probative of the aggravating 

circumstance of physical torture, which the [trial] 
11

court charged to the jury. In this regard, the 

Solicitor’s use of the term “King Kong” was not 

suggestive of a giant black gorilla who abducts a 

white woman, but rather, descriptive of [Bennett’s] 

size and strength as they related to his past crimes.

Id. The court also found that the “caveman” comment was “merely 

descriptive of two of [Bennett’s] past violent incidents” 

because the prosecutor made the remark while mentioning how 

Bennett pulled two individuals by their hair. Id. at 289.

With all respect, these were unreasonable findings of fact. 

The prosecutor’s comments were poorly disguised appeals to 

racial prejudice. It is impossible to divorce the prosecutor’s 

“King Kong” remark, “caveman” label, and other descriptions of a 

black capital defendant from their odious historical context. 

And in context, the prosecutor’s comments mined a vein of 

historical prejudice against African-Americans, who have been 

appallingly disparaged as primates or members of a subhuman 

species in some lesser state of evolution. We are mindful that 

courts “should not lightly infer that a prosecutor intends an 

ambiguous remark to have its most damaging meaning.” Donnelly, 

416 U.S. at 647. But here, “the prosecutor’s remarks were quite 

focused, unambiguous, and strong.” Caldwell v. Mississippi, 472 

U.S. 320, 340 (1985). The comments plugged into potent symbols 

of racial prejudice, encouraging the jury to fear Bennett or 

regard him as less human on account of his race.
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The “King Kong” comment especially drew on longtime staples 

of racial denigration. That comment was “not just humiliating, 

but degrading and humiliating in the extreme.” Boyer-Liberto v. 

Fontainebleau Corp., 786 F.3d 264, 285 (4th Cir. 2015) (en banc)

(internal quotation marks omitted). Likening Bennett to King 

Kong in particular stoked race-based fears by conjuring the 

image of a gargantuan, black ape who goes on a killing spree and 

proceeds to swing the frail, white, blonde Fay Wray at the top 

of the Empire State Building. Petitioner is right to note that 

the film is regarded by many critics as “a racist cautionary 

tale about interracial romance.” Br. of Appellee at 40 (quoting 

Phillip Goff et al., Not Yet Human: Implicit Knowledge, 

Historical Dehumanization, and Contemporary Consequences, 94 J. 

Personality & Soc. Psychol. 292, 293 (2008)).

In addition to the content of the remarks, the particular 

circumstances of this case do not leave any doubt that the 

challenged comments were appeals to racial prejudice, not 

innocent descriptions of Bennett’s size and strength. The 

prosecutor easily could have highlighted Bennett’s physical 

attributes in a race-neutral manner. There was no impediment to 

the prosecutor’s ability to note “repeated examples of 

[Bennett’s] proclivity to viciously and savagely attack others 

defenseless to someone of his size.” Reply Br. of Appellants at 

2. Indeed, the prosecutor did so in a race-neutral manner before 
13

the earlier mixed-race jury. In addition, the state used 

cardboard figures without objection in the second sentencing to 

convey the size disparity between Bennett and his victim. See

Br. of Appellants at 38. And of course, the jury could see 

Bennett and assess his size as he sat in the courtroom. See Br. 

of Appellee at 50. The prosecutor’s references then were not 

only gratuitous but were, as the district court explained, “a 

not so subtle dog whistle on race that this Court cannot and 

will not ignore.” Bennett, 170 F. Supp. 3d at 866.

B.

The South Carolina Supreme Court’s factual determinations 

with respect to Myers’s close led to its erroneous legal 

conclusion that Bennett’s due process rights were not violated. 

It is important to consider the procedural distortion wrought by 

the challenged remarks. The capital sentencing determination 

“requires the individual jurors to focus their collective 

judgment on the unique characteristics of a particular criminal 

defendant.” McCleskey, 481 U.S. at 311. Impairing the jury’s 

ability “to confront and examine the individuality of the 

defendant would be particularly devastating to any argument for 

consideration of . . . ‘[those] compassionate or mitigating 

factors stemming from the diverse frailties of humankind.’” 

Caldwell, 472 U.S. at 330 (quoting Woodson v. North Carolina, 

428 U.S. 280, 304 (1976) (plurality opinion)). The prosecutor’s 
14

closing comments here risked reducing Bennett to his race and 

damaged the jury’s ability to consider objectively, and 

individually, whether mercy was warranted.

We must also evaluate the challenged remarks in the context 

of the record as a whole. See Young, 470 U.S. at 11-12. The 

prosecutor’s opening statement began, “Ladies and gentlemen, you 

all have seen the defendant, Johnny Bennett; huge, giant man, 

six-six, six-seven, brutal monster size.” J.A. 273. In the next 

breath, Myers branded Bennett a “big old brute.” Id. Drawing to 

a close, Myers called Bennett a “big old bear of a fellow,” J.A. 

277, with a “[b]ig old bear of a fist,” J.A. 280.

The animal imagery was shortly reinforced by racial imagery 

from one of the state’s witnesses. The witness, Shannon Gilbert, 

was white and had been assaulted by Bennett several years 

earlier. The prosecutor asked Gilbert, “Do you have any 

consciousness about being in a hospital; do you know of any 

dreams or anything?” J.A. 393. Gilbert began to testify that he 

remembered only one dream from his stay at the hospital, but the 

defense objected on relevance grounds. Myers, who plainly knew 

what Gilbert would say, responded that Gilbert would “bring out 

the relevance.” Id. Gilbert proceeded to describe his dream:

“Indians were chasing me trying to kill me, and the thing that I 

thought was they were black. . . . [T]here might have been a 

link. You know, that I was remembering something about trying to 
15

get away from someone.” J.A. 394. At the district court hearing, 

the respondents conceded that Myers elicited the testimony and 

that they could not articulate a purpose for the testimony other 

than invoking racial fears.

Myers also made certain that the jury knew that Bennett had 

a sexual relationship with a white prison guard. Byron Collins, 

a defense witness, testified that Bennett helped him recover 

from depression while in prison. Myers’s initial crossexamination consisted of a series of inquiries about whether 

Bennett had encouraged Collins to be disruptive or to break 

prison rules; Collins answered each question in the negative. 

The defense briefly built on this line of questioning on 

redirect. On recross, Myers swerved in a different direction and 

asked, “There was one guard that loved Johnny Bennett and that 

was Judie Hardee, you remember her?” J.A. 1343. Collins 

responded, “The real big lady?” Id. Myers answered, “Judie 

Hardee, you remember her, the blonde-headed lady?” J.A. 1343-44. 

Collins said he didn’t remember, and the prosecution rested.

During his closing argument, Myers reminded the jury that 

Bennett was “having sex with the female guard” no fewer than 

seven times. J.A. 1441. While the state argues that “it is 

extremely common today for people to color their hair,” Br. of 

Appellants at 46, the district court rightly noted that “almost 

all women with blonde hair are white,” Bennett, 170 F. Supp. 3d 
16

at 864. As the district court found, “The Solicitor’s carefully 

choreographed questioning alerted [Bennett’s] all-white jury 

that his prison guard lover was a white woman.” Id. at 863.

There was therefore nothing isolated about the prosecutor’s 

racially-charged references to Bennett during closing argument. 

In Donnelly, the Supreme Court found that a habeas petitioner’s 

due process rights were not violated in part because the 

prosecutor’s remark “was but one moment in an extended trial.” 

Donnelly, 416 U.S. at 645. Here, in contrast, we do not have “a 

case where the misconduct of the prosecuting attorney was slight 

or confined to a single instance, but one where such misconduct 

was pronounced and persistent, with a probable cumulative effect 

upon the jury which cannot be disregarded as inconsequential.” 

Berger, 295 U.S. at 89.

Whether the “black Indians” testimony or the “blonde-headed 

lady” comment would independently merit reversal is not a 

question we need answer. Suffice it to say that those comments 

do nothing to dispel our misgivings about what transpired here.

Race was a recurrent theme throughout the capital sentencing 

proceeding, a theme designed to implant both racial fears and 

prejudices in the mind of the jury by playing upon ancient 

staples of racial disparagement and discrimination.

Our ruling does nothing to drain the adversary process of 

its spontaneity or to suppress the free-wheeling style that some 
17

of the finest advocates employ. The proceeding here hardly 

needed to be run this way. We note once again that in front of 

the mixed-race jury at the first sentencing, Myers managed to 

respect the Constitution’s prohibition on appeals to racial 

prejudice. His closing argument was race-neutral, and he did not 

elicit testimony on the “black Indians” dream.

When arguing before an all-white jury, however, the 

prosecutor suddenly and tellingly took a different, raceoriented approach. And though it should not have been necessary 

by the year 2000, the defense’s repeated objections put Myers on 

notice that he had come dangerously close to crossing the 

constitutional line even before his closing argument began. 

Immediately after Myers referred to Bennett’s sexual partner as 

“the blonde-headed lady,” the defense moved for a mistrial on

the basis of prosecutorial misconduct. Renewing the motion after 

the jury exited the courtroom, the defense argued that it had 

repeatedly alerted the court to “the Solicitor’s attempt[s] to 

insert race into this case” and that the “blonde-headed lady” 

comment was “one of the most despicable performances [the 

defense had] ever seen.” J.A. 1377.

There can be no fair claim that the prosecutor’s tactics 

were invited. The state conceded before the district court that 

there was no improper conduct by the defense; the defense’s 

witnesses merely portrayed Bennett as a non-violent peacemaker 
18

and a model citizen in the prison community. The prosecution had 

every right, of course, to paint a dramatically different 

picture, but through evidence that pointed to the actions of the 

man, not the happenstance of his race.

Finally, no curative instructions were given. Unlike the 

trial judge in Donnelly, who directed the jury to ignore the 

challenged remark, 416 U.S. at 644, the state trial court here 

never instructed the jury on particular comments, such as the 

“King Kong” and “caveman” references, the “blonde-headed lady” 

remark, or the “black Indians” testimony. Whether curative 

instructions would have cured the problem or simply served to 

reinforce the racial references is a question we need not 

address, for the jury retired from the courtroom unadmonished 

and its deliberations reached the prosecution’s desired result.

IV.

Even apart from the deference due them under AEDPA, we 

emphasize our respect for the efforts of our colleagues in state 

courts. We stress once again that prosecutors are entitled to 

significant latitude in pressing their closing arguments. There 

is no presumption of prejudice from a simple untoward remark; 

many challenged prosecutorial comments will amount to little 

more than fleeting remarks whose impact is negligible in the 

context of an entire trial. But the prosecutor’s conduct here

“so infected the trial with unfairness as to make the resulting 
19

[sentence] a denial of due process.” Darden, 477 U.S. at 181 

(quoting Donnelly, 416 U.S. at 643).*

The record here tells the story. There is no need for 

elaboration on our part. The criminal justice system must win 

the trust of all Americans by delivering justice without regard 

to the race or ethnicity of those who come before it. The many 

instances where the system performs its duties admirably help to 

build the trust of the people. A proceeding like this one 

threatens to tear that trust apart.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED

 * Our ruling on the prosecutor’s comments makes it 

unnecessary to consider Bennett’s claim that the seating of a 

racially biased juror violated his right to an impartial jury.