Rehearing en banc granted, June 15, 2004




                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


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

                      Argued: December 4, 2003

                        Decided: May 3, 2004

     Before WILKINSON and DUNCAN, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed in part; vacated and remanded in part by published opinion.
Judge Wilkinson wrote the opinion, in which Judge Duncan joined,
and in Part IV of which Senior Judge Hamilton joined. Senior Judge
Hamilton wrote an opinion concurring in part and dissenting in part.


                             COUNSEL

ARGUED: Teresa Lynn Norris, CENTER FOR CAPITAL LITIGA-
TION, Columbia, South Carolina, for Appellant. Donald John
2                       HUMPHRIES v. OZMINT
Zelenka, Assistant Deputy Attorney General, Columbia, South Caro-
lina, for Appellees. ON BRIEF: Joseph Maggiacomo, CENTER FOR
CAPITAL LITIGATION, Columbia, South Carolina; Thomas R.
Haggard, Ridgeway, South Carolina, for Appellant. Henry Dargan
McMaster, Attorney General, John W. McIntosh, Chief Deputy Attor-
ney General, Columbia, South Carolina, for Appellees.


                             OPINION

WILKINSON, Circuit Judge:

   Shawn Paul Humphries received a sentence of five years for crimi-
nal conspiracy, twenty years for attempted armed robbery, and death
for the murder of Mendal "Dickie" Smith. After exhausting appropri-
ate state remedies, Humphries filed an unsuccessful habeas petition in
federal district court. He claimed that he received ineffective assis-
tance of counsel under the Sixth and Fourteenth Amendments because
of his counsel’s failure to object to the State’s closing arguments at
sentencing, which compared the respective worth of the life of the
victim to that of Humphries. Humphries also claimed that the State’s
failure to notify him of the use of victim impact evidence violated his
right to a fair trial under the Due Process Clause of the Fourteenth
Amendment. The district court dismissed the petition.

   We affirm in part, and vacate and remand in part. The South Caro-
lina Supreme Court reasonably interpreted federal law when it found
no constitutional violations concerning the extent of notice about the
introduction of victim impact evidence. On the facts of this case,
however, we find that the failure of Humphries’ counsel to object to
the State’s extensive and egregious use of comparative human worth
arguments amounted to ineffective assistance of counsel. This omis-
sion by Humphries’ counsel was, on these facts, so unduly prejudicial
that it rendered the jury’s recommendation of a capital sentence fun-
damentally unfair. We thus affirm Humphries’ convictions, but we
vacate the sentence of death and remand to the district court with
instructions that the writ be issued solely for purposes of resentenc-
ing.
                          HUMPHRIES v. OZMINT                           3
                                    I.

   On August 5, 1994, a jury convicted Shawn Paul Humphries of the
murder of Mendal "Dickie" Smith in Fountain Inn, South Carolina.
On the morning of January 1, 1994, Humphries, then age 22, and
Eddie Blackwell, then age 19, had been drinking beer when they
decided to rob a convenience store run by Smith. Humphries flashed
a gun he had stolen the night before and demanded Smith’s money.
Smith appeared to reach under the convenience store counter to get
a gun, and Humphries responded by firing a single, fatal shot at
Smith. Humphries was successfully prosecuted in South Carolina
state court, and a jury convicted him of attempted armed robbery,
possession of a firearm during the commission of a violent crime,
criminal conspiracy, and murder. On August 9, 1994, Humphries was
sentenced to death for murder, twenty years for attempted armed rob-
bery, and five years for criminal conspiracy.

   The South Carolina Supreme Court affirmed Humphries’ convic-
tion and sentence on direct appeal, and the Supreme Court denied cer-
tiorari. See State v. Humphries, 

(S.C. 1996), cert.
denied, 

(1997). Humphries’ application for post-
conviction relief in South Carolina state court was dismissed by the
Common Pleas Court on December 21, 1998, and his appeal was
rejected by the South Carolina Supreme Court on August 26, 2002.
See Humphries v. State, 

(S.C. 2002). Humphries then
filed for habeas relief in federal district court. The district court dis-
missed Humphries’ habeas petition, but subsequently granted a certif-
icate of appealability for the issues now before this court. See 28
U.S.C. § 2253(c) (2000).

                                   II.

   We review de novo a district court’s decision on a petition for writ
of habeas corpus based on a state court record. Spicer v. Roxbury
Corr. Inst., 

, 555 (4th Cir. 1999); see also Bell v. Ozmint,

, 233 (4th Cir. 2003). If a state court has resolved the
merits of a claim for post-conviction relief, 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 estab-
lished Federal law, as determined by the Supreme Court of the United
4                         HUMPHRIES v. OZMINT
States," 28 U.S.C. § 2254(d)(1), 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).

   In the present case, we focus on the question of whether the state
court decision "was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). A
state court decision is contrary to clearly established federal law if the
state court "applies a rule that contradicts the governing law set forth
in [the Supreme Court’s] cases." Williams v. Taylor, 

,
405 (2000). A state court decision involves an unreasonable applica-
tion of clearly established federal law if it "correctly identifies the
governing legal rule but applies it unreasonably to the facts of a par-
ticular prisoner’s case." 

   The requirements Humphries must satisfy in demonstrating an
unreasonable application of clearly established federal law under
§ 2254(d)(1), however, are onerous. As the Supreme Court has
recently reiterated,

     "a federal habeas court may not issue the writ simply
     because that court concludes in its independent judgment
     that the state-court decision applied [a Supreme Court case]
     incorrectly. Rather, it is the habeas applicant’s burden to
     show that the state court applied [that case] to the facts of
     his case in an objectively unreasonable manner."

Price v. Vincent, 

, 

, 1853 (2003) (quoting
Woodford v. Visciotti, 

, 24-25 (2002) (per curiam) (inter-
nal quotations omitted)). Notably, an "‘unreasonable application of
federal law is different from an incorrect application of federal law.’"

(quoting 

))
(emphasis in original).

   Humphries argues that he received ineffective assistance of counsel
in violation of the Sixth and Fourteenth Amendments when his coun-
sel failed to object to the State’s closing arguments at sentencing, in
which the State compared the general worth of Humphries’ life to that
of the victim. He also claims that the State’s failure to provide notice
                         HUMPHRIES v. OZMINT                          5
that it intended to introduce victim impact evidence in the sentencing
proceedings violated his right to a fair trial under the Due Process
Clause of the Fourteenth Amendment.

                                  III.

   We consider first Humphries’ claim of ineffective assistance of
counsel. For the reasons explored below, we conclude Humphries has
satisfied the foregoing requirements in arguing his counsel rendered
ineffective assistance in failing to object to the prosecution’s argu-
ment for the imposition of the death penalty. The Supreme Court has
concluded that a prosecutor may appropriately argue, and a jury may
appropriately consider, "victim impact" evidence relating to the vic-
tim’s personal characteristics at a capital sentence hearing. Payne v.
Tennessee, 

, 823 (1991). Recognizing that precedent, the
stringent requirements AEDPA places on the grant of federal habeas
relief, and mindful of the serious consideration given to this matter by
prior courts, we are nevertheless constrained to conclude that, because
of the use to which the "victim impact" evidence was put in this case,
Humphries is entitled to federal habeas relief under § 2254(d)(1).

                                  A.

   The Supreme Court has laid out a two-part test for evaluating
claims of ineffective assistance of counsel. See Strickland v. Washing-
ton, 

(1984). First, the defendant "must show that coun-
sel’s performance was deficient." 

To establish this
deficiency, the defendant must produce evidence that the "counsel’s
representation fell below an objective standard of reasonableness." 

   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." 

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

Prejudice is established in a capital case where the jury is considering
both aggravating and mitigating evidence during sentencing if "there
6                         HUMPHRIES v. OZMINT
is a reasonable probability that at least one juror would have struck
a different balance," but for the constitutional error. Wiggins v. Smith,

, 2543 (2003).

   The Strickland standard is a difficult one to satisfy, and for good
reason. Counsel must often make instantaneous decisions without the
luxury of hindsight that appellate courts, and especially habeas courts,
enjoy. See Truesdale v. Moore, 

, 753-54 (4th Cir. 1998).
But there are some actions or omissions that are so prejudicial that a
reviewing court must necessarily recognize counsel’s errors as inef-
fective assistance. The failure of Humphries’ counsel to object to the
State’s sentencing arguments comparing the overall worth of Humph-
ries’ life with that of the victim constitutes such a case of constitution-
ally deficient representation with a clearly prejudicial effect.

                                    B.

   In his closing arguments, the State’s solicitor repeatedly empha-
sized the comparative worth of the lives of the victim and of the
defendant. While the solicitor did not use the actual words "compara-
tive worth" or "value," he insistently and systematically contrasted the
apparently virtuous and productive life of the victim with Humphries’
allegedly worthless existence, and asked jurors to impose a death sen-
tence on that basis.

  The solicitor began his closing arguments by announcing that, in
addition to considering mitigating and aggravating evidence, the jury
would:

     . . . have evidence about the character of the Defendant to
     consider. And you’re going to have evidence about the vic-
     tim, Dickie Smith, to consider, because I would submit to
     you that he is as much a part of this portion of this trial as
     is Shawn Paul Humphries.

If the solicitor had merely used victim impact evidence to illustrate
the "victim’s uniqueness as an individual human being," 

(internal quotations omitted), his actions would be beyond
scrutiny. The prosecution could further have independently chal-
                          HUMPHRIES v. OZMINT                           7
lenged the character and criminal history of the defendant, and Hum-
phries’ counsel would have had no grounds to lodge a sustainable
objection.

   The problem is that the prosecutor did not stop there. Instead, he
drew repeated comparisons between the value and worth of the vic-
tim’s life and that of the defendant, an argument which any reason-
able observer would have found designed to secure a death sentence
from the jury. The way in which the victim led his life was contrasted,
at identical points in time, with the way the defendant had led his. For
example, the solicitor stated that:

        [I]n 1984 [Dickie Smith, the victim] 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 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 Humph-
     ries 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 stepdaugher — stepsister, said, "Please don’t put Shawn
     Paul Humphries in the electric chair." I’m sorry I did not
     feel it was appropriate to bring in a six year old girl Ashley
     and parade her in front of you.

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

The State’s clear purpose in using this time line was to contrast the
life of the victim with the life of the defendant in order to exhort the
jury to return a death sentence on the basis of the latter’s relative lack
of worth. The solicitor emphasized that "Dickie Smith is as much
about this case as Shawn Paul Humphries." He rhetorically asked the
jury "Who is the victim here, Shawn Paul Humphries or is it Dickie
8                        HUMPHRIES v. OZMINT
Smith?" and argued for the death penalty by asking the jury "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?" He con-
cluded by telling the jury that, while weighing the evidence of aggra-
vation and mitigation, they should consider that "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." This argument was set forth without objection, and
the jury, as noted, recommended a sentence of death.

                                  C.

   Victim impact evidence has an important and legitimate place in
capital sentencing proceedings. The Supreme Court in Payne v. Ten-
nessee has made clear that "if the State chooses to permit the admis-
sion of victim impact evidence and prosecutorial argument on that
subject, the Eighth Amendment erects no per se bar." 

. "A state may legitimately conclude that evidence about the
victim and about the impact of the murder on the victim’s family is
relevant to the jury’s decision as to whether or not the death penalty
should be imposed." 

name thus suggests, victim impact evi-
dence allows the jury "a quick glimpse of the life" that a defendant
"chose to extinguish"; it demonstrates the full impact of a crime, not
only on the victim, but also on loved ones left behind. 

(internal quotations omitted).

   The facts of Payne plainly illustrate the use to which such 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 survived, and who thus witnessed the
murder of his mother and sister.

   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," 

neither Payne nor any other Supreme Court
case has suggested that victim impact evidence may be used without
                         HUMPHRIES v. OZMINT                          9
limit, constraint, or reference to the harm caused by the crime to those
aggrieved. To the contrary, the Payne Court clearly limited the intro-
duction and use of victim impact evidence by prohibiting victim
impact evidence "that is so unduly prejudicial that it renders the trial
fundamentally unfair." 

   In particular, the Supreme Court has disapproved of the use of vic-
tim impact evidence to make comparative human worth arguments.
The Payne Court noted the concern "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." 

The Court concluded that:

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

(emphasis in original).

   The Payne Court also laid out a framework for drawing the line
between the legitimate and illegitimate uses of victim impact evi-
dence. The Court found that "[i]n the majority of cases . . . victim
impact evidence serves entirely legitimate purposes." 

But
it concluded 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 mecha-
nism for relief." 

Victim impact evidence that emphasizes
the harm a murder caused the victim, his family, and his loved ones
is unquestionably legitimate. However, the comparative worth argu-
ment presented in this case, calling for a death sentence based on the
relative value of Sean Humphries’ life vis-a-vis Dickie Smith’s, falls
squarely within the category of prosecutorial conduct that may be so
prejudicial that it renders a trial fundamentally unfair.

  The South Carolina Supreme Court held that Payne only prohibited
comparisons between the relative worth of victims, rather than com-
10                       HUMPHRIES v. OZMINT
parisons between victims and perpetrators. See Humphries v. State,

, 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 a commentary on evidence already before the jury. Nonethe-
less, distinguishing these two types of human worth comparisons
splits an awfully thin hair. Both comparisons miss the main point of
Payne, which is that victim impact evidence must be used to further
the traditional purposes of sentencing: namely that a sentence reflect
such factors as the nature and severity of the crime, the consequences
of the crime upon the unique lives of the victim and his family, or the
criminal history of the defendant. To permit a sentence of death to be
returned on the explicit and pointed comparative worth argument in
this case pushes Payne so far that the major objective of victim
impact evidence is lost, which is "informing the sentencing authority
about the specific harm caused by the crime in question." 

. This focus on the consequences of the crime ensures that
victim impact evidence promotes rather than retards the fundamental
purposes of the sentencing function. See 

(noting that the
objective of the Sentencing Guidelines is to calibrate sentences "to the
subjective guilt of the defendant and to the harm caused by his acts").

   It is undeniable that "‘[t]he State has a legitimate interest in coun-
teracting 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 fam-
ily.’" 

(quoting Booth v. Maryland, 

, 517 (1987) (White, J., dissenting)). The State here claimed that
its comparisons between the victim and the defendant merely
advanced this legitimate purpose and served as nothing more than a
comment on the evidence. The dissent notes that the sentencing pro-
ceeding included evidence about both the victim’s unique life and the
perpetrator’s at-risk childhood and subsequent criminal acts. See
Humphries v. State, 

, 167-68 (S.C. 2002). It stresses
that all of the solicitor’s arguments were based on evidence that was
properly included in the record. 

not at all suggest this evidence was inadmissible. The state
court properly admitted the victim-impact evidence. Our fine dissent-
                         HUMPHRIES v. OZMINT                         11
ing colleague notes the testimony of Randy and Pat Smith, Dickie’s
brother and wife. But we have found no error in the admission of their
testimony. Much of the solicitor’s closing argument also conformed
to the strictures of Payne. That the facts from which the prosecutor
drew his comparison were already in the record, however, 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 closing
argument reached the point at which differences in degree ripen into
differences in kind. The State did not simply seek to explore the tragic
consequences of this crime for the victim’s family and community or
to lay out the victim’s uniqueness as an individual. Nor was its argu-
ment confined to addressing the defendant’s past criminal record or
history. Rather, it sought, point-by-point and year-by-year, to demon-
strate to the jury unambiguously that at the very instant one life was
being put to good use, the other was not. This side-by-side compari-
son of the relative value of two lives was calculatedly incendiary and
rendered the sentencing fundamentally infirm.

   We recognize that many capital sentencing proceedings are going
to focus upon the persons of the victim and the perpetrator. This is
especially true since Payne approved many uses of victim impact evi-
dence. It may be to the advantage of the defendant to portray the vic-
tim of the offense unsympathetically, and it may be to the advantage
of the prosecution to paint the victim and his family in a feeling man-
ner and to cast doubt on the defendant’s mitigating evidence. All of
this is well within the bounds of permissible argument. But Payne
warns against the type of argument in support of the death penalty
based on comparative human worth employed here. See 

. To argue that a murderer merits mercy because he killed
"only" a prostitute or drug user, rather than a philanthropist, would
strike us as profoundly lawless. Similarly, to argue that a defendant
should be sent to death because his life was of less value than his vic-
tim 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.

  The words "Equal Justice Under Law" are engraved over the
entrance of the United States Supreme Court as a symbol of the law’s
12                       HUMPHRIES v. OZMINT
commitment to treat all litigants as individuals of equal dignity. See
Lyng v. Castillo, 

, 636 n.2 (1986). This individuality is
compromised, however, when prosecutors implore juries to hand
down death sentences on theories of comparative human worth. The
past lives which this jury was exhorted to balance bore no connection
or relation, save for the tragic events surrounding Dickie Smith’s
murder, and yet the State engaged in sweeping comparisons of both.
The very concept of a sentence should have operated to preclude the
comparison. One does not receive a sentence for leading a less valu-
able life than someone else. One receives a sentence under our system
for having committed a crime.

   This is certainly the view of the Supreme Court, which has
described victim-impact evidence as but another means of "informing
the sentencing authority about the specific harm caused by the crime
in question, evidence of a general type long considered by sentencing
authorities." 

. By contrast, the comparative
worth argument relied on here ranged far afield and 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, 

, 584-85 (1988) (quoting Zant v. Stephens,

, 885 (1983)) (prohibiting death penalty decisions "pred-
icated on mere ‘caprice’ or on ‘factors that are constitutionally imper-
missible or totally irrelevant to the sentencing process’"). The
comparison of what Humphries and Smith happened to be doing in
1984 or 1986 or 1988 or at some fortuitous past point in their separate
lives is the essence of an arbitrary and capricious circumstance. That
Dickie Smith happened to be building houses while Shawn Paul
Humphries happened to be breaking into houses is a judgment
freighted with comparative moral import. It was not, however, a per-
missible basis under the Due Process Clause on which to condemn the
defendant to death. Juries are free to mete out capital verdicts based
on the evidence before them, the consequences of the crime for the
victim’s family and loved ones, the presence or absence of a variety
of aggravating or mitigating circumstances, or the sheer heinousness
of the offense. See, e.g., South Carolina Code § 16-3-20(C). All of
these factors are focused on the 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
                         HUMPHRIES v. OZMINT                         13
defendant may not be condemned simply for being deemed, over the
long trajectory of life, a less estimable human being than his victim.

   This sort of comparison is foreign to most sentencing regimes. 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 juris-
dictions allow a broad range of victim impact evidence, none sanc-
tions the sort of comparative worth arguments advanced in this
proceeding. To place the matter in perspective, the United States Sen-
tencing Guidelines contemplate a multitude of enhancements and
departures for factors such as 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 inflic-
tion of significant physical or extreme psychological injury on the
victim, U.S.S.G. § 5K2.2, 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 sen-
tence of death. If we ignore Payne’s condemnation of the use of com-
parative 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 tech-
nique, . . . delivery, effectiveness." The argument was so effective,
however, precisely because it was so improperly prejudicial to Hum-
phries, and ignored the bedrock premise that "punishment should be
directly related to the personal culpability of the criminal defendant,"
California v. Brown, 

, 545 (1987) (O’Connor, J., concur-
ring).

   A number of state courts have recognized the dangers of indulging
arguments contrasting the human worth of a victim and a defendant.
See, e.g., State v. Koskovich, 

, 182 (N.J. 2001) (holding
that "the court’s directive to jurors that they balance the victim’s
14                        HUMPHRIES v. OZMINT
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");
State v. Muhammad, 

, 179 (N.J. 1996) ("Victim impact
testimony may not be used . . . as a means of weighing the worth of
the defendant against the worth of the victim."); State v. Storey, 

, 902 (Mo. 1995) (en banc) (finding ineffective assistance
of counsel because of the failure to object to prosecutor’s arguments:
"Whose life is more important to you? Whose life has more value?
The Defendant’s or [the victim’s]?"). We recognize that our own
review here is on collateral attack. However, the fact that the State
can point to no court that has sustained an argument like the instant
one bears on the question of whether the state court’s adjudication
was a reasonable one in light of the controlling Supreme Court prece-
dents. The State can only point to two cases which purport to recon-
cile Payne with comparative worth arguments. See State v. Haselden,

, 610 (N.C. 2003) (upholding a prosecutor’s argument
that compared the worth of the victim and defendant); Jackson v.
State, 

, 843 (Tex. Crim. App. 2000) (upholding an
argument encouraging the jury not to impose a life sentence, which
compared the defendant’s importance to the victim’s). These two
cases are distinguishable inasmuch as the comparisons between the
victims and defendants were nowhere near as extensive or egregious
as in this case, which stands alone in its resort to the year-by-year
chronology of two lives for the sole purpose of drawing an invidious
comparison between them.

                                    D.

   Humphries’ counsel should have known that the State’s compara-
tive worth arguments were constitutionally infirm and objected
accordingly. Yet neither of Humphries’ two counsel objected to the
State’s comparative worth arguments at trial. They did lodge a gen-
eral challenge to the admissibility of victim impact evidence without
prior notice, which they reserved for appeal. But they were remark-
ably silent during the comparative worth arguments, and admitted
after trial that their failure to object constituted ineffective assistance
of counsel.

   This court must of course "indulge a strong presumption that coun-
sel’s conduct falls within the wide range of reasonable professional
                         HUMPHRIES v. OZMINT                         15
assistance." Truesdale v. Moore, 

, 753-54 (4th Cir.
1998). But the State’s comparative worth arguments, which were at
once without precedent and at odds with traditional precepts of due
process, should have struck those learned in the law like a bucket of
ice water. The failure of Humphries’ counsel to object to these argu-
ments fell "below an objective standard of reasonableness," Strick-

, and was constitutionally deficient.

   Moreover, the State’s comparative worth arguments were suffi-
ciently prejudicial that they rendered the sentencing "fundamentally
unfair." 

. These forms of arguments represent
the types of appeals to jurors that the Supreme Court has long con-
demned in the death penalty context. The Supreme Court "has gone
to extraordinary measures to ensure that the prisoner sentenced to be
executed is afforded process that will guarantee, as much as is
humanly possible, that the sentence was not imposed out of whim,
passion, prejudice, or mistake." Eddings v. Oklahoma, 

,
118 (1982) (O’Connor, J., concurring). And "[i]t is of vital impor-
tance to the defendant and to the community that any decision to
impose the death sentence be, and appear to be, based on reason
rather than caprice or emotion." Gardner v. Florida, 

,
358 (1977) (plurality opinion). Given the force of the comparative
worth arguments made by the State at the critical juncture of the pros-
ecution’s closing argument, we safely conclude that "there is a rea-
sonable probability that at least one juror would have struck a
different balance," but for the constitutional error. Wiggins v. Smith,

, 2543 (2003).

   Respecting, as we do, the strictures of the Anti-Terrorism and
Effective Death Penalty Act, 28 U.S.C. § 2254(d), we must nonethe-
less vacate the sentence. Our holding, however, remains a narrow one.
We appreciate that closing arguments pack emotional punch. We rec-
ognize the undesirability of requiring counsel to lodge frivolous or
counterproductive objections and the desirability of affording each
side at a capital sentencing proceeding the latitude of an uninterrupted
close. We acknowledge that the standards for the submission of evi-
dence in sentencing are permissive, see State v. Gulledge, 

, 594 (S.C. 1997), and that much of the State’s attempt to under-
score the impact of the loss of this exemplary citizen’s life upon his
family and friends was permissible under Payne v. Tennessee. And
16                       HUMPHRIES v. OZMINT
we emphasize yet again that the failure to object here was not to gen-
eral, oblique, or inadvertent comparisons of victim and defendant,
which may be almost inescapable in light of the Payne decision.
Rather the failure to object pertained to a year-by-year, side-by-side
chronology of two past lives with the sole objective of comparing the
worthiness and value of them. It was this explicit resort to notions of
relative human worth unrelated to the crime at issue that traduced
basic standards of due process. The failure of Humphries’ counsel to
object to these arguments fell below the Strickland threshold, clearly
prejudiced the defendant, and compromised the jury’s recommenda-
tion of death.

                                  IV.

   Humphries raises an additional claim which bears on his trial and
resentencing. He asserts that the State’s failure to notify him of the
use of victim impact evidence during sentencing violated his right to
a fair trial under the Due Process Clause of the Fourteenth Amend-
ment. Humphries also asserts that his counsel reasonably believed at
the time of the trial that South Carolina Code § 16-3-20(B) entitled
Humphries to receive advance written notice of aggravating factors
that would be used at trial, which implicitly included victim impact
evidence. Humphries’ counsel claim that they prepared for trial on the
assumption that victim impact evidence was not going to play a role
at any phase of the proceeding. If they had known that victim impact
evidence would be used, they would have selected jurors differently,
reconfigured an expert witness’s testimony, and conducted a more
thorough investigation of the victim’s background.

   To begin with, Humphries cannot raise a state law issue in a federal
habeas petition, which exists for the purpose of redressing unconstitu-
tional detentions. See Lewis v. Jeffers, 

, 780 (1990)
("[F]ederal habeas corpus relief does not lie for errors of state law.").
He seeks to avoid this difficulty by contending that the South Caro-
lina statute at issue is really nothing more than an expression of fed-
eral due process principles. Even if we were to accept this contention,
however, Humphries’ claim would still fail.

  South Carolina Code § 16-3-20(B) provides that at the sentencing
phase of a capital trial, "[o]nly such evidence in aggravation as the
                          HUMPHRIES v. OZMINT                          17
State has informed the defendant in writing before the trial is admissi-
ble." The South Carolina Supreme Court on direct appeal noted that
the statute lists certain aggravating factors requiring notice. Victim
impact evidence is not listed as an aggravating factor and therefore
presumptively does not require notice. See State v. Humphries, 

, 55 (S.C. 1996).

   Even if the statute did somehow require notice of victim impact
evidence before trial, Humphries received written notice that the State
intended to introduce certain facts in evidence including "all circum-
stances surrounding the commission of these crimes." At the trial
itself, the State listed the victim impact witnesses on its witness lists,
and the State asserted that it had clear discussions with the defense
about presenting victim impact evidence only during the sentencing
phase of the trial.

   The notice could certainly have been more explicit concerning the
planned introduction of victim impact evidence, but the State was not
obligated under either the South Carolina statute or the Due Process
Clause to detail the victim impact evidence with greater specificity.
As the South Carolina Supreme Court found: "Capital defendants are
as free as the State to gather information relating to the characteristics
of the murder victim, and, therefore, generally have a fair and com-
plete opportunity to respond to the State’s factual allegations." State
v. 

. Humphries had the opportunity to
gather and present information to rebut the victim impact evidence.
The fact that he hired a private investigator to explore the victim’s
background suggests that he did in fact avail himself of this opportu-
nity.

   Humphries similarly claims a due process violation because "the
death sentence was imposed, at least in part, on the basis of informa-
tion which he had no opportunity to deny or explain." Gardner v.
Florida, 

, 362 (1977). He asserts this occurred because
he allegedly did not receive proper notice concerning the introduction
of victim impact evidence and, therefore, could not adequately pre-
pare his defense in advance. This claim fails for many of the same
reasons as the prior one. Humphries knew or reasonably should have
known that victim impact evidence would be used by the State during
the sentencing proceedings. He thus had ample opportunity to investi-
18                       HUMPHRIES v. OZMINT
gate and rebut that evidence. As the district court found, there is no
law that clearly requires timely, specific, and express notice of victim
impact testimony, and Humphries can point to no pertinent federal
authority to substantiate his claim. The South Carolina Supreme Court
thus reasonably interpreted federal law to find that the admission of
victim impact evidence did not violate his right to a fair trial under
the Due Process Clause of the Fourteenth Amendment.

                                   V.

   Capital trials in our federal system must remain largely the prov-
ince of the states. And victim impact evidence 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 which no reasonable attorney would sit
and greet with silence. It should not need saying that in our country
capital sentences do not rest on the scales of relative human worth.

  We affirm petitioner’s convictions. We vacate his sentence of
death, and remand with directions that the writ issue solely for pur-
poses of resentencing.

                                          AFFIRMED IN PART;
                              VACATED AND REMANDED IN PART

HAMILTON, Senior Circuit Judge, concurring in part and dissenting
in part:

   I agree with the court that the state’s failure to notify Shawn Paul
Humphries (Humphries) of its intended use of victim-impact evidence
during the sentencing phase of the trial did not violate Humphries’s
right to a fair trial under the Due Process Clause of the Fourteenth
Amendment. I also agree with the court’s conclusion that Humph-
ries’s sentence was not imposed, at least in part, on the basis of infor-
mation he had no opportunity to deny or explain in violation of
Gardner v. Florida, 

(1977). Accordingly, I concur in
Part IV of the court’s opinion. However, because I cannot agree with
the majority’s conclusion that the South Carolina Supreme Court
unreasonably applied Payne v. Tennessee, 

(1991), in
                          HUMPHRIES v. OZMINT                          19
rejecting Humphries’s claim that he received constitutionally ineffec-
tive assistance of counsel when his counsel failed to object to a por-
tion of the solicitor’s closing argument, I respectfully dissent from the
majority’s decision granting the writ of habeas corpus solely for the
purpose of resentencing Humphries.

                                    I

   Before I begin my analysis, it is helpful to set forth the background
facts surrounding the Payne issue. During the sentencing phase of the
trial, the solicitor proffered, and the state trial court admitted, all of
the evidence that was admitted during the guilt phase of the trial. Fol-
lowing 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 and they did not have hot water. When Dickie Smith was nine-
years old, his father died. After his father’s death, Smith and the other
family members began working to support the family. Randy Smith
testified that when Dickie Smith was in the ninth grade, he took a job
as a meat cutter at Bi-Lo after school, 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 Dic-
kie Smith and he was a good person.

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

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

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

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

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

   Humphries’s mother, Carla Scott (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 even-
tually left the children with their paternal grandparents and married
several more men. She reunited with the children only after she mar-
ried someone who would allow the children to live with her. Scott
                        HUMPHRIES v. OZMINT                        21
also discussed Humphries’s criminal record. According to Scott,
Humphries was arrested in 1984 for two counts of breaking and enter-
ing and was placed on probation. Thereafter, he was given more pro-
bation 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 for thirty days
and was placed on probation again. Humphries was arrested in Janu-
ary 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 probation. In 1990, Humph-
ries was charged in Alabama with stealing an automobile. As a result
of that charge, Humphries was sentenced to two years’ imprisonment
followed by four years of probation.

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

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

   Mary Shults (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,
  1
   The unfortunate circumstances of Humphries’s upbringing were fur-
ther confirmed by the testimony of two other witnesses, Ruby Badsen,
Humphries’s maternal grandmother, and Lindsay Badsen, Humphries’s
uncle.
22                       HUMPHRIES v. OZMINT
Shults testified Humphries’s father introduced Humphries to drugs
and alcohol sometime between the ages of six and ten.

   Humphries’s case in mitigation was closed with the testimony of
three witness, 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 testi-
fied she loved her step-brother a lot and wanted to see the jury return
a life sentence.

   Before the state trial court gave the jury its final instructions, the
solicitor and counsel for Humphries gave their closing arguments. In
his closing argument, the solicitor broke his argument down into four
parts, commenting to the jury that

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

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

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

     He missed school. He got in fights at school. He got sus-
     pended at school. He ran away. And so they brought him
                        HUMPHRIES v. OZMINT                        23
    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.

    So at age 15 he’s brought back in for another probation
    revocation. And this time the Family Court Judge said, "You
    know, enough is enough. We’re going to send you down to
    Columbia. We’re going to send you down there [to] see if
    we can’t figure out what makes you tick."

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

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

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

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

    Dickie Smith was born in 1950, fourth son, fifth child of a
    fellow named Alton Smith and a sweet lady named Lottie
    Mae Darnell Smith. They grew up poor. They didn’t have
    hot water. They had a spigot coming in and a tub next to the
    stove, and they had a few acres of cotton.
24                       HUMPHRIES v. OZMINT
     Dickie Smith is as much about this case as Shawn Paul
     Humphries. When Alton Smith died when Dickie was nine,
     he pulled himself up by his bootstraps and he started con-
     tributing to the family. He got all kinds of odd jobs picking
     cotton at a penny a pound, hunting rabbits, skinning them,
     dressing them out, selling them for 50 cents.

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

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

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

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

     Then in 1988, July the 4th, they have a little baby girl
     named Ashley. You know, the Defense brought in a 12 year
     old stepdaughter—stepsister, said, "Please don’t put Shawn
                         HUMPHRIES v. OZMINT                           25
    Paul Humphries in the electric chair." I’m sorry I did not
    feel it was appropriate to bring in a six year old girl Ashley
    and parade her in front of you.

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

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

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

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

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

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

    There are a lot of reasons for punishment. Rehabilitation is
    one reason, and rehabilitation is a proper goal in some cir-
    cumstances, but you’ve got to decide about whether this
26                       HUMPHRIES v. OZMINT
     Defendant, who at 13 is breaking the law, at 14 is breaking
     the law, at 15 is breaking the law, at 17 is going—is break-
     ing the law, at 18 is breaking the law and going to jail,
     who’s been given every chance that the system offers. You
     decide if you’re going to rehabilitate him.

     What are some other reasons for punishment? Retribution is
     a reason for punishment. That may not sound good, may not
     sound right, but, in fact, it is part of punishment, because
     retribution is our community saying you have done some-
     thing wrong and we’re going to punish you. . . .

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

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

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

     If not in a case as aggravating as this, if not in a case with
     absolutely no mitigation like this, if not in a case with a
     character like this, if not in a case when somebody like Dic-
     kie Smith is taken, then when are you going to do it? It’s not
                          HUMPHRIES v. OZMINT                           27
     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
     mercy, and he gave none. Shawn Paul Humphries comes in
     here and asks you for life, and he gave death. Is that fair?
     Is that justice? That’s what you’re here for is justice. It’s up
     to you.

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

   Following the state trial court’s instructions and the jury’s delibera-
tions, the jury recommended a sentence of death. At the post-trial
motions hearing, Humphries’s counsel objected to the solicitor’s use
of comparisons between Dickie Smith and Humphries during his clos-
ing argument, and the state trial court overruled the objection.

   On state habeas, Humphries claimed that his trial counsel were
constitutionally ineffective for failing to object to the solicitor’s clos-
ing argument, which he claimed was inappropriate and prejudicial
under Payne. The state habeas court rejected this claim because, in
the court’s view, there was no reference to the comparative worth of
Dickie Smith and Humphries. The court further noted that Payne
actually encourages the prosecution to comment on evidence on
record about the life of the victim and about the life of the defendant.
Because there was no showing the argument was improper, the court
28                        HUMPHRIES v. OZMINT
concluded that counsel for Humphries could not be deemed ineffec-
tive for failing to object to the solicitor’s closing argument. Humph-
ries appealed the denial of state habeas relief to the South Carolina
Supreme Court, and that court denied relief, concluding that Humph-
ries’s counsel was not constitutionally ineffective for failing to object
to the solicitor’s closing argument because the solicitor’s argument
was not improper under Payne and did not render the sentencing
phase of Humphries’s trial fundamentally unfair.

                                    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," 

the holdings, as opposed to the dicta, of the [Supreme] Court’s
decisions as of the time of the relevant state-court decision." Booth-El
v. Nuth, 

, 575 (4th Cir.) (internal quotation marks omit-
ted), cert. denied, 

(2002). Further, a state court’s deci-
sion is "contrary to" clearly established federal law, as determined by
the Supreme Court, either: (1) "if the state court applies a rule that
contradicts the governing law set forth in [Supreme Court] cases," or
(2) "if the state court confronts a set of facts that are materially indis-
tinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [Supreme Court] precedent." Wil-
liams v. Taylor, 

, 405-06 (2000). Finally, "[u]nder the
‘unreasonable application’ clause, a federal habeas court may grant
the writ if the state court identifies the correct governing legal princi-
ple from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case." 

Notably,
an "unreasonable application of federal law is different from an incor-
rect application of federal law," because an incorrect application of
federal law is not, in all instances, objectively unreasonable. 

                                    III

   The principal question before this court is whether the South Caro-
lina Supreme Court unreasonably applied Payne to the facts of this
                         HUMPHRIES v. OZMINT                          29
case. To properly analyze this question, we must take a close look at
the Supreme Court’s precedent concerning victim-impact evidence.

   In Booth v. Maryland, 

(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
Bronstein. 

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. 

The victim-impact state-
ment included all three forms of victim-impact evidence: accounts of
the emotional and psychological impact of the crime on the family,
descriptions of the Bronsteins’ personal characteristics, and the vic-
tims’ family members’ opinions and characterizations of the crimes
and the defendant. 

   In Booth, the Court held that all three forms of victim-impact evi-
dence are irrelevant to a determination of whether to impose a death
sentence, and that their admission thus risks arbitrary and capricious
imposition of the death penalty. 

The Court noted that,
because victim-impact evidence includes facts about which the defen-
dant was unaware at the time of the murder, it is unrelated to the
defendant’s culpability. 

The Court further noted that admit-
ting victim-impact evidence would yield arbitrary results because
victim-impact evidence would lead juries to impermissibly base their
decision on their evaluation of the relative worth of the victim, and
because the capital sentencing decision would partially depend upon
the degree to which the victim’s family members—if the victim
leaves any behind—are able to articulate their loss. 

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. 

   In South Carolina v. Gathers, 

(1989), the Supreme
Court extended Booth to cover a prosecutor’s comments on the mur-
der victim’s personal characteristics. 

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
30                       HUMPHRIES v. OZMINT
prosecutor made various references in his closing argument at the sen-
tencing phase about the victim’s personality and character, including
inferring from the victim’s possession of religious articles and a voter
registration card that the victim was a man of faith who cared about
his community, reading a prayer written by the victim that was found
at the murder scene, and noting that the victim had mental problems.

The Court found that the prosecutor’s statements were
"indistinguishable in any relevant respect from that in Booth" and,
thus, likewise violative of the Eighth Amendment. 

Accord-
ing to the Court, while victim-impact evidence relevant to the circum-
stances of the crime is admissible, the prosecutor’s statements went
far beyond those facts. 

   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. 

. 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. 

Addi-
tionally, the prosecutor commented extensively on the impact of the
murders on the orphaned child and said that the child will "want to
know what type of justice was done" when he is older. 

   In the Payne decision, the Court observed that "a State may prop-
erly conclude that for the jury to assess meaningfully the defendant’s
moral culpability and blameworthiness, it should have before it at the
sentencing phase evidence of the specific harm caused by the defen-
dant." 

Furthermore, the Court observed that Booth "un-
fairly weighted the scales in a capital trial; while virtually no limits
are placed on the relevant mitigating evidence a capital defendant
may introduce concerning his own circumstances, the State is barred
from either offering ‘a glimpse of the life’ which a defendant ‘chose
to extinguish,’" 

(quoting Mills v. Maryland, 

,
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." 

Court concluded that,
"if the State chooses to permit the admission of victim-impact evi-
dence and prosecutorial argument on that subject, the Eighth Amend-
ment erects no per se bar." 

Of note, the Payne Court did
not alter Booth’s holding that admitting evidence of the victims’ opin-
                        HUMPHRIES v. OZMINT                         31
ions of the crime and of the appropriate sentence for the defendant
violates the Eighth Amendment; rather Payne only allows evidence
of the victim’s personal characteristics and the harm inflicted upon
the victim’s family and community. 

n.2. The Court in
Payne noted that there was "no reason" to treat victim-impact evi-
dence "differently than other relevant evidence," 

but cau-
tioned 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 mecha-
nism for relief." 

                                 IV

   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. 

. 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. 

did not specifically prohibit victim-to-defendant com-
parisons, the South Carolina Supreme Court went on to address the
question of whether the solicitor’s comments rendered Humphries’s
sentencing proceeding fundamentally unfair. The court held:

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

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

.

                                    V

   Turning to the question of whether the South Carolina Supreme
Court unreasonably applied clearly established federal law as deter-
mined by the United States Supreme Court, initially it should be noted
that 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

. 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, 

(1986).

.

   In Darden, the Court addressed prosecutorial misconduct at the
guilt phase of a capital murder trial. In addressing Darden’s argument
that his trial and resulting conviction were fundamentally unfair
because of the prosecutor’s improper argument, the Court character-
ized the inquiry as whether the improper comments were so unfair as
to make the conviction a denial of due process. 

. The Darden Court based its due process standard on Donnelly
v. DeChristoforo, 

(1974), another prosecutorial miscon-
                         HUMPHRIES v. OZMINT                          33
duct case. In considering DeChristoforo’s claim that his first degree
murder conviction violated his due process rights, the Court stated
that the due process analysis properly addresses more than just the
questionable prosecutorial conduct itself. 

Instead, a court
making a due process inquiry must consider the challenged conduct
in relation to the proceeding as a whole. 

of a due pro-
cess claim premised on unfair prosecutorial conduct may thus depend
upon numerous factors, which include the nature of the prosecutorial
misconduct, 

-82, the extent of the improper
conduct, 

, the issuance of curative
instructions from the court, 

, any defense
conduct inviting the improper prosecutorial response, 

weight of the evidence. Id.; see also Boyd v. French, 

,
329 (4th Cir. 1998) (holding that a prosecutorial misconduct determi-
nation requires the court to look at the nature of the comments, the
nature and quantum of the evidence before the jury, the arguments of
opposing counsel, the court’s charge, and whether the errors were iso-
lated or repeated). Based on this precedent, it is evident that both Dar-
den and DeChristoforo apply to cases in which the defendant or
petitioner alleges that the admission of victim-impact evidence or pro-
secutorial comment on victim-impact evidence violated his rights
under the Due Process Clause of the Fourteenth Amendment.

   Under this approach, Humphries’s initial hurdle is to demonstrate
that the solicitor’s year-by-year chronology comments were improper.2
In this regard, the majority does not posit that any one of the solici-
tor’s comments, standing alone, was improper or factually inaccurate.
Rather, according to the majority, the year-by-year chronology com-
ments, collectively, created an impermissible situation in which the
solicitor asked for a sentence of death based solely on the relative
worth of the lives of Dickie Smith and Humphries.

  The fatal flaw in the majority’s analysis is that a victim-to-
defendant comparative worth argument is not prohibited by Supreme
  2
   Because the majority does not suggest that the state trial court
improperly admitted any victim-impact evidence, I will confine my anal-
ysis to the solicitor’s comments that the majority concludes violated
Humphries’s rights under the Due Process Clause of the Fourteenth
Amendment.
34                      HUMPHRIES v. OZMINT
Court precedent, let alone "clearly established" precedent. For good
reason, in fact, even the majority today recognizes that victim-to-
defendant comparisons are "inescapable in light of the Payne deci-
sion." Ante at 16.

   One of the reasons proffered by the Supreme Court supporting its
decision in Payne was that the states have a legitimate interest in
introducing evidence of a victim’s personal characteristics and evi-
dence of the harm caused to the victim’s family and society by the
defendant’s actions to counteract the mitigating evidence presented by
a 

. 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 evi-
dence, which included evidence of Humphries’s personal characteris-
tics, both good and bad. Thus, the solicitor’s year-by-year chronology
comments were within the boundaries of a question the jury was
required to consider—the blameworthiness of Humphries.

   Of course, allowing the introduction of victim-impact evidence
does not, and should not, open the door to evidence/argument ulti-
mately allowing the jury to make a comparative inquiry between the
victim and other victims in society, as the Court in Payne apparently
recognized. 

A victim-to-victim comparison is certainly
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 soci-
ety), it does not counteract the defendant’s mitigating evidence, which
was one of the main goals of Payne.

   Put simply, clearly established Supreme Court precedent does not
prohibit victim-to-defendant comparisons; they 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 evi-
dence. 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
                         HUMPHRIES v. OZMINT                          35
does give 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 the Payne framework; a framework that we, as
judges of an inferior court, are without liberty to change.

  Because Humphries cannot show that the solicitor’s comments
were improper, my analysis could end right here. However, even if
we need to get to the issue of prejudice, it is evident that Humphries
was not prejudiced by the solicitor’s year-by-year chronology.

   In its opinion, the majority posits that, "[g]iven the force" of the
solicitor’s year-by-year chronology, it is safe to conclude that at least
one juror would have struck a different balance between life and
death. Ante at 15. For this reason, the majority concludes, Humphries
was prejudiced by the solicitor’s year-by-year chronology.

   In my view, the majority’s prejudice analysis is flawed in several
respects. First, the record in this case simply belies the court’s claim
that the solicitor’s year-by-year chronology was the centerpiece of the
solicitor’s argument. It was not. As set forth above, the solicitor’s
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 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, as the majority would
have us believe, that Humphries should die because his life was worth
less than Dickie Smith’s. Indeed, the majority recognizes that the
solicitor did not use the words "comparative worth" or "value" in his
year-by-year chronology. Ante at 6. 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 evi-
dence, warranted the imposition of a sentence of death.
36                       HUMPHRIES v. OZMINT
   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 solic-
itor’s closing argument, Humphries is mentioned just four times. Fur-
ther, after the solicitor made his final reference to Humphries in his
year-by-year chronology by telling the jury that in 1988 Humphries
"went to jail for two years," the solicitor followed two sentences later
with the reminder to the jury that it had "the right to look at the
uniqueness of the individual." The solicitor then added that "Dickie
Smith, by everybody’s description to you was a unique individual."
Moreover, the solicitor essentially concluded his argument by asking
the jury to impose a sentence of death because: (1) the evidence in
aggravation was overwhelming; (2) there was a complete lack of miti-
gating evidence; (3) Humphries’s character was poor; and (4) "some-
body like Dickie Smith [was] taken." The solicitor’s closing
argument, as outlined above, simply did not invite the jury to return
a sentence based on the relative worth of the lives of Dickie Smith
and Humphries. Rather, the solicitor invited the jury to consider all
of the evidence in the record in reaching its verdict. That being the
case, it is difficult to see how the solicitor’s year-by-year chronology
prejudiced Humphries.

   Second, the solicitor’s comments that the majority finds so objec-
tionable were 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 contemporaneous
objection through the testimony of Randy and Pat Smith. The circum-
stances of Humphries’s upbringing were thoroughly explored by
Humphries’s counsel in the thirteen witnesses called by the defense.
Thus, we are not dealing with a situation where the alleged improper
comments mislead the jury into thinking the prosecution obtained
extra-judicial information not available to the jury. Cf. United States
v. Moore, 

, 159 (4th Cir. 1983) (noting that improper
prosecutorial comment might mislead the jury into thinking the prose-
cution obtained extra-judicial information not available to the jury).
Because the solicitor’s year-by-year chronology was based on evi-
dence already before the jury, it is hard to say that Humphries was
prejudiced by the solicitor’s comments.
                         HUMPHRIES v. OZMINT                          37
   Third, the facts concerning Humphries referred to by the solicitor
in his year-by-year chronology were already thoroughly recounted in
greater detail in the portion of the solicitor’s closing argument related
to Humphries’s character. No objection, even to this date, is being
raised concerning this portion of the solicitor’s closing argument. As
noted above, the solicitor’s 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 mentioned that Humph-
ries had, at age thirteen, "committed two breaking and enterings" and
was placed on probation. The solicitor pointed out that, because Hum-
phries continued to be disobedient in school, he was brought before
the family court on a probation violation and was released with stric-
ter conditions imposed. The solicitor added that, at age fifteen, Hum-
phries violated the terms of his probation and was "sent down to
Columbia." The solicitor also proffered that, at age sixteen, Humph-
ries was "an habitual truant," who "basically drop[ped] out of school."
The solicitor further noted that, at age seventeen, Humphries burglar-
ized a church. The solicitor noted that, at age eighteen, Humphries
went to Alabama and committed a larceny for which he was con-
victed 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
referred to by the solicitor in his year-by-year chronology were facts
recounted in greater detail earlier in his closing argument, it is diffi-
cult to conclude that Humphries was in any way prejudiced by the
portion of the solicitor’s argument related to the unique character of
Dickie Smith.

   Finally, the evidence in this case concerning the appropriate sen-
tence 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 Hum-
phries flashed a stolen gun and replied that he wanted money. While
there was evidence that Dickie Smith reached under a counter 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
38                      HUMPHRIES v. OZMINT
Humphries was armed with a deadly weapon. The evidence in mitiga-
tion proffered by Humphries to counteract the evidence in aggrava-
tion was carefully and meticulously attacked by the solicitor.
Moreover, that Dickie Smith was a unique person is not subject to
serious debate. In short, I harbor no doubt that, notwithstanding the
solicitor’s comments that the majority finds so objectionable, a sen-
tence of death would have resulted.

                                 VI

   One final word concerning the majority’s opinion. The majority
persuasively explains the dangers inherent in comparative worth argu-
ments and why, in theory, they should be prohibited. If we were free
from the constraints of § 2254 and Payne, one might agree with much
of what the majority has written. Ultimately, however, our standard
of review of the South Carolina Supreme Court’s decision is narrow.
Because the South Carolina Supreme Court identified the correct
legal standard from the Supreme Court’s decision in Payne, Humph-
ries must show that the South Carolina Supreme Court unreasonably
applied the Payne decision. Williams v. 

. In
this case, the South Carolina Supreme Court thoroughly explained
why the solicitor’s year-by-year chronology was not improper, let
alone, prejudicial under Payne. The majority today simply cannot
explain how the South Carolina Supreme Court unreasonably applied
the Payne decision and, for this reason, I am constrained to dissent.
Accordingly, I would affirm the district court’s denial of the writ.