PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                        No. 17-4


LESLEY EUGENE WARREN,

                    Petitioner – Appellant,

             v.

EDWARD THOMAS, Warden,

                    Respondent – Appellee.



Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:05-cv-00260-CCE-JEP)


Argued: May 10, 2018                                              Decided: July 10, 2018


Before NIEMEYER, KEENAN, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge
Niemeyer and Judge Keenan joined.


ARGUED: Kristin Davis Parks, LAW OFFICE OF KRISTIN PARKS, Chapel Hill,
North Carolina, for Appellant. Jess D. Mekeel, NORTH CAROLINA DEPARTMENT
OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Jonathan E. Broun,
Elizabeth G. Simpson, NORTH CAROLINA PRISONER LEGAL SERVICES, INC.,
Raleigh, North Carolina, for Appellant. Joshua H. Stein, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North Carolina, for
Appellee.
PAMELA HARRIS, Circuit Judge:

       A North Carolina jury convicted Lesley Eugene Warren of the first-degree murder

of Katherine Johnson. The government sought the death penalty, and at the sentencing

phase it introduced evidence that Warren recently had been convicted of murdering two

other women. Because of the death sentence he received for one of those convictions,

Warren could not be paroled if sentenced to life for the murder of Johnson, and asked the

trial court to so instruct the jury. The court declined to give the instruction, and the jury

sentenced Warren to death.

       Under Simmons v. South Carolina, 

(1994), a defendant is entitled to

inform the jury when the alternative to a death sentence is life in prison without parole,

but only if the prosecutor puts at issue the risk that he will be a danger to society if

released from prison. The Supreme Court of North Carolina rejected Warren’s Simmons

claim, holding that the prosecutor in his case had not argued future dangerousness in

support of the death penalty, and the district court denied Warren’s petition for relief

under 28 U.S.C. § 2254. Because the Supreme Court of North Carolina reasonably

applied Simmons to Warren’s sentencing, we affirm.



                                             I.

                                             A.

       On July 15, 1990, Warren met Katherine Johnson, a 21-year-old college student, at

a picnic he was attending with a friend in High Point, North Carolina. Warren and

Johnson spent the rest of the day together, first with a group that included Warren’s

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friend and later by themselves. That night, Warren and Johnson went for a ride on

Warren’s motorcycle, ending up in the middle of a soccer field. There, Warren choked

Johnson to death. After hiding Johnson’s body in the trunk of her car and abandoning the

car in a parking garage, Warren returned to his friend’s house and went to sleep on the

couch.

         Five days later, police arrested Warren on a South Carolina warrant for the murder

of a woman named Velma Gray. When questioned, Warren confessed to killing Gray in

South Carolina in 1989. He also confessed to killing Jayme Hurley in North Carolina in

May 1990. And finally, he confessed to killing his third victim, Katherine Johnson, just

days earlier.

         In 1996, Warren was tried and convicted of the first-degree murder of Katherine

Johnson. By then, he already had been convicted in South Carolina of the first-degree

murder of Velma Gray, for which he received a life sentence. He also had pled guilty to

the first-degree murder of Jayme Hurley in North Carolina, for which he was sentenced

to death. That death sentence meant that under North Carolina law, Warren could not be

paroled if sentenced to life for the murder of Katherine Johnson.

                                             B.

         At the sentencing phase of Warren’s trial, the government sought the death penalty

based on a single aggravating factor: that Warren previously had been convicted of

another capital felony, see N.C. Gen. Stat. § 15A-2000(e)(2) (1995), in the form of his

two prior murder convictions. As a result, that Warren had killed not just one but three

women became a focal point of the prosecutor’s lengthy closing argument for the death

                                             3
penalty. Using the horrific details of all three murders, along with evidence from the

guilt phase of trial, the prosecutor argued that Warren deserved a death sentence.

       Because Warren’s Simmons claim turns on the prosecutor’s closing argument, we

describe it in some detail. The prosecutor began by describing the “depravity” of each of

Warren’s three murders, J.A. 1735, which he attributed to choices made by Warren: “He

could have chosen life. But instead, in all three instances, he chose death,” J.A. 1733 –

and not just any death, but death by slow strangulation, for “no reason” at all, J.A. 1734–

35. Warren killed because he liked it, the prosecutor argued, and he felt no remorse.

       Then, in a portion of the argument on which Warren focuses for his Simmons

claim, the prosecutor invoked the testimony of a psychologist, retained by the defense,

who had prepared a social history on Warren. The defense’s own witness, the prosecutor

argued, described Warren as having a “habit” of killing women, doing it “over and over

and over.” J.A. 1740. He noted a “pattern” in Warren’s behavior, consistently hiding the

evidence of his crimes – his victims’ bodies – “[i]n the water, in a grave, in a car.” J.A.

1741. “What will stop him?,” the prosecutor asked, before repeating, “Over and over and

over.” J.A. 1740.

       The prosecutor explained to the jury the aggravating factor on which the

government was relying – that Warren previously had been convicted of a capital felony

– and offered the first-degree murders of Hurley and Gray as support. The government

had introduced detailed evidence of those murders, the prosecutor said, so that the jury

could do a “character analysis” of the defendant, to “see whether or not [Warren]

deserves to die for what he did.” J.A. 1745. The answer, the prosecutor urged, was yes,

                                             4
addressing the defense’s mitigating evidence and arguing it was insufficient to reduce

Warren’s moral culpability for his crimes.

       Near the end of his argument – in the other portion on which Warren primarily

relies – the prosecutor acknowledged that “[t]he Bible tells us, you know, to turn the

other cheek, that . . . we should always give people a second chance.” J.A. 1760–61. But

Warren, he argued, already had been given a second chance, and “chose not to use” it;

instead, after murdering Velma Gray, Warren continued to kill. J.A. 1761. “How many

more chances do we have to give him?,” the prosecutor asked the jury. 

three.” 

prosecutor insisted, “is addicted to killing women.” 

concluded by talking again about the three women Warren had

murdered, and showing Johnson’s picture to the jury. He told the jury that while it could

not bring peace to the victims, it could restore their “dignity.” J.A. 1764. To do “justice”

for the victims and the community, the prosecutor finished, the jury should recommend

death. J.A. 1765.

       In an effort to persuade the jury to recommend a life sentence, Warren’s lawyers

argued numerous mitigating factors. Warren’s moral culpability, they contended, was

substantially reduced, primarily by abuse during his childhood and serious mental and

emotional disturbances in his youth and teenage years. The jury ultimately recommended

a sentence of death.

                                             C.

       Warren raised numerous issues on direct appeal of his conviction and death

sentence. Among them was a claim that the trial court violated the constitutional rule set

                                             5
out in Simmons when it refused to instruct the jury on his parole ineligibility. The

Supreme Court of North Carolina rejected that claim on the merits. Simmons, the court

explained, applies only where the government argues for the death penalty on the ground

that the defendant will pose a future danger to society; under those circumstances, it

violates due process to conceal from the jury that the defendant in fact will be confined to

prison for life, without the chance of parole.        But here, the court concluded, the

government had not based its plea for the death penalty on any threat of future danger to

the community: “We have reviewed the prosecutor’s argument that [the] defendant

contends entitles him to relief, and in our view the prosecutor did not argue future

dangerousness.” State v. Warren, 

, 455 (N.C. 1998). Instead, the court

found, the prosecutor argued that the “defendant was a serial killer deserving of the death

penalty,” based on the evidence of his three murders. 

Warren filed a habeas petition in federal district court under 28 U.S.C.

§ 2254. Warren identified 18 claims, including the Simmons issue. The district court

granted Warren’s motion to hold the case in abeyance pending resolution of his state

habeas challenge to his other North Carolina conviction, for the first-degree murder of

Jayme Hurley. Ten years later, the district court lifted the stay, rejected all of Warren’s

claims, and denied his habeas petition.

       Because the state supreme court had denied Warren’s Simmons claim on the

merits, the district court explained, Warren was entitled to relief only if that decision was

an “unreasonable application of[] clearly established [f]ederal law,” or “based on an

unreasonable determination of the facts.” J.A. 2128 (quoting 28 U.S.C. § 2254(d)).

                                             6
After a careful review of the prosecutor’s closing argument, the district court concluded

that Warren could not meet that standard: “The interpretation of the . . . Supreme Court

[of North Carolina] that the prosecutor did not argue future dangerousness was not

unreasonable based on a reading of the entire closing argument.” 

identified by Warren, the district court found, “constitute only a

few words and phrases in an extensive closing argument that was focused on Mr.

Warren’s past acts and status as a serial killer.” J.A. 2129 (emphasis added). First, there

was the description of Warren’s “habit” of killing women (and later the reference to

Warren as “addicted” to killing), coupled with the question, “What will stop him?” J.A.

2126–27. “Read in context,” the court concluded, it was not unreasonable to view those

statements, which came “at the end of a lengthy description of [Warren’s] murders,” as

emphasizing that Warren was a serial killer who was not stopped until he had killed three

times. J.A. 2127. Similarly, the reference to second chances, questioning “[h]ow many

more chances do we have to give him?,” reasonably was understood, in context, as

“rhetorical emphasis on the three murders Mr. Warren had committed:              his three

chances.” J.A. 2127–28. The focus of the prosecutor’s argument, the court concluded,

was Warren’s prior actions “in committing the three murders of which he was convicted”

as a “cowardly serial killer,” with the death penalty the “only way for the three murdered

women to achieve some sense of justice and dignity.” J.A. 2126–27.

       Warren timely appealed the district court’s dismissal of his habeas petition. We

granted a certificate of appealability limited to the Simmons claim.



                                             7
                                            II.

       We review the district court’s denial of a habeas petition de novo. Teleguz v.

Pearson, 

, 327 (4th Cir. 2012). But our analysis is circumscribed by the

amendments to 28 U.S.C. § 2254 enacted in the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Under AEDPA, we may not grant relief on a claim

adjudicated on the merits in a state court proceeding unless, as relevant here, the state

court’s determination is “contrary to, or involved an unreasonable application of, clearly

established [f]ederal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1).

       That is a high bar.    To be an “unreasonable application” of Supreme Court

precedent, the state court’s decision must be “objectively unreasonable, not merely

wrong; even clear error will not suffice.” White v. Woodall, 

, 1702 (2014)

(internal quotation marks omitted). We agree with the district court that the Supreme

Court of North Carolina did not unreasonably apply Simmons, and we therefore affirm.

       It is well established that in seeking the death penalty, the government may rely on

the “possibility that the defendant may be returned to society” and the risk that his

“probable future behavior” then would pose to the community. California v. Ramos, 

, 1003 (1983). Simmons does not change that rule. See 

(recognizing that prosecutors frequently “urge the jury to sentence the defendant to

death so that he will not be a danger to the public if released from prison”). Instead, it

establishes a defendant’s due process right, when confronted with that argument, to

inform the jury if in fact he is legally ineligible for parole, “as a means of responding to

                                             8
the State’s showing of future dangerousness.” 

(O’Connor, J., concurring); see

Richmond v. Polk, 

, 331 (4th Cir. 2004) (recognizing Justice O’Connor’s

concurrence as the controlling opinion in Simmons).

       In Simmons, the Court confronted a case in which the prosecutor argued to the jury

that its role was “to decide what to do with [the defendant] now that he is in our midst,”

and told the jury: “Your verdict should be a response of society to someone who is a

threat. Your verdict will be an act of 

(internal quotation

marks omitted).    That was enough, the Court held, to “strongly impl[y] that [the

defendant] would be let out eventually if the jury did not recommend a death sentence.”

(emphasis in original). And once the prosecutor had “put petitioner’s future

dangerousness in issue” in this way, due process entitled the defendant to respond by

“inform[ing] the capital sentencing jury – by either argument or instruction – that he is

parole ineligible.” 

–78; see also Kelly v. South Carolina, 

, 255

(2002) (finding that prosecutor implied defendant would be released from prison for

Simmons purposes when he expressed his hope that jurors would “never in [their] lives

again have to experience . . . being some thirty feet away from such a person as

[defendant]” (internal quotation marks omitted)). 1


       1
         Because the decision in Kelly v. South Carolina, 

(2002), came after
the state court’s 1998 decision in this case, it is relevant to our analysis under AEDPA
only to the extent it is “illustrative” of the rule laid out in Simmons. See Frazer v. South
Carolina, 

, 716 (4th Cir. 2005) (Motz, J., concurring); see also Wiggins v.
Smith, 

, 522 (2003). To the extent Kelly expands the contours of the right
established in Simmons – an issue on which we express no opinion – we cannot (and do
not) consider it.

                                             9
       This case, the Supreme Court of North Carolina held, is different. Here, according

to the state court, the prosecutor did not argue “future dangerousness” in support of the

death penalty, as contemplated by Simmons, so Warren had no due process right to

respond with information about his parole ineligibility. 

. And

because Simmons was not implicated, the state was entitled to apply its own rule that

“evidence regarding parole eligibility is not a relevant consideration in a capital

sentencing proceeding.” Id.; see 

–77 (explaining that “if the

prosecution does not argue future dangerousness,” then “the State may appropriately

decide that parole is not a proper issue for the jury’s consideration”). Like the district

court, we think the determination that the prosecutor did not put at issue Warren’s “future

dangerousness” constitutes a reasonable application of Simmons.

       As the district court explained, the prosecutor’s argument, read in full, reasonably

can be understood as essentially backward-looking. In support of the death penalty, that

is, the prosecutor relied not on the risk that Warren might in the future be released from

prison and endanger the community, but rather on what Warren already had done in the

past – namely, his actions and state of mind in committing the three murders of which he

was convicted. See J.A. 2129 (describing prosecutor’s argument as “focused on Mr.

Warren’s past acts and status as a serial killer”). That those murder convictions reveal

Warren to be a person fairly described as “dangerous” does not by itself trigger Simmons,

or virtually all capital proceedings would be governed by that decision. Cf. 

(reaffirming that decision whether to inform jury of possibility of parole

remains “generally left to the States”). What matters is whether the prosecutor urged the

                                            10
jury to look forward, to the possibility that the defendant eventually would be released

from prison if not sentenced to death and hence become a danger to the community. 

–78.

      The Supreme Court of North Carolina reasonably applied Simmons in concluding

that Warren’s prosecutor did not advance this “future dangerousness” argument. Taken

in context, the portions of the argument cited by Warren – “a few words and phrases in an

extensive closing argument,” J.A. 2129 – may sensibly be read as commenting on

Warren’s past crimes and character, rather than any prospect of his release from prison.

The question, “What will stop [the defendant]?,” cited throughout Warren’s briefs on

appeal, is paired with a description of Warren’s past crimes as especially depraved and of

Warren as a sociopath without a conscience. J.A. 1740–41. Against that backdrop, the

prosecutor reasonably may be understood as using his question – along with his

references to Warren’s “habit” of killing women or his “addict[ion] to killing,” J.A. 1740,

1761–62 – to emphasize that Warren was a remorseless “serial killer” who was not

stopped until he had committed three murders. 

; see J.A. 2127.

Similarly, when the prosecutor asks, “How many chances do we have to give [Warren]?,”

it is in discussing Warren’s past failure to avail himself of earlier “chances” not to

commit murder: “Well, you know, he had a second chance, and he chose not to use that

second chance. You know, he killed Velma Gray right here.” J.A. 1761. It is reasonable

to read those comments as alluding not to society’s need to defend itself against Warren’s

possible future release from prison, cf. 

, but instead to Warren’s



                                            11
moral reprehensibility and deservedness of the death penalty. See 

.

       In sum, it is not unreasonable to find that these statements, taken separately or

together, are different in kind from those in Simmons – statements that “put [Simmons’s]

future dangerousness in issue” by “strongly impl[ying]” that Simmons would “be let out

[of prison] eventually if the jury did not recommend a death sentence” and would pose a

“continuing threat to the community,” and linking that future threat to the jury’s need to

return a verdict in “self-defense.” 

, 178. Like the district court,

we are mindful that our review under AEDPA is highly deferential, and that relief may be

granted only if a state court adjudication is “objectively unreasonable.” See White, 134 S.

Ct. at 1702. The Supreme Court of North Carolina’s holding that Warren’s prosecutor

did not argue “future dangerousness” under Simmons falls well within the bounds of

reasonableness. 2



                                           III.

       For the foregoing reasons, we affirm the judgment of the district court.

                                                                              AFFIRMED

       2
          In light of this holding, we need not reach the government’s alternative
arguments against application of Simmons to this case. Accordingly, we express no view
as to the government’s contention that Warren was not parole ineligible within the
meaning of Simmons because his ineligibility was a function of his separate death
sentence for the murder of Jayme Hurley, rather than the sentencing options before the
jury in the instant case. Nor need we consider whether, as the government urges, any
Simmons error in Warren’s sentencing could have been deemed harmless under Brecht v.
Abrahamson, 

(1993).

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