Smith v. Moore ( 1998 )


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  • PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    ANDREW LAVERN SMITH,
    Petitioner-Appellant,
    v.
    MICHAEL MOORE, Commissioner,
    No. 97-18
    South Carolina Department of
    Corrections; CHARLES CONDON,
    Attorney General, South Carolina,
    Respondents-Appellees.
    Appeal from the United States District Court
    for the District of South Carolina, at Rock Hill.
    Joseph F. Anderson, Jr., District Judge.
    (CA-96-212-0-17BD)
    Argued: December 1, 1997
    Decided: March 4, 1998
    Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Affirmed by published opinion. Judge Williams wrote the opinion, in
    which Judge Luttig joined. Judge Motz wrote a separate opinion con-
    curring in all of the opinion of the Court except for Part II.B.
    _________________________________________________________________
    COUNSEL
    ARGUED: John Henry Blume, III, CORNELL LAW SCHOOL, Ith-
    aca, New York, for Appellant. Lauri J. Soles, Assistant Attorney Gen-
    eral, Columbia, South Carolina, for Appellees. ON BRIEF: Sheri
    Lynn Johnson, CORNELL LAW SCHOOL, Ithaca, New York;
    Teresa L. Norris, CENTER FOR CAPITAL LITIGATION, Colum-
    bia, South Carolina, for Appellant. Charles M. Condon, Attorney
    General, John W. McIntosh, Deputy Attorney General, Donald J.
    Zelenka, Assistant Deputy Attorney General, Robert F. Daley, Assis-
    tant Attorney General, Columbia, South Carolina, for Appellees.
    _________________________________________________________________
    OPINION
    WILLIAMS, Circuit Judge:
    On January 14, 1984, a South Carolina jury convicted Andrew
    Smith of the brutal murders of Christy and Corrie Johnson. Following
    the jury's recommendation, the trial court sentenced Smith to death.
    After exhausting his state appeals, Smith petitioned the federal district
    court for habeas corpus relief. See 
    28 U.S.C.A. § 2254
     (West 1994).1
    The district court denied his petition for a writ of habeas corpus and
    granted his motion for a certificate of probable cause to appeal. On
    appeal, we conclude that none of the numerous claims raised by
    Smith provide a basis for habeas relief. Accordingly, we affirm.
    _________________________________________________________________
    1 Smith filed his habeas petition exactly three months prior to the enact-
    ment of the Antiterrorism and Effective Death Penalty Act of 1996
    (AEDPA). See Pub. L. No. 104-132, 
    110 Stat. 1214
     (enacted on April 24,
    1996). As a result, § 104 of the AEDPA, which amended 
    28 U.S.C.A. § 2254
    (d) (West Supp. 1997), does not apply to this appeal. See Lindh
    v. Murphy, 
    117 S. Ct. 2059
    , 2067-68 (1997) (holding that the new habeas
    standards of review do not apply to habeas petitions pending in federal
    court prior to the enactment of the AEDPA). Accordingly, we review
    Smith's "claims under pre-AEDPA law." Howard v. Moore, 
    131 F.3d 399
    , 403 (4th Cir. 1997) (en banc) (applying pre-AEDPA law to capital
    habeas petition filed prior to enactment of AEDPA).
    Section 107 of the AEDPA is also inapplicable to this appeal. South
    Carolina "contends that it became eligible for the procedures outlined in
    § 107 of the AEDPA as of June 18, 1996." Id. at 403 n.1. Even if true,
    Smith's state habeas petition was finally decided by the South Carolina
    Supreme Court prior to that date. See Bennett v. Angelone, 
    92 F.3d 1336
    ,
    1342 (4th Cir.) (concluding that § 107 is inapplicable if petitioner's state
    habeas petition had been finally decided prior to that state satisfying the
    opt-in requirements), cert. denied, 
    117 S. Ct. 503
     (1996).
    2
    I.
    On Saturday, May 28, 1983, Smith, armed with a pistol and a
    knife, went to the home of Christy and Corrie Johnson to see whether
    he could borrow their car. After the eighty-six year old Mr. Johnson
    refused, Smith struck him with such force that he fell to the floor.
    When the eighty-two year old Mrs. Johnson came to her husband's
    aid, Smith reached for his knife and stabbed her several times. Smith
    then stabbed Mr. Johnson as he got up from the floor to help his wife.
    During the course of the attack, Mrs. Johnson was stabbed seven-
    teen times on and about her face, back, chest, and hands. Mr. Johnson
    suffered twenty-seven stab wounds, including several defensive
    wounds, on and about his face, neck, chest, hands, wrists, and back.
    In addition to the stab wounds, both victims had"blunt force" injuries
    consistent with having been struck with a pistol. 2 Dr. Joel Sexton, the
    forensic pathologist who performed the Johnsons' autopsies, testified
    that most of the Johnsons' wounds and injuries were inflicted before
    death and during consciousness.
    After leaving his knife in Mrs. Johnson's back, Smith took the keys
    to the Johnsons' car and drove away from the scene. The following
    day, the police found the Johnsons' car stripped of its wheels, battery,
    spare tire, and various other parts. Based upon several different tips,
    the police lawfully searched the residence of Smith's mother. There,
    the police found the parts taken from the Johnsons' car.
    Smith was arrested and charged with the two murders. After waiv-
    ing his Miranda rights, Smith confessed to brutally murdering the
    Johnsons.3 In addition, Smith identified the knife found in Mrs. John-
    _________________________________________________________________
    2 Mr. Johnson's skull was fractured in two separate places. Mrs. John-
    son's skull was lacerated in several locations.
    3 Smith's confession reads, in pertinent part, as follows:
    Last Saturday I was drinking all day and walking. I needed a ride
    and I wanted to see if Christy Johnson would let me borrow his
    car, so I walked up to his house and he wouldn't let me use the
    car. We got to arguing. I got mad and I hit Christy Johnson. He
    fell to the floor and Corrie, his wife, came at me with something,
    3
    son's back as the knife he used to stab the Johnsons. Moreover, Smith
    told the police that he hid the pistol he had used during the murders
    in the false ceiling at his place of employment.
    Smith was indicted in October of 1983 on two counts of murder.
    At that time, the State notified Smith that it intended to seek the death
    penalty. Before the trial began, the trial court held a hearing to deter-
    mine Smith's competency to stand trial. Dr. John Dunlap, a psychia-
    trist at the South Carolina Department of Mental Health, testified at
    the hearing that Smith was capable of assisting his counsel and com-
    petent to stand trial. Based upon the evidence introduced at that hear-
    ing, the trial court specifically found, beyond a reasonable doubt, that
    Smith was competent to stand trial.
    Smith's trial began on January 9, 1984. Smith raised an insanity
    defense and presented the testimony of Dr. Helen Clark, a clinical
    psychologist. Dr. Clark testified that Smith suffered from schizophre-
    nia and a dissociative disorder at the time of the murders and could
    not distinguish right from wrong. Smith elected not to take the stand
    in his own defense. In reply, the State introduced the testimony of Dr.
    Spurgeon Cole, also a clinical psychologist. Dr. Cole testified that
    Smith's test results did not support Dr. Clark's conclusion that Smith
    was legally insane at the time of the murders. On January 14, 1984,
    the jury rejected Smith's insanity defense and found him guilty on
    both counts of murder. At the conclusion of the subsequent sentenc-
    ing phase, the trial court, following the jury's recommendation, sen-
    tenced Smith to death.
    On direct appeal, the South Carolina Supreme Court affirmed
    Smith's convictions and death sentences. See State v. Smith, 
    334 S.E.2d 277
     (S.C. 1985). The United States Supreme Court denied
    Smith's petition for a writ of certiorari. See Smith v. South Carolina,
    
    475 U.S. 1031
     (1986). Smith filed an application for post-conviction
    _________________________________________________________________
    I don't know what. I pushed her back. I reached for a knife and
    I stabbed her several times; then I stabbed Christy Johnson sev-
    eral times after he got up off the floor. I got the keys and went
    and got the car.
    (J.A. at 1073-74.)
    4
    relief (PCR) in state court on July 9, 1986. After an evidentiary hear-
    ing, the state PCR court denied Smith's application as to the guilt
    phase of his trial, but ordered that Smith be resentenced pursuant to
    Skipper v. South Carolina, 
    476 U.S. 1
     (1986). 4 Neither party appealed
    this order.
    On October 26, 1987, Smith's resentencing trial began. After four
    days of testimony, the jury recommended the imposition of the death
    sentence. Following the jury's recommendation, the trial court once
    again sentenced Smith to death. On direct appeal, the South Carolina
    Supreme Court affirmed this death sentence. See State v. Smith, 
    381 S.E.2d 724
     (S.C. 1989). The United States Supreme Court denied
    Smith's petition for a writ of certiorari. See Smith v. South Carolina,
    
    494 U.S. 1060
     (1990).
    Smith filed an application for PCR in state court on August 13,
    1990. After an evidentiary hearing, the state PCR court denied
    Smith's application. The South Carolina Supreme Court denied
    Smith's petition for a writ of certiorari. The United States Supreme
    Court again denied Smith's petition for a writ of certiorari. See Smith
    v. South Carolina, 
    515 U.S. 1126
     (1995).
    On January 24, 1996, Smith filed a habeas petition pursuant to 
    28 U.S.C.A. § 2254
     in the United States District Court for the District of
    South Carolina. On August 27, 1996, a hearing was held before a fed-
    eral magistrate judge. In February of 1997, the magistrate judge
    issued a 151-page Report and Recommendation in which he recom-
    mended that the district court deny Smith's request for an evidentiary
    hearing and federal habeas corpus relief. In June of 1997, the district
    court adopted the Report and Recommendation and denied Smith's
    petition for federal habeas relief.
    On appeal, Smith contends: (1) that South Carolina's"physical tor-
    ture" aggravating circumstance is unconstitutional; (2) that his coun-
    sel were ineffective for failing to present evidence in mitigation of
    _________________________________________________________________
    4 In Skipper v. South Carolina , 
    476 U.S. 1
     (1986), the Supreme Court
    held that a defendant's Eighth and Fourteenth Amendment rights were
    violated if the sentencing court refused to admit evidence of his adapt-
    ability to prison life. 
    Id. at 4-5
    .
    5
    punishment at his resentencing trial; (3) that he was incompetent to
    stand trial; (4) that the State violated his Sixth Amendment right to
    counsel; (5) that the grand jury and the petit jury were selected in vio-
    lation of the Equal Protection Clause; (6) that the trial court's instruc-
    tions on expert testimony and insanity violated the Sixth Amendment;
    and (7) that the trial court erroneously instructed the jury that its sen-
    tencing recommendation must be unanimous. We address Smith's
    arguments in turn.
    II.
    A.
    In his federal habeas petition, Smith first contends that South Caro-
    lina's "physical torture" aggravating circumstance does not require an
    intent to torture and, therefore, fails to genuinely narrow the class of
    persons eligible for the death penalty. In the alternative, Smith con-
    tends that even if the physical torture aggravating circumstance
    requires an intent to torture, a finding of intent was unsupported by
    the evidence in this case.
    1.
    To satisfy the Eighth and Fourteenth Amendments, a state's capital
    sentencing scheme must suitably channel or limit the jury's discretion
    in imposing the death penalty. See Lewis v. Jeffers, 
    497 U.S. 764
    , 774
    (1990); Maynard v. Cartwright, 
    486 U.S. 356
    , 362 64 (1988);
    Godfrey v. Georgia, 
    446 U.S. 420
    , 428 (1980) (plurality opinion).
    Whether a particular aggravating factor suitably channels or limits a
    jury's discretion depends, in part, on whether it"genuinely narrow[s]
    the class of persons eligible for the death penalty." Zant v. Stephens,
    
    462 U.S. 862
    , 877 (1983). An aggravating factor does not genuinely
    narrow the class of persons eligible for the death penalty "[i]f the sen-
    tencer fairly could conclude that [it] applies to every defendant."
    Arave v. Creech, 
    507 U.S. 463
    , 474 (1993). Smith contends that
    South Carolina's "physical torture" aggravating factor fails to genu-
    inely narrow the class of persons eligible for the death penalty
    because it does not require an intent to torture separate and distinct
    from the intent to kill. We disagree.
    6
    Under South Carolina law, physical torture exists"when the victim
    is intentionally subjected to serious physical abuse prior to death."
    State v. Smith, 
    381 S.E.2d 724
    , 726 (S.C. 1989) (emphasis added); see
    also State v. Elmore, 
    308 S.E.2d 781
    , 785 n.2 (S.C. 1983). Thus,
    despite Smith's contentions to the contrary, it is clear that South Caro-
    lina law requires an intent to torture. Using the charge upheld in
    Elmore, 308 S.E.2d at 785 n.2, the trial court defined physical torture
    as follows:
    Physical torture is the intentional infliction of serious, vile,
    horrible or inhuman abuse upon the body of another before
    death. The instantaneous death of the victim does not consti-
    tute torture. Physical torture may include the malicious
    infliction of bodily harm to another by depriving him or her
    of a member of his or her body or by rendering a member
    of his or her body useless, or by seriously disfiguring his or
    her body or a member of his or her body, or the intentional
    and unmerciful prolonging of severe pain and abuse to the
    body of another, or the intentional and unmerciful infliction
    of serious and extensive physical pain and abuse to the body
    of another.
    (J.A. at 2093 (emphasis added).) We conclude that the trial court's
    instruction adequately conveyed to the jury that it had to find an intent
    to torture.
    Moreover, the trial court's definition of torture"make[s it] clear
    that something other than those factors that a juror might expect to
    find present in an ordinary murder must be present." Jones v. Murray,
    
    976 F.2d 169
    , 174 (4th Cir. 1992). In other words, an ordinary person
    "could [not] conclude that [the ``physical torture'] aggravating circum-
    stance applies to every defendant," Arave, 
    507 U.S. at 474
    , who
    intended to kill his victim. Cf. Cartwright, 
    486 U.S. at 364
     (invalidat-
    ing aggravating circumstance that "an ordinary person could honestly
    believe" described every murder); Godfrey, 
    446 U.S. 428
    -29 (invali-
    dating aggravating circumstance that "[a] person of ordinary sensibil-
    ity could" honestly believe described "almost every murder").
    Accordingly, we hold that South Carolina's "physical torture" aggra-
    vating circumstance "genuinely narrow[s] the class of persons eligible
    for the death penalty." Zant, 
    462 U.S. at 877
    .
    7
    2.
    Smith also contends that even if the "physical torture" aggravating
    circumstance requires an intent to torture, a finding of intent to torture
    was unsupported by the evidence in this case. This argument, like the
    last, must fail. The brutality of the murders, as evidenced by the num-
    ber and nature of the injuries inflicted, was more than sufficient to
    support the jury's conclusion that Smith intended to torture the John-
    sons. Cf. Gilbert v. Moore, No. 96-12, 
    1998 WL 19936
    , at *6 (4th
    Cir. 1998) (noting that the savagery of the attack left no uncertainty
    concerning whether the defendants acted with intent).
    Mr. Johnson's autopsy revealed that he had been stabbed twenty-
    seven times, including several defensive wounds, on or about his face,
    neck, chest, hands, wrists, and back. In addition to the stab wounds,
    Mr. Johnson had "blunt force" injuries consistent with having been
    struck with a pistol. As a result of those blows, Mr. Johnson's skull
    was fractured in two separate locations. Mrs. Johnson's autopsy
    revealed that she had been stabbed seventeen times, including several
    defensive wounds, on or about her face, back, chest, and hands. Like
    her husband, Mrs. Johnson had "blunt force" injuries characterized by
    lacerations, abrasions, and contusions that were consistent with hav-
    ing been struck with a pistol.
    Dr. Joel Sexton, the forensic pathologist who performed the autop-
    sies on the Johnsons, testified at trial that most of the Johnsons'
    wounds were inflicted before death. In addition, Dr. Sexton testified
    that the wounds were most probably "inflicted during . . . conscious-
    ness." (J.A. at 1918.) Dr. Sexton's testimony is supported by the
    nature of the wounds, the physical evidence discovered at the crime
    scene, and Smith's own confession.
    First, the existence of "defensive wounds" on the wrists and hands
    of the Johnsons indicate that they were both alive and conscious dur-
    ing the attack and tried to defend themselves. Also, the smearing and
    pooling of blood at different locations in the Johnsons' home demon-
    strates that the Johnsons were alive and conscious as they struggled
    with Smith. Finally, Smith's own account of the murders indicates
    that the Johnsons were alive and conscious during much of the attack.
    According to Smith, he first struck Mr. Johnson. When Mrs. Johnson
    8
    came to her husband's aid, Smith stabbed her several times. After
    wounding Mrs. Johnson, Smith turned his attention back to Mr. John-
    son, whom he stabbed several times. After bludgeoning Mr. Johnson,
    Smith resumed stabbing Mrs. Johnson. Based upon the foregoing, we
    conclude that a finding of intent to torture is amply supported by the
    evidence in this case.
    B.
    At Smith's resentencing, the trial court submitted several aggravat-
    ing circumstances to the jury for their consideration. In addition to
    finding physical torture, the jury, in returning a recommendation of
    death, found that Smith committed the murders while in the commis-
    sion of a felony -- larceny with the use of a deadly weapon. In a non-
    weighing state, such as South Carolina, the jury's reliance on an
    invalid aggravating factor may not "infect the formal process of
    deciding whether death is an appropriate penalty" if the jury also
    "finds at least one valid aggravating factor." Stringer v. Black, 
    503 U.S. 222
    , 232 (1992) (noting that if the invalid factor would not have
    made a difference to the jury's determination the error was harmless).
    Thus, if the "physical torture" aggravating circumstance were invalid,
    we must determine whether it infected the jury's decision to sentence
    Smith to death. See Tuggle v. Netherland, 
    79 F.3d 1386
    , 1391-92 (4th
    Cir.) (noting that harmless error analysis is appropriate when one
    aggravating factor is determined to be invalid), cert. denied, 
    117 S. Ct. 237
     (1996); see also Brecht v. Abrahamson , 
    507 U.S. 619
    , 637
    (1993) (noting that federal court may not grant habeas relief unless
    convinced that "the error ``had substantial and injurious effect or influ-
    ence in determining the . . . verdict'" (quoting Kotteakos v. United
    States, 
    328 U.S. 750
    , 776 (1946))).
    In Tuggle, this Court considered six factors in determining whether
    an invalid aggravating circumstance had a substantial and injurious
    effect or influence on the jury's verdict. See Tuggle, 
    79 F.3d at 1393
    .
    They include:
    (1) the strength of the remaining aggravating circumstance;
    (2) the evidence admitted . . . at the sentencing hearing to
    establish the invalid aggravating circumstance; (3) the evi-
    dence improperly excluded at the sentencing hearing;
    9
    (4) the nature of any mitigating evidence; (5) the closing
    argument of the prosecutor; and (6) any indication that the
    jury was hesitant or entertained doubt in reaching its sen-
    tencing determination.
    
    Id. at 1393
    . The district court, after a thorough analysis of these six
    factors, concluded that any error in the "physical torture" aggravating
    circumstance was harmless. We agree.
    As to the first Tuggle factor, the jury also found the presence of a
    second aggravating circumstance -- commission of a felony. Specifi-
    cally, the jury found larceny with the use of a deadly weapon. That
    finding is clearly supported by the record. Smith confessed to killing
    the Johnsons with a knife. Moreover, he confessed to taking the John-
    sons' car. Even Smith concedes, as he must, that there is "sufficient
    evidentiary support for the [larceny] aggravator." (Appellant's Br. at
    20-21.)
    As to the second Tuggle factor, the State would have introduced
    evidence regarding the brutal manner in which Smith killed the John-
    sons during sentencing even absent the question of physical torture.
    Moreover, but for the fact that Smith was resentenced pursuant to
    Skipper v. South Carolina, 
    476 U.S. 1
     (1986), the jury would have
    heard the identical evidence during the guilt phase. As a result, the
    jury did not hear any evidence that was only relevant to the allegedly
    invalid aggravating circumstance.
    Because Smith does not contend that any evidence was improperly
    excluded, the third Tuggle factor has no application to the issues pres-
    ented here. Likewise, Smith concedes that the fourth Tuggle factor
    has "no bearing here." (Appellant's Br. at 20.)
    With respect to the fifth Tuggle factor, the prosecutor's closing
    argument focused on all of the statutory aggravating circumstances
    presented to the jury. Smith argues, however, that the prosecution was
    primarily concerned with the "physical torture" aggravator. For sup-
    port, Smith notes only that the prosecutor's closing argument on the
    "physical torture" aggravator required four pages of transcription,
    whereas his closing argument on the "larceny" aggravator required
    less than one page. That fact alone, however, is hardly evidence that
    10
    the prosecution primarily focused on the"physical torture" aggrava-
    tor. To find the "larceny" aggravator, the jury had to find only that
    Smith used a deadly weapon and took a piece of property belonging
    to the Johnsons. Here, the defense did not seriously dispute, nor could
    they, that Smith used a knife and stole the Johnsons' car. As a result,
    it is not surprising that the prosecution spent less time explaining to
    the jury the elements of, and the evidence supporting, the "larceny"
    aggravating circumstance than it spent explaining the elements of, and
    the evidence supporting, the "physical torture" aggravating circum-
    stance.
    With respect to the sixth Tuggle factor, the jury returned its sen-
    tencing verdict after only two hours of deliberation. Although the jury
    did send a question to the judge concerning parole, there is no clear
    evidence indicating that the jury was hesitant or entertained doubt in
    reaching its sentencing determination.
    Applying these factors, we conclude that even if the"physical tor-
    ture" aggravating circumstance were somehow constitutionally
    infirm, it did not have a substantial and injurious effect or influence
    on the jury's decision to sentence Smith to death. As a result, any
    error was harmless. The record in this case contains an unimpeach-
    able "larceny with a deadly weapon" aggravating circumstance. The
    jury did not hear any evidence that was only relevant to the allegedly
    invalid aggravating circumstance. No evidence was improperly
    excluded as a result of the allegedly invalid aggravating circumstance,
    and Smith concedes that any error did not affect his ability to intro-
    duce mitigating evidence. The prosecution did not argue solely for the
    allegedly invalid factor during closing argument, and the jury returned
    its verdict after only two hours of deliberation.
    III.
    Next, Smith contends that his counsel were ineffective for failing
    to investigate, prepare, and present evidence in mitigation of punish-
    ment at his resentencing trial. In particular, Smith argues that his
    counsel failed to present evidence that he (1) had a non-violent char-
    acter and (2) would adapt well to prison. The test for reviewing
    claims of ineffective assistance of counsel is well established. See
    Strickland v. Washington, 
    466 U.S. 668
     (1984). Smith must demon-
    11
    strate that his counsel's performances fell below an objective standard
    of reasonableness. See 
    id. at 687-91
    . If he does, Smith must then show
    that the deficient performance prejudiced his defense to the point that
    he was deprived of a fair trial. See 
    id.
     As a result, Smith's counsel
    may be deemed ineffective only if their "conduct so undermined the
    proper functioning of the adversarial process that the trial cannot be
    relied on as having produced a just result." 
    Id. at 686
    . The question
    of whether Smith's counsel were ineffective is a mixed question of
    law and fact that we review de novo. See Griffin v. Warden, 
    970 F.2d 1355
    , 1357 (4th Cir. 1992).
    A.
    After reviewing Smith's contentions, we conclude that his counsel
    were not objectively unreasonable in failing to present evidence that
    Smith had a non-violent character. Had Smith's counsel attempted to
    paint Smith as a non-violent man with a good character, the State
    could (and most likely would) have introduced evidence that Smith
    (1) was involved in the murder of David Craig; (2) had been accused
    of raping and assaulting a young girl; (3) was implicated in the mur-
    der of another individual named Patel; and (4) had a reputation in the
    community for being violent.5 Because of the aforementioned evi-
    dence, Smith's counsel decided that it would be"dangerous" to put
    Smith's character into issue. We conclude that counsel's strategic
    decision not to make Smith's character an issue was not only reason-
    able, but unassailable. See Strickland, 
    466 U.S. at 689
     (noting pre-
    sumption that conduct being challenged was an appropriate and
    necessary trial strategy under the circumstances); see also Bell v.
    Evatt, 
    72 F.3d 421
    , 429 (4th Cir. 1995) (recognizing "that strategies
    devised after extensively investigating the law and facts relevant to
    any and all probable options are virtually unchallengeable"). Accord-
    ingly, Smith's counsel were not ineffective for failing to present evi-
    dence that Smith had a non-violent character.
    _________________________________________________________________
    5 One of Smith's own character witnesses testified at the second State
    PCR hearing that Smith had a reputation for violence.
    12
    B.
    Despite Smith's contentions to the contrary, his counsel did intro-
    duce evidence of his adaptability to prison. Dr. Lesley Greene testi-
    fied that she had met with Smith and had reviewed his psychological
    files and tests. Based upon her evaluation and investigation, Dr.
    Greene testified that Smith would successfully adapt to prison life. In
    sum, Smith has simply not demonstrated "that counsel's performance
    was deficient." Strickland, 
    466 U.S. at 687
    .
    C.
    In addition to the evidence of Smith's adaptability to prison life,
    Smith's counsel introduced mitigating evidence regarding Smith's
    mental illness. Dr. Helen Clark testified that when she saw Smith a
    couple of days after he was arrested, he was showing symptoms of
    schizophrenia. She testified that, in her opinion, Smith did not know
    right from wrong at the time of the murders. Smith's counsel also
    introduced mitigating evidence regarding Smith's lack of intent. Spe-
    cifically, they used Smith's own confession to illustrate that Smith did
    not intend to rob and murder the Johnsons. Rather, they argued that
    the murders occurred as a result of an argument after the Johnsons
    would not let Smith borrow their car. After reviewing the record, we
    are convinced that counsel's performance was not deficient.
    IV.
    Next, Smith contends that he was incompetent to stand trial
    because he was taking Mellaril.6 At trial, however, Smith's counsel
    _________________________________________________________________
    6 "Mellaril is the trade name for thioridazine, an antipsychotic drug."
    Riggins v. Nevada, 
    504 U.S. 132
    , 129 (1992). In Riggins, the Supreme
    Court held that the defendant's Sixth and Fourteenth Amendment rights
    were violated by the forced administration of Mellaril during trial. See
    
    id. at 135
    . Unlike the defendant in Riggins , the administration of Mellaril
    to Smith was suspended before trial. Also unlike the defendant in
    Riggins, Smith's trial counsel did not contend that Smith was incompe-
    tent to stand trial because he was taking Mellaril. Rather, Smith's coun-
    sel believed that if Smith stopped taking the drug that his psychosis
    would be revealed to the jury. Smith concedes that such a condition did
    not appear.
    13
    argued that Smith would be incompetent if taken off Mellaril. As a
    result, this issue was neither raised on direct appeal, nor in Smith's
    first PCR application. Rather, Smith raised this issue for the first time
    in his second PCR application. As a result, the state PCR judge dis-
    missed this claim as procedurally defaulted.7 See Aice v. State, 
    409 S.E.2d 392
    , 394 (S.C. 1991) (holding that "as long as it was possible
    to raise the argument in his first PCR application, an applicant may
    not raise it in a successive application"). This claim is now barred
    from further state collateral review.
    Because Smith did not properly present this claim in state court, we
    hold that Smith is procedurally barred from raising the claim before
    us on federal habeas review. See Coleman v. Thompson, 
    501 U.S. 722
    , 731-32 (1991) (holding that a claim dismissed on a state proce-
    dural rule is procedurally barred on federal habeas review); Harris v.
    Reed, 
    489 U.S. 255
    , 262 (1989) (holding that a federal habeas court
    may not review a claim when a state court has declined to consider
    its merits on the basis of an adequate and independent state proce-
    dural rule). Smith contends, however, that competence to stand trial
    cannot be waived and, therefore, cannot be defaulted. For the reasons
    that follow, we disagree.
    The Supreme Court has held that an incompetent defendant cannot
    knowingly or intelligently waive his right to have the court determine
    his competency. See Drope v. Missouri, 
    420 U.S. 162
    , 171 (1975)
    (noting that competency is essential to a fair trial); Pate v. Robinson,
    
    383 U.S. 375
    , 378 (1966) (holding that the conviction of an incompe-
    tent defendant violates due process). Neither Drope nor Pate, how-
    ever, support Smith's argument that competence to stand trial may be
    raised at any time. The rather unremarkable premise behind Drope
    and Pate is that an incompetent defendant cannot knowingly or intel-
    ligently waive his rights. See Pate, 
    383 U.S. at 384
    . Unlike waiver,
    which focuses on whether conduct is voluntary and knowing, the pro-
    cedural default doctrine focuses on comity, federalism, and judicial
    economy.
    _________________________________________________________________
    7 Smith failed to present this issue to the South Carolina Supreme Court
    when he petitioned for a writ of certiorari.
    14
    In Noble v. Barnett, 
    24 F.3d 582
     (4th Cir. 1994), this Court specifi-
    cally held that the rules governing habeas petitions had "nothing to do
    with the doctrine of waiver." 
    Id. at 588
    . In so holding, this Court flatly
    rejected the argument that "a claim of incompetency to stand trial can
    never be forfeited." 
    Id. 587
    ; see also Clanton v. Muncy, 
    845 F.2d 1238
    , 1240-41 (4th Cir. 1988) (holding that a claim of incompetency
    to stand trial may be defaulted). Although Noble dealt with the abuse
    of the writ doctrine, we believe that its holding applies with equal (if
    not greater) force here. Put simply, the rationale of Drope and Pate
    are inapposite in the context of a procedural default. But see Bundy
    v. Dugger, 
    816 F.2d 564
    , 567 (11th Cir. 1987) (stating that "a defen-
    dant can challenge his competency to stand trial for the first time in
    his initial habeas petition"). Accordingly, we hold that a claim of
    incompetency to stand trial asserted for the first time in a federal
    habeas petition is subject to procedural default. Because Smith does
    not argue that he can demonstrate cause for and resulting prejudice
    from the default or that he has suffered a fundamental miscarriage of
    justice, the district court did not err in denying Smith an evidentiary
    hearing on his competence to stand trial.8 See Wainwright v. Sykes,
    
    433 U.S. 72
    , 90-91 (1977) (holding that if the petitioner can show
    cause for the state procedural default, and prejudice resulting there-
    from, the federal courts can address the issue's merits); Murray v.
    Carrier, 
    477 U.S. 478
    , 495-96 (1986) (stating that where a petitioner
    has suffered a fundamental miscarriage of justice a decision on the
    merits is appropriate without regard to a procedural default).
    _________________________________________________________________
    8 Prior to the start of Smith's first trial, a hearing was held to determine
    whether Smith was competent to stand trial. Based upon the evidence
    introduced at that hearing, the trial court found, beyond a reasonable
    doubt, that Smith was competent to stand trial. This factual finding is
    entitled to a presumption of correctness in a federal habeas corpus pro-
    ceeding. See 
    28 U.S.C.A. § 2254
    (d) (West 1994). Because Smith failed
    to present clear and convincing evidence to the contrary, the magistrate
    judge determined that the issue was without merit and should be dis-
    missed. The district court adopted the magistrate judge's Report and
    Recommendation and denied Smith's request for a competency hearing.
    If the issue were not procedurally defaulted, we would do likewise.
    15
    V.
    Next, Smith contends that his Sixth Amendment right to effective
    assistance of counsel was violated when Dr. Spurgeon Cole, a psy-
    chologist originally retained by Smith, testified on behalf of the State
    that Smith was not legally insane.9 Specifically, Dr. Cole testified that
    Dr. Helen Clark, the psychologist ultimately retained by Smith to help
    establish the insanity defense, misinterpreted Smith's test results.
    According to Smith, Dr. Cole's testimony was based upon confiden-
    tial information protected by the attorney-client privilege.
    We begin our analysis of Smith's claim by noting that the
    "attorney-client privilege is a creation of the common law, not the
    Constitution." Lange v. Young, 
    869 F.2d 1008
    , 1012 n.2 (7th Cir.
    1989). Because federal habeas review is limited to"violations of the
    United States Constitution or its law and treaties," Cooper v. Taylor,
    
    103 F.3d 366
    , 370 (4th Cir. 1996) (en banc), cert. denied, 
    118 S. Ct. 83
     (1997), a mere violation of Smith's attorney-client privilege would
    not warrant habeas relief, see Lange, 
    869 F.2d at
    1012 n.2 (noting that
    "[e]ven if a violation of the attorney-client privilege occurred, this
    violation alone would be insufficient grounds for[habeas] relief").
    Thus, even though South Carolina has extended the attorney-client
    privilege to cover a defendant's communications with a psychiatrist
    employed to help prepare the insanity defense,10 see State v.
    _________________________________________________________________
    9 Dr. Cole testified at the first state PCR hearing that he only testified
    for the State because Smith's trial counsel thought that it would be help-
    ful to the defense. Smith's trial counsel confirmed Dr. Cole's explana-
    tion, admitting that they honestly believed that Dr. Cole's testimony
    would be helpful to the defense. Smith's trial counsel also thought that
    if they objected to Dr. Cole's testimony the State would call Dr. John
    Dunlap -- the psychiatrist from the South Carolina Department of Men-
    tal Health who testified at Smith's pre-trial competency hearing that he
    was capable of assisting his counsel and competent to stand trial --
    whose testimony they believed would be less helpful to the defense.
    10 The South Carolina Supreme Court rejected Smith's claim on direct
    appeal because "[t]he record [was] void of any evidence [that Dr. Cole]
    was hired to help establish the insanity defense." State v. Smith, 
    334 S.E.2d 277
    , 279 (S.C. 1985) (concluding that "Dr. Cole was employed
    solely to aid in the defense's jury selection"). As a result, the South Caro-
    lina Supreme Court concluded that no confidential relationship existed
    between the two.
    16
    Hitopoulus, 
    309 S.E.2d 747
    , 749 (S.C. 1983), Smith is entitled to
    habeas relief only if the Sixth Amendment is violated when the State
    calls a defense-retained psychiatrist as a rebuttal witness. The State
    argues that granting Smith the relief he seeks would create a new rule
    of constitutional law. As a result, we "must apply Teague before con-
    sidering the merits of [Smith's] claim." Caspari v. Bohlen, 
    510 U.S. 383
    , 389 (1994) (noting that, if raised by the State, the Teague inquiry
    is a threshold matter).
    It is well established that "new rules will not be applied or
    announced in cases on collateral review unless they fall into one of
    two exceptions." Penry v. Lynaugh, 
    492 U.S. 302
    , 313 (1989) (citing
    Teague v. Lane, 
    489 U.S. 288
    , 311-13 (1989)). 11 A rule is "new" for
    purposes of Teague if "the result was not dictated by precedent exist-
    ing at the time the defendant's conviction [and sentence] became
    final." 
    Id. at 301
    ; see also Caspari , 
    510 U.S. at 389
     (1994) (outlining
    the Teague analysis). In other words, a rule is "new" if reasonable
    jurists considering the claim would not "``have felt compelled by exist-
    ing precedent' to rule in [the petitioner's] favor." See Graham v.
    Collins, 
    506 U.S. 461
    , 467 (1993) (emphasis added) (quoting Saffle
    v. Parks, 
    494 U.S. 484
    , 488 (1990)).
    Smith's sentence became final in March of 1990, when the United
    States Supreme Court denied his petition for certiorari on direct
    appeal. See Smith v. South Carolina, 
    494 U.S. 1060
     (1990). There-
    fore, we must determine whether the rule necessary to produce the
    result Smith seeks -- the State violates the Sixth Amendment when
    it calls a defense-retained psychiatrist as a witness -- was dictated or
    compelled by precedent existing at that time. See Teague, 
    489 U.S. at 301
    .
    _________________________________________________________________
    11 As noted above, Teague is subject to two exceptions.
    First, a new rule should be applied retroactively if it places cer-
    tain kinds of primary, private individual conduct beyond the
    power of the criminal law-making authority to proscribe. Sec-
    ond, a new rule should be applied retroactively if it requires the
    observance of those procedures that are implicit in the concept
    of ordered liberty.
    Teague v. Lane, 
    489 U.S. 288
    , 307 (1989) (internal quotation marks,
    alterations, and citations omitted). Neither exception is relevant here.
    17
    "Surveying the legal landscape" in March of 1990, Graham, 
    506 U.S. at 468
    , a reasonable jurist would have found no case dictating
    the result Smith now seeks. Indeed, that jurist would have found at
    least two cases to the contrary. In Noggle v. Marshall, 
    706 F.2d 1408
    (6th Cir. 1983), the Sixth Circuit held that the Sixth Amendment is
    not violated when the State calls on rebuttal a defense-retained psy-
    chiatrist. 
    Id. at 1415-16
    . Similarly, in Lange, 
    869 F.2d at 1008
    , the
    Seventh Circuit held that a defendant's Sixth Amendment right to
    counsel was not violated when the state called as a witness a psychia-
    trist originally contacted by the defense. 
    Id. at 1012-13
    . We cannot
    say that either of these opinions is objectively unreasonable. See
    O'Dell v. Netherland, 
    95 F.3d 1214
    , 1223 (4th Cir. 1996) (en banc)
    (noting that a rule is not "new" if "a contrary conclusion would have
    been objectively unreasonable"), aff'd, 
    117 S. Ct. 1969
     (1997). We
    conclude, therefore, that a reasonable jurist in March of 1990 would
    not have felt compelled to adopt the rule that Smith now seeks.
    Because the rule Smith seeks is "new" for purposes of Teague, it can-
    not be used to disturb his death sentence.
    VI.
    In his petition seeking federal habeas relief, Smith further claims
    that both the grand jury and the petit jury were selected in violation
    of the Equal Protection Clause and that the trial court's instructions
    on expert testimony and insanity violated the Sixth Amendment.
    Smith concedes, however, that these claims were not specifically
    raised on direct appeal. Nevertheless, Smith argues that the claims are
    not procedurally defaulted because the Supreme Court of South Caro-
    lina reviewed these issues when it conducted its in favorem vitae
    review.12
    We have reviewed and rejected the identical argument several
    times. See Kornahrens v. Evatt, 
    66 F.3d 1350
    , 1362-63 (4th Cir.
    1995) (holding that a record-based claim reviewed by the South Caro-
    _________________________________________________________________
    12 Under in favorem vitae (in favor of life) review, "the appellate court
    searches the record for error without regard to whether an objection has
    preserved it." Kornahrens v. Evatt, 
    66 F.3d 1350
    , 1362 (4th Cir. 1995)
    (internal quotation marks omitted). In favorem vitae review has been
    abolished in the State of South Carolina. See 
    id.
    18
    lina Supreme Court pursuant to the doctrine of in favorem vitae is
    procedurally defaulted); see also Arnold v. Evatt, 
    113 F.3d 1352
    ,
    1357-58 (4th Cir. 1997) (same), cert. denied, 
    118 S. Ct. 715
     (1998);
    Matthews v. Evatt, 
    105 F.3d 907
    , 912-13 (4th Cir.) (same), cert.
    denied, 
    118 S. Ct. 102
     (1997). As we noted in Kornahrens:
    Even with in favorem vitae review, unless the prisoner raises
    the specific objections before the state court, we cannot
    determine whether the state court has properly applied fed-
    eral constitutional principles, or for that matter, whether the
    state court has even considered these issues at all. In short,
    we have no state court judgment to review.
    
    66 F.3d at 1362
    . Because Smith failed to specifically raise these
    claims on direct appeal, we conclude that they are procedurally barred
    pursuant to our previous decisions in Kornahrens , Matthews, and
    Arnold.13
    Smith's contention that Kornahrens, Matthews, and Arnold were
    wrongly decided and should be overruled need not detain us long. It
    is well established that a decision of this Court is binding on other
    panels unless it is overruled by a subsequent en banc opinion of the
    Court or an intervening decision of the United States Supreme Court.
    See Industrial Turnaround Corp. v. NLRB, 
    115 F.3d 248
    , 254 (4th
    Cir. 1997). Because the holdings in Kornahrens , Matthews, and
    Arnold have not been called into question by either the en banc Court
    or the Supreme Court, they continue to be the binding law of this Cir-
    cuit.
    VII.
    Finally, at Smith's resentencing the trial court instructed the jury
    that its sentencing recommendation, whether the death penalty or a
    life sentence, must be unanimous. Smith contends that the trial court's
    instruction misstated South Carolina law, see 
    S.C. Code Ann. § 16-3
    -
    _________________________________________________________________
    13 Because Smith does not argue that he can demonstrate cause and
    prejudice or a fundamental miscarriage of justice to excuse the default,
    we do not consider whether either exists. See Kornahrens v. Evatt, 
    66 F.3d 1350
    , 1361-63 (4th Cir. 1995).
    19
    20(c) (Law. Co-op. 1985 & Supp. 1997) (providing that if a jury in
    a capital case is unable to agree on the death penalty, the defendant
    must be sentenced to life imprisonment), and violated the rule estab-
    lished in Simmons v. South Carolina, 
    512 U.S. 154
    , 165 (1994) (hold-
    ing that due process requires that a criminal defendant be allowed to
    argue his parole ineligibility to rebut prosecution arguments of future
    dangerousness). For the reasons that follow, we find both arguments
    to be without merit.
    A.
    In response to Smith's first argument -- that the instruction in
    question misstates South Carolina law -- the State cites a series of
    state court decisions that it alleges have found the identical instruction
    to be a correct statement of South Carolina law. Whether the cases
    cited by the State so hold is of no import. It is well established that
    "basic principles of federalism permit us to review only those state-
    court decisions that implicate federal constitutional rights."
    Kornahrens v. Evatt, 
    66 F.3d 1350
    , 1357 (4th Cir. 1995) (emphasis
    added); see also Cooper v. Taylor, 
    103 F.3d 366
    , 370 (4th Cir. 1996)
    (en banc) (stating that federal habeas review is limited to "violations
    of the United States Constitution or its law and treaties"), cert. denied,
    
    118 S. Ct. 83
     (1997). We will not, therefore, entertain Smith's conten-
    tion that the instruction in question misstates South Carolina law.
    B.
    In response to Smith's second argument -- that the instruction in
    question violates the rule announced in Simmons 14 -- the State argues
    that the rule established in Simmons did not overrule our decision in
    Gaskins v. McKellar, 
    916 F.2d 941
     (4th Cir. 1990), in which we held
    that an identical instruction did not have any effect on the jury's sen-
    tencing decision. 
    Id. at 955
     (holding that"it is inconceivable that the
    disputed instruction could have caused the jurors unanimously to
    impose a death sentence out of fear of mistrial should they not be
    _________________________________________________________________
    14 In Simmons v. South Carolina, 
    512 U.S. 154
     (1994), the Supreme
    Court held that due process requires that a criminal defendant be allowed
    to argue his parole ineligibility to rebut prosecution arguments of future
    dangerousness. 
    Id. at 165
    .
    20
    unanimous in their decision to impose life imprisonment"). We need
    not decide whether Simmons overruled Gaskins because even if it did,
    Smith is not entitled to habeas relief. A state prisoner may not upset
    his sentence on federal habeas review if the court-made rule of which
    he seeks the benefit is "new." See Teague v. Lane, 
    489 U.S. 288
    , 301
    (1989); see also O'Dell v. Netherland, 
    117 S. Ct. 1969
    , 1973 (1997);
    Graham v. Collins, 
    506 U.S. 461
    , 466-67 (1993). In a case decided
    well over one year before the parties filed their briefs in this matter,
    we held that "Simmons was the paradigmatic ``new rule.'" O'Dell v.
    Netherland, 
    95 F.3d 1214
    , 1218 (4th Cir. 1996) (en banc), aff'd, 
    117 S. Ct. 1969
     (1997). Accordingly, the rule announced in Simmons can-
    not be used to disturb Smith's death sentence.15
    VIII.
    Because Smith has failed to provide any grounds upon which
    habeas relief may be granted, the decision of the district court is
    hereby affirmed.
    AFFIRMED
    DIANA GRIBBON MOTZ, concurring:
    If the "physical torture" aggravating circumstance were invalid, see
    ante section II.B, I could not conclude that the error would not have
    infected the jury's decision to sentence Smith to death. However, for
    the reasons set forth in section II.A of the opinion of the court, I
    believe the district court correctly instructed the jury as to "physical
    torture" and the evidence supported the jury's finding of physical tor-
    ture. Accordingly, I concur in the judgment and in the opinion of the
    court, except for section II.B.
    _________________________________________________________________
    15 Smith's sentence became final in 1990, when the United States
    Supreme Court denied his petition for certiorari on direct appeal. See
    Smith v. South Carolina, 
    494 U.S. 1060
     (1990). Simmons, which we held
    created a new rule, was decided in 1994.
    21