Ivey v. Catoe

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS TRESHAWN IVEY, 
Petitioner-Appellant,
v.
WILLIAM D. CATOE, Commissioner,
South Carolina Department of  No. 01-11
Corrections; CHARLES M. CONDON,
Attorney General, State of South
Carolina,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
G. Ross Anderson, Jr., District Judge.
(CA-00-1294-3-13BD)
Argued: January 24, 2002
Decided: March 26, 2002
Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.
Dismissed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Judge Widener and Judge Niemeyer joined.
COUNSEL
ARGUED: William Harry Ehlies, II, Greenville, South Carolina, for
Appellant. Donald John Zelenka, Assistant Deputy Attorney General,
SOUTH CAROLINA OFFICE OF THE ATTORNEY GENERAL,
2 IVEY v. CATOE
Columbia, South Carolina, for Appellees. ON BRIEF: Teresa L.
Norris, CENTER FOR CAPITAL LITIGATION, Columbia, South
Carolina, for Appellant. Charles M. Condon, Attorney General, John
W. McIntosh, Chief Deputy Attorney General, SOUTH CAROLINA
OFFICE OF THE ATTORNEY GENERAL, Columbia, South Caro-
lina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
WILKINS, Circuit Judge:
Thomas Treshawn Ivey seeks leave to appeal an order of the dis-
trict court denying his petition for habeas corpus relief from his con-
viction and death sentence for the murder of Thomas Harrison.1 See
28 U.S.C.A. § 2254 (West 1994 & Supp. 2001). Because we conclude
that Ivey has failed to make "a substantial showing of the denial of
a constitutional right," 28 U.S.C.A. § 2253(c)(2) (West Supp. 2001),
with respect to any of his claims, we deny his application for a certifi-
cate of appealability and dismiss the appeal.
I.
In early January 1993, Ivey and Vincent Neumon escaped from a
prison in Alabama, where Ivey was detained pending trial for murder.
The pair traveled to Columbia, South Carolina, where they kidnaped
Robert Montgomery. Ivey and Neumon forced Montgomery to drive
them to North, South Carolina, where Ivey shot and killed Montgomery.2
1
Ivey named William D. Catoe, Commissioner of the South Carolina
Department of Corrections, and Charles M. Condon, Attorney General of
South Carolina, as Respondents. For ease of reference, we will refer to
Respondents as "the State" throughout this opinion.
2
In a separate proceeding, Ivey was convicted of Montgomery’s mur-
der and sentenced to death. The conviction and sentence were affirmed
on direct appeal. See State v. Ivey, 502 S.E.2d 92 (S.C. 1998).
IVEY v. CATOE 3
The following day, Ivey and Neumon abandoned Montgomery’s vehi-
cle and stole another, in which they found the owner’s identification
and some blank checks.
On January 15, Ivey, Neumon, and Patricia Perkins (whom Ivey
and Neumon had met in Columbia) traveled to Orangeburg, South
Carolina. All three entered a department store located in a shopping
mall, where Neumon made purchases using one of the stolen checks.
Ivey then left the store while Perkins and Neumon continued to
"shop." When Neumon attempted to make another purchase, the clerk
became suspicious and informed Neumon that she would have to
obtain approval. Neumon left the store and spoke with Ivey, who then
went inside to find Perkins.
In the meantime, the clerk had contacted a store security officer,
who in turn contacted the police. A police officer and an investigator
located Ivey and Perkins in the mall and questioned them. Upon
determining that Ivey was not the one who had attempted to make the
suspicious purchase, they informed Ivey that he could leave. At that
point the victim, Orangeburg Police Officer Thomas Harrison, arrived
and began to question Ivey. During the conversation, a .357 Magnum
that was in Ivey’s coat pocket discharged (Ivey testified that the
weapon discharged accidentally). The bullet hit the floor and frag-
mented, wounding Officer Harrison in the leg. Officer Harrison
reached for his own firearm, whereupon Ivey pulled out his weapon
and shot Officer Harrison five times at close range, killing him. Ivey
fled the store but was soon apprehended.
Ivey was subsequently tried, convicted, and sentenced to death for
the murder of Officer Harrison. Ivey appealed, maintaining, inter alia,
that the trial court had erred in refusing to charge the jury on volun-
tary manslaughter and in admitting victim impact testimony from
Officer Harrison’s mother (Mrs. Harrison). The South Carolina
Supreme Court affirmed, rejecting the former claim on the merits and
the latter claim on both procedural and substantive grounds. See State
v. Ivey, 481 S.E.2d 125, 127-28 (S.C. 1997).
Ivey thereafter filed an application for post-conviction relief
(PCR), claiming that trial counsel were ineffective for failing to
object to a number of statements made by the State in its penalty-
4 IVEY v. CATOE
phase closing argument. Following a hearing, the PCR court denied
relief.
Ivey filed this habeas action on October 30, 2000, claiming that:
1. The refusal to charge the jury on voluntary manslaugh-
ter violated his Eighth and Fourteenth Amendment
rights;
2. A portion of Mrs. Harrison’s victim impact testimony
violated his Eighth and Fourteenth Amendment rights;
3. Trial counsel were constitutionally ineffective for fail-
ing to object to a portion of the State’s closing argument
that allegedly referred to Ivey’s failure to testify;
4. Trial counsel were constitutionally ineffective for fail-
ing to object to
(a) cross examination of corrections officer
Audie Hudson regarding prison conditions,
and
(b) closing argument based on Hudson’s testi-
mony on cross-examination; and
5. Trial counsel were constitutionally ineffective for fail-
ing to object to the State’s improper bolstering of Vin-
cent Neumon’s testimony.
The petition was referred to a magistrate judge, who recommended
denying habeas relief. Specifically, the magistrate judge concluded
that claims 1, 3, and 4(b) were without merit and that claims 2, 4(a),
and 5 were procedurally defaulted and, even if not defaulted, without
merit.
Shortly before the magistrate judge issued his report and recom-
mendation, Ivey moved the district court to stay the proceedings, not-
ing that he had filed a second PCR application in state court for the
IVEY v. CATOE 5
purpose of exhausting claims 4(a) and 5, which had not previously
been presented to the state court. The district court denied the motion.
After the issuance of the magistrate judge’s report, Ivey filed objec-
tions in which he reiterated his assertion that the district court should
stay the proceedings pending the resolution of his second PCR applica-
tion.3 The district court adopted the report and recommendation of the
magistrate judge and denied Ivey’s renewed motion for a stay. The
district court subsequently denied Ivey’s application for a certificate
of appealability.
II.
In order to demonstrate his entitlement to a certificate of appeala-
bility, Ivey must make "a substantial showing of the denial of a con-
stitutional right." 28 U.S.C.A. § 2253(c)(2). As the Supreme Court
has explained, a habeas petitioner may make such a showing by dem-
onstrating "that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong." Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When the district court has
rested its denial of a claim on a procedural ground without consider-
ing the merits of a constitutional claim, the petitioner must show "that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct
in its procedural ruling." Id. The assessment of whether a certificate
of appealability should be granted must be made on an issue-by-issue
basis. See 28 U.S.C.A. § 2253(c)(3) (West Supp. 2001).
When, as here, the habeas petition was filed in the district court
after the enactment of the AEDPA, there is an additional layer to our
analysis: Claims adjudicated on the merits in state court must be
reviewed according to the deferential standard set forth in 28
U.S.C.A. § 2254(d). Section 2254(d) requires the district court (and
this court, on de novo review of the ruling of the district court) to
determine whether
3
At oral argument, counsel informed us that the case has been assigned
to a judge but that counsel have not yet been appointed for Ivey.
6 IVEY v. CATOE
the adjudication of the claim [by the state court]—
(1) 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; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceed-
ing.
28 U.S.C.A. § 2254(d); see Frye v. Lee, 235 F.3d 897, 903 (4th Cir.
2000), cert. denied, 121 S. Ct. 2614 (2001).4 A state court decision
is "contrary to" clearly established Supreme Court precedent when
"the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or . . . the state court decides
a case differently than [the] Court has on a set of materially indistin-
guishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A
state court decision rests on an "unreasonable application" of clearly
established Supreme Court precedent when "the state court identifies
the correct governing legal principle from [the] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case."5
Id.4
The mere fact that the district court makes such a determination does
not automatically entitle the petitioner to habeas relief. Rather, upon
determining that the adjudication of a claim by a state court contravened
or unreasonably applied Supreme Court precedent, the district court must
then independently assess the claim to determine whether the petitioner
"is in custody in violation of the Constitution or laws or treaties of the
United States," 28 U.S.C.A. § 2254(a). See Rose v. Lee, 252 F.3d 676,
689-91 (4th Cir.), cert. denied, 122 S. Ct. 318 (2001).
5
When the state court does not articulate the rationale for its decision,
the district court must conduct an independent review of the record and
the applicable law to determine whether the result reached by the state
court "contravenes or unreasonably applies clearly established federal
law." Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en banc) (internal
quotation marks omitted), cert. denied, 122 S. Ct. 74 (2001).
IVEY v. CATOE 7
In sum, when ruling on an application for certificate of appeala-
bility, we must conduct a de novo review to determine whether the
resolution of each claim by the district court was at least debatable
among reasonable jurists. For claims rejected on procedural grounds
without consideration of the merits, we may not grant a certificate of
appealability unless (1) reasonable jurists could debate the correctness
of the procedural ruling by the district court, and (2) reasonable jurists
could debate the validity of the constitutional claim stated by the peti-
tioner. When a district court has rejected a constitutional claim on the
merits (whether as the sole basis for rejecting a claim or as an alterna-
tive to a procedural ruling) in a post-AEDPA petition, our review will
take one of two courses. If a state court adjudicated the claim on the
merits, we must decide whether reasonable jurists could debate the
propriety of the decision of the district court to defer to the state court
ruling under § 2254(d). If the claim has not been adjudicated on the
merits by a state court, we must decide whether reasonable jurists
could debate the correctness of the ruling of the district court that the
petitioner’s constitutional rights were not violated.
III.
Ivey makes only a single claim regarding the guilt/innocence phase
of his trial: He maintains that the refusal of the trial court to instruct
the jury on the lesser-included offense of voluntary manslaughter vio-
lated his Fourteenth Amendment right to due process.6 On direct
appeal, the South Carolina Supreme Court concluded that because the
evidence presented at trial did not justify a voluntary manslaughter
charge, the denial of the charge did not violate Ivey’s constitutional
rights. The district court determined that this ruling was entitled to
deference under § 2254(d)(1).7 Because we conclude that reasonable
6
Ivey also maintains that the refusal to give the requested instruction
violated his Eighth Amendment rights, but he provides no argument in
support of this assertion. Accordingly, we disregard it. See Fed. R. App.
P. 28(a)(9)(A); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th
Cir. 1999). This omission does not reflect adversely on Ivey’s counsel,
who performed their duties ably.
7
Ivey argues that the State Supreme Court unreasonably determined
the facts in light of the record evidence. See 28 U.S.C.A. § 2254(d)(2).
The record reveals no disputed factual questions, however, but rather
8 IVEY v. CATOE
jurists would not find the correctness of the district court ruling debat-
able, we deny a certificate of appealability as to this claim.
During the trial, Ivey presented evidence that his firearm dis-
charged accidentally and that he shot Officer Harrison only after the
latter reached for his weapon in response to the accidental discharge
of Ivey’s weapon. Based on this evidence, Ivey requested an instruc-
tion on the lesser offense of voluntary manslaughter. The trial court
refused to give the requested instruction, reasoning that the evidence
presented at trial was insufficient to demonstrate either heat of pas-
sion or sufficient legal provocation, both of which are required for a
voluntary manslaughter charge under South Carolina law. On direct
appeal, the South Carolina Supreme Court affirmed on the basis that
even if Ivey had presented evidence that he acted in the heat of pas-
sion, he had failed to establish any evidence of sufficient legal provo-
cation. See Ivey, 481 S.E.2d at 127. The court specifically
acknowledged its prior holding in State v. Linder, 278 S.E.2d 335(S.C. 1981), where it held that the use of unnecessary force by a law
enforcement officer in the course of his duties could constitute the
provocation necessary for a voluntary manslaughter charge, see
Linder, 278 S.E.2d at 337. The South Carolina Supreme Court con-
cluded that Linder was of no assistance to Ivey, however, because
Officer Harrison had the right to reach for his firearm in self-defense
after Ivey’s weapon discharged.8 See Ivey, 481 S.E.2d at 127.
Ivey contends that the denial of his request for a voluntary man-
slaughter instruction violated the Due Process Clause of the Four-
teenth Amendment. In support of this argument, Ivey cites Beck v.
Alabama, 447 U.S. 625, 638 (1980), in which the Supreme Court
indicates that the only question before the state court was the legal signif-
icance of an undisputed sequence of events. Accordingly, the ruling of
the South Carolina Supreme Court is properly reviewed under
§ 2254(d)(1).
8
In a petition for rehearing, Ivey maintained that he was entitled to a
voluntary manslaughter instruction under the doctrine of imperfect self-
defense, a contention he raises again in his appellate brief. South Caro-
lina, however, does not recognize imperfect self-defense. See State v.
Finley, 290 S.E.2d 808, 809 (S.C. 1982).
IVEY v. CATOE 9
struck down an Alabama statute that prohibited juries in capital cases
from convicting the defendant of a lesser offense than capital murder.
Ivey maintains that Beck stands for the proposition that the jury must
be given the option of convicting on a lesser-included offense in all
capital cases. The rule in Beck is not so broad, however. As the
Supreme Court subsequently clarified, "due process requires that a
lesser included offense instruction be given only when the evidence
warrants such an instruction." Hopper v. Evans, 456 U.S. 605, 611
(1982).
Here, the South Carolina Supreme Court determined that, as a mat-
ter of state law, the evidence did not support the giving of a voluntary
manslaughter instruction because there was no legal provocation. This
determination is fatal to Ivey’s due process claim.9
IV.
During the penalty phase, the State presented victim impact testi-
mony from Officer Harrison’s parents and his widow. Ivey contends
that the following portion of Mrs. Harrison’s testimony exceeded the
bounds of constitutionally permissible victim-impact testimony:
Q. What’s the hardest part now about his death and the
way he died?
A. Well, when I think about the way he died, I can’t help
but feel sort of angry because I just feel like it was so
useless.
Mr. Johnson [defense counsel]: Your Honor, I sin-
cerely apologize, but I think we’re going out of the
bounds now.
9
Ivey challenges the correctness of the ruling of the South Carolina
Supreme Court, maintaining that he was entitled to the voluntary man-
slaughter instruction as a matter of state law. However, we are bound by
the interpretation of state law by the South Carolina Supreme Court. See
Thomas v. Davis, 192 F.3d 445, 449 n.1 (4th Cir. 1999).
10 IVEY v. CATOE
The court: All right, Sir. I’ll allow it. Go ahead.
A. Somebody — this man who shot my son — said that
he ran out of the store, and when he realized he was
going to be arrested, he laid down on the ground and
said, "Don’t shoot; don’t kill me; don’t kill me." But he
didn’t think about that when my son was lying on the
floor in front of him in the store saying "Don’t do this;
don’t do this." And — well, it hurts.
J.A. 662-63.
On direct appeal, Ivey asserted that the admission of the above-
quoted testimony violated the Constitution because it amounted to a
statement of opinion that Ivey should be put to death. The South Car-
olina Supreme Court rejected this argument on the bases that it was
barred by Ivey’s failure to specifically object to the testimony and that
the argument was without merit. See Ivey, 481 S.E.2d at 127-28. The
district court, in turn, concluded that the claim was procedurally
defaulted and, alternatively, that the ruling of the South Carolina
Supreme Court did not contravene or unreasonably apply Supreme
Court precedent. We deny a certificate of appealability as to this
claim.
A.
Absent cause and prejudice or a miscarriage of justice, a federal
habeas court may not review constitutional claims when a state court
has declined to consider their merits on the basis of an adequate and
independent state procedural rule. See Harris v. Reed, 489 U.S. 255,
262 (1989). Such a rule is adequate if it is regularly or consistently
applied by the state court, see Johnson v. Mississippi, 486 U.S. 578,
587 (1988), and is independent if it does not "depend[ ] on a federal
constitutional ruling," Ake v. Oklahoma, 470 U.S. 68, 75 (1985).
Here, the South Carolina Supreme Court ruled that Ivey’s chal-
lenge to Mrs. Harrison’s testimony was barred by his failure to make
a specific objection. See Ivey, 481 S.E.2d at 127 (citing State v.
Tucker, 462 S.E.2d 263, 265 (S.C. 1995)). Ivey does not dispute that
IVEY v. CATOE 11
the requirement of a specific objection is an adequate and independent
state procedural rule, nor does he assert cause and prejudice to excuse
the default. Rather, he maintains that the state court erred in ruling
that the claim was procedurally barred. However, "[a] basic tenet of
federal habeas review is that a federal court does not have license to
question a state court’s finding of procedural default, if based upon
an adequate and independent state ground." Barnes v. Thompson, 58
F.3d 971, 974 n.2 (4th Cir. 1995). Accordingly, we conclude that rea-
sonable jurists could not debate the correctness of the ruling by the
district court that this claim is procedurally defaulted.
B.
Even if Ivey’s challenge to the victim impact testimony of Mrs.
Harrison were not procedurally defaulted, Ivey still would not be enti-
tled to habeas relief. The district court held that the rejection of the
merits of the claim by the South Carolina Supreme Court neither was
contrary to, nor involved an unreasonable application of, clearly
established Supreme Court precedent. We conclude that the correct-
ness of this ruling is not debatable among reasonable jurists.
In Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court
held that the Eighth Amendment does not impose a per se bar on "evi-
dence about the victim and about the impact of the murder on the vic-
tim’s family." Payne, 501 U.S. at 827; see id. at 830 (overruling
Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gath-
ers, 490 U.S. 805 (1989)). There are two limitations on victim impact
testimony, however. First, Payne left intact Booth’s prohibition on
"family members’ characterizations and opinions about the crime, the
defendant, and the appropriate sentence." Payne, 501 U.S. at 830 n.2;
see Booth, 482 U.S. at 508-09; see also United States v. McVeigh, 153
F.3d 1166, 1217 (10th Cir. 1998). Second, the Due Process Clause
prohibits the introduction of victim impact testimony "that is so
unduly prejudicial that it renders the trial fundamentally unfair."
Payne, 501 U.S. at 825.
The South Carolina Supreme Court did not rule unreasonably in
concluding that Mrs. Harrison’s testimony did not contravene either
of these constitutional limitations on victim impact testimony. Con-
trary to Ivey’s assertion, Mrs. Harrison did not opine that Ivey should
12 IVEY v. CATOE
be sentenced to death. In the challenged statement, she simply
expressed her grief, pain, and anger arising from the manner of her
son’s death. Cf. Booth, 482 U.S. at 508-09 (holding that testimony
that victims were "butchered like animals" and that victims’ son
"doesn’t think anyone should be able to do something like that and
get away with it" violated the Eighth Amendment (internal quotation
marks omitted)). Additionally, Mrs. Harrison’s testimony was not so
unduly prejudicial that it violated the Due Process Clause. Cf. Payne,
501 U.S. at 832 (O’Connor, J., concurring) (noting that victim impact
testimony does not offend due process when it does not inflame the
jury "more than . . . the facts of the crime").
V.
Ivey next maintains that trial counsel were constitutionally defi-
cient in several respects during the penalty phase of his trial. In order
to establish that his constitutional right to the effective assistance of
counsel was violated, Ivey must demonstrate that his attorneys’ "rep-
resentation fell below an objective standard of reasonableness" and
"that there is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Review of
counsel’s performance is "highly deferential." Id. at 689. And, compe-
tency is measured against what an objectively reasonable attorney
would have done under the circumstances. See id. at 687-88. Counsel
are afforded a strong presumption that their performance was within
the broad range of professionally competent assistance. See id. at 689.
In the context of a capital sentencing proceeding, the question with
respect to prejudice is "whether there is a reasonable probability that,
absent the errors, the sentencer . . . would have concluded that the bal-
ance of aggravating and mitigating circumstances did not warrant
death." Id. at 695.
A.
During the penalty phase, Ivey presented evidence from former
teachers and counselors that he was an intelligent but quiet child who
was apt to fall under the influence of others. Most notably, Ivey pre-
sented evidence of his relationship with Willie Smart, a childhood
friend. This evidence—which included testimony from Smart himself
IVEY v. CATOE 13
—tended to show that although Ivey had gotten in trouble with the
law, he had been trying to straighten out his life when Smart got him
involved in the crime (the murder of a young woman) for which he
was incarcerated in Alabama prior to his escape. During closing argu-
ment, the State commented on this evidence:
Has any psychiatrist or psychologist gotten up here and told
you all under oath that his background caused some kind of
mental condition that caused him to do something he didn’t
want to do?
MR. JOHNSON: Objection, your Honor. The defendant
has no burden.
THE COURT: I give a lot of leeway to summations by
both sides, but I will tell you, as I have always told you, the
defendant doesn’t have to prove anything in this case. Go
ahead, Solicitor.
CONT’D CLOSING STATEMENT BY MR. BAILEY
Thomas Ivey did what he did, according to the testimony,
of his own free will and accord because he wanted to do it.
There’s no testimony to the contrary. All of the good things
that were told to you all by Mrs. Retzlaff, the school teacher,
Lee Ashford and Derrick Boling and Johnathan Davis from
Mt. Meggs’ Center; the good impressions he gave . . . them,
the opinions they formed of him, were all formed before he
went on this crime spree that you all heard about over the
last week. He fooled these people. Don’t let him fool you.
J.A. 506 (internal quotation marks omitted) (emphasis added by PCR
court).
Ivey contends that the State’s argument led the jury to believe "that
Ivey carried the burden of providing such evidence as psychiatric
experts in order for them to find that he suffered from a mental dis-
ability and was . . . therefore entitled to mercy." Br. of Appellant at
39. Ivey acknowledges that trial counsel objected to the statement
14 IVEY v. CATOE
regarding the absence of psychiatric testimony and that the trial court
gave an appropriate curative instruction. He argues, however, that
counsel should have objected to the statement "There’s no testimony
to the contrary."
The state PCR court rejected this claim, first ruling that
the comment "no testimony to the contrary" when read in
context of the argument as a whole, was not intended to be
a comment on Ivey’s failure to testify, but rather was a com-
ment on the evidence that was presented by the defense that
showed he had the capacity to act on his own free will and
accord.
J.A. 507. Based on this finding, the PCR court held that counsel were
not ineffective for failing to object. Second, the court concluded that
even if counsel’s failure to object were constitutionally deficient, Ivey
suffered no prejudice. The district court concluded that the decision
of the PCR court neither contravened nor unreasonably applied
Strickland.
The ruling of the district court was indisputably correct, and thus
Ivey is not entitled to a certificate of appealability on this claim. First,
the challenged comment was not improper, and thus trial counsel
were not ineffective for failing to object.10 It is true that comment by
10
Although the PCR court did not rely on this as a basis for rejecting
Ivey’s claim, we note that one of Ivey’s trial attorneys testified during
the PCR hearing that, although he could not specifically recall why he
did not object, his failure to do so likely stemmed from strategic consid-
erations:
But in all candor, . . . my strategy in closing arguments is [to]
minimize objections . . . because I think the . . . jurors get turned
off by it and it highlights it. And you usually want to object to
something that’s really hurting you. And when you do that you
accentuate and exacerbate the problem.
And so, I want you all to know that just strategy wise, I usu-
ally am very reluctant . . . to object during closing argument
unless it’s so [blatant] that it’s obvious because . . . when I get
IVEY v. CATOE 15
the prosecution on the defendant’s failure to testify violates the Fifth
Amendment. See Griffin v. California, 380 U.S. 609, 615 (1965). But,
no constitutional violation occurs "when a prosecutor’s comments are
merely ‘a fair response to a claim made by defendant or his counsel.’"
Howard v. Moore, 131 F.3d 399, 421 (4th Cir. 1997) (en banc) (quot-
ing United States v. Robinson, 485 U.S. 25, 32 (1988)). Here, the
PCR court reasonably determined that the prosecutor’s statement was
simply a response to the evidence presented by Ivey during the pen-
alty phase and hence was not improper. Cf. United States v. Senn, 129
F.3d 886, 894 (7th Cir. 1997) (holding that prosecutor’s statement
that defendants’ case "is based upon no evidence, no testimony" was
not improper because statement was "permissible comment on the
reasonableness of theories and inferences urged by the defense"
(internal quotation marks omitted)).
In any event, Ivey suffered no prejudice from counsel’s failure to
object. Even if the comment was improper, it did not "so infect[ ] the
[proceeding] with unfairness as to make the resulting [sentence] a
denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974). Any possibility of undue prejudice was minimized by the
instruction immediately before the challenged comment that Ivey bore
no burden of proof and the instruction given during the jury charge
that the jury should not draw any inference from Ivey’s failure to tes-
tify. Cf. Senn, 129 F.3d at 894 (noting, in context of holding that Gov-
ernment’s comments did not violate Griffin, that "[t]he judge
instructed the jury during the prosecutor’s closing argument that the
defense had no burden of proof, and the judge gave the usual jury
instructions at the end of the trial regarding the defendants’ refusal to
testify").
up and make my closing argument, I’m going to try to slip in as
much as I can within the rules.
J.A. 482. "[R]efraining from objecting in order to avoid irritating the jury
is a standard trial tactic." Bennett v. Angelone, 92 F.3d 1336, 1349 (4th
Cir. 1996). Strategic decisions are entitled to great deference on habeas
review. See McCarver v. Lee, 221 F.3d 583, 594 (4th Cir. 2000), cert.
denied, 531 U.S. 1089 (2001).
16 IVEY v. CATOE
B.
During the sentencing phase, defense counsel called correctional
officer Audie Hudson, who testified that Ivey was not a behavioral
problem and that, in Hudson’s opinion, Ivey had adapted well to
prison life. On cross-examination, the State elicited testimony from
Hudson that inmates at Broad River Correctional Facility (where Ivey
would be incarcerated if sentenced to life imprisonment) had access
to a softball field, indoor and outdoor basketball courts, workout
equipment, educational programs, paid employment opportunities,
and television. Hudson also stated that the facility was air-
conditioned; that inmates were provided with food, clothing, and per-
sonal hygiene items; and that the cells were a little smaller than a
room at a hotel. Defense counsel did not object to any of this testi-
mony.
During closing argument, the State relied on Hudson’s testimony
to argue that a life sentence would not be a hardship on Ivey:
[L]et’s look at life imprisonment as an alternative [to a death
sentence] and decide whether that’s an acceptable punish-
ment, whether that’s justice for the things this man has done.
And you know Mr. Hudson who was a defense witness —
I didn’t call Mr. Hudson up; the defense did. . . . And he told
you all about life in prison [at Broad River]. He told you all
they’ve got two man cells there. They’ve got T.V., and
they’ve got radio; they’ve got stereos; and they’ve got an
exercise yard with a softball field; they’ve got a gym that’s
got free weights and a nautilus type machine[ ] in it; it’s got
indoor and outdoor basketball courts; the entire prison is air-
conditioned; they get three hot meals a day free of charge;
they’re given all the clothing; they’re given all the personal
hygiene items; they’re given dental care and medical care;
and they’ve got to work, but they pay them for working.
That’s life in prison in South Carolina. And in the mean-
time, Tommy Harrison is in his grave. Now, is that justice?
J.A. 952-53.
Before the PCR court, Ivey claimed that defense counsel were con-
stitutionally ineffective for failing to object to the portion of the
IVEY v. CATOE 17
State’s closing argument that referred to Hudson’s testimony. The
court rejected this claim, concluding first that the cross-examination
of Hudson was proper because evidence regarding the circumstances
of prison life is relevant in determining whether the defendant will
adapt to such a life. Second, the PCR court concluded that the State’s
reference to Hudson’s testimony was a fair comment on the evidence
in the record, and thus that defense counsel were not ineffective for
failing to object.
In his federal habeas petition, Ivey maintained that defense counsel
were constitutionally deficient for failing to object to the cross-
examination of Hudson and for failing to object to the State’s refer-
ence to Hudson’s testimony during closing argument. The district
court determined that the claim regarding cross-examination of Hud-
son was defaulted and that both assertions were without merit.
Because we conclude that the district court was indisputably correct
in its procedural ruling regarding the first portion of the claim and
was equally correct in concluding that the ruling of the PCR court on
the second portion of the claim was entitled to deference under
§ 2254(d)(1), we deny a certificate of appealability.
1.
Ivey failed to raise the first portion of his claim regarding Hudson’s
testimony—that counsel were ineffective for failing to object to the
State’s cross-examination of Hudson—before the PCR court. Because
Ivey did not fairly present this claim to the state court, he failed to sat-
isfy the exhaustion requirement of 28 U.S.C.A. § 2254(c).11 See
O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). However, if the
claim is now procedurally barred under state law, this court will deem
it exhausted. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996);
George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996). But, because
11
In his petition for certiorari from the denial of PCR, Ivey did argue
to the South Carolina Supreme Court that trial counsel were ineffective
for failing to object to the cross-examination of Hudson. This presenta-
tion of the claim was not sufficient to exhaust it, however. See Castille
v. Peoples, 489 U.S. 346, 351 (1989) (holding that raising claim for first
time in procedural context where consideration of merits is discretionary
does not satisfy federal exhaustion requirement).
18 IVEY v. CATOE
"the procedural bar that gives rise to exhaustion provides an indepen-
dent and adequate state-law ground for the conviction and sentence,"
we will be precluded from considering the merits of the claim unless
Ivey demonstrates cause and prejudice to excuse his default. Gray,
518 U.S. at 162.
South Carolina law severely limits successive PCR applications:
All grounds for relief available to an applicant under this
chapter must be raised in his original, supplemental or
amended [PCR] application. Any ground . . . not so raised
. . . may not be the basis for a subsequent application, unless
the court finds a ground for relief asserted which for suffi-
cient reason was not asserted . . . in the original, supplemen-
tal or amended application.
S.C. Code Ann. § 17-27-90 (Law. Co-op. 1985). In accordance with
this provision, the South Carolina Supreme Court is generally reluc-
tant to consider successive PCR applications, and will do so only if
it was not possible for the applicant to raise the issue in his first appli-
cation. See Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). The South
Carolina Supreme Court has allowed successive PCR applications in
only three circumstances: when the initial application was filed with-
out the assistance of counsel, see Case v. State, 289 S.E.2d 413, 413-
14 (S.C. 1982) (per curiam); when PCR counsel was the same as trial
counsel, see Carter v. State, 362 S.E.2d 20, 21 (S.C. 1987); and when
procedural irregularities were so egregious as to result in a denial of
due process, see Washington v. State, 478 S.E.2d 833, 835 (S.C.
1996). The mere fact that PCR counsel was ineffective is not suffi-
cient grounds for a successive PCR application. See Aice, 409 S.E.2d
at 394.
Ivey argues that the procedural bar of § 17-27-90 does not apply
here because lead PCR counsel was ineffective. As evidence for this
assertion, Ivey notes that the lead PCR counsel was not qualified
under S.C. Code Ann. § 17-27-160(B) (Law. Co-op. Supp. 2001),
which was enacted for the purpose of "opting into" the more restric-
tive habeas procedures set forth in Chapter 154 of Title 28 of the
United States Code, see Tucker v. Catoe, 221 F.3d 600, 603-04 (4th
Cir.), cert. denied, 531 U.S. 1054 (2000). Ivey also points out that
IVEY v. CATOE 19
lead counsel repeatedly referred to the victim by the wrong name dur-
ing the PCR hearing and was subsequently disbarred for improper
handling of office accounts, see In re Banks, 542 S.E.2d 721, 722-23
(S.C. 2001) (per curiam). Even if we were to agree with Ivey that lead
counsel was ineffective, however, under Aice that fact alone would
not be sufficient to allow the filing of a successive PCR application.12
Accordingly, this claim is procedurally barred as a matter of South
Carolina law and is thus defaulted.
Ivey maintains that PCR counsel’s ineffectiveness constitutes cause
for his procedural default. However, in order for ineffective assistance
of counsel to constitute cause for a procedural default, the petitioner
must first demonstrate a constitutional right to counsel in the proceed-
ing at issue. See Mackall v. Angelone, 131 F.3d 442, 448 (4th Cir.
1997) (en banc). However, a state habeas petitioner does not possess
a constitutional right to counsel. See id. at 447. Accordingly, Ivey has
not demonstrated cause for his procedural default.
2.
The PCR court held that the State’s argument regarding Hudson’s
testimony was "fair comment on the evidence," J.A. 512, and hence
was not violative of the Due Process Clause; therefore, trial counsel
were not ineffective for failing to object to this portion of the argu-
ment. The district court agreed and accordingly deferred to the state
court ruling under § 2254(d)(1).
A prosecutor’s improper closing argument may constitute a denial
of due process if it renders the proceeding "fundamentally unfair."
Bennett v. Angelone, 92 F.3d 1336, 1345 (4th Cir. 1996) (internal
quotation marks omitted); see Donnelly, 416 U.S. at 643. In determin-
ing whether a defendant’s due process rights were violated by a pros-
ecutor’s closing argument, we must first determine whether the
remarks were, in fact, improper. See United States v. Morsley, 64 F.3d
907, 913 (4th Cir. 1995). If so, we then must decide whether the
12
Ivey makes much of the fact that the South Carolina Supreme Court
assigned a judge to handle Ivey’s second PCR application, an action it
took in response to Ivey’s motion. We fail to see the significance of the
action of the South Carolina Supreme Court.
20 IVEY v. CATOE
improper remarks "so prejudiced the defendant’s substantial rights
that the defendant was denied a fair trial." Id. "This determination
requires the court to look to the nature of the comments, the nature
and quantum of the evidence before the jury, the arguments of oppos-
ing counsel, the judge’s charge, and whether the errors were isolated
or repeated." Boyd v. French, 147 F.3d 319, 329 (4th Cir. 1998)
(internal quotation marks omitted).
Here, the remarks by the prosecutor were not improper because
they were simply a fair comment on the evidence.13 See Bell v. Evatt,
72 F.3d 421, 437 (4th Cir. 1995) (holding that remarks that "were
consistent with the record and . . . rationally inferred from the . . . evi-
dence" were not improper). Because the remarks were not improper,
trial counsel could not be considered ineffective for failing to object.
C.
During the penalty phase, the State presented testimony from Vin-
cent Neumon, Ivey’s accomplice, regarding the murder of Robert
Montgomery. As is relevant here, Neumon testified that Ivey was the
triggerman in Montgomery’s murder. On cross-examination, defense
counsel probed the extent of Neumon’s involvement in Montgom-
ery’s murder and his guilty plea, suggesting that Neumon, not Ivey,
was the triggerman.14 Defense counsel also explored the fact that Neu-
mon had agreed to plead guilty to Montgomery’s murder in exchange
for the dismissal of numerous charges, including the murder of Offi-
cer Harrison; defense counsel asserted through questioning that Neu-
mon had changed his story regarding the Montgomery murder in
exchange for the benefits of the plea agreement. In response to this
questioning, Neumon stated that he had pleaded guilty to Montgom-
ery’s murder because he was an accomplice to that crime; Neumon
13
Having defaulted his challenge to the admission of Hudson’s testi-
mony regarding prison conditions, Ivey cannot now complain that the
State’s comments were improper on the basis that the testimony to which
the State referred was inadmissible.
14
For example, defense counsel’s first question on cross-examination
was, "Mr. Vincent Neumon, you have admitted that you murdered Rob-
ert Montgomery; isn’t that true?" J.A. 643.
IVEY v. CATOE 21
also stated that his previous story to law enforcement officers had
been a lie and that his trial testimony was truthful.
On redirect, the State elicited testimony from Neumon that no
police officer had ever accused him of being the triggerman in Mont-
gomery’s murder; that Neumon’s attorneys had advised him on "the
law regarding accomplice liability," J.A. 651; and that he had testified
truthfully. On recross-examination, defense counsel discussed the
provision of Neumon’s plea agreement that required him to tell the
truth and obtained Neumon’s acknowledgment that the solicitor
would decide whether he had told the truth or not.
During closing argument, the State made the following statement
concerning Neumon’s guilty plea to the Montgomery murder:
Vincent Neumon testified here under oath that he’s pleading
to the Montgomery murder under that hand of one, hand of
all, under the advice of the two lawyers he had in court here
with him. . . . That’s what Neumon is doing. . . . And . . .
the defense[ ] wants you to infer that maybe it was Neumon
who did the shooting of Robert Montgomery; maybe it
wasn’t Ivey. Maybe it was Neumon since he’s pleading
guilty to murder. There’s no evidence anywhere in this
record that Vincent Neumon shot Robert Montgomery. He
was part of the deal, part of the kidnapping, part of the rob-
bery, right up there with [Ivey], but there’s no evidence that
he’s the trigger man — no evidence. There’s no evidence in
this record . . . that any law enforcement officer has ever
accused Vincent Neumon of being the trigger man in this
killing.
Id. at 946-47 (emphasis added).
Ivey maintains that trial counsel were constitutionally ineffective
for failing to object to (1) the question regarding whether any law
enforcement officer had suggested that Neumon was the triggerman
in the Montgomery murder, and (2) the statement in closing argument
that no evidence supported the suggestion that Neumon was the trig-
german in the Montgomery murder.15 According to Ivey, both the
15
In connection with this argument, Ivey asserts in passing that the
prosecutor "insinuated himself onto this jury" through certain comments
22 IVEY v. CATOE
questions and the closing argument constituted improper prosecutorial
vouching for Neumon’s credibility.
The district court first concluded that because Ivey had failed to
present this claim to the state PCR court, it was defaulted. For the rea-
sons set forth in Part V.B.1., we hold that this ruling was indisputably
correct. Although this procedural ruling is a sufficient basis for the
denial of a certificate of appealability, the district court also addressed
the merits of the "vouching" claim and found them lacking, and thus
determined that trial counsel were not ineffective for failing to object.
This holding, too, is not subject to debate among reasonable jurists,
and it provides an additional basis for the denial of a certificate of
appealability.
The State may not vouch for or bolster the credibility of its own
witness. See United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.
1993). "[T]he prosecutor may not, among other things, make explicit
personal assurances that a witness is trustworthy or implicitly bolster
the witness by indicating that information not presented to the jury
supports the testimony." Id. Vouching "jeopardize[s] the defendant’s
right to be tried solely on the basis of the evidence presented to the
jury" and "may induce the jury to trust the Government’s judgment
rather than its own view of the evidence" because "the prosecutor’s
opinion carries with it the imprimatur of the Government." United
States v. Young, 470 U.S. 1, 18-19 (1985). As with other forms of
prosecutorial misconduct, vouching violates due process if it renders
a proceeding fundamentally unfair. See United States v. Sanchez, 118
F.3d 192, 198 (4th Cir. 1997).
No improper vouching or bolstering occurred here, and therefore
defense counsel were not ineffective for failing to object to the ques-
during closing argument. Br. of Appellant at 48. This argument, too, is
defaulted by virtue of Ivey’s failure to raise it before the state PCR court.
In any event, Ivey provides no support for his assertion that the com-
ments in question were improper. And, even if the comments were
improper, our examination of the relevant factors persuades us that the
comments did not render Ivey’s sentencing so unfair as to deny him due
process.
IVEY v. CATOE 23
tions on redirect or the comments during closing argument. The
State’s question regarding whether Neumon had ever been accused of
being the triggerman in Montgomery’s murder was a fair response to
defense counsel’s repeated attempts to establish that Neumon was the
triggerman. See United States v. Garcia-Guizar, 160 F.3d 511, 522
(9th Cir. 1998) (stating that when "the defendant opens the door to an
argument, it is fair advocacy for the prosecution to enter" (internal
quotation marks omitted)). The State’s comment during closing argu-
ment that there was no evidence in the record that Neumon had ever
been accused of being the triggerman in the Montgomery murder was
also a fair response to the cross-examination of Neumon. Moreover,
the comment did not in any way suggest that the State had personal
knowledge not before the jury regarding Neumon’s role in the Mont-
gomery murder. See id. at 521 (holding that comment regarding
absence of evidence to support defendant’s claims did not imply that
evidence outside record supported prosecution’s case). And, even if
the State’s questions on redirect and comments during closing argu-
ment were improper, Ivey suffered no due process violation. In light
of the submission to the jury of Ivey’s detailed confession to the
Montgomery murder, the prosecutor’s comments did not render the
sentencing proceeding fundamentally unfair.
VI.
As noted above, Ivey failed to raise his claims regarding the cross-
examination of Hudson and the alleged "vouching" for Neumon in his
initial PCR application. While this action was pending in the district
court, Ivey filed a successive PCR application in state court; he then
moved for a stay of the federal proceedings. The district court denied
this motion.
We conclude that the denial of the motion was not an abuse of dis-
cretion. See Evans v. Smith, 220 F.3d 306, 321-22 (4th Cir. 2000)
(stating standard of review), cert. denied, 532 U.S. 925 (2001). Ivey
contends that the stay should have been granted because there is a
possibility that the state PCR court will review the claims on the mer-
its. For the reasons previously mentioned, we think this possibility is
extremely remote. However, even if the PCR court ultimately reviews
the claims on the merits, the denial of the motion for stay would not
be erroneous. The ruling of the district court that the claims were
24 IVEY v. CATOE
without merit in no way precludes the state court from reaching a con-
trary conclusion and granting relief.
VII.
For the reasons set forth above, we conclude that Ivey has failed
to make a substantial showing of the denial of a constitutional right.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
DISMISSED