Citations:
State v. Humphries, 325 S.C. 28, 479 S.E.2d 52 (S.C. 1996) (Direct Appeal).
Humphries v. State, 351 S.C. 362, 570 S.E.2d 160 (S.C. 2002) (PCR).
Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005) (Habeas).

Final Meal:
A McDonald's hamburger, french fries, broccoli and cheese, oat cereal, and a Dr. Pepper.

Final Words:
Humphries looked toward the victim's sisters, Kathy Smith Carpenter and Carol Smith Cooley, and mouthed "I'm sorry." Carpenter nodded in response. It appeared that a tear rolled down Humphries' cheek after the exchange.

Internet Sources:

South Carolina Department of Corrections

Inmate: Humphries, Shawn
Inmate #: 00004892
DOB: 10/19/1971
Race: White
County of Conviction: GREENVILLE
Hair: Brown
Eyes: Hazel
Height: 6' 00"
Date Received: 08/09/1994

TheState.Com

"Man who killed Upstate store clerk apologizes before execution," by Meg Kinnard. (Posted on Fri, Dec. 02, 2005)

COLUMBIA, S.C. - Shawn Humphries apologized to his victim's family before he was put to death by lethal injection Friday night for the 1994 murder of a Simpsonville store clerk. Humphries mouthed "I'm sorry" before fatal chemicals were pumped through his veins. Department of Corrections officials pronounced Humphries dead at 6:18 p.m.

Humphries was convicted of murder for the shooting death of Mendal Alton "Dickie" Smith on New Year's Day 1994. Prosecutors said Humphries and a friend decided to rob the store where Smith was working after they had been drinking beer all day.

Humphries' attorney Teresa Norris read a one-and-a-half-page handwritten statement from the death chamber before the execution in which Humphries apologized for the killing and used Bible verses to criticize the death penalty. "I hope that my execution brings the Smith family some peace," he wrote. "But now I want to say something to everyone who supports this or any execution. We are all sinners, so what gives you the right as a sinner to take away a gift that God gave?"

At the end of the statement, Humphries looked toward the victim's sisters, Kathy Smith Carpenter and Carol Smith Cooley, and mouthed "I'm sorry." Carpenter nodded in response. It appeared that a tear rolled down Humphries' cheek after the exchange. After the execution, Carpenter said she appreciated the gesture. "Shawn gave me something very special tonight when he said to me through the window that he was sorry," Carpenter said. "That was the greatest gift that I could have ever received."

Officials said Humphries requested a McDonald's hamburger, french fries, broccoli and cheese, and oat cereal for his last meal.

Before the curtains opened at 6:03 p.m., the victim's widow, Patricia Smith, looked toward other family members and whispered "I can't do it," and walked out of the viewing area without witnessing her husband's killer be put to death. Humphries, his eyes closed, swallowed rapidly several times as the lethal chemicals began flowing through his veins. After his chest heaved several times, his mouth fell open, after which he did not move or appear to breathe again. Carpenter and Cooley kept their gaze trained on Humphries from the time the curtain was opened until it was closed following the pronouncement of death.

While the execution took place, several dozen death penalty opponents marched along the road near the entrance to the Broad River Correctional Institution, where the execution was held. Abe Bonowitz of Citizens United Against the Death Penalty said protesters held candles and prayed from around 6 p.m. until a "phalanx of guards" approached the group and said the execution had been carried out. "I've never seen them do that in other states," Bonowitz said, of the formality with which officers approached the protesters. He said he has protested outside hundreds of executions, including one held in North Carolina earlier Friday. Bonowitz said he was among the 16 people arrested there Thursday night.

Gov. Mark Sanford rejected Norris' application for clemency earlier Friday. On Thursday, the U.S. Supreme Court rejected a request for a stay of execution.

Humphries is the third person executed in South Carolina this year. He is the 35th inmate put to death in the state - and the 1,001st in the nation - since the death penalty was reinstated in 1976.

Norris said Thursday Humphries would have preferred to have been the 1,000th person executed nationwide since the death penalty was reinstated, so that his death would be a milestone. "In his view, No. 1,000 is sort of a landmark," Norris said.

Norris said as people learn about the death penalty and become opposed to executions, Humphries wanted his case to be remembered as an example of someone who died for a lesser crime. "Many of those already executed had multiple murders, there was premeditation, there was tortures," Norris said. "Most of those are not someone who was engaged in an attempted armed robbery and only fired one time in the direction of the victim."

Greenville News

"Man who killed Upstate store clerk put to death," by Tim Smith. (Posted Friday, December 2, 2005 - 7:20 pm)

COLUMBIA — Minutes before the state executed him Friday evening, Shawn Paul Humphries turned to the two Greenville County sisters of his victim and said he was sorry. "That was the greatest gift I could ever have received," Kathy Carpenter, one of the sisters of Mendel Alton "Dickie" Smith, said afterward.

Humphries, 34, slipped quietly into death as a lethal injection of drugs stopped his heart, the third man to be executed by the state this year. Prison officials pronounced Humphries dead at 6:18 p.m., 11 years after a jury convicted him of shooting Smith in the head during a botched robbery at the Max Saver store Smith owned with his brother in Fountain Inn.

"We're here tonight for Dickie," Carole Smith Cooley of Fountain Inn, Smith's other sister at the execution, told reporters tearfully. "For what his life stood for, for the legacy that he left. We know this will not bring us closure, or joy or excitement. We hope that peace will come." Humphries spent time Friday watching "The Wizard of Oz," talking to family and friends on the phone and eating a last meal including a McDonald's hamburger and a Dr. Pepper. His family gathered Friday and prayed, said his aunt, Terri Piotrowski, who lives in Belton. "Please pray for us and Shawn and the Smith family," she said in an email.

Officers transported Humphries on Thursday from the state's Death Row near Charleston to the capital punishment facility in Columbia. Confined to a Spartan cell, Humphries requested permission to watch "The Wizard of Oz" and was given a TV and VCR, said his lawyer, Teresa Norris, who brought him the videotape Friday morning. Officials said he played the tape, though he spent much of the time talking to family and friends on the telephone. Officers later served Humphries his requested last meal of a McDonald's hamburger, fries, broccoli and cheese, some oat cereal, milk and Dr. Pepper, officials said. He then awaited his call to walk to the chamber about 30 feet away.

Sometime before 6 p.m., officers moved Humphries to a gurney in a room behind the execution chamber. Prison staff strapped him down, then attached two intravenous lines, one to each outstretched arm. As prison workers prepared Humphries for death, six witnesses somberly filed into an adjacent room outfitted with eight upholstered chairs facing the chamber. A deep red curtain blocked any view of the chamber. The witnesses included the two sisters and Smith's widow, Patricia Smith, and three news reporters. A State Law Enforcement Division agent also sat in the room.

Shortly before the curtain opened, Patricia Smith left the room, saying, "I can't do this." At 6 p.m., the curtain opened, revealing Humphries in a creased white sheet, his gurney positioned perpendicular to the witnesses. Cooley and Carpenter sat about a foot from the paneled and barred windows in front of the chamber. Brick walls enclosed the room. In the back of the room hung another red curtain. Flourescent fixtures cast a harsh light.

Humphries, dressed in a green prison jumpsuit, turned to look toward the women, with Carpenter closest to his face. He mouthed, "I'm sorry" and she nodded. He also apologized to the Smiths in a statement read by Norris, his lawyer. He also used his final statement to debate the death penalty, taking issue with its supporters. "We are all sinners," Norris read. "So what gives you the right as a sinner to take away a gift that God gave? He gave me the gift of life. So who are you to say his gift is worthless, so worthless that you are throwing it away." Humphries said he was praying for those who "misuse" scriptures "just to gain or sustain their position of authority."

As Norris talked, Warden Bill White, equipped with a telephone headset to relay what was happening to various officials, and Warden Raymond Reed stood in the back of the chamber. In a smaller adjacent room, equipped with a heart monitor connected to the inmate's chest, two executioners begin their task by triggering the flow of three drugs into the inmate's arms. Though some have gone to their death in the chamber singing hymns, Humphries was mostly silent, though he told Carpenter a second time that he was sorry.

Within a minute after Norris was seated in the room facing Humphries, Humphries' eyes stopped blinking and he gulped and blew air out his mouth as the first of the drugs, pentothal, put him to sleep. After a couple of minutes his breathing appeared to stop. A second drug, procurium bromide, is used to paralyze the inmate's diaphram and lungs. As the inmate's breathing stops, a third drug, potassium chloride, flows into his blood and stops his heart. For about 10 minutes, witnesses watched silently, the only sound coming from a ticking clock above. The two sisters kept their eyes fixed on Humphries. Norris thumbed through a Bible.

A doctor walked into the chamber from a side door, lifted Humphries' eyelids and listened to his chest with a stethoscope. He nodded to Warden Raymond Reed, who turned to witnesses and announced Humphries' death. The witnesses were escorted out of the room. "I hope there will be comfort and peace for the Humphries family and also for our family," Carpenter said afterward.

About 25 people protested the execution with pickets outside the entrance to the prison system's complex on Broad River Road. His death was the 1001st execution since the death penalty was reinstated nationwide by the U.S. Supreme Court in 1976. The 1000th execution took place 16 hours earlier in North Carolina. Edward Blackwell, who joined Humphries in the ill-fated New Year's Day 1994 robbery attempt, is serving a life sentence for his part in the crime.

Humphries and Blackwell hatched the robbery idea during a bout of drinking that night, after stealing a 9mm pistol from a truck, according to court testimony. Humphries shot Smith after he saw Smith reaching for a gun underneath the counter. The crime was captured on videotape.

Smith, 43, was described by family members as hard-working and generous. He was survived by a wife and then-5-year-old daughter, who is now 17 and supports capital punishment. Humphries last-ditch appeal to the U.S. Supreme Court failed Thursday, and Gov. Mark Sanford turned down a request for clemency Friday morning.

"It goes without saying that death penalty cases are tragic for everyone involved," said Joel Sawyer, a spokesman for Sanford. "That having been said, the governor's legal counsel found nothing to warrant the governor overturning the outcome of an exhaustive legal process. And he has decided not to grant clemency in this case."

Myrtle Beach Online

"Man who killed Upstate store clerk put to death," by Meg Kinnard. (Associated Press Posted on Fri, Dec. 02, 2005)

COLUMBIA, S.C. - Shawn Humphries was put to death by lethal injection Friday night for the1994 murder of a Simpsonville store clerk. Humphries was pronounced dead at 6:18 p.m. Gov. Mark Sanford rejected Norris' application for clemency earlier Friday. On Thursday, the Supreme Court rejected Humphries' request for a stay of execution.

Humphries was convicted of murder for the shooting death of Mendal Alton "Dickie" Smith on New Year's Day 1994. Prosecutors said Humphries and a friend decided to rob the store where Smith was working after they had been drinking beer all day.

Humphries is the third person executed in South Carolina this year. He is the 35th inmate put to death in the state - and the 1,001st in the nation - since the death penalty was reinstated in 1976.

Humphries attorney said Thursday that he would have preferred to have been the 1,000th person executed nationwide since the death penalty was reinstated, so that his death would be a milestone.

Officials said his last meal was a McDonald's hamburger, french fries, broccoli and cheese, and oat cereal.

WIS News 10-TV

"Humphries dies by lethal injection," by Tamara King. (AP December 2, 2005) (Columbia) - South Carolina has executed the 1,001st person to die since capital punishment was reinstated in 1976. Shawn Humphries died by lethal injection for shooting and killing convenience store clerk Mendal Alton "Dickie" Smith in Greenville County on New Year's Day 1994.

The execution took place at the Broad River Correctional Institution Friday evening. Humphries was pronounced dead at 6:18pm. Eyewitnesses say it was a tearful execution. They say at one point, Humphries looked over at the victim's two sisters and mouthed that he was sorry. One of Smith's sisters nodded in response. It appeared that a tear rolled down Humphries' cheek after the exchange. Smith's sister, Kathy Smith Carpenter, says she appreciates the apology. She says it was "the greatest gift that I could have ever received." The victim's widow said she couldn't watch the execution and walked out of the viewing area.

Humphries' attorney Teresa Norris read a one-and-a-half-page handwritten statement from the death chamber before the execution. In it, Humphries apologized for the killing and used Bible verses to criticize the death penalty. He wrote, "I hope that my execution brings the Smith family some peace. But now I want to say something to everyone who supports this or any execution. We are all sinners, so what gives you the right as a sinner to take away a gift that God gave"? He ended the letter with the words: "In Christ's Love, Shawn Paul Humphries."

There were several protestors outside opposing the death penalty, saying that in Humphries' case, the punishment didn't fit the crime. Earlier Friday in North Carolina, Kenneth Lee Boyd became the one 1,000th person executed. Humphries is the third person executed in South Carolina this year. He is the 35th inmate put to death in the state since capital punishment was restored.

Charleston Post and Courier - Editorial

"Weak case against death penalty." (Friday December 2, 2005 12:00 am)

Death-penalty foes have been placing special focus on today's scheduled execution of convicted murderer Shawn Paul Humphries in Columbia, not because of any doubt over his guilt, but because of a possible milestone. As it turns out, both North Carolina and South Carolina are scheduled to execute condemned killers today. If both proceed on schedule, they will become the 1,000th and 1,001st subjected to capital punishment in the United States since it was restored in 1977.

In this large country with a relatively high murder rate, an average of fewer than 40 executions per year since 1977 hardly sounds excessive. Yet Abe Bonowitz, director of Citizens United for Alternatives to the Death Penalty, cited that low frequency this week as a case against capital punishment, contending: "Less than 1 percent of the people who are eligible for the death penalty are getting the death penalty."

If it's consistency Mr. Bonowitz seeks, why not raise that percentage by executing more killers? Then again, as Debra Saunders points out on today's Commentary page, those who want to abolish capital punishment routinely resort to inconsistent arguments.

Indeed, statistics showing rare imposition of the death penalty even when it's a legal option support the contention that it's not being applied in a gratuitous manner. Surely Simpsonville convenience store owner Mendal Alton "Dickie" Smith, shot and killed by Humphries, on New Year's Day 1994 during an attempted robbery, and other murder victims deserve to have the crimes that ended their lives judged as individual cases.

Humphries, now 34, was 13 when his criminal record began. Legal attempts to escape justice for his last crime, on the grounds that Humphries was incompetently represented and that this was simply a robbery gone bad, have been exhausted in the nearly 12 years since he murdered Mr. Smith. That's long enough.

The Times and Democrat

"Man who killed Upstate store clerk apologizes before execution," by Meg Kinnard. (Associated Press Dec 2, 8:24 PM EST)

COLUMBIA, S.C. (AP) -- Shawn Humphries apologized to his victim's family before he was put to death by lethal injection Friday night for the 1994 murder of a Simpsonville store clerk. Humphries mouthed "I'm sorry" before fatal chemicals were pumped through his veins. Department of Corrections officials pronounced Humphries dead at 6:18 p.m.

Humphries was convicted of murder for the shooting death of Mendal Alton "Dickie" Smith on New Year's Day 1994. Prosecutors said Humphries and a friend decided to rob the store where Smith was working after they had been drinking beer all day.

Humphries' attorney Teresa Norris read a one-and-a-half-page handwritten statement from the death chamber before the execution in which Humphries apologized for the killing and used Bible verses to criticize the death penalty. "I hope that my execution brings the Smith family some peace," he wrote. "But now I want to say something to everyone who supports this or any execution. We are all sinners, so what gives you the right as a sinner to take away a gift that God gave?"

At the end of the statement, Humphries looked toward the victim's sisters, Kathy Smith Carpenter and Carol Smith Cooley, and mouthed "I'm sorry." Carpenter nodded in response. It appeared that a tear rolled down Humphries' cheek after the exchange. After the execution, Carpenter said she appreciated the gesture. "Shawn gave me something very special tonight when he said to me through the window that he was sorry," Carpenter said. "That was the greatest gift that I could have ever received."

Officials said Humphries requested a McDonald's hamburger, french fries, broccoli and cheese, and oat cereal for his last meal.

Before the curtains opened at 6:03 p.m., the victim's widow, Patricia Smith, looked toward other family members and whispered "I can't do it," and walked out of the viewing area without witnessing her husband's killer be put to death. Humphries, his eyes closed, swallowed rapidly several times as the lethal chemicals began flowing through his veins. After his chest heaved several times, his mouth fell open, after which he did not move or appear to breathe again. Carpenter and Cooley kept their gaze trained on Humphries from the time the curtain was opened until it was closed following the pronouncement of death.

While the execution took place, several dozen death penalty opponents marched along the road near the entrance to the Broad River Correctional Institution, where the execution was held. Abe Bonowitz of Citizens United Against the Death Penalty said protesters held candles and prayed from around 6 p.m. until a "phalanx of guards" approached the group and said the execution had been carried out. "I've never seen them do that in other states," Bonowitz said, of the formality with which officers approached the protesters. He said he has protested outside hundreds of executions, including one held in North Carolina earlier Friday. Bonowitz said he was among the 16 people arrested there Thursday night.

Gov. Mark Sanford rejected Norris' application for clemency earlier Friday. On Thursday, the U.S. Supreme Court rejected a request for a stay of execution.

Humphries is the third person executed in South Carolina this year. He is the 35th inmate put to death in the state - and the 1,001st in the nation - since the death penalty was reinstated in 1976.

Norris said Thursday Humphries would have preferred to have been the 1,000th person executed nationwide since the death penalty was reinstated, so that his death would be a milestone. "In his view, No. 1,000 is sort of a landmark," Norris said. Norris said as people learn about the death penalty and become opposed to executions, Humphries wanted his case to be remembered as an example of someone who died for a lesser crime. "Many of those already executed had multiple murders, there was premeditation, there was tortures," Norris said. "Most of those are not someone who was engaged in an attempted armed robbery and only fired one time in the direction of the victim."

The State

HUMPHRIES’ CASE HISTORY

• On Jan. 1, 1994, Shawn Paul Humphries and a friend entered the Max-Saver convenience store in Fountain Inn.

• The store’s owner, 43-year-old Dickie Smith, was working that morning. When Humphries pulled out a gun, Smith reached under the counter. Humphries shot Smith in the head, killing him.

• Humphries was convicted of murder, attempted robbery, possession of a firearm during the commission of a violent crime and criminal conspiracy by a Greenville County jury in 1994.

• Humphries, a 34-year-old inmate at Lieber Correctional Institution in Ridgeville, is scheduled to be executed at 6 p.m. Friday.

The State

COLUMBIA, S.C. - A family member and people against the death penalty pleaded Wednesday for clemency for an Upstate man who is scheduled to be executed on Friday for killing a store clerk on New Year's Day 1994. The protest of Shawn Humphries' execution on the Statehouse steps just outside of Gov. Mark Sanford's office came one day after Virginia Gov. Mark Warner granted clemency to an inmate who had been scheduled to be the 1,000th person executed in the U.S. since capital punishment was reinstated.

An inmate in North Carolina is scheduled to die at 2 a.m. Friday, and Humphries' execution is scheduled 16 hours later. Sanford's spokesman Joel Sawyer said a decision on Humphries clemency request would be made no later than Friday morning. But "based upon the fact that this case has already been through an exhaustive legal process, the governor's legal team is not inclined to recommend that the governor grant clemency," Sawyer said.

The Rev. Brenda Kneece of the South Carolina Christian Action Council said Humphries' death sentence is not fair punishment. "Only as we extend (mercy) to others can we claim to be walking with God," she said. Humphries' aunt, Terri Piotrowski, said her nephew's "death has no meaning, and I sure don't think this is justice." Piotrowski, who previously supported the death penalty, said she changed her mind after becoming a devout Christian. "Oh Jesus, I want to make a difference," she said, tears streaming down her face.

Abe Bonowitz of Citizens United Against the Death Penalty said Piotrowski's grief is evidence that capital punishment only creates more victims.

Humphries, now 34, was convicted of murder in 1994 for the shooting death of store clerk Mendal Alton "Dickie" Smith. Prosecutors said Humphries and a friend decided to rob the store after drinking beer all day. Surveillance tape at his trial showed Humphries going into the store and flashing a gun at Smith. When Smith reached under the counter, the tape showed Humphries fire a shot and run away. Smith was struck once in the head. The friend, Edward Gerald Blackwell, stayed in the store and told police what happened, according to testimony. He is serving a life sentence for his own murder conviction.

Humphries is "very sorry, very remorseful, for what he did, but at the same time, is sort of mindboggled. Nobody ... has been executed for basically an attempted robbery that went bad," said Teresa Norris of the Capital Center for Litigation, who has requested the U.S. Supreme Court stop the execution. Several others touched by capital cases also spoke Wednesday. SueZann Bosler of Florida said she devoted more than 10 years of her life to gain clemency for the man sentenced to death for killing her father, the Rev. Billy Bosler, in 1986. James Bernard Campbell, who also stabbed SueZann Bosler several times, is now serving life without parole.

A former jury forewoman in New Orleans said her "hands were on a wrongful conviction" when she helped sentence Daniel Bright III to death in 1996. Norman fought to overturn the sentence, and Bright was exonerated in 2004.

Then there was the story of a former death row inmate in California. Shujaa Graham said he sat on California's death row for six years before his sentence was overturned. He referenced Rev. Martin Luther King Jr.'s "Letter from a Birmingham Jail." "Whatever affects one directly, affects all indirectly," Graham quoted.

As part of a speaking tour around the state, Bosler, Norman and Graham were scheduled to travel to Greenville later Wednesday.

Pro Death Penalty.com

The evidence at trial, including the video from the store's surveillance camera, established that Humphries and an accomplice entered the convenience store with the intention of robbing the store. Dickie Smith, who was working in the store, asked Humphries whether he wanted anything. Humphries flashed the gun he had stolen the night before and replied he wanted money. There was some evidence to suggest Dickie then reached under the counter to get a gun. When Dickie reached under the counter, Humphries fired a shot in Dickie's direction and fled from the store. The bullet fired by Humphries struck Dickie Smith in the head, killing him. Humphries was apprehended and immediately confessed his crime.

During the sentencing phase, the State introduced testimony from the victim's family (his brother and his wife) about Dickie Smith's childhood, work ethic, generosity, and close relationship with his young daughter. Dickie's brother testified he and his brother grew up in a poor family and that they did not have hot water. When Dickie was nine years old, his father died. After his father's death, Dickie and other family members began working to support the family. Dickie's brother testified when Dickie was in the ninth grade, he took a job as a meat cutter at Bi-Lo after school, working until 10:00 or 11:00 at night. In the tenth grade, Dickie acquired a full-time job working second shift in a textile mill while continuing to attend school. Dickie's brother testified further that everyone in the community liked Dickie and that he was a good person. Dickie's wife also testified during the sentencing phase. She described Dickie as ambitious, hardworking, and generous. For instance, after receiving one technical degree and becoming a supervisor, Dickie went back to school to get his residential home builder's license and began building houses in 1986. According to Dickie's wife, she and Dickie had a daughter, Ashley, in 1988. Dickie's wife described Dickie and Ashley's relationship as very close, and testified Ashley was having a hard time since her father was killed and was receiving counseling.

According to his own mother's testimony, Humphries was arrested in 1984 for two counts of breaking and entering, and was placed on probation. Thereafter, he was given more probation after he was suspended from school for fighting several times. After Humphries' second probation revocation when he was fifteen years old, he was sent to Reception & Evaluation in Columbia for thirty days and was placed on probation again. Humphries was arrested in January 1989 for breaking into a church, apparently looking for food because he had been living on the street for a week. Humphries pled guilty to that charge and was placed on probation. In 1990, Humphries was charged with stealing an automobile after he was released from substance abuse treatment in Texas. As a result of that charge, Humphries was sentenced to two years imprisonment with four years of probation.

National Coalition to Abolish the Death Penalty

Do Not Execute Shawn Humphries!

Shawn Humphries- South Carolina - December 2, 2005

Shawn Paul Humphries, a white man, faces execution on Dec. 2, 2005 for the Jan. 1, 1994 death of Dickie Smith in Fountain Inn, South Carolina. After driving around drinking beer all night, Humphries and his friend Eddie Blackwell allegedly attempted to rob Smith’s convenience store. When Smith reached under the counter to pull out a gun Humphries shot him and ran out of the store leaving Blackwell behind.

Humphries did not intend to kill Smith. Although his actions were definitely negligent he did not act like a cold-blooded and calculated killer. He panicked when Smith reached for a gun. This is evident from the fact that he did not kill Donna Brashier, who was also present at the time of the shooting and therefore a potential witness. It is also clear from the fact that he left his accomplice behind that he had not planned to shoot Dickie Smith.

Humphries was 22 at the time of the crime. He had suffered an extensive history of emotional, physical, and substance abuse. Humphries father had been an extremely violent man and is the one who introduced Humphries to drugs and alcohol when Humphries was between the ages of six and ten. Humphries was a disturbed young man who did a terrible thing, but he is certainly not the worst of the worst and most definitely not an appropriate candidate for capital punishment.

Another important factor in Humphries’ case is the prosecutor’s closing statement. As the dissenting Justice Wilkinson of the United States Court of Appeals for the Fourth Circuit wrote “No person should be executed in America on the theory that his life is of less worth than that of someone else.” Unfortunately the prosecuting attorney did not agree. During closing arguments the prosecutor explicitly compared Humphries’ and Smith’s respective lives. He told the jury what Smith was doing in a given year and then what Humphries did in the same year for the years leading up to the night that the two paths crossed. The prosecutor finished by stating that “when you look at the character of this Defendant, and when you look at Dickie Smith, how profane when you look at all the circumstances of this crime and of this Defendant, how profane to give this man a gift of life under these circumstances.” Clearly the prosecution does everything short of using the word compare in order to ask the jury to compare the worth of the defendant and the victim. However in this country we do not execute people based on the how they lived their lives. Our legal system is tailored to look at the crime in question, not the comparative worth of the lives of the parties.

As Justice Wilkinson said “Human worth comparisons are the hallmarks of totalitarian governments. They do not belong in our country….The most terrifying regimes of the Twentieth Century were those in which governments weighted the value of the lives of their citizens as a prelude to executing them.” He then states that he “realize[s] that the transgression before us today does not even approach the most terrible examples of human expendability [however t]o accept this sentence is to set foot on a road Americans will not recognize and our Constitution will not tolerate.”

Furthermore, the fact that Humphries’ lawyers did not object to the prosecutors’ closing argument is clearly proof that Humphries suffered from ineffective counsel. In fact Humphries’ trial counsel admitted that their failure to object constituted ineffective assistance of counsel. Moreover, this lapse on the part of trial counsel clearly had the potential to seriously prejudice jurors immediately before they begin to discuss their decision. In effective assistance of counsel cases, defendants face the burden of proving not only that their lawyer’s performance was deficient but also that the deficiency resulted in harm to the client. Clearly this case meets both criteria. Shawn Paul Humphries should not be put to death by the state.

Please write to South Carolina Governor Mark Sanford to commute Shawn Humphries' sentence to life imprisonment.

South Carolina Equal Justice Initiative

ADDRESSED TO: The Honorable Mark Sanford, Governor of the State of South Carolina

By: TERESA L. NORRIS
Center for Capital Litigation
Columbia, SC 29211
THOMAS R. HAGGARD
Ridgeway, SC 29130
COUNSEL FOR HUMPHRIES

Shawn Paul Humphries is scheduled to be executed by the State of South Carolina at 6:00 p.m. on Friday, December 2, 2005. He requests that you grant him clemency, which would simply reduce his sentence to life imprisonment without parole.

His request is not one based on claims of innocence, mental illness, or any of the other usual justifications for the grant of clemency. Rather, he simply asks you to judge him for who he is and what he did – and to then consider that in light of what we, as a society, generally consider to be an appropriate sentence in these circumstances.

Shawn Humphries was a young man, who foolishly decided with a companion, after drinking all night, to rob a convenience store, using a gun they had stolen that same, unfortunate night. The situation, however, turned very, very bad when the clerk, Mendal “Dickie” Smith, grabbed his own gun from under the counter. Shawn Humphries panicked, pulled his gun out of the waist band of his pants, and fired one shot in Smith’s direction. The shot did hit Smith and killed him. Shawn then ran out of the store and was apprehended later that day. For these foolish acts he accepts his guilt and deserves punishment. He has never argued to the contrary. He does not, however, deserve the death penalty. Shawn Humphries is not one of the “worst of the worst,” who we, as a society, should execute to express our moral outrage. And this is a situation that you alone can now correct. Shawn Humphries’ convictions and sentence have been upheld through the appellate process and collateral court proceedings and found to be legally appropriate. He does not contest that now. It is, however, important for you to remember that federal habeas review is extremely limited and the denial of habeas does not establish that the state action was constitutionally right; it only establishes that the state decision is not patently and directly inconsistent with controlling Supreme Court precedent. The Fourth Circuit Court of Appeals was deeply divided on this matter, with Judge 1See Hall v. Catoe, 360 S.C. 353, 601 S.E.2d 335 (2004). 2Ex parte Grossman, 267 U.S. 87, 120-21 (1925).

Wilkinson passionately arguing that Shawn Humphries was denied the most fundamental of constitutional rights during the sentencing phase of his trial. The South Carolina Supreme Court, moreover, since deciding Shawn Humphries’ case, has apparently shifted its position on the narrow legal question that has so absorbed the courts in this case.1 This is of no immediate concern to you, but you simply cannot decline to exercise your legitimate executive power on the grounds that the technical, legal result was conclusively right – for, indeed, it was not; it was a tightly contested matter.

That, however, is not the issue here. Shawn Humphries asks you, as the Governor of this State, to transcend all these narrow, legal technicalities and to do justice in the broader moral sense. In the words of the Prophet Micah, “What does the Lord require of you, but to do justice, and to love kindness, and to walk humbly with your God?” [Micah 6:8] In making this moral decision, Shawn Humphries urges you to remember that [e]xecutive clemency exists to afford relief from undue harshness . . . in the operation or enforcement of the criminal law. The administration of justice by the court is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the executive.2 3Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 Wash. L. Rev. 429, at 441 (May 2003). 4Herrera v. Collins, 506 U.S. 390, 412, 415 (1993). 5Ex parte Tucker, 973 S.W.2d 950, 952 (Tex. Crim. App. 1998). 6Crooks v. Sanders, 115 S.E. 760, 762 (S.C. 1922). 7John Milton, Paradise Lost. 8See Attachment (Humphries’ Statement).

In ancient times, appeals for mercy to the King of England were heard by the Lord Chancellor, who came to be known as "the keeper of the king's conscience."3 The “king’s conscience” in this country is now exercised by the Executive.

Put differently, executive clemency “is the historic remedy for preventing miscarriages of justice,” and provides “the ‘fail safe’ in our criminal justice system. . . . [because] [i]t is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.”4 It has also been said that “[t]he executive clemency process is a vehicle for mercy”5 or an “act of grace.”6 In short, the authority and power to “temper . . . Justice with mercy”7 lies with you. We submit that Humphries should be granted clemency both to prevent a miscarriage of justice and as a matter of mercy.

I. The evidence and arguments supporting Humphries’ convictions and death sentence.

During the evening of New Year’s Eve and the early morning of January 1, 1994, Humphries, age 22, and Eddie Blackwell, age 19, were out riding around drinking beer. They stole a weapon during that time and then hatched the plan to commit a robbery.8 Humphries’ intent was only to commit a robbery. He had no intent to kill anyone.

Shortly after 7:00 a.m. on January 1, they entered the Max-Saver convenience store in Fountain Inn, South Carolina, which was operated by Mendel “Dickie” Smith. When they entered the store, their “plan” was so poorly conceived that it apparently still took them some time to figure out what they were going to do, as evidenced by the other store clerk’s testimony that they talked and Humphries kept saying “shit.” Even when Shawn Humphries approached the counter, he did not take the gun out of the waistband of his pants. He only showed it to Smith, who then reached for a handgun. Only then did Shawn Humphries pull out his gun. He fired a single shot in Smith's direction and fled from the store, without harming or threatening the other employee who witnessed the crimes and without even knowing whether his shot had even hit Smith. In short, Shawn Humphries fired only in the direction of the victim for self-protection and not with the intent to kill. Unfortunately, however, the bullet fired by Shawn Humphries struck Smith in the head, killing him. Meanwhile, Blackwell slumped to the ground in the store.

The police arrested Blackwell at the scene and apprehended Shawn Humphries later that day. Even though he still had the pistol on him, he made no attempt to harm the arresting officers and told them that the pistol was in his waistline. He also immediately confessed and remained cooperative with officers throughout the pretrial and trial proceedings. During the trial, he conceded his participation in the attempted armed robbery and the shooting.

During sentencing, the State presented documentary evidence concerning Shawn Humphries’ prior juvenile and adult criminal record, which included a juvenile adjudication in 1985 for two breaking and enterings, 1989 convictions in Anderson County, South Carolina for burglary and larceny (for breaking into a church to look for food because he had been living on the street for a week), and a 1990 larceny conviction in Alabama. 9Payne v. Tennessee, 501 U.S. 808, 822-23 (1991). 10Id. at 823.

The State also presented “victim impact” evidence, which the United States Supreme Court has held is permissible to offer “a quick glimpse of the life” of the victim to demonstrate the “uniqueness” of the victim, the “loss to the community,” and “the specific harm caused by the crime in question.”9 The Court, however, expressly rejected the notion that such evidence “permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy.”10 Shawn Humphries’ case was one of the first in this State in which a Solicitor used victim-impact evidence, and in this case the Solicitor pushed the envelope to, if not beyond, the permissible maximum.

Specifically, the Solicitor presented substantial victim impact testimony and then used that evidence to compare the lives and worth of Smith and Shawn Humphries in urging the jury to sentence Humphries to die.

The State presented testimony from Smith’s brother and his wife. This testimony established that Smith was one of eight children, who grew up in poverty. His father died when he was nine years old and he picked cotton, hunted, and worked numerous part time jobs to help support the family. While he was still in high school, he got a full-time job working nights in a textile mill and bought a car for the family. After graduation, he worked for Union Carbide for 15-16 years. He then moved to Kemet Electronics, where he met his wife. He married in 1985 and his daughter was born in 1988. While working full-time, he went back to school and got an electrical and mechanical degree that enabled him to get into supervision. He then went back to school and got his residential home builders license. For a while, he continued working full-time at Kemet and built houses on the side. He then shifted to building homes in the community full-time. Finally, just a few years before his death, he opened the Max-Saver Convenience Store. In general, he was a kind, caring, religious man, who was devoted to his daughter, and well-respected in the community. No one disputes that, and under Supreme Court precedent this evidence was clearly relevant to the loss the community suffered by his death. But the Solicitor was not content to leave it with that – as will be discussed below.

In mitigation, Shawn Humphries’ counsel also presented testimony concerning his deprived background. Without belaboring the point, the evidence revealed that Humphries’ parents separated about the time of his birth and he and his older brother lived with his mother and grandmother for a while, but his mother, who was on welfare at times, was unable to adequately feed them or care for them. She even abandoned Shawn to a friend when he was only a baby. When he was around two years old, he and his older brother were taken into the home of his father and his alcoholic grandparents, who grew marijuana in their backyard and had the children to assist them. Humphries’ father drank alcohol and huffed paint in front of his children daily and encouraged them to do the same. He was extremely mentally abusive to his children and physically abusive even to his own parents. They lived in extreme poverty and mostly ate beans and “poke salad.” By the time Shawn Humphries and his brother were seven to eight years old, their grandparents would have the children dig in dumpsters looking for things they could use or sell. They got clothes, shoes, and even food to live on from other people’s trash. When Shawn was twelve, his grandfather, who was afraid at times to leave his son alone with his wife and the children, took Humphries and his brother back to live with their mother due to the increasing violence by Humphries’ father. By that time, Shawn was getting in trouble with the law and using substantial quantities of alcohol and drugs, including huffing paint. When Shawn was confined following a juvenile adjudication, a counselor described him as pleasant, respectful, and passive.

The Solicitor, however, used the victim impact evidence and Shawn Humphries’ mitigating evidence to create a comparison between the human worth of Shawn Humphries and that of Smith. In closing arguments, the prosecutor described Smith’s merits in detail and argued that despite his impoverished upbringing, he struggled to make something of himself. He also repeatedly and deliberately drew comparisons between Smith and Shawn Humphries and compared Smith’s accomplishments with Shawn’s chronology of petty crimes. In other words, the jury was being told to disregard Humphries’ mitigation evidence because Dickie Smith suffered from some of the same hardships, but overcame them. The Solicitor then chronicled certain events in Dickie Smith’s life and compared them with what Humphries was doing at the same time.

“And in 1984 he met Pat, and they fell in love, and they got married. That’s the same year Shawn Paul Humphries committed two house break-ins at 13.”

Similarly, “In 1986 Dickie makes a pretty drastic move. He decides he’s going to quit Kemet and go build houses full-time, and he goes out, and he starts building homes in the community he had grown up in. That’s the same year Shawn Paul Humphries is up for his second probation violation and sent down to Columbia.”

And, “In 1988 Ashley is born. That’s the same year Shawn Paul Humphries went to jail for two years.”

Then, in a direct comparison of the victim with Humphries regarding the propriety of the death penalty, the Solicitor said, “I would submit, when you look at the character of [Humphries], 11Humphries v. Ozmint, 397 F.3d 206, 249 (4th Cir. 2005) (en banc) (Wilkinson, J., dissenting). 12Id. at 245. and when you look at Smith [the victim], . . . how profane to give this man a gift of life under these circumstances.”

The Solicitor concluded his appeal for a death sentence by noting that Humphries acted under aggravating circumstances and with no mitigation and added, “[I]f not in a case with a character like this [Humphries], if not in a case when somebody like [Smith] is taken, when are you going to do it?” Neither of Humphries’ trial counsel objected to this argument and Humphries was sentenced to death.

II. Clemency should be granted because no death sentence should ever be based on either a comparison of a defendant’s and victim’s worth or a comparison of their lives – regardless of whether such a sentence is technically constitutional or not.

To be sure, the Solicitor made an emotionally compelling argument for the jury, but it simply shocks the conscience that the State should stoop to the level of making such a comparison. As Judge Wilkinson on the Fourth Circuit put it: Human worth comparisons are the hallmarks of totalitarian governments. They do not belong in our country. Societies have gotten into the deepest sort of trouble by making these comparisons an explicit basis for the imposition of death. The most terrifying regimes of the Twentieth Century were those in which governments weighted the value of the lives of their citizens as a prelude to executing them.11 In his view, it is a perversion of justice to base a death sentence on the fact that the defendant is “condemned simply for being deemed, over the long trajectory of life, a less estimable human being than his victim.”12 Similarly, as the South Carolina Supreme Court put it in a later case, it is improper “to compare the worth of the life of the defendant with that of the victim” and to base a 13Hall, 360 S.C. at 363, 601 S.E.2d at 341. 14Gregg v. Georgia, 428 U.S. 153, 187 (1976) (Opinion of Stewart, Powell, and Stevens, JJ.). death sentence on that comparison.13 We agree and urge upon you the view that this is an intolerable notion in any civilized society – particularly a society that is rightly cautious about the life-and-death powers that the State asserts, and can so easily abuse. A murder that deserves the death penalty should not and must not depend on whether a “worthy” individual or an “unworthy” one (in comparison to the defendant) is killed.

While the South Carolina Supreme Court and the majority of the Fourth Circuit en banc felt constrained by various dry, technical, legal constraints from granting relief to Shawn Humphries, you, as Governor, are not so constrained. You alone must determine whether a sentence of death is warranted – in the broader sense of what is just and what is right. It is for you now to determine finally whether Humphries should die simply because the jury perceived the person he killed to be “worth” more to his community than Shawn Humphries was “worth.” That is an unspeakable, pernicious result, and one that we should not tolerate – whether it is strictly legal or not.

III. A death sentence is excessive for Humphries’ crimes. Almost 30 years ago, in holding that the death penalty is not an unconstitutional punishment, the United States Supreme Court described the death penalty as “an extreme sanction, suitable to the most extreme of crimes.”14 In other words, on a practical level, the death penalty is not permitted for any and all murders.

Shawn Humphries was convicted of murder, the only offense for which a person can be sentenced to death in South Carolina. But this was based only on the inference of malice from his commission of the felony of an attempted armed robbery and from his use of a deadly weapon. He had no intent to kill and expressed no “malice aforethought,” which is a required element of murder. He pulled out his weapon and fired one time because he panicked after Smith reached for a weapon. But, because he killed Smith with a deadly weapon during an attempted armed robbery, he was convicted of murder. The sole statutory aggravating circumstance (which made Shawn Humphries legally eligible for a death sentence for his murder conviction) was also the attempted armed robbery. If the facts were changed so that Shawn Humphries had not been attempting to rob the store, but for some reason had malice in his heart and walked into the store, approached the counter, put his gun to Smith’s head, and shot him six times before leaving, Shawn Humphries would not be eligible for the death penalty. Thus, because of the anomaly of the felony murder rule allowing the inference of malice and a statutory aggravating circumstance, Humphries will be executed, if you do not grant clemency, for an unintentional killing – while a murderer who kills in a cold, calculated, and premeditated fashion (but who has no legal aggravating circumstance) is not even eligible for a death sentence. This cannot be right, particularly under the facts of this case.

In short, the legal system failed to achieve justice in the broader sense in this case because this murder and attempted armed robbery, as horrible as these crimes were, are not “extreme” crimes that should distinguish Shawn Humphries from the numerous people who are not sentenced to death for far more cold-blooded, calculated crimes.

Indeed, out of the 997 people executed in this country (from 1977 to the present) almost none of them weresentenced to die based on facts such as this where there was no intent to kill, where the defendant simply panicked during an attempted felony when the victim grabbed a gun, and where the defendant had no violent criminal record or additional statutory aggravating circumstances. The 15These cases are summarized in the Stay Application and Appendix submitted to the U.S. Supreme Court, a copy of which has been provided to your legal counsel. undersigned counsel have been able to find only six cases out of 997 where defendants were executed based on even arguably similar circumstances.15 What this means is that prosecutors clearly are not seeking death in similar cases or, if death is sought, the overwhelming majority of American jurors are rejecting death as the appropriate punishment for crimes such as those committed by Humphries. Thus, Shawn Humphries’ death sentence is an anomaly and a miscarriage of justice. Clemency is warranted under these circumstances to avoid this “undue harshness” and arbitrariness.

IV. Clemency should be granted as a matter of mercy.

While we believe that clemency should be granted to correct the injustices in Humphries’ death sentence and impending execution, apart from these arguments, we humbly urge you to spare Shawn Humphries’ life. There will be no justice in executing him and no purpose served. Executing him will not bring Dickie Smith back to life. It will not ease the pain for Smith’s family. It will only add additional victims because Shawn Humphries is a loved brother and son to his family. While Humphries will, without your mercy, be executed, the pain of execution will fall primarily not on him but on his family members and loved ones who will live on. At some point, the killing and pain must stop. We are at that point. You, and you alone, can see that it does stop.

Your job is not an easy one and we realize that fact. The burden of making life and death decisions and tempering justice with mercy can never be easy. Nonetheless, in this situation, we submit that there is only one acceptable decision to make in these circumstances. Here, “justice and 16William Shakespeare, The Merchant of Venice. 17S.C. Const. Art IV, § 14; S.C. Code § 16-3-20(A).mercy” go hand-in-hand. To do “justice,” Humphries’ death sentence must be commuted because it is an unfair anomaly that resulted from improper comparisons of human life. To show “mercy” as an act of grace, when you have literally been given that power under the law and by the majority of South Carolinians in electing you as the final “conscience” to make this decision, can never be improper.

The quality of mercy is not strain’d. It droppeth as the gentle rain from heaven Upon the place beneath: It is twice blest; It blesseth him that gives, and him that takes.16 We ask that you temper justice with mercy to Shawn Humphries and his family and grant clemency, which would commute Humphries’ death sentence to a sentence of life imprisonment without possibility of parole.17

Respectfully submitted,
TERESA L. NORRIS
Center for Capital Litigation
Columbia, SC 29211
THOMAS R. HAGGARD
Ridgeway, SC 29130
Counsel for Humphries

State v. Humphries, 325 S.C. 28, 479 S.E.2d 52 (S.C. 1996) (Direct Appeal).

Defendant was convicted in the Circuit Court, Greenville County, Henry F. Floyd, J., of murder, and was sentenced to death. Defendant appealed. The Supreme Court, Toal, J., held that: (1) attempted armed robbery accompanying murder was aggravating circumstance; (2) defendant was not entitled to notice of state's intent to introduce victim impact testimony; and (3) defendant was not entitled to mitigating circumstance instruction on diminished capacity. Affirmed.

TOAL, Justice:
This is a death penalty case. Appellant Shawn Paul Humphries was tried and sentenced to death for the murder of Dickie Smith. Humphries admits his guilt but appeals his sentence, arguing there were several errors during the sentencing phase of his trial. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On January 1, 1994, Humphries shot Dickie Smith, the owner of the Max-Saver convenience store in Fountain Inn, South Carolina. The evidence at trial established that on the night before the killing, Humphries and his friend Eddie Blackwell drove around drinking beer. They also stole a gun that night. Shortly after 7:00 a.m. on January 1, they entered the Max-Saver convenience store. Smith, who was working in the store, asked Humphries whether he wanted something hot, and Humphries flashed the stolen gun and replied that he wanted money.

There was some evidence to suggest Smith then reached under a counter to pull out a gun. The video camera at the store recorded the shooting. When Smith reached under the counter, Humphries fired a shot in Smith's direction and fled from the store. The bullet fired by Humphries struck Smith in the head, killing him. Meanwhile, Blackwell slumped to the ground in the store. The police arrested Blackwell at the scene and apprehended Humphries later that day. During the sentencing phase of Humphries's capital murder trial, the State introduced evidence by Smith's family members about Smith's work ethic, his generosity and his close relationship with his young daughter Ashley. Smith's wife testified that she had to put Ashley in counseling after Smith's death because Ashley was so traumatized. After hearing all the evidence in the sentencing phase, the jury recommended a death sentence. The statutory aggravating factor relied on by the State, and found by the jury, was that the murder was carried out while in the commission of an armed robbery.

LAW/ANALYSIS

On appeal, Humphries argues three issues: the propriety of the prosecution's use of attempted robbery as a statutory aggravating circumstance; the prosecution's failure to notify him that it intended to use evidence of victim impact; and the judge's failure to charge statutory mitigating circumstances relating to diminished capacity.

* * *

We have conducted the proportionality review pursuant to S.C.Code Ann. § 16-3-25 (1985). The sentence was not the result of passion, prejudice, or any other arbitrary factor; the evidence supports the finding of the aggravating circumstance; and the sentence is not disproportionate to that imposed in similar cases. State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996); State v. Thompson, 278 S.C. 1, 292 S.E.2d 581, cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982). For the foregoing reasons, the defendant's conviction and sentence are AFFIRMED.

Humphries v. State, 351 S.C. 362, 570 S.E.2d 160 (S.C. 2002) (PCR).

Following the affirmance of his murder conviction and death sentence, 325 S.C. 28, 479 S.E.2d 52, petitioner sought post-conviction relief (PCR). The Circuit Court, Greenville County, Henry F. Floyd, J. and H. Dean Hall, Post-Conviction Judge, denied the petition. Certiorari was granted. The Supreme Court, Toal, C.J., held that solicitor's closing argument at penalty phase had not improperly suggested that victim was "worthy" and defendant was "unworthy," and thus, trial counsel was not ineffective in failing to object to the closing argument. Affirmed.

CHIEF JUSTICE TOAL:
Shawn Paul Humphries ("Petitioner") appeals from the denial of his application for post-conviction relief ("PCR").

Petitioner was tried for the murder of Dickie Smith ("Smith"), the owner of a Max-Saver convenience store. Petitioner was convicted of murder, attempted armed robbery, and criminal conspiracy. He was sentenced to death for murder and to concurrent sentences of twenty years for attempted armed robbery and five years for criminal conspiracy. His convictions and sentences were affirmed on direct appeal. State v. Humphries, 325 S.C. 28, 479 S.E.2d 52 (1996), cert. denied, 520 U.S. 1268, 117 S.Ct. 2441, 138 L.Ed.2d 201 (1997).

The evidence at trial, including the video from the store's surveillance camera, established that Petitioner and an accomplice entered the convenience store with the intention of robbing the store. Smith, who was working in the store, asked Petitioner whether he wanted anything. Petitioner flashed the gun he had stolen the night before and replied he wanted money. There was some evidence to suggest Smith then reached under the counter to get a gun. When Smith reached under the counter, Petitioner fired a shot in Smith's direction and fled from the store. [FN1] The bullet fired by Petitioner struck Smith in the head, killing him. Petitioner was apprehended and immediately confessed his crime. [FN2]

FN1. When the shot was fired, Petitioner's accomplice, Eddie Blackwell, fainted and later regained consciousness prior to the arrival of the police. Blackwell was convicted of murder, criminal conspiracy, and attempted armed robbery, and received a life sentence for murder. FN2. When the arresting officer asked Petitioner where the gun was, Petitioner immediately told him it was in his belt. Petitioner remained cooperative throughout the arrest.

The jury convicted Petitioner of murder, and after hearing all the evidence in the sentencing phase, recommended a death sentence. The statutory aggravating factor relied on by the State, and found by the jury, was that the murder was carried out while in the commission of an armed robbery. [FN3] FN3. The facts are as stated in this Court's opinion in State v. Humphries.

During the sentencing phase, the State introduced testimony from the victim's family (his brother and his wife) about Smith's childhood, work ethic, generosity, and close relationship with his young daughter. Smith's brother testified he and his brother grew up in a poor family and that they did not have hot water. When Smith was nine years old, his father died. After his father's death, Smith and other family members began working to support the family. Smith's brother testified when Smith was in the ninth grade, he took a job as a meat cutter at Bi-Lo after school, working until 10:00 or 11:00 at night. In the tenth grade, Smith acquired a full-time job working second shift in a textile mill while continuing to attend school. Smith's brother testified further that everyone in the community liked Smith and that he was a good person.

Smith's wife also testified during the sentencing phase. She described Smith as ambitious, hardworking, and generous. For instance, after receiving one technical degree and becoming a supervisor, Smith went back to school to get his residential home builder's license and began building houses in 1986. According to Smith's wife, she and Smith had a daughter, Ashley, in 1988. Smith's wife described Smith and Ashley's relationship as very close, and testified Ashley was having a hard time since her father was killed and was receiving counseling.

Petitioner presented evidence in mitigation during the sentencing phase through the testimony of thirteen witnesses. Apparently, Petitioner's strategy was to mitigate the circumstances of his offense by making the jury aware of the brutal circumstances in which he was raised. Petitioner's paternal grandfather testified Petitioner and Petitioner's brother lived with him and Petitioner's grandmother from the time Petitioner was three years old until Petitioner was twelve years old. Petitioner's grandfather testified that he and his wife were heavy drinkers, and that his wife grew marijuana in their back yard. Petitioner's grandfather described his son, Petitioner's father, as unpredictably violent, noting he had been to prison several times. Petitioner's grandfather testified that his son, Petitioner's father, had cut him on the arm with a knife and had kicked Petitioner's grandmother in the face, knocking her false teeth out. Next, Petitioner's aunt testified Petitioner's father had said on numerous occasions that he never loved his children and that the children should have been aborted. Petitioner's mother testified that, after she left Petitioner's father, she became pregnant with Petitioner as a result of his father raping her at knife point. She stated she eventually left the children with their paternal grandparents and married several more men. She reunited with the children only after she married someone who would allow the children to live with her.

Petitioner's mother also discussed Petitioner's criminal record. According to his own mother's testimony, Petitioner was arrested in 1984 for two counts of breaking and entering, and was placed on probation. Thereafter, he was given more probation after he was suspended from school for fighting several times. After Petitioner's second probation revocation when he was fifteen years old, he was sent to Reception & Evaluation in Columbia for thirty days and was placed on probation again. Petitioner was arrested in January 1989 for breaking into a church, apparently looking for food because he had been living on the street for a week. Petitioner pled guilty to that charge and was placed on probation. In 1990, Petitioner was charged with stealing an automobile after he was released from substance abuse treatment in Texas. [FN4] As a result of that charge, Petitioner was sentenced to two years imprisonment with four years of probation. FN4. Petitioner's mother enrolled him in substance abuse treatment because she had observed him huffing paint, and, upon visiting his residence, had discovered empty paint cans and rags littering the floor.

Petitioner's step-mother testified that Petitioner's father used a combination of alcohol, drugs, and paint fumes every day, and had shared those substances with Petitioner from 1983 to 1992.

Petitioner's brother testified regarding the circumstances in which he and Petitioner grew up, including: their father's violence toward his own parents, the lack of hot water and sometimes running water, the lack of food, and the trips taken to the dumpsters to find school clothes. Mary Shults, an expert witness with a degree in sociology and a master's degree in social work, testified regarding Petitioner's social history. She related that Petitioner had been reminded throughout his life that he was a product of rape. Shults stated that Petitioner's father was incredibly violent, would kick people in the face, cut people, and would refer to himself as Satan. In addition, Shults testified that Petitioner's father introduced Petitioner to drugs and alcohol sometime between the ages of six and ten. At the close of the sentencing phase evidence, Petitioner's counsel moved to prohibit the solicitor from making any reference to victim impact in his closing argument. The trial judge denied that motion. [FN5]

FN5. In denying the motion, the trial judge stated: I realize that this is an issue that's in this case that if the death penalty is returned, that the appellate courts will have to address. How the Supreme Court wants to deal with my ruling as to whether it is or is not evidence of aggravation or is it just merely pointing out the characteristics of the victim in this case, or is it adequately covered in the notice, I'll let them worry about it. I've ruled, and the water's over the bridge, so I will not prohibit from arguing to the jury those facts, since that is now in the record.

In his sentencing phase closing remarks, the solicitor argued, in part: It's easy in this stage of the game--in this stage of the trial to start looking at [Petitioner] as a victim in this case. And the Defense wants to paint a picture sort of a window for you to look through. Let's remember the good [Petitioner], and lets forget what he did and let's forget all the back record and all that stuff. Let's just look at what he did. And they presented a bajillion [sic] pictures of [Petitioner] as a little boy to you. Folks, the State of South Carolina is *368 not attempting to send to death row that little boy in that picture. Every defendant in this country who has gone to death row has had pictures like that. Everyone that comes after this will have pictures like that. We're not talking about a three year old boy or a six year old boy or a twelve year old boy. We're talking about a 22 year old man who went to a store and executed [Smith]. That's what we're talking about. But it's easy at this stage when you go through day after day of testimony about [Petitioner] to start looking at him as some sort of victim. I would submit to you that the last thing you need to look at in this case is [Smith] and his uniqueness as an individual. When I talk about [Smith], I'm not trying to get tears of sympathy for him. A jury's duty is to look objectively at the case. So look at the cold hard facts.

... [Smith] was born in 1950, fourth son, fifth child of a fellow named Alton Smith and a sweet lady named Lottie Mae Darnell Smith. They grew up poor. They didn't have hot water. They had a spigot coming in and a tub next to the stove, and they had a few acres of cotton. [Smith] is as much about this case as [Petitioner]. When [Smith's father] died when [Smith] was nine, he pulled himself up by his boot straps and he started contributing to the family. He got all kinds of odd jobs picking cotton at a penny a pound, hunting rabbits, skinning them, dressing them out, selling them for 50 cents. When he's 14 years old, he gets a job in Greenville at the Bi-Lo in the Meat Department working after school. He's gone to school all day. From after school till about 10:00 or 10:30 at night working at Bi-Lo, saving his money, buying a car for the family. When he's in tenth grade, he goes down to Boenett's and he gets a full-time job, second shift. He's going to school all day, and he's working until midnight, contributing. Lottie Mae Darnell Smith with eight kids, got them all out of high school, all at least a tech degree, some of them through college. When [Smith] finished high school, he went to work for Union Carbide, then Kemet, but he didn't stop there. He *369 kept improving himself. He went to Tech, he got an engineering degree, and he became a supervisor, and then he went back to Tech because he decided he wanted to build houses, and he got his--another degree at Tech, and he got his builder's license.

And in 1984 he met Pat and they fell in love, and they got married. That's the same year [Petitioner] committed two house break-ins at age 13.1986, [Smith] makes a pretty drastic move. He decides he's going to quit Kemet and go build houses full-time, and he goes out, and he starts building houses in the community he had grown up in. That's the same year [Petitioner] is up for his second probation violation and sent down to Columbia. Then in 1988, July the 4th, they have a little baby girl named Ashley. You know, the Defense brought in a 12 year old ... stepsister, said, "Please don't put Shawn Paul Humphries in the electric chair." I'm sorry I did not feel it was appropriate to bring in a six year old [sic] girl Ashley and parade her in front of you. In 1988 Ashley is born. That's the same year [Petitioner] went to jail for two years. And in the spring of 1992, I believe, [Smith] opens the doors to the Max-Saver, building a business down in that community. You have the right to look at the uniqueness of the individual. I would submit to you that [Smith], by everybody's description to you was a unique individual. He grew up in that southern part of Greenville County below Simpsonville that was mainly farming, cotton, agriculture area. And he grew up watching it change to industrial. And he first went to work at Union Carbide, and then decides he was going to be part of that change, and he started building houses down there. Who is the victim? Is it [Petitioner] or is this lady right here, his momma, or his wife, or Ashley, who the only way she can see her daddy is to go visit his grave on Sunday after church?

There are a lot of reasons for punishment. Rehabilitation is one reason, and rehabilitation is a proper goal in some circumstances, but you've got to decide about whether [Petitioner], who at 13 is breaking the law, at 14 is breaking the law, at 17 is going--is breaking the law, at 18 is breaking the law and going to jail, who's been given every chance that the system offers. You decide if you're going to rehabilitate him. What are some reasons for punishment? Retribution is one reason for punishment. That may not sound good, may not sound right, but, in fact, it is part of punishment, because retribution is our community saying you have done something wrong and we're going to punish you. We don't allow individual retribution. If something happened to your momma, your sister, we don't allow you to go out and individually take retribution against the perpetrator, but it's the community saying you have broken a law in the community, and we're going to punish you. And the question is when somebody commits the ultimate act, can they be subject to the ultimate punishment? And the answer is yes. And what we do is impanel a jury, and they decide when we're going to invoke the ultimate punishment.

I would submit to you folks that every time a jury sits in a situation like this, something important happens. I'm not talking about duty. I'm not talking about service. I'm talking about values. Every time a jury sits in a case like this, it is a statement of our values as a community, as a society. It's like a banner. I'm not talking about dollars and cents. The Defense will say, "Well, sending [Petitioner] to the electric chair is not going to bring [Smith] back." I'm not talking about that, and you don't have to answer to anyone for the verdict you bring back, but I'm talking about value. When you look at a case like this, when you look at the aggravation, when you look at the total lack of mitigation, I would **165 submit, when you look at the character of [Petitioner], and when you look at Smith, how profane when you look at all the circumstances of this crime and of this [Petitioner], how profane to give this man a gift of life under these circumstances. Each of you said, "If the case was aggravating enough, if the case was senseless enough, yes, I could sign that form." *371 What punishment will you recommend here? What punishment do you recommend for a crime as senseless as this?

... What punishment do you recommend when somebody like [Smith] is taken from us? ... ... If not in a case as aggravating as this, if not in a case with absolutely no mitigation like this, if not in a case with a character like this, if not in a case when somebody like [Smith] is taken, then when are you going to do it? The jury deliberated and recommended death. Afterwards, the trial judge stated, The only thing that remotely would cause me concern is that issue of the error--the alleged error as to that [victim impact] testimony, but whether or not it's wrong to admit it or not, the jury having heard it, I don't think made a decision on the basis of prejudice, passion or any other arbitrary factor. At the post-trial motions hearing, Petitioner's counsel objected to the solicitor's use of comparisons between Smith and Petitioner during his argument. The trial judge noted the facts solicitor referenced during the argument were clearly in the record. The trial judge disagreed with counsel's reading of Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).and commented further that the solicitor's argument was one of the best arguments he had ever heard, particularly in terms of the technique, delivery, and effectiveness.

On direct appeal, Petitioner argued the prosecution's use of the victim impact evidence during closing argument was inappropriate and prejudicial. However, this Court held the argument was not preserved. State v. Humphries, 325 S.C. at 35, 479 S.E.2d at 56.

* * *

To reverse the PCR court's denial of relief, this Court must find, first, that counsel was ineffective, and, second, that counsel's ineffectiveness resulted in prejudice. Payne does not prohibit character comparisons between defendants and victims; it prohibits comparisons that suggest that there are *377 worthy and unworthy victims. Therefore, Petitioner cannot establish either the ineffectiveness prong or the prejudice prong of the test as required to overturn the PCR court's denial of relief.

For the foregoing reasons, we AFFIRM the PCR court's denial of relief.

Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005) (Habeas).

Background: Following affirmance both of his criminal conspiracy, attempted armed robbery, and murder convictions and of his sentence of death, 325 S.C. 28, 479 S.E.2d 52, petitioner filed habeas petition in federal district court. The United States District Court for the District of South Carolina, Joseph F. Anderson, Jr., Chief Judge, dismissed petition, and petitioner appealed.

Holdings: Vacating prior panel opinion, 366 F.3d 266, following grant of petition for rehearing en banc, the Court of Appeals, Hamilton, Senior Circuit Judge, held that:
(1) determination by the South Carolina Supreme Court, in rejecting due process claim which was based upon prosecutor's detailed comparison of lives of capital murder defendant and his victim during closing argument at penalty phase of case, that this comparison did not affect fundamental fairness of capital sentencing procedure, did not represent unreasonable application of U.S. Supreme Court precedent, such as might warrant grant of federal habeas relief;
(2) state law claims are not cognizable on federal habeas review; and
(3) South Carolina Supreme Court reasonably interpreted federal law to find that admission of victim impact evidence did not violate capital murder defendant's due process right to fair trial, notwithstanding state's alleged failure to provide defendant with adequate advance notice of its intent to introduce such evidence. Affirmed.

HAMILTON, Senior Circuit Judge:
On August 5, 1994, Shawn Paul Humphries was convicted in the Circuit Court for Greenville County, South Carolina of murder, attempted robbery, possession of a firearm during the commission of a violent crime, and criminal conspiracy. Following a sentencing hearing, the jury recommended a sentence of death for the murder conviction and, in accordance with *209 the jury's verdict, the state trial court sentenced Humphries to death for that conviction. After exhausting his state remedies, Humphries filed a petition for a writ of habeas corpus in the United States District Court for the District of South Carolina, 28 U.S.C. § 2254, which the district court dismissed. [FN1] On July 25, 2005, the district court granted Humphries a certificate of appealability, 28 U.S.C. § 2253. For the reasons stated below, we affirm the district court's dismissal of Humphries's habeas petition.

FN1. Initially, Humphries named Gary Maynard, former commissioner of the South Carolina Department of Corrections, and Charles Condon, South Carolina's former attorney general, as respondents. Now, Jon Ozmint and Henry McMaster, respectively, hold these positions and have been substituted as respondents, Fed.R.Civ.P. 25(d)(1). For ease of reference, we will refer to respondents as "the State" throughout this opinion.

As found by the South Carolina Supreme Court on direct appeal, the facts of this case are as follows: On January 1, 1994, Humphries shot Dickie Smith, the owner of the Max-Saver convenience store in Fountain Inn, South Carolina. The evidence at trial established that on the night before the killing, Humphries and his friend Eddie Blackwell drove around drinking beer. They also stole a gun that night. Shortly after 7:00 a.m. on January 1, they entered the Max-Saver convenience store. Smith, who was working in the store, asked Humphries whether he wanted something hot, and Humphries flashed the stolen gun and replied that he wanted money.

There was some evidence to suggest Smith then reached under a counter to pull out a gun. The video camera at the store recorded the shooting. When Smith reached under the counter, Humphries fired a shot in Smith's direction and fled from the store. The bullet fired by Humphries struck Smith in the head, killing him. Meanwhile, Blackwell slumped to the ground in the store. The police arrested Blackwell at the scene and apprehended Humphries later that day. State v. Humphries, 325 S.C. 28, 479 S.E.2d 52, 53 (1996).

On July 12, 1994, a Greenville County grand jury charged Humphries with the following offenses: (1) murder; (2) attempted robbery; (3) possession of a firearm during the commission of a violent crime; and (4) criminal conspiracy. On August 1, 1994, the case went to trial and the jury returned a verdict of guilty on all counts.

During the separate sentencing phase of Humphries's trial, the solicitor proffered, and the state trial court admitted, all of the evidence that was admitted during the guilt phase of the trial. Following the court's admission of this evidence, the solicitor called two witnesses from Dickie Smith's family, his brother Randy Smith and his wife Pat Smith. These witnesses testified about Dickie Smith's childhood, upbringing, work ethic, generosity, and close relationship with his young daughter Ashley. Randy Smith testified that he and Dickie Smith grew up in a poor family that did not have hot water. When Dickie Smith was nine-years old, his father died. After his father's death, Smith and the other family members began working to support the family. Randy Smith testified that, when Dickie Smith was in the ninth grade, he took a job after school as a meat cutter at a Bi-Lo grocery store, working until 10:00 or 11:00 p.m. at night. In the tenth grade, Dickie Smith acquired a full-time *210 job working second shift in a textile mill while continuing to attend school. Randy Smith testified everyone in the community liked Dickie Smith and he was a good person.

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

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

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

In support of this strategy, Humphries called thirteen witnesses. The first witness was Albert Humphries, Humphries's paternal grandfather. He testified that Humphries and his brother, Richard Humphries, lived with him and Humphries's grandmother from the time Humphries was three-years old until Humphries was twelve-years old. Albert Humphries testified that he and his wife were heavy drinkers and that his wife grew marijuana in their backyard. Albert Humphries described his son, Humphries's father, as unpredictably violent, noting that he had been to prison several times. Albert Humphries testified that his son had cut him on the arm with a knife and had kicked Humphries's grandmother in the face, knocking her false teeth out. Patricia Goode, Humphries's aunt, testified that Humphries's father had said on numerous occasions that he never loved his children and that the children should have been aborted.

Humphries's mother, Carla Scott, testified that, after she left Humphries's father, she became pregnant with Humphries as a result of his father raping her at knife point. She stated that she eventually left the children with their paternal grandparents and married several more times. She reunited with the children only after she married someone who would allow the children to live with her.

Scott also discussed Humphries's criminal record. According to Scott, Humphries was arrested in 1984 for two counts of breaking and entering and was placed on probation. Thereafter, he was given more probation after he was suspended from school for fighting several times. After Humphries's second probation revocation when he was fifteen years old, he was sent to a state facility in Columbia, South Carolina for thirty days and was placed on probation again. Humphries was arrested in January 1989 for breaking into a church, apparently looking for food because he had been living on the street for a week. Humphries pled guilty to that charge and was placed on probation. In 1990, Humphries was charged in Alabama with stealing an automobile. As a result of that charge, Humphries was sentenced to two years' imprisonment followed by four years of probation.

Debbie Humphries, Humphries's step-mother, testified that Humphries's father used a combination of alcohol, drugs, and paint fumes every day and had shared those substances with Humphries from 1983 to 1992. Richard Humphries, Humphries's brother, testified regarding the circumstances in which he and Humphries grew up, including: (1) their father's violence toward his own parents; (2) the lack of hot water and sometimes running water; (3) the lack of food; and (4) the trips taken to the dumpsters to find school clothes. The unfortunate circumstances of Humphries's upbringing were further confirmed by the testimony of two other witnesses, Ruby Badsen, Humphries's maternal grandmother, and Lindsay Badsen, Humphries's uncle.

* * *

The solicitor then turned his attention to the evidence in aggravation. The solicitor argued that the evidence in this case clearly established the statutory aggravating circumstance relied upon by the State, that the murder was committed during the commission of a robbery while Humphries was armed with a deadly weapon. [FN3] Then, the solicitor turned to Humphries's character and summarized Humphries's checkered past in great detail, stating:

FN3. The jury was presented with one aggravating circumstance (murder committed during the commission of a robbery while armed with a deadly weapon) and two statutory mitigating circumstances (no significant prior criminal history and the age of the defendant). The jury was also instructed to consider any other circumstances it found to be mitigating.

He's been in trouble since he was 13 years old. When he was 13 years old, he committed two breaking and enterings, and he was given probation. He was given a chance by the Family Court judge at age 13. He missed school. He got in fights at school. He got suspended at school. He ran away. And so they brought him back in at age 14 on a probation revocation, and he was given yet another chance, stricter conditions. And again, he skipped school. He ran away. He was disruptive in school. He got suspended. So at age 15 he's brought back in for another probation revocation. And this time the Family Court Judge said, "You know, enough is enough. We're going to send you down to Columbia. We're going to send you down there [to] see if we can't figure out what makes you tick." Finally, the solicitor turned to Dickie Smith's uniqueness as an individual. In this regard, the solicitor stated: Dickie Smith was born in 1950, fourth son, fifth child of a fellow named Alton Smith and a sweet lady named Lottie Mae Darnell Smith. They grew up poor. They didn't have hot water. They had a spigot coming in and a tub next to the stove, and they had a few acres of cotton. Dickie Smith is as much about this case as Shawn Paul Humphries. When Alton Smith died when Dickie was nine, he pulled himself up by his bootstraps and he started contributing to the family. He got all kinds of odd jobs picking cotton at a penny a pound, hunting rabbits, skinning them, dressing them out, selling them for 50 cents.

When he's 14 years old, he gets a job in Greenville at the Bi-Lo in the Meat Department working after school. He's gone to school all day. From after school til about 10:00 or 10:30 at night working at Bi-Lo, saving his money, buying a car for the family. When he's in tenth grade, he goes down to Boenett's and he gets a full-time job, second shift. He's going to school all day, and he's working until midnight, *213 contributing. Lottie Mae Darnell Smith with eight kids, got them all out of high school, all at least a tech degree, some of them through college. When Dickie Smith finished high school, he went to work for Union Carbide, then Kemet, but he didn't stop there. He kept improving himself. He went to Tech, he got an engineering degree, and he became a supervisor, and then he went back to Tech because he decided he wanted to build houses, and he got his--another degree at Tech, and he got his builder's license.

And in 1984 he met Pat, and they fell in love, and they got married. That's the same year Shawn Paul Humphries committed two house break-ins at age 13. In 1986 Dickie makes a pretty drastic move. He decides he's going to quit Kemet and go build houses full-time, and he goes out, and he starts building homes in the community he had grown up in. That's the same year Shawn Paul Humphries is up for his second probation violation and sent down to Columbia. Then in 1988, July the 4th, they have a little baby girl named Ashley. You know, the Defense brought in a 12 year old stepdaughter--stepsister, said, "Please don't put Shawn Paul Humphries in the electric chair." I'm sorry I did not feel it was appropriate to bring in a six year old girl Ashley and parade her in front of you. In 1988 Ashley is born. That's the same year Shawn Paul Humphries went to jail for two years. And in the spring of 1992, I believe, Dickie Smith opens the doors to the MaxSaver, building a business down in that community.

You have the right to look at the uniqueness of the individual. I would submit to you that Dickie Smith, by everybody's description to you was a unique individual. He grew up in that southern part of Greenville County below Simpsonville that was mainly farming, cotton, agriculture area. And he grew up watching it change to industrial. And he first went to work for one of the industries at Union Carbide, and then he decided he was going to be part of that change, and he started building houses down there and building a business down there. After finishing the portion of his closing argument concerning Dickie Smith's uniqueness, the solicitor then concluded his argument by arguing the following to the jury: Who is the victim here, Shawn Paul Humphries or is it Dickie Smith? Who is the victim? Is it this guy over here or is it Donna, Donna Brashier, who's got to hear that gunshot every day of her life and who's got to see Dickie Smith laying on the floor every day of her life? Who is the victim? Is it this Defendant or is it this lady right here, his momma, or his wife, or Ashley, who the only way she can see her daddy is to go visit his grave on Sunday after church?

There are a lot of reasons for punishment. Rehabilitation is one reason, and rehabilitation is a proper goal in some circumstances, but you've got to decide about whether this Defendant, who at 13 is breaking the law, at 14 is breaking the law, at 15 is breaking the law, at 17 is going--is breaking the law, at 18 is breaking the law and going to jail, who's been given every chance that the system offers. You decide if you're going to rehabilitate him. What are some other reasons for punishment? Retribution is a reason for punishment. That may not sound good, may not sound right, but, in fact, it is part of punishment, because retribution is our community saying you have done something wrong and we're going to punish you.... When you look at a case like this, when you look at the aggravation, when you look at the total lack of mitigation, I would submit, when you look at the character of this Defendant, and when you look at Dickie Smith, how profane when you look at all the circumstances of this crime and of this Defendant, how profane to give this man a gift of life under these circumstances....

What punishment do you recommend when a man is defending his co-worker, he's defending his store, he's defending what he has built, and he's ducking behind the counter, and somebody takes a nine millimeter and executes him? What punishment do you recommend? What punishment do you recommend when you've got a character like that? What punishment do you recommend when somebody like Dickie Smith is taken from us? If not now, then when? If not in a case that's as aggravated as this, then when do you do it? The defense may say, "Well, you can think of all kinds of aggravating cases." You can think of this and you can think of that. You look at the circumstances of this case. If not in a case as aggravating as this, if not in a case with absolutely no mitigation like this, if not in a case with a character like this, if not in a case when somebody like Dickie Smith is taken, then when are you going to do it? It's not supposed to be easy. It's never been easy. It won't be easy in the future. Shawn Paul Humphries comes into this courtroom asking you for mercy. Shawn Paul Humphries comes in here and asks you for mercy, and I ask you what mercy did he give? Shawn Paul Humphries comes in here and asks you for mercy, and he gave none. Shawn Paul Humphries comes in here and asks you for life, and he gave death. Is that fair? Is that justice? That's what you're here for is justice. It's up to you. In his closing argument, counsel for Humphries argued that the death penalty was unwarranted for several reasons. First, counsel for Humphries emphasized that there was no evidence of an intent to kill because Humphries: (1) pulled the trigger after he panicked in reaction to Dickie Smith's attempt to reach under the counter; (2) did not kill Donna Brashier; (3) drove off without Blackwell; and (4) voluntarily confessed to the killing. Counsel also argued that Humphries was a nonviolent person who had no significant history of engaging in violent acts. Counsel argued that Humphries was a young man who had an extensive history of emotional, physical, and substance abuse. Finally, counsel argued that Humphries was a trustworthy, respectful, and pleasant person.

Following the state trial court's instructions and the jury's deliberations, the jury recommended a sentence of death for the murder conviction and, in accordance with the jury's verdict, the state trial court sentenced Humphries to death for that conviction. [FN4] At the post-trial motions hearing, Humphries's counsel objected to the solicitor's use of comparisons between Dickie Smith and Humphries during his closing argument, and the state trial court overruled the objection. FN4. For the other counts of conviction, Humphries received concurrent twenty-year sentences.

On direct appeal, the South Carolina Supreme Court affirmed the state trial court's judgment. Id. at 57. On June 9, 1997, the United States Supreme Court denied Humphries's petition for a writ of certiorari. Humphries v. South Carolina, 520 U.S. 1268, 117 S.Ct. 2441, 138 L.Ed.2d 201 (1997). On September 16, 1997, Humphries filed an application for post-conviction relief in state court, which he later amended. Following an evidentiary hearing, the state habeas court dismissed the application. On June 18, 1999, Humphries filed a petition for a writ of certiorari in the South Carolina Supreme Court. On September 27, 2001, the South Carolina Supreme Court granted the petition for a writ of certiorari and requested the parties proceed with briefing. Humphries, through appellate counsel, briefed the following issue in his petition for certiorari: "Counsel did not provide petitioner effective assistance at sentencing because they failed to object timely to the solicitor's closing argument suggesting that the petitioner deserved to die because his life was worth less than the victim's." The Supreme Court of South Carolina affirmed the state habeas court's judgment on August 26, 2002. Humphries v. State, 351 S.C. 362, 570 S.E.2d 160, 168 (2002). On December 24, 2002, Humphries filed a petition for a writ of habeas corpus in the United States District Court for the District of South Carolina. On January 29, 2003, the State filed a motion for summary judgment. Humphries filed his response on February 14, 2003. On February 25, 2003, a United States Magistrate Judge reported and recommended that Humphries's habeas petition be denied. On June 19, 2003, the district court, after conducting a de novo review of the record, granted the State's motion for summary judgment and dismissed the petition. On July 25, 2003, the district court granted Humphries a certificate of appealability, 28 U.S.C. § 2253.

On May 3, 2004, a divided panel of this court vacated Humphries's death sentence and remanded the case with instructions to issue the writ solely for the purpose of resentencing. Humphries v. Ozmint, 366 F.3d 266 (4th Cir.2004). The State filed a timely petition for rehearing with a suggestion for rehearing en banc to which Humphries filed a response. A majority of the active circuit judges voted to rehear this case en banc, which resulted in the vacatur of the panel opinion.

* * *

In a related argument, Humphries claims that his due process rights were violated because his death sentence "was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Gardner, 430 U.S. at 362, 97 S.Ct. 1197. According to Humphries, he did not receive adequate notice concerning the introduction of victim-impact evidence and, therefore, could not adequately prepare his defense in advance. This claim founders for the simple reason that Humphries knew or reasonably should have known that victim-impact evidence would be used by the State during the sentencing phase of the trial. Therefore, he had ample opportunity to investigate and rebut that evidence. Indeed, there is no law that clearly requires timely, specific, and express notice of victim-impact evidence, and Humphries can point to no relevant federal authority to substantiate his claim. Thus, the South Carolina Supreme Court reasonably interpreted federal law to find that the admission of victim-impact evidence did not violate Humphries's right to a fair trial under the Due Process Clause of the Fourteenth Amendment. V For the reasons stated herein, the judgment of the district court is affirmed. AFFIRMED