Joseph Earl Bates v.  R. C. LEE, Warden, Central Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JOSEPH EARL BATES,
Petitioner-Appellant,
v. No. 02-4 
R. C. LEE, Warden, Central Prison,
Raleigh, North Carolina,
Respondent-Appellee. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CA-99-742-1)
Argued: September 26, 2002
Decided: October 23, 2002
Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Widener and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Robert Hood Hale, Jr., Raleigh, North Carolina; Rose-
mary Godwin, Raleigh, North Carolina, for Appellant. Barry Steven
McNeill, Special Deputy Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Roy Cooper, Attorney General of North Carolina,

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NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
OPINION
WILKINSON, Chief Judge:
Appellant Joseph Earl Bates was sentenced to death for the murder
of Charles Edwin Jenkins. Bates does not contest the fact that he com-
mitted the murder. After exhausting state challenges to the sentence
imposed by the state courts, Bates petitioned the United States Dis-
trict Court for the Middle District of North Carolina for a writ of
habeas corpus under 28 U.S.C. § 2254. The district court found no
merit in his claims and dismissed the petition. We now affirm.
I.
On August 25, 1990, two fishermen discovered Charles Jenkins’
body floating in the Yadkin River, in Yadkin County, North Carolina.
The victim’s ankles and wrists were bound by rope, his legs and arms
were hog-tied, and a rope was tied around his neck. While investigat-
ing the murder, two police officers went to Bates’ house to speak with
him. At that time, the officers obtained a piece of paper and some
molding from Bates’ home having what appeared to be bloodstains on
it. The following day, Bates gave a thirteen-page confession, in which
he admitted to beating, hog-tying, kidnapping, and then shooting the
victim in the neck. Bates was indicted for kidnapping and murder.
The facts surrounding the crime are undisputed. Some time in late
July or early August 1990, someone broke into and fired gunshots
into Bates’ home, causing Bates to set up a temporary campsite on his
employer Hal Eddleman’s property. Around this same time Bates told
his friend, Gary Shaver, that he could kill someone.
On August 10, Bates called Eddleman and told Eddleman to meet
him at the bridge later that evening because something was "going
down." Eddleman went to the bridge as instructed, but Bates never
came to meet him. The next evening Bates and Shaver went to a night
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club. At approximately 1:45 a.m., Bates instructed a waitress to ask
Billy Grimes, another friend, to telephone Eddleman. Bates told her
that Grimes and Eddleman would know what was going on.
At approximately 2:00 a.m., Jenkins asked Bates and Shaver for a
ride home. During the ride, Bates asked Jenkins if he knew Bates’ ex-
wife and her new boyfriend, and Jenkins replied that he did. Bates
stopped twice during the ride. During the second stop, Bates struck
Jenkins three times on the back of the head with a shovel, appearing
to knock him unconscious. When Jenkins began to moan, Bates struck
him again, hog-tied him, and then placed him in the vehicle.
On the way back to his campsite, Bates stopped at Eddleman’s
house and told Eddleman that he "got one of the MF’s." He then told
Grimes, "I’ve got one of the guys that’s been messing with me. Do
you want to watch or help?" Grimes declined to help, as did Shaver
and Eddleman. Bates drove Jenkins back to his campsite around 4:00
a.m.
At the campsite, Bates loosened the ropes on Jenkins and began
asking Jenkins who had shot into his home. Jenkins mentioned two
people who were involved, but did not say anything else. Unsatisfied
with Jenkins’ response, Bates then tied Jenkins to a tree and went to
his tent to retrieve a gun that he had borrowed from Eddleman. Bates
put the gun up to Jenkins throat, but Jenkins repeated that he did not
know for sure who had shot into Bates’ home. Bates then untied Jen-
kins, took him to the back of the truck, and shot him in the neck. Jen-
kins was lying face-up near the back of the truck when Bates shot
him. In his confession, Bates said he "shot him . . . because he acted
like he knew who had shot into my house, he spit on me and told me
to go to hell, and this made me mad and I shot him."
After rummaging through Jenkins’ pockets, Bates retied Jenkins’
hands and feet and loaded him into the jeep. Bates drove back to
Eddleman’s house, returned Eddleman’s gun, and asked, "[w]hat do
you think I should do with the body." Bates then left and threw the
body into the Yadkin River.
Later that day Bates discussed the murder with both Eddleman and
Grimes. Bates told Eddleman, "[w]ell, it don’t bother me all that bad."
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Bates told Grimes that he killed the victim because he would get no
more time for murder than for kidnapping.
Bates was indicted for kidnapping and murder. The State sought
the death penalty. A jury found Bates guilty of one count of first
degree murder and one count of first degree kidnapping. He was sen-
tenced to death for the first degree murder conviction. On appeal, the
North Carolina Supreme Court awarded Bates a new trial based on an
improper denial of Bates’ motion for an ex parte hearing regarding his
request for funds to employ a forensic psychologist. State v. Bates,
428 S.E.2d 693 (N.C. 1993). Bates was retried, and a second jury
found Bates guilty of one count of first degree kidnapping and one
count of first degree murder on the basis of both the felony murder
rule and premeditation and deliberation.
During the closing argument of the penalty phase of the second
trial, the prosecutor pointed out that Jenkins’ mother, Bates’ mother,
and Bates’ sister each cried while on the stand. The prosecutor then
asked whether the jurors saw Bates cry during the trial, or whether
Bates had presented any evidence of remorse. The prosecutor also
commented that Bates had been given the benefit of a lengthy trial
and two good lawyers who would stand up and ask the jurors not to
return the death penalty, because it was a lawyer’s job to do so.
The jury recommended the death sentence on the basis of the kid-
napping and the especially heinous, atrocious, or cruel nature of the
crime. On November 9, 1994, Judge Julius Rousseau sentenced Bates
to death for the first degree murder conviction and to an additional
forty years in prison for the kidnapping conviction. The Supreme
Court of North Carolina affirmed the conviction and sentence, State
v. Bates, 473 S.E.2d 269 (N.C. 1996), and the United States Supreme
Court denied certiorari, Bates v. North Carolina, 519 U.S. 1131
(1997).
Bates then filed a motion for appropriate relief. The North Carolina
Superior Court entered an order denying Bates’ claims, and the
Supreme Court of North Carolina affirmed. State v. Bates, 539 S.E.2d
297 (N.C. 1999).
Next, Bates filed a petition for habeas corpus in the United States
District Court for the Middle District of North Carolina. On February
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14, 2002, the district court adopted the magistrate’s recommendation
to dismiss Bates’ petition. Bates v. Lee, No. 1:99CV00742 (M.D.N.C.
Feb. 14, 2002). Finding no substantial issue presented, the district
court also declined to issue a certificate of appealability. Id. Bates
now appeals.
II.
Federal courts entertaining collateral attacks on state convictions
have only limited powers of judicial review. See Williams v. Taylor,
529 U.S. 362 (2000). Under 28 U.S.C. § 2254(d)(1) (2002), federal
courts may not grant a writ of habeas corpus when a state court has
already resolved the merits of a claim unless the state court’s decision
was "contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. § 2254(d)(1) (2002).
A state court decision is contrary to clearly established federal law
if the state court "applies a rule that contradicts the governing law set
forth in [the Court’s] cases" or "confronts a set of facts that are mate-
rially indistinguishable from a decision of the Court and nevertheless
arrives at a result different from [its] precedent." Williams, 529 U.S.
at 405-06.
A state court decision involves an unreasonable application of
Supreme Court precedent if the state court "correctly identifies the
governing legal rule but applies it unreasonably to the facts of a par-
ticular prisoner’s case," id. at 407-08, or "was unreasonable in refus-
ing to extend the governing legal principle to a context in which the
principle should have controlled." Ramdass v. Angelone, 530 U.S.
156, 166 (2000) (opinion of Kennedy, J.). The Supreme Court has
stressed the importance of the word "unreasonable" in the standard of
review. "Under § 2254(d)(1)’s ‘unreasonable application’ clause . . .
a federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-
court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable." Wil-
liams, 529 U.S. at 411.
In this case, Bates argues that the North Carolina Supreme Court’s
decision was an unreasonable application of clearly established fed-
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eral law because (1) the trial court erroneously failed to instruct the
jury on second degree murder; (2) the prosecutor’s closing comments
during the penalty phase violated the defendant’s Fifth Amendment
right to remain silent and his due process rights; and (3) the jury
instructions on the "heinous, atrocious or cruel" aggravating circum-
stance were vague and overbroad in violation of the Fifth, Eighth and
Fourteenth Amendments. We address each argument in turn.
III.
First, Bates contends that the North Carolina courts unreasonably
applied federal law by failing to instruct the jury on the lesser
included offense of second degree murder. Bates argues that Jenkins
provoked him to commit the murder. This, in combination with other
circumstances in his life at the time, constituted enough evidence to
negate deliberation, and the trial court should have therefore
instructed the jury on second degree murder.
In capital cases, due process requires the court to give an instruc-
tion on any lesser included offense when the evidence warrants such
an instruction. Beck v. Alabama, 447 U.S. 625, 637-38 (1980). But
"[a] defendant is not entitled to have the jury instructed as to lesser
degrees of the crime simply because the crime charged is murder."
Briley v. Bass, 742 F.2d 155, 164 (4th Cir. 1984). Instead, "due pro-
cess requires that a lesser included offense instruction be given only
when the evidence warrants such an instruction." Hopper v. Evans,
456 U.S. 605, 611 (1982). "The decision of whether there is enough
evidence to justify a lesser included offense charge rests within the
sound discretion of the trial judge." United States v. Chapman, 615
F.2d 1294 (10th Cir. 1980). Further, "[w]here . . . the highest court
of a state has reviewed a defendant’s request for a lesser included
offense instruction and concluded that it is not warranted by the evi-
dence elicited at trial, that conclusion is axiomatically correct, as a
matter of state law. Accordingly, the circumstances that would induce
a federal court to overturn the state court determination would need
to be extraordinary, indeed." Bagby v. Sowders, 894 F.2d 792, 795
(6th Cir. 1990). Because "federal habeas corpus relief does not lie for
errors of state law," Lewis v. Jeffers, 497 U.S. 764, 780 (1990), our
only question here is whether the North Carolina courts’ finding that
there was insufficient evidence to support a second degree murder
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instruction was so wrong as to amount to a fundamental miscarriage
of justice. E.g., Nichols v. Gagnon, 710 F.2d 1267, 1269 (7th Cir.
1983).
North Carolina law recognizes three degrees of homicide, two of
which are relevant here. Murder in the first degree is the unlawful
killing of another human being with malice and with premeditation
and deliberation. N.C. Gen. Stat. § 14-17 (2002); State v. Watson, 449
S.E.2d 694, 699 (N.C. 1994). Murder in the second degree is the
unlawful killing of a human being with malice, but without premedi-
tation and deliberation. State v. Duboise, 181 S.E.2d 393, 398 (N.C.
1971).
Premeditation means that "defendant formed the specific intent to
kill the victim for some period of time, however short, before the
actual killing. Deliberation means that the intent to kill was formed
while defendant was in a cool state of blood and not under the influ-
ence of a violent passion suddenly aroused by sufficient provocation."
State v. Misenheimer, 282 S.E.2d 791, 795 (N.C. 1981) (citations
omitted). North Carolina courts consider several factors in determin-
ing the existence of premeditation and deliberation, including (1)
provocation by the deceased; (2) the defendant’s conduct and state-
ments before and after the killing; (3) "threats and declarations of the
defendant before and during the course of the occurrence giving rise
to the death of [the] deceased"; (4) "ill-will or previous difficulty
between the parties"; (5) "the dealing of lethal blows after the
deceased has been felled and rendered helpless"; and (6) "evidence
that the killing was done in a brutal manner." State v. Fisher, 350
S.E.2d 334, 338 (N.C. 1986). Provocation by the deceased can negate
deliberation, so long as it is strong "enough to arouse a sudden and
sufficient passion in the perpetrator . . . ." State v. Salmon, 537 S.E.2d
829, 834 (N.C. 2000). However, "[i]f the State’s evidence establishes
each and every element of first-degree murder and there is no evi-
dence to negate these elements, it is proper for the trial court to
exclude second-degree murder from the jury’s consideration." State v.
Flowers, 489 S.E.2d 391, 407 (N.C. 1997).
Bates argues that two circumstances negate the element of premed-
itation and deliberation. First, he contends that the circumstances of
his life at the time of the murder demonstrate that he was distressed
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and thus unable to form the mental state to commit first degree mur-
der. Bates points out that he had been recently estranged from his
wife, that someone had broken into and shot at his home, and that he
believed Jenkins was setting him up. Second, Bates argues that his
confession, where he stated that Jenkins made him mad by spitting on
and cursing at him, in combination with the circumstances of his life
at the time, negates deliberation. Bates, however, misinterprets the
quantum of evidence necessary to negate this element.
Under North Carolina law, a showing of mere anger is not suffi-
cient to prove that a defendant lost his ability to reason and thus to
negate deliberation. "Anger and emotion frequently coincide with
murder, but a court should instruct on murder in the second degree
only when the evidence would permit a reasonable finding that the
defendant’s anger and emotion were strong enough to disturb the
defendant’s ability to reason." State v. Perry, 450 S.E.2d 471, 474
(N.C. 1994). Bates introduced evidence that he was angry and dis-
tressed before the killing occurred. He did not, however, introduce
any evidence tending to show that his ability to reason had been dis-
turbed. In fact, Bates’ confession tends to contradict that inference.
Bates clearly states in his confession that when he brought Jenkins
back to his campsite he "was not drunk or doing drugs at the tim[e].
I knew what was going on." Nothing in his confession suggests that
Bates lost the ability to formulate rational thought.
Furthermore, the uncontroverted evidence at trial demonstrates pre-
meditation and deliberation. The factors that North Carolina courts
use in evaluating the existence of premeditation and deliberation
strongly suggest their existence here. Bates relies on the first factor,
provocation by the deceased, to negate deliberation. He ignores, how-
ever, the evidence demonstrating that before Jenkins spat on and
cursed at him, Bates had already kidnapped, hogtied, and then beat
and questioned Jenkins for a period of several hours. Furthermore,
Bates’ conduct prior to and after the killing overwhelmingly supports
the existence of premeditation and deliberation. Prior to the killing
Bates told Shaver that he could kill someone, and then repeatedly told
his friends that something would be "going down." After the murder,
Bates told Grimes that he killed Jenkins because Bates couldn’t let
Jenkins live after Bates tortured him, and that he would get no more
time for murder than for kidnapping. These statements contradict any
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suggestion that Bates shot Jenkins because Jenkins made him so
angry that he lost the ability to reason. In fact, they suggest just the
opposite — that the murder was a calculated act, however twisted that
calculus might be.
We acknowledge that under North Carolina law provocation by the
deceased can suffice to negate deliberation. See State v. Watson, 449
S.E.2d 694, 700 (N.C. 1994). The North Carolina courts found that
it did not, however, suffice in this case. The sole evidence Bates
offers to support a second degree murder instruction is his statement
that the victim spat on and cursed at him which made him mad. That
evidence does not tend to establish that his ability to reason had been
disturbed. Furthermore, Bates’ confession, where Bates states that the
victim was lying on his back face-up when he shot him, suggests that
there was some period of time between the alleged provocation and
the actual murder.
Nothing in the North Carolina jury instructions approached a due
process violation. And while the parties argue extensively over state
law, "[i]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions." Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Beck requires a trial court to
give a lesser included offense instruction when the evidence so war-
rants. The North Carolina trial court, in the face of overwhelming evi-
dence of premeditation and deliberation, reasonably determined that
under North Carolina law the evidence did not warrant such an
instruction. Thus, we must reject Bates’ argument and hold that the
North Carolina Supreme Court did not unreasonably apply the rele-
vant Supreme Court precedent to the facts of this case.
IV.
Next, Bates argues that the prosecutor’s closing arguments at sen-
tencing violated his Fifth Amendment right to remain silent and his
due process rights. We also review these claims for whether the North
Carolina Supreme Court’s decision was contrary to, or an unreason-
able application of, clearly established Federal law. See Williams v.
Taylor, 529 U.S. 362 (2000).
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A.
Bates made no objection at any time to the prosecution’s sentenc-
ing argument. He contends, however, that the trial court erred by fail-
ing to intervene ex mero motu to prevent the prosecutor from
commenting on his right to remain silent. Bates contends that by
pointing out to the jury that other witnesses in the case had gotten on
the stand and cried, and then asking the jurors whether they had
observed Bates crying, the prosecutor implicitly argued that Bates
should have testified.
The Constitution "forbids either comment by the prosecution on the
accused’s silence or instructions by the court that such silence is evi-
dence of guilt." Griffin v. California, 380 U.S. 609, 615 (1965); Doyle
v. Ohio, 426 U.S. 610 (1976). A prosecutor improperly comments on
the defendant’s failure to testify when "the language used [is] mani-
festly intended to be, or . . . [is] of such character that the jury would
naturally and necessarily take it to be a comment on the failure of the
accused to testify." United States v. Anderson, 481 F.2d 685, 701 (4th
Cir. 1973), aff’d, 417 U.S. 211 (1974).
During the sentencing portion of the trial, the prosecutor argued:
Have you heard any evidence at all that the Defendant is
sorry for what he did? Think about that for a minute. Any
evidence at all that he’s sorry?
. . .
[H]e was bragging about . . . bragging about throwing this
body in the river. Bragging. Is he sorry?
When he said to Hal, "It doesn’t bother me. I[t] doesn’t
bother me," was he sorry. When he talked to Gary Shaver,
"Chill out. Don’t worry about it. I don’t."
. . .
You saw three women get on the stand and cry. You saw
[the victim’s mother], and briefly . . . she lost her compo-
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sure, and she cried. Did the Defendant shed any tears as she
cried? Anybody look? Did you see any show of emotion of
him as she cried for the loss of her son.
[The defendant’s] mother, his own mother got on the stand
and cried. Any tears over there? Did you see any? [The
defendant’s] sister, who’s done so well. She cried for her
brother. Did he? Did he cry for what he’d done to her? For
what he’d done to Charlie?
We do not think this closing argument, pungent though it was, vio-
lated the defendant’s Fifth Amendment right to remain silent at sen-
tencing. And in so holding, the North Carolina Supreme Court did not
unreasonably apply clearly established federal law. This court has
found that prosecutorial comments about the lack of remorse demon-
strated by a defendant’s demeanor during trial do not violate a defen-
dant’s Fifth Amendment right not to testify. Howard v. Moore, 131
F.3d 399, 421 (4th Cir. 1997); Gaskins v. McKellar, 916 F.2d 941,
951 (4th Cir. 1990); see also Six v. Delo, 94 F.3d 469, 476-77 (8th
Cir. 1996).
The prosecutor’s comments in this case fall within the scope of
Howard and Gaskins. The prosecutor never commented directly or
indirectly on Bates’ failure to testify. Rather, as the Supreme Court
of North Carolina observed, "the prosecutor commented on the
demeanor of the defendant, which was before the jury at all times.
Such statements are not comparable to those which this Court has pre-
viously held to be improper comments on a defendant’s failure to tes-
tify." State v. Bates, 473 S.E.2d 269, 281 (N.C. 1996) (internal
citation omitted). Moreover, reference to Bates’ remarks immediately
following the murder constituted nothing more than a repetition of the
evidence already presented at trial.
Bates’ reliance on Lesko v. Lehman, 925 F.2d 1527 (3d Cir. 1991),
is misplaced. In Lesko, the prosecutor asked the jury to consider
Lesko’s arrogance on the witness stand and argued that Lesko did not
even have the "common decency to say I’m sorry for what I did." Id.
at 1544. The Third Circuit judged this an impermissible comment on
Lesko’s failure to testify because it suggested that Lesko had an obli-
gation to address the charges against him. Id. at 1544-45. No such
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thing happened here. As the magistrate judge noted, while comments
on what the defendant "failed to say may very well penalize a defen-
dant for exercising his right to remain silent . . . asking the jury
whether the evidence presented of [Bates’] demeanor during trial
shows remorse . . . does not." Bates v. Lee, No. 1:99CV00742. Bates
was not, of course, obligated to show remorse for his murder of Jen-
kins either before or during trial. However, the absence of any indica-
tion of contrition on his part for the taking of another human life was
not beyond the range of prosecutorial comment during sentencing.
Since this court has already determined in Howard and Gaskins that
comments referring to a defendant’s demeanor during trial do not vio-
late the Fifth Amendment, we find that the North Carolina courts’
application of Griffin and Doyle was not unreasonable.
B.
Next, Bates argues that the prosecutor’s rhetoric at sentencing
deprived him of a fair trial. Specifically, Bates argues that the prose-
cutor commented on the exercise of his right to counsel and his right
to a jury trial in a manner which penalized him for exercising those
rights. Furthermore, Bates argues that the prosecutor improperly dis-
credited defense counsel in a way that also caused severe prejudice.
In considering Bates’ argument, we first recognize that prosecutors
enjoy considerable latitude in presenting arguments to a jury,
Sizemore v. Fletcher, 921 F.2d 667, 670 (6th Cir. 1990), because "the
adversary system permits the prosecutor to ‘prosecute with earnest-
ness and vigor.’" United States v. Young, 470 U.S. 1, 7 (1985) (quot-
ing Berger v. United States, 295 U.S. 78, 88 (1935)). Committed
advocates do not always present antiseptic closing statements, and the
jury is entrusted within reason to resolve such heated clashes of com-
peting views. Moreover, the scope of our review is narrow, because
"not every trial error or infirmity which might call for application of
supervisory powers correspondingly constitutes a ‘failure to observe
that fundamental fairness essential to the very concept of justice.’"
Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (quoting
Lisenba v. California, 314 U.S. 219, 236 (1941)). Thus, our review
is limited to whether the comments rendered the proceeding so funda-
mentally unfair as to constitute a denial of due process. Donnelly, 416
U.S. at 643. This determination requires us to look at "the nature of
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the comments, the nature and quantum of the evidence before the
jury, the arguments of opposing counsel, the judge’s charge, and
whether the errors were isolated or repeated." Boyd v. French, 147
F.3d 319, 329 (4th Cir. 1998) (internal quotation marks omitted).
Bates attacks the following portion of the prosecutor’s argument:
The Defendant sits here today with the benefit of, all the
benefit we can give him that this system has to grant a per-
son on trial. He gets all the ordinary benefits of this system,
and it’s not perfect, but it’s as good as we could do. He sits
here and he has this benefit. He has the benefit of a lengthy
trial. He has the benefit of placing the burden of beyond a
reasonable doubt on the shoulders of the State and say,
"Here carry it. And, carry it straight up that mountain."
. . .
He’s been given the benefit of two lawyers, two good law-
yers, two good men, who will stand in a moment and talk
to you, and ask you not to return the death penalty. That’s
their job.
. . .
Did [the victim] have a trial? . . . But, did, did [the victim]
have the benefit of people getting up and begging for his
life?
These comments did not run afoul of the due process clause. They
were based upon facts established during trial or were aspects of the
trial which were readily apparent to the jurors. That Bates had
received the benefit of a lengthy trial and two good lawyers was obvi-
ous to everyone. And although we recognize the impropriety of a
prosecutor vouching for a witness or impugning the ethics of defense
counsel, we do not have that situation here. See United States v.
Moore, 710 F.2d 157, 159 (4th Cir. 1983)(noting that improper pro-
secutorial comment might mislead the jury into thinking the prosecu-
tion obtained extra-judicial information not available to the jury).
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Here, the prosecutor’s comments were not misleading and thus not
prejudicial either.
Even if we assumed arguendo that the prosecutor’s comments at
sentencing were improper, we cannot ignore the fact that Bates at no
time objected to them. Moreover, the evidence of both the nature of
the crime and the fact that Bates committed it was overwhelming.
Given the indisputably gruesome circumstances attending the murder
and the fact that Bates indisputably committed it, any denial of funda-
mental fairness from prosecutorial comments seems highly unlikely.
See, e.g., Bennett v. Angelone, 92 F.3d 1336, 1345-47 (4th Cir. 1996).
The trial judge also instructed the jurors to consider the evidence for
themselves rather than to rely on the arguments of the attorneys, thus
curing any possible improprieties in the prosecutor’s statements.
Finally, the remarks were not pervasive, comprising only one and one
half pages of the prosecutor’s twenty-seven page argument. The
North Carolina Supreme Court, "[a]fter carefully reviewing the prose-
cutor’s argument in its entirety . . . conclude[d] that it was not so
grossly improper as to have necessitated intervention ex mero motu
by the trial court." State v. Bates, 473 S.E.2d at 284. Under the cir-
cumstances, we cannot hold that this was an unreasonable application
of clearly established federal law.
V.
Bates argues finally that the jury instructions on the "heinous, atro-
cious or cruel" aggravating circumstance were vague and overbroad
in violation of the Fifth, Eighth and Fourteenth Amendments. We also
review this claim for whether the state court adjudication resulted in
a decision that was contrary to, or involved an unreasonable applica-
tion of, clearly established federal law as determined by the United
States Supreme Court. Williams v. Taylor, 529 U.S. at 413; 28 U.S.C.
§ 2254(d)(1).
It has long been settled that a state’s capital sentencing scheme
must be tailored to avoid the arbitrary and capricious infliction of the
death penalty. Furman v. Georgia, 408 U.S. 238 (1972). Thus, a state
must "define the crimes for which death may be the sentence in a way
that obviates ‘standardless [sentencing] discretion.’" Godfrey v. Geor-
gia, 446 U.S. 420, 428 (1980) (quoting Gregg v. Georgia, 428 U.S.
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153, 196 n.47 (1976)). A state does so by providing "a meaningful
basis for distinguishing the few cases in which [the penalty] is
imposed from the many cases in which it is not." Gregg, 428 U.S. at
188 (quoting Furman, 408 U.S. at 313 (White, J., concurring)).
In the case of statutory aggravating circumstances in a capital pun-
ishment scheme, the Supreme Court has held that, standing alone, an
instruction to determine whether the murder was "especially heinous,
atrocious, or cruel," runs afoul of the Eighth Amendment prohibition
against the imposition of cruel and unusual punishments. Maynard v.
Cartwright, 486 U.S. 356 (1988). However, an unconstitutionally
vague statutory circumstance can be cured by an accompanying limit-
ing instruction which does provide sufficient guidance. See Shell v.
Mississippi, 498 U.S. 1, 3 (1990) (Marshall, J., concurring); Walton
v. Arizona, 497 U.S. 639, 653 (1990), overruled in part by Ring v.
Arizona, 122 S. Ct. 2428 (2002). Thus, since the Supreme Court has
already determined that the "especially heinous, atrocious, or cruel"
language alone violates the Eighth Amendment, we must now "deter-
mine whether the state courts have further defined the vague terms
and, if they have done so, whether those definitions are constitution-
ally sufficient, i.e., whether they provide some guidance to the sen-
tencer." Walton, 497 U.S. at 653.
With these principles in mind, we turn to the instruction given by
the trial court at the conclusion of the sentencing phase of Bates’ trial.
Under North Carolina law, a person may be sentenced to death if the
jury finds, as an aggravating circumstance, that "the capital felony
was especially heinous, atrocious, or cruel." N.C. Gen. Stat. § 15A-
2000(e)(9) (2002). The trial court instructed the jury as follows:
Was this murder especially heinous, atrocious or cruel?
Now, ladies and gentlemen, in this context, heinous means
extremely wicked or shockingly evil. Atrocious means out-
rageously wicked and vile. And, cruel means designed to
inflict a high degree of pain with utter indifference or even
enjoyment of the suffering of others.
However, it’s not enough that this murder be heinous, atro-
cious or cruel, as those terms have just been defined to you,
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this murder must have been especially heinous, atrocious or
cruel. And, not every murder is especially so.
For this murder to have been especially heinous, atrocious
or cruel, any brutality which [was] involved in it, must have
exceeded that which is normally present in any killing . . .
or this murder must have been a conscienceless or pitiless
crime, which was unnecessarily torturous to the victim.
This court recently considered an Eighth Amendment challenge to
precisely the same aggravating circumstance instruction in Fullwood
v. Lee, 290 F.3d 663 (4th Cir. 2002). There, we concluded that the
North Carolina Supreme Court’s rejection of the challenge was nei-
ther contrary to nor an unreasonable application of clearly established
Supreme Court precedent. Id. at 694. We further noted that this court
had recently rejected that argument in two other capital cases involv-
ing the same North Carolina statutory aggravating circumstance. Id.
(citing Fisher v. Lee, 215 F.3d 438, 457-59 (4th Cir. 2000), and Frye
v. Lee, 235 F.3d 897, 907-08 (4th Cir.), cert. denied, 533 U.S. 960
(2001)). Given our recent consideration of this issue, we reiterate that
the North Carolina Supreme Court decision was neither contrary to
nor an unreasonable application of clearly established Supreme Court
precedent.
VI.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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