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