PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSEPH M. L. GARDNER,
Petitioner-Appellant,
v.
No. 06-28
JON OZMINT, Commissioner, South
Carolina Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Terry L. Wooten, District Judge.
(0:05-cv-01647-TLW)
Argued: September 27, 2007
Decided: December 19, 2007
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Wilkinson and Judge Gregory joined.
COUNSEL
ARGUED: Keir Michael Weyble, BLUME, WEYBLE & NORRIS,
L.L.C., Columbia, South Carolina, for Appellant. William Edgar
Salter, III, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Columbia, South Carolina, for Appellee.
ON BRIEF: John H. Blume, CORNELL LAW SCHOOL, Ithaca,
New York, for Appellant. Henry Dargan McMaster, Attorney Gen-
2 GARDNER v. OZMINT
eral, John W. McIntosh, Chief Deputy Attorney General, Donald J.
Zelenka, Assistant Deputy Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Columbia, South Carolina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Joseph Gardner, convicted of murder and kidnapping and sen-
tenced to death by a South Carolina court, appeals the district court’s
denial of his petition for federal habeas relief. We granted a certificate
of appealability on four issues: (1) did Gardner suffer a violation of
his right to a fair trial before an impartial jury; and was Gardner
denied effective assistance of counsel by the failure of his trial attor-
neys to (2) exercise a peremptory challenge to remove a juror; (3)
present his mitigation evidence in a more accurate and compelling
manner during sentencing; or (4) object to, rather than facilitate, the
admission of highly inflammatory testimony that racial animus moti-
vated Gardner’s crimes. For the reasons that follow, we affirm the
district court’s denial of habeas relief.
I.
On the basis of strong evidence, including the detailed testimony
of co-defendants, a South Carolina jury convicted Gardner, an
African-American man, of the December 30, 1992, kidnapping and
brutal murder of Melissa McLaughlan, a Caucasian woman. The jury
also found the aggravating circumstances of criminal sexual conduct,
kidnapping, and physical torture and recommended that Gardner
receive a death sentence, which the state court then imposed. Follow-
ing Gardner’s unsuccessful direct appeal, State v. Gardner, 505
S.E.2d 338, 339 (S.C. 1998), the Supreme Court denied certiorari,
Gardner v. South Carolina, 526 U.S. 1022 (1999). Gardner next peti-
tioned for post-conviction relief in state court. The state post-
conviction relief court ("PCR court") denied his claims for relief, as
did the Supreme Court of South Carolina. Gardner then filed this peti-
tion for a writ of habeas corpus in federal court, pursuant to 28
U.S.C.A. § 2254 (West 2006 & Supp. 2007). The district court denied
GARDNER v. OZMINT 3
relief without ruling on Gardner’s application for a certificate of
appealability. We granted Gardner a certificate of appealability on the
four issues enumerated above.
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C.A. § 2254(d), requires a federal court to defer
to a state court judgment on the merits when considering a petition
for habeas relief. Thus, a federal court cannot grant habeas relief on
any claim adjudicated on the merits by the state court unless the state
decision "was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States," or "was based on an unreasonable determination
of the facts in light of the evidence presented in the State court pro-
ceeding." Id.
II.
Gardner contends initially that the seating of a juror, who he claims
knowingly withheld disqualifying information, violated his right to a
fair trial before an impartial jury, as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution. Gardner
asserts that during voir dire the juror intentionally withheld her belief
that her son had been murdered, because she knew that disclosure of
that belief might have established cause for her removal from the jury.
The Sixth Amendment provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an
impartial jury." U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S.
717, 721-22 (1961) (holding that the Fourteenth Amendment requires
that States guarantee a fair trial by a panel of impartial jurors). The
Supreme Court has interpreted this text to mean that a criminal defen-
dant has a constitutional right to a jury free from prejudice and "capa-
ble and willing to decide the case solely on the evidence before it."
Smith v. Phillips, 455 U.S. 209, 217 (1982). To protect that right, a
trial judge must be "ever watchful to prevent prejudicial occurrences,"
id., and therefore must conduct voir dire in a manner that adequately
identifies unqualified or potentially biased jurors, see Morgan v. Illi-
nois, 504 U.S. 719, 729-34 (1992).
To establish entitlement to a new trial because of alleged juror dis-
honesty during voir dire, a defendant "must first demonstrate that a
4 GARDNER v. OZMINT
juror failed to answer honestly a material question . . . and then fur-
ther show that a correct response would have provided a valid basis
for a challenge for cause." McDonough Power Equip., Inc. v. Green-
wood, 464 U.S. 548, 556 (1984). This test applies "equally to deliber-
ate concealment and to innocent non-disclosure." Conner v. Polk, 407
F.3d 198, 205 (4th Cir. 2005).
The PCR court rejected Gardner’s claim of juror deceit. The court
found that defense counsel could have questioned the juror about the
impact of violent crimes on her life, but did not do so.1 Thus, the juror
never "failed to answer honestly a material question," as required by
McDonough, 464 U.S. at 556. Moreover, relying on the juror’s affir-
mation during voir dire that she could grant a fair trial to both sides,
the PCR court found her not to be biased against any party. At the
PCR hearing, the juror also testified regarding her earlier statement
to defense investigators that "if [she] had told [the court] about [her]
son’s killing . . . [she] would not have been allowed on [the] jury."
Based on her subsequent testimony at the post-conviction relief hear-
ing and the context of her earlier statement, the PCR court found that
her statement did not "reflect bias or intentional concealment," but
only "after-the-fact . . . surprise" that defense counsel did not question
her on this point. The PCR court found that the juror’s truthful
demeanor supported this conclusion. The PCR court also noted that
the juror credibly testified at the PCR hearing that, if asked, she
would have disclosed her views regarding her son’s death at voir dire,
but she did not volunteer them because she did not believe them "im-
portant," as she had no proof to back them up. On the basis of these
findings, the PCR court concluded that Gardner failed to satisfy the
first prong of the McDonough test and so denied Gardner’s request
for a new trial.
We cannot conclude that, in rejecting Gardner’s claim, the PCR
court acted contrary to, or unreasonably applied, clearly established
Supreme Court precedent. See 28 U.S.C.A. § 2254(d). Like the state
court, we do not believe that the record demonstrates that the juror
1
The PCR court also denied relief on a claim of ineffective assistance
based on counsel’s failure to inquire about potential bias because Gard-
ner suffered no prejudice from this failure. Gardner does not appeal that
ruling.
GARDNER v. OZMINT 5
failed to answer honestly any voir dire question. See McDonough,
464 U.S. at 556. Nor does the record suggest that the juror held any
actual or implied bias against any party such that a "correct response
would have provided a valid basis for a challenge for cause." Id.; see
also Phillips, 455 U.S. at 222 (O’Connor, J., concurring) (explaining
that the doctrine of implied bias should be applied only in limited and
"extreme" circumstances); United States v. Fulks, 454 F.3d 410, 432-
33 (4th Cir. 2006) (rejecting a claim of implied bias when a juror
inadvertently failed to disclose her husband’s murder).
Thus, we must reject Gardner’s contention that the state court
unreasonably applied or acted contrary to established federal law in
concluding that Gardner failed to demonstrate juror bias or partiality.
III.
Gardner’s remaining claims all rest on an asserted denial of his
Sixth Amendment right to effective assistance of counsel.
To prove a Sixth Amendment violation and succeed on a claim of
ineffective assistance, a defendant must first demonstrate "that coun-
sel’s performance was deficient" in that it "fell below an objective
standard of reasonableness." Strickland v. Washington, 466 U.S. 668,
687-88 (1984). The defendant must next establish that the "deficient
performance prejudiced the defense." Id. at 687. To demonstrate prej-
udice, he must show that there is a "reasonable probability" that,
absent the alleged deficiency, "the result of the proceeding would
have been different." Id. at 694.
Gardner raises three ineffective assistance contentions. He chal-
lenges the conduct of his lawyers during voir dire, their preparation
of mitigation evidence during the sentencing phase of his trial, and
their handling of the testimony of two prosecution witnesses who
stated that racial animus motivated Gardner’s crimes. The state PCR
court adjudicated each of these claims on the merits and determined
in each instance that Gardner had failed to establish ineffective assis-
tance. We consider each of these ineffective assistance claims in turn.
A.
The first claim concerns the alleged bias of a second juror. Gardner
contends that defense counsel rendered constitutionally ineffective
6 GARDNER v. OZMINT
assistance by failing to exercise a peremptory strike to remove this
juror after the juror "twice admitted during voir dire that she could
not be completely impartial." Brief of Appellant at 32. He character-
izes the juror’s ultimate assertion that she could decide the case
impartially as mere "acquiescence" to the demands of the court and
trial counsel that she issue a firm statement of impartiality. Id. at 34.
Although this juror admitted early in voir dire that she had, "to a
certain extent," formed an opinion about the case based on television
coverage, after apparent hesitation, she also averred that she could
"lay aside any opinion [she had] formed and decide this case based
solely on the evidence and testimony presented in this courtroom."
When questioned by defense counsel regarding her initial hesitation,
the juror answered, "I can tell you I would try and I feel like that I
could be open-minded, but as far as 100 percent, I can’t." Defense
counsel asked once more whether the juror could "render a fair and
impartial verdict" based on only the evidence presented in court, to
which the juror then replied, "I feel that for certain that I could." Fol-
lowing this exchange, defense counsel challenged that juror for cause,
but the trial judge denied the challenge and held the juror qualified
to serve. Defense counsel did not exercise a peremptory challenge;
the juror therefore served on the jury that convicted Gardner and rec-
ommended the death penalty.
The PCR court examined Gardner’s allegations of counsel’s defi-
ciency for failure to exercise a peremptory challenge to strike the
juror and concluded that Gardner had not made the showing required
by Strickland. The court found that counsel’s decision not to use a
peremptory challenge "was a tactical decision," which neither demon-
strated counsel’s deficiency nor prejudiced Gardner. The court noted
that only two jurors had been seated when defense counsel had to
decide whether to exercise a peremptory challenge with respect to this
juror, and the defense already had used three of its ten allotted
peremptory challenges. The PCR court concluded that counsel could
reasonably have decided to forego the peremptory challenge of this
juror and reserve its remaining peremptory challenges for other,
potentially more problematic, jurors.
On habeas review, federal courts generally accord "particular def-
erence" to the judgment of trial counsel during voir dire. Hughes v.
GARDNER v. OZMINT 7
United States, 258 F.3d 453, 457 (6th Cir. 2001). The record in this
case well supports the state PCR court’s determination that Gardner
did not satisfy the performance prong of Strickland. We find entirely
plausible the state court’s characterization of defense counsel’s choice
as "tactical." Defense counsel’s conduct easily falls within "an objec-
tive standard of reasonableness" and conforms with "prevailing pro-
fessional norms." Strickland, 466 U.S. at 688.
The PCR court also determined that removal of this juror would
not have changed the outcome of the case. The record provides
equally strong support for this finding. The trial transcript offers no
evidence that counsel’s actions resulted in the seating of a juror
biased or otherwise prejudiced against Gardner. The juror in question
unequivocally told the trial judge at voir dire that she could decide the
case based solely on the evidence presented in court, that she held no
bias for or against either party, and that she would give both sides a
fair and impartial trial. Moreover, in the post-conviction hearing,
Gardner failed to offer any evidence of asserted prejudice resulting
from the juror’s service. He simply averred then, as he does before
us now, that the participation of a biased juror is presumptively prejudi-
cial.2 Because we hold that the state court did not err in concluding
that the juror was not biased, Gardner’s presumptive prejudice argu-
ment must fail.
In sum, we agree with the state court that counsel’s conduct in not
exercising a peremptory strike to prevent service by this juror neither
constituted deficient representation nor resulted in prejudice to Gard-
ner. The state court neither unreasonably applied nor acted contrary
to clearly established Supreme Court precedent. 28 U.S.C.A.
§ 2254(d). Therefore, this claim too fails.
B.
Gardner next contends that his attorneys presented inadequate miti-
gation evidence during the sentencing phase of his trial and that this
2
At least one of our sister circuits has so held. See Hughes, 258 F.3d
at 463. We have never reached this question, and we need not do so here
because nothing in the record indicates that the challenged juror was
actually biased.
8 GARDNER v. OZMINT
asserted failure constituted constitutionally ineffective assistance of
counsel. He argues that his attorneys presented vague and inconsistent
mitigation evidence and expert testimony that inadequately and inac-
curately described his mental condition. He also maintains that
defense counsel failed to present evidence that would have provided
a more accurate and compelling account of his background and men-
tal state.
Criminal defendants have a constitutionally protected right to pro-
vide the jury with mitigating evidence that may affect the jury’s
assessment of whether a sentence is "just" and "appropriate." See Wil-
liams v. Taylor, 529 U.S. 362, 396-97 (2000). For this reason, defense
counsel have an obligation to "conduct a thorough investigation of the
defendant’s background" in order to identify and produce mitigation
evidence; failure to do so renders an attorney’s performance deficient.
Id. at 395-96. But when determining whether counsel has delivered
a constitutionally deficient performance, a state court also may con-
sider a defendant’s own degree of cooperation, even in a capital case.
See Frye v. Lee, 235 F.3d 897, 904-05 (4th Cir. 2000).
The PCR court rejected Gardner’s contention that his counsel did
not adequately investigate and present evidence of his background for
mitigation purposes. The court found that despite Gardner’s lack of
cooperation, counsel made diligent attempts to obtain mitigating
information. The court further determined that virtually all of the evi-
dence that Gardner contends counsel should have presented to the
jury, counsel did in fact present. For example, the court found that the
additional experts who testified at the PCR hearing offered essentially
the same evidence as those who testified at trial, albeit in a more com-
pelling form.
The state court’s holding that defense counsel investigated and
presented mitigation evidence in an objectively reasonable manner is
not unreasonable or contrary to clearly established Supreme Court
precedent. Both defense attorneys testified before the PCR court,
without contradiction, that Gardner advised his family members not
to cooperate with counsel’s efforts to develop mitigating evidence.
They also testified that Gardner refused, until shortly before the
beginning of his trial, to provide medical releases that might have
aided counsel in developing mitigation evidence. Nevertheless,
GARDNER v. OZMINT 9
defense counsel continued to seek mitigating information from Gard-
ner’s family, even traveling to Gardner’s home in Detroit to obtain
that information. They also consulted with two medical experts
regarding Gardner’s mental condition. In sum, the record reveals that,
although burdened by an uncooperative client, defense counsel made
significant efforts to develop and present mitigation evidence. Given
these facts, we cannot say that the state court acted unreasonably in
concluding that counsel’s actions did not fall "below an objective
standard of reasonableness." Strickland, 466 U.S. at 688.
The PCR court also concluded that even if Gardner had established
that defense counsel presented a constitutionally deficient mitigation
case, he still could not demonstrate that this deficiency prejudiced
him. In support of this conclusion, the court found that the abundant
evidence introduced during the liability phase strongly indicated
Gardner’s guilt, and since the sentence in a death penalty trial
depends "in large part . . . [on] what occurred in the guilt phase," the
strength of this evidence likely provided the critical reason for the
jury’s conclusion that Gardner’s conduct warranted a death sentence.
The court also reiterated its prior conclusion that, during the penalty
phase, the defense presented the jury virtually the same evidence that
Gardner believes essential to his mitigation case, although counsel did
so in a less dramatic form than Gardner now claims was required. The
court further found that even if the defense had offered marginally
more persuasive mitigating evidence, for example, testimony of phy-
sicians who could provide a more dire and detailed portrait of Gard-
ner’s mental state, such evidence would not have materially helped
Gardner’s mitigation case. Finally, the PCR court observed that dur-
ing the sentencing phase, the jury found three aggravating factors —
kidnapping, criminal sexual conduct, and physical torture — and the
court concluded that the very substantial evidence establishing these
factors would have outweighed even the more detailed mitigation evi-
dence now proposed by Gardner.
On the basis of these findings, the state court held that there was
no reasonable probability that, if the jury had heard the additional,
more detailed mitigating evidence now proposed by Gardner, the jury
would have determined that the balance of aggravating and mitigating
factors did not warrant death. Given the record evidence in this case,
we cannot conclude that in so holding the state court acted unreason-
10 GARDNER v. OZMINT
ably or contrary to clearly established Supreme Court precedent. See
28 U.S.C.A. § 2254(d). Accordingly, this ineffective assistance claim
also provides Gardner no basis for habeas relief.
C.
Finally, Gardner contends that defense counsel mishandled trial
testimony that racial animus motivated his crimes and thus denied
him constitutionally effective assistance of counsel. Specifically,
Gardner asserts that his counsel should have objected to the admission
of testimony by prosecution witness Jerry Ward and the introduction
of out-of-court statements by prosecution witness Matthew Mack.
Gardner claims that the admission of this evidence left the jurors to
conclude that racial animus motivated him to commit these crimes,
and, for this reason, that he deserved more severe punishment than
perpetrators of comparable, non-racially motivated crimes.
1.
Ward, a jailhouse lawyer, advised Gardner while Gardner was in
jail awaiting trial. At trial, Ward testified that Gardner "didn’t want
me to think that it [the murder and kidnapping] was racially moti-
vated, because he needed my help," but "obviously it was." Ward also
testified that he learned from Gardner that either Gardner or a co-
defendant "had problems with a white girlfriend" and so decided "to
kill, torture and rape a white woman for a New Year’s resolution."
Defense counsel did not object to these statements but did examine
Ward effectively with respect to other aspects of his testimony.
The PCR court found that defense counsel’s failure to object to
Ward’s testimony reflected a reasonable effort to avoid drawing atten-
tion to the testimony. Such a strategic decision, reasoned the PCR
court, accorded with the defense’s stated trial objective of allowing
in much of Ward’s testimony so that counsel could use it to "im-
peach[ ] him across the board" and thereby undermine his credibility.
For this reason, the state court found defense counsel did not provide
deficient representation with regard to Ward’s testimony.
We cannot conclude that in so holding the PCR court acted unrea-
GARDNER v. OZMINT 11
sonably or contrary to clearly established Supreme Court precedent.
28 U.S.C.A. § 2254(d). Ward’s two statements constituted just a
small portion of his trial testimony. Moreover, the first statement sim-
ply contained Ward’s opinion — not any fact — and the jurors would
have understood from other trial testimony that the second statement
referred not to Gardner but to his co-defendant, Matthew Mack, who
had a white girlfriend. Furthermore, although defense counsel did not
attempt to impeach these statements directly on cross examination,
counsel did effectively damage Ward’s overall credibility. Accord-
ingly, the state court’s holding that counsel’s failure to object to these
two statements constituted a strategic judgment, rather than ineffec-
tive assistance, finds sufficient support in the record.3
2.
The challenged statements of Matthew Mack present a more diffi-
cult question. In exchange for a sentence of life imprisonment with
a possibility of parole, Mack testified at length as the chief prosecu-
tion witness against Gardner. Mack had previously provided three
statements — two written and one audiotaped — to law enforcement
authorities and had testified in his own trial. In those prior statements,
Mack reported graphic remarks made to him by Gardner which
revealed that a racial animus animated the crimes. At Gardner’s trial,
however, Mack did not testify on direct examination as to any of
these remarks or to any racial animus on Gardner’s part, and the pros-
ecutor did not seek to admit Mack’s graphic pretrial statements detail-
ing this animus. On cross examination, however, defense counsel
agreed to the admission of all of Mack’s pretrial statements after the
prosecutor objected to defense counsel’s detailed cross-examination
of Mack regarding one of those statements. In fact, Gardner’s own
defense counsel positively insisted that if the court were to admit into
evidence any of Mack’s pretrial statements, then it must admit all of
those statements.
3
Having concluded that counsel’s performance was not deficient under
Strickland with regard to the Ward testimony, we need not decide
whether that performance prejudiced the defense. United States v. Roane,
378 F.3d 382, 409 n.15 (4th Cir. 2004) (citing Williams v. Kelly, 816
F.2d 939, 946-47 (4th Cir. 1987)). However, for the reasons stated
regarding the asserted prejudicial effect of the Mack testimony, we doubt
that counsel’s handling of the Ward testimony prejudiced Gardner.
12 GARDNER v. OZMINT
One of the statements contains, in Mack’s handwriting, the follow-
ing:
On the 28th or 29th of December, 1992, I was sitting in my
trailer with Joe Gardner, Matthew Williams, drinking beer
and talking. I was telling them that I had a fight with my gir-
lfriend, who is white, and I was mad at her. I said I would
like to "fuck her up." I kept talking and said it could be any
white bitch, I would fuck up any white bitch. I said I would
like to fuck up a white girl right now. Matthew was saying,
I’d be down for fucking a white girl. Joe said, I’d kill the
white bitch. Joe said, before the end of the year. That’s my
New Years resolution, before the end of the year. I under-
stood Joe to mean he meant to kill a white girl before the
end of 1992. Nothing happened the rest of the night.
(Emphasis added).
Mack goes on to recount that on the evening of December 30,
1992, he, along with Williams and Gardner, picked up a young white
woman and brought her to their trailer. At that time, Mack relates:
I had already had it in my mind when she got into the car
that she would be fucking us. I was thinking whether this
bitch wants to or not she is giving up her pussy. I was think-
ing about the conversation we had on the 29th of December
and I thought this is the white bitch we were going to fuck
up, fuck, torture.
Mack then concludes his confession with this account:
On New Years Eve I asked Matt how many years do you
think this takes off for oppression against the black race.
Matt replied about ten years. I believe the killing of the girl
by Joe was racially motivated due to the conversation we
had just a few days before the incident. I believe the girl was
killed to prevent the girl from testifying against us for what
had occurred at the trailer that night.
(Emphasis added).
GARDNER v. OZMINT 13
The state PCR court found that defense counsel’s agreement "to the
introduction of prior statements . . . in an effort to impeach [Mack’s]
credibility was . . . entirely consistent with the strategy and tactics
deployed throughout the entirety of Mr. Mack’s cross-examination"
to demonstrate "that Mr. Mack was adding and subtracting testimony
as he saw fit." The PCR court thus rejected Gardner’s contention that
counsel’s decision to permit the admission of the Mack statements
was one "born out of desperation" rather than strategy and concluded
that defense counsel had not provided deficient representation.
This conclusion constitutes an unreasonable application of clearly
established Supreme Court precedent, namely the Strickland com-
mand that counsel must perform at or above "an objective standard
of reasonableness." 466 U.S. at 687-88. If defense counsel had not
acquiesced in their admission, the jury would never have considered
these inflammatory statements. Moreover, although allowing (indeed,
causing) the admission of these statements, defense counsel did not
actually use them to impeach Mack on cross-examination. That fact
effectively undermines the PCR court’s finding that defense counsel’s
acquiescence in the admission of the statements constituted a strategic
decision. Mack may have been — as the PCR court concluded — "ad-
ding and subtracting testimony as he saw fit," but defense counsel
utterly failed to establish that this was so. An attorney’s insistence
upon the admission of evidence that significantly damages his client,
without using that evidence in any manner to further his client’s inter-
ests, cannot be considered "sound trial strategy" and certainly does
not comport with "prevailing professional norms." Strickland, 466
U.S. at 689, 688. Thus, defense counsel was constitutionally deficient
with respect to the admission of the Mack statements and testimony.
See id. at 688-90. The PCR court’s opposite conclusion is an unrea-
sonable application of the Supreme Court’s holding in Strickland. See
28 U.S.C.A. § 2254(d).
The PCR court also found, however, that Gardner failed to estab-
lish that his lawyer’s conduct with respect to the Mack statements and
testimony prejudiced him. In support of this holding, the PCR court
found that the prosecutor did not focus on race as an issue during the
trial; that all jurors testified that they could view the case without ref-
erence to race; that the circumstances of the crime, even absent any
reference to racial motivation, supported imposition of the death pen-
14 GARDNER v. OZMINT
alty; and that the jury found evidence of three aggravating circum-
stances — kidnapping, criminal sexual conduct, and physical torture
— which were present without regard to any racial motivation.
Accordingly, the PCR court concluded that Gardner failed to show a
reasonable probability that the result of his sentencing proceeding
would have been different if his counsel had handled Mack’s testi-
mony in a more effective manner.
We have carefully reviewed the trial record and find that the state
PCR court’s prejudice holding was not unreasonable, given the abun-
dant and damaging evidence presented at Gardner’s trial. See 28
U.S.C.A. § 2254(d); see also Strickland, 466 U.S. at 700 (finding no
prejudice in light of "overwhelming aggravating factors"). The prose-
cution placed before the jury overwhelming evidence of kidnapping,
repeated rapes, sodomy, torture, and rampant disregard for human
life, all prior to the actual murder of an unarmed twenty-five year old
woman. Given this evidence, the state court did not act unreasonably
in concluding that Gardner failed to demonstrate that there was a rea-
sonable probability that the jury would have issued a more lenient
sentence if counsel had properly handled the Mack testimony. This
holding was neither contrary to, nor an unreasonable application of,
established federal law. Accordingly, this claim for habeas relief also
fails.
IV.
For all of these reasons, the judgment of the district court is
AFFIRMED.