Filed: Feb. 09, 2010
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7813 MATTHEW BRIAN BOSEMAN, a/k/a Brian Boseman, Petitioner - Appellee, v. RICHARD E. BAZZLE, Warden, Perry Correctional Institution, Respondent - Appellant. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. David C. Norton, Chief District Judge. (0:07-cv-01344-DCN) Argued: December 3, 2009 Decided: February 9, 2010 Before WILKINSON, SHEDD, and AGEE, Circuit Judges. Reversed and
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-7813 MATTHEW BRIAN BOSEMAN, a/k/a Brian Boseman, Petitioner - Appellee, v. RICHARD E. BAZZLE, Warden, Perry Correctional Institution, Respondent - Appellant. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. David C. Norton, Chief District Judge. (0:07-cv-01344-DCN) Argued: December 3, 2009 Decided: February 9, 2010 Before WILKINSON, SHEDD, and AGEE, Circuit Judges. Reversed and r..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7813
MATTHEW BRIAN BOSEMAN, a/k/a Brian Boseman,
Petitioner - Appellee,
v.
RICHARD E. BAZZLE, Warden, Perry Correctional Institution,
Respondent - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. David C. Norton, Chief District
Judge. (0:07-cv-01344-DCN)
Argued: December 3, 2009 Decided: February 9, 2010
Before WILKINSON, SHEDD, and AGEE, Circuit Judges.
Reversed and remanded by unpublished opinion. Judge Agee wrote
the opinion, in which Judge Wilkinson and Judge Shedd joined.
ARGUED: William Edgar Salter, III, OFFICE OF THE ATTORNEY
GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellant. Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL
OF LAW, Charlottesville, Virginia, for Appellee. ON BRIEF:
Henry D. McMaster, Attorney General, John W. McIntosh, Chief
Deputy Attorney General, Donald J. Zelenka, Assistant Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina for Appellant. Christopher
Norfleet, Third Year Law Student, Jamila Willis, Third Year Law
Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
AGEE, Circuit Judge:
Matthew Brian Boseman is a state inmate in the custody of
the South Carolina Department of Corrections, serving a life
sentence for murder and armed robbery. He filed this 28 U.S.C.
§ 2254 petition for a writ of habeas corpus in the District of
South Carolina against Richard E. Bazzle, Warden of the Perry
Correctional Institute (“the Warden”). The district court
conditionally granted Boseman’s habeas petition, holding that
the state post-conviction relief court (“the PCR court”)
unreasonably applied the Supreme Court’s decision in Strickland
v. Washington, 466 U.S. 668 (1984), and unreasonably interpreted
the facts surrounding counsel’s failure to present evidence of
an alibi. The Warden appeals the issuance of the writ to
Boseman. For the reasons that follow, we reverse and remand the
judgment of the district court.
I.
The district court detailed the salient facts supporting
Boseman’s conviction:
Petitioner was indicted during the February 1996 term
of the Court of General Sessions on charges of murder
and armed robbery. Petitioner’s first trial began on
November 20, 1996, but ended in a mistrial due to
juror misconduct. Petitioner’s second trial began on
April 7, 1997, during which he was represented by
attorneys Douglas Strickler and Cynthia Durham. The
jury found petitioner guilty on both charges, and the
trial judge imposed a sentence of life imprisonment
3
for the murder conviction and a consecutive term of
twenty years imprisonment for the armed robbery
conviction.
Petitioner was convicted of robbing and murdering
Oscar Griffis, a Domino’s Pizza delivery driver. The
evidence presented in the prosecution’s case-in-chief
established an uncontroverted timeline showing that
the relevant events occurred between 9:15pm and
10:00pm on October 31, 1995. Domino’s Pizza received
a telephone call between 9:15pm and 9:17pm, requesting
a delivery to a residence at 3701 Trotter Road in
Columbia, South Carolina. The caller identified
himself as “Albert” and provided a false phone number.
Griffis made his first delivery without incident
between 9:15pm and 9:30pm. He then apparently
proceeded to 3701 Trotter Road, where he was robbed
and shot once in the chest. Between 9:30pm and
10:00pm, Griffis arrived at a nearby convenience store
(driving himself there) and collapsed on the floor.
The clerk and others in the store quickly called 911.
The time of Griffis’s arrival is evidenced by the
store’s video surveillance camera, which recorded
Griffis arriving at the store shortly after 9:45pm.
Brian Goff, a Columbia Police officer, said he was
dispatched to the store between 9:30pm and 10:00pm and
was the first emergency responder on the scene. EMS
arrived at exactly 10:00pm and immediately transported
Griffis to the hospital (departing the convenience
store for the hospital at 10:04pm). Griffis died
three days later. . . .
The Richland County Sheriff’s Department’s
investigation revealed the call to Domino’s Pizza came
from a house owned by Jesse Shelton, who lived there
with his three sons, Jason, Terah, and fifteen-year-
old M.S. Based on the phone records, the Sheriff’s
Department obtained and executed a search warrant on
the Shelton home. Investigators found burned remnants
of pizza boxes and checks made payable to Domino’s
Pizza in the backyard. Thereafter, M.S. and
petitioner (who is not related to the Sheltons but
lived nearby) were arrested and indicted on charges of
robbing and murdering Griffis. Before petitioner’s
trial, M.S. pleaded guilty to both charges as a
juvenile in the Richland County Family Court,
receiving a six-year sentence with eligibility for
early release with good behavior.
4
The state’s theory of the case was that
petitioner planned and orchestrated the entire event
and that M.S. was something of an unknowing
accomplice. The state argued that petitioner—and not
any of the Sheltons—made the phone call from the
Shelton house to Domino’s Pizza that night and chose
to lure the driver to 3701 Trotter Road because he was
familiar with the area. According to the state, after
eating dinner at and generally hanging around the
Shelton house on the evening of the crime, petitioner
recruited M.S. to tag along on a robbery. The two
went to the scene of the “ambush” where they crossed
paths with a group of trick-or-treaters, none of whom
actually saw petitioner but one identified petitioner
at trial based on the sound of his voice. The state
asserted that M.S. did not know petitioner was
carrying a gun. When Griffis arrived at the Trotter
Road address, the state argued petitioner and M.S.
robbed him, and that petitioner shot Griffis once in
the chest. Thereafter, according to the state,
petitioner and M.S. returned to the Shelton house
where petitioner informed M.S.’s brother Terah that he
should watch the 11:00pm news. Petitioner carried
checks and pizza boxes around the house, describing
the items to others as “loot,” and later burned his
“loot” in the Sheltons’ backyard. The state thus
argued that petitioner purposefully set out to rob the
Domino’s Pizza driver, lured the driver to the scene
of the crime using the Sheltons’ phone, shot the
driver, bragged about his crime at the Shelton house,
and disposed of the evidence there. The state
conceded there was no physical evidence connecting
petitioner to the crime.
Deloris Matthews was working at the convenience
center when Griffis came in and collapsed on the
floor. As he laid on the floor, Griffis told her that
he was shot by two black individuals, who were wearing
ski masks, had big eyes, and one of them had “funny,”
“frizzed up” hair. Griffis also said the perpetrators
were “skinnier” or “smaller” than Griffis, who
Matthews described as a “burly” man. Griffis was six
feet tall and weighed 240 pounds. Matthews also
testified at trial that Griffis said one of the
perpetrators was five feet, nine inches tall and the
other was about six feet tall, although those details
were noticeably absent from the statement she gave to
police only three hours after Griffis arrived at the
5
store. Petitioner is six feet, one inches tall,;
Terah Shelton was five feet, ten inches tall and
weighed 235 pounds; Jason Shelton was five feet, seven
inches tall and 140 pounds; and M.S. was about five
feet, five inches tall and weighed 140 pounds.
At trial, M.S. was the prosecution’s primary
witness against petitioner. He testified that he and
his brothers “hung out” with petitioner (known around
the neighborhood as “Method Man”) almost every day.
According to M.S., between 5:30pm and 7:30pm on the
night of the crime, petitioner was at the Shelton
house playing games—and M.S.’s father, his two
brothers (Terah and Jason), and Jason’s girlfriend
were in the house as well. M.S. stayed at the Shelton
house until petitioner approached him and told M.S. he
was going out on a “lick,” which is slang for a
robbery. M.S. recounted that petitioner had left the
house sometime after dinner and returned later, at
which time he approached M.S. about the robbery.
According to M.S., nobody else heard petitioner make
that statement nor was anyone else involved.
Following that conversation, he and petitioner walked
from the Shelton residence through a path in the woods
until they came to Trotter Road. M.S. was familiar
with the path because he had used it before and knew
that the wooded area at the end of the path was dark.
Petitioner and M.S. crouched down at the end of the
path overlooking Trotter Road.
M.S. stated that petitioner then told him they
were going to rob a pizza delivery driver. M.S.
testified that he did not personally make the phone
call nor have any idea what petitioner had done at the
house before they left. M.S. did not keep track of
petitioner for the entire time he was at the Shelton
house. While they were waiting in the woods, “some
people came trick or treating” down the path. When
members of that group asked who was in the woods,
according to M.S., petitioner “stepped out and cocked
a gun.” That was when M.S. learned that petitioner
was carrying a firearm. There was a conversation
between petitioner and the trick-or-treaters, but M.S.
testified he was too far away to hear what was said.
After the trick-or-treaters moved on, Griffis
arrived at 3701 Trotter Road. When he pulled into the
driveway, M.S. and petitioner ran over to him, put a
gun to his head, shot at him (the bullet hit him in
the chest), went through his pockets, stole the checks
6
and pizzas, and took off back through the woods. M.S.
heard two gunshots, although only one bullet hit
Griffis. Investigators did not locate the other
bullet. M.S. said he was wearing his t-shirt tied
around his face and that petitioner was wearing a ski
mask during the robbery.
M.S. testified the duo then returned to the
Shelton house, but his testimony was unclear and
inconsistent about the timing of the return. He
initially indicated that petitioner returned
immediately to the Shelton house, but then stated that
petitioner went somewhere else and returned to the
house shortly after M.S. did. Once M.S. and
petitioner reunited at the Shelton house, M.S.
testified that they ate the pizzas and he saw
petitioner burn the checks and pizza boxes in the
backyard. They also saw M.S.’s brother Terah. M.S.
testified that petitioner told Terah to watch the
11:00pm news, but neither M.S. nor petitioner told
Terah what had happened. The three watched the news
together and then M.S. went to bed.
Boseman v. Bazzle, 2008 U.S. Dist. LEXIS 75255, *3-*11 (C/A/ No.
0:07-CV-01344-DCN) (D.S.C. July 24, 2008) (footnotes and
citations to the record omitted). On cross-examination, defense
counsel questioned the consistency of M.S.’s statements to
police and investigators, as well as drawing attention to the
favorable terms of his plea agreement.
Other members of the Shelton family testified in support of
portions of M.S.’s narrative and to having seen Boseman at their
house at various times the evening of the shooting. In
addition, one of the adults chaperoning the group of trick-or-
treaters testified that they encountered two “shadowy figures”
along the path to Trotter Road, but that he could not identify
them by sight. However, the same witness testified that he
7
recognized Boseman’s voice when one of the shadowy figures spoke
to him. One of the Sheltons’ neighbors testified that he was
present the day after the incident when Boseman “said he didn’t
shoot no pizza man but I was there.” Id. at *18.
Boseman appealed his guilty verdict and sentence to the
South Carolina Supreme Court, which affirmed the conviction.
Thereafter, Boseman filed a state application for post-
conviction relief, asserting numerous ineffective assistance of
trial counsel claims.
The state post-conviction relief court (“PCR court”) held
an evidentiary hearing on the application, during which
Boseman’s brother, Walter Boseman (“Walter”), testified that he
and three of his college friends hung out together at the
Boseman home on the evening of October 31, 1995. Walter averred
that he and his friends and Boseman went to a convenience store
(the same store where Griffis went after being shot) to purchase
beer around 8:30 p.m. They returned directly to the house,
where they remained until he and his friends returned to college
in Orangeburg shortly after 10:15 p.m. 1 He also testified that
although he had tried to locate his three friends prior to the
1
Walter testified that although one of his college friends
returned to the convenience center later in the evening to
purchase more beer, he, two of his friends, and Boseman did not
leave the house again until he and his friends left town.
8
PCR court hearing, they had lost touch after college, and he had
not been able to locate them.
Boseman’s sister, Shalonda Boseman, testified that she
returned to the Boseman house between 10:00 p.m. and 10:30 p.m.,
and went to her bedroom. She stated that about “fifteen
minutes” after she arrived home, Boseman entered her bedroom and
they chatted for a while.
Boseman introduced into evidence a report (“the Rickborn
report”) prepared for Boseman’s trial counsel prior to the first
trial by private investigator Patti Rickborn. The Rickborn
report documents her interview with Walter:
I asked Walter how he recalled [what] times of the
evening that he was with [Boseman]. He told me that
he checked his watch on a regular basis that evening
because even though he and his friends were partying
they had to be back at S.C. State that evening. He
looked at his watch when the client was dropped off at
8:30 p.m. because they were going to the store for
more beer and he was keeping track of how much more
time they had to drink beer. He knows that he left
between 10:00 p.m. – 10:30 p.m. because they were just
going to have time to pick up some other S.C. State
students who were at a party at Benedict College and
get back to the S.C. State campus by 11:30 p.m. –
12:00 a.m. (Midnight).
J.A. 792.
Boseman’s trial counsel, Doug Strickler, also testified at
the PCR hearing. 2 He stated that in addition to the interviews
2
We will refer to Strickler as “trial counsel” so as to
avoid confusion with Strickland.
9
conducted by his private investigator, he had personally
interviewed several of the alibi witnesses, including Walter.
He considered presenting the alibi defense during the trial. In
addition, he filed a notice of alibi and arranged for Walter to
be present during, but sequestered from, the trial proceedings
in case he decided to call Walter as a defense witness. Trial
counsel further stated that he had several reservations about
presenting an alibi defense and had discussed those concerns
with Boseman. He testified there were three reasons he
ultimately decided not to present the defense: (1) he felt the
evidence did not provide a complete or “classic” alibi for the
entire period in question 3 ; (2) he was concerned because the
potential alibi witnesses were related to Boseman; and (3) under
South Carolina law, he would have forfeited the right to make
the last argument to the jury had he presented a defense. 4
3
When questioned about Walter and his friends’ departure
time, which the Rickborn report indicated was between 10:00 and
10:30 p.m., trial counsel averred that his notes from interviews
with the students indicated they left “at a different point in
time,” closer to 9:30 p.m. Trial counsel could not locate his
notes of those interviews, however, and the notes were not
entered into evidence.
4
South Carolina’s procedural rules permit counsel of a
defendant who calls no witnesses and offers no evidence to have
the concluding argument to the jury. See State v. Mouzon, 467
S.E.2d 122, 125 (S.C. Ct. App. 1995).
10
The PCR court denied Boseman’s petition. It first laid out
the two-part standard for establishing ineffective assistance,
as articulated in Strickland and applied in subsequent state
cases. It then concluded:
[T]he Applicant must prove that “counsel’s
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied
upon as having produced a just result.”
The proper measure of performance is whether the
attorney provided representation within the range of
competence required in criminal cases. Courts presume
that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment. The Applicant must overcome
this presumption to receive relief.
. . . .
. . . Trial counsel articulated that he did
prepare for this case and in fact tried it twice.
Counsel investigated this case, interviewed potential
witnesses, and hired an investigator. . . . Counsel
testified that he had considered putting up the
witnesses provided to him by the Applicant, but was
concerned about the partial or incomplete nature of
the alibi to which they would testify. Counsel
recalled that he had discussions with the Applicant
concerning this and that this concern combined with
the chance to argue to the jury last resulted in the
decision not to put up these witnesses.
. . . .
Where trial counsel articulates a valid reason
for employing certain trial strategy, such conduct
should not be deemed ineffective assistance of
counsel. Roseboro v. State, 317 S.C. 292,
454 S.E.2d
312 (1995). The Applicant has not shown that counsel
was deficient in his choice of tactics. A defense
counsel is not ineffective for making valid trial
strategy decisions. Caprood v. State, 338 S.C. 103,
525 S.E.2d 514 (2000).
11
J.A. 797-99 (citations omitted). Boseman’s petition for writ of
certiorari to the South Carolina Supreme Court was denied. J.A.
827-29.
Boseman then filed a timely petition under 28 U.S.C. § 2254
for a writ of habeas corpus in the United States District Court
for the District of South Carolina. The Warden moved for
summary judgment. The case was referred to a magistrate judge
who entered a report recommending denying Boseman’s petition and
granting summary judgment to the Warden.
The district court rejected the magistrate’s report and
conditionally granted Boseman’s petition. 5 The district court
identified four reasons why the petition should be granted:
First, the PCR court’s decision was “contrary to”
Supreme Court precedent because it applied a per se
rule of reasonableness, rather than a presumption of
reasonableness, to decisions counsel made pursuant to
a “sound trial strategy.” Second, the PCR court based
its decision on the performance prong on an
unreasonable determination of the facts by finding
that trial counsel considered (rather than failed to
consider) but decided not to call alibi witnesses for
the purpose of showing petitioner was not at the
Shelton residence when the phone call to Domino’s
Pizza was made. The PCR court’s analysis on that
point also involved an unreasonable application of
Strickland. Third, the PCR court’s decision involved
an unreasonable application of Supreme Court precedent
5
Boseman alleged four grounds of ineffective assistance,
but because the district court granted the petition as to the
first ground (failure to present witnesses in support of an
alibi defense), it only addressed that issue. Accordingly, that
is the only issue before the Court on appeal.
12
to the facts of petitioner’s case because it
determined that trial counsel’s “decision” not to call
alibi witnesses to address events that occurred during
the time of the robbery/murder was part of a sound
trial strategy. Finally, the PCR court’s decision
involved an unreasonable application of Supreme Court
precedent to the facts of petitioner’s case because it
determined that the failure to call any alibi
witnesses was not prejudicial.
Boseman, 2008 U.S. Dist. LEXIS at *43-44.
The Warden noted a timely appeal of the district court’s
judgment. J.A. 830. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
We review de novo the district court’s decision to grant
Boseman’s § 2254 petition, applying the same standards as the
district court. Whittlesey v. Conroy, 301 F.3d 213, 216 (4th
Cir. 2002). Pursuant to the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(1996), however, our review of the relevant state court decision
is very narrow. Jackson v. Johnson,
523 F.3d 273, 276 (4th Cir.
2008). In cases where a state court considered and denied a
claim on its merits, a federal court may grant habeas relief
only if the state court decision was “contrary to, or an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or
“resulted in a decision that was based on an unreasonable
13
determination of the facts in light of the evidence presented in
the State court proceedings.” 28 U.S.C. § 2254(d)(1) and
(d)(2).
A state court’s decision is contrary to clearly established
federal law “if the state court arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law or
if the state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). And, a state
court’s decision involves an unreasonable application of federal
law when the state court “identifies the correct governing legal
principle from [the Supreme Court’s] decisions but unreasonably
applies that principle to the facts of [a particular] case,”
id., or “applies a precedent in a context different from the one
in which the precedent was decided and one to which extension of
the legal principle of the precedent is not reasonable [or]
fails to apply the principle of a precedent in a context where
such failure is unreasonable.” Robinson v. Polk,
438 F.3d 350,
355 (4th Cir. 2006) (quoting Green v. French,
143 F.3d 865, 870
(4th Cir. 1998), overruled on other grounds by Williams,
529
U.S. 362). “The state court’s application of clearly
established federal law must be ‘objectively unreasonable,’ for
a ‘federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
14
relevant state-court decision applied clearly established
Federal law erroneously or incorrectly.’” Jackson, 523 F.3d at
277 (quoting
Williams, 529 U.S. at 409, 411).
Under § 2254(d)(2), a federal court can also grant habeas
relief to a state court judgment when the state court’s
determination of the facts was objectively unreasonable.
However, a state court’s determination of factual issues is
presumed to be correct. § 2254(e)(1). Therefore, a decision
adjudicated on the merits in a state court and based on a
factual determination will not be overturned unless the
applicant rebuts the presumption of correctness by clear and
convincing evidence. Id.; Miller-El v. Cockrell, 537 U.S. 322,
340 (2003); Cagle v. Branker,
520 F.3d 320, 323 (4th Cir. 2008).
III.
The Warden appeals three aspects of the district court’s
opinion and judgment. First, the Warden contends that the
district court should not have granted the petition based on a
claim of ineffective assistance arising from trial counsel’s
failure to call alibi witnesses for the time of the telephone
call because Boseman did not raise such a claim in the PCR
proceeding. He then asserts the district court erred in
concluding the PCR court applied a “per se rule of
reasonableness” rather than a “presumption of reasonableness.”
15
Lastly, the Warden contends the district court erred in
concluding the PCR court unreasonably applied Strickland and
made objectively unreasonable factual findings.
A.
As an initial matter, we reject the Warden’s procedural
default argument. The Warden asserts that because Boseman’s
state PCR petition did not raise a “separate, specific
allegation” of ineffective assistance based on trial counsel’s
failure to present witnesses for the time of the telephone call
to Domino’s, the issue was procedurally defaulted and should not
have been considered by the district court. (Appellee’s Br. 34-
44.)
Although the Warden raises a credible point, Boseman’s
arguments made in the state PCR court were sufficient to
preserve the issue of calling an alibi witness at the time of
the telephone call. As noted, Griffis was mortally wounded
sometime within the approximately 45-minute period between the
telephone call to Domino’s, around 9:15 p.m., and Griffis’
arrival at the convenience store by 10:00 p.m. Thus, the
relevant period to which a witness could have provided Boseman
with any alibi was narrow. Boseman’s pro se PCR petition
included the following question presented: “Was trial counsel
ineffective for failing to present witnesses in support of an
16
alibi when [an] alibi was presented to the jury?” J.A. 706.
During the state PCR court evidentiary hearing, Boseman’s
appellate counsel argued that witnesses could have provided
Boseman with an alibi for the relevant period of time during
which the murder and robbery occurred, as it was “an ongoing
criminal enterprise.” J.A. 726-27. Boseman identified at that
time the same individuals he identifies at present as the
witnesses trial counsel should have called to present an alibi
defense. Lastly, the questioning of Walter during the PCR
hearing detailed the purported alibi available for the entire
relevant period, including the time of the telephone call.
Moreover, trial counsel was questioned regarding his decision
not to call an alibi witness to testify about any part of that
period, specifically addressing an alibi for both the time of
the telephone call and the time of the murder. Boseman’s
arguments to the PCR court thus arguably encompassed the entire
period from the time of the telephone call through Griffis’
arrival at the convenience store, and the failure of trial
counsel to present an alibi defense for any part of that period.
For these reasons, we hold that Boseman adequately preserved the
issue for federal review.
17
B.
The Warden next contends the district court erred in
concluding the PCR court applied a “per se rule of
reasonableness” rather than a “presumption of reasonableness.”
In reaching that determination, the district court stated:
In its brief discussion of Strickland’s performance
prong, the state court stated, “A defense counsel is
not ineffective for making valid trial strategy
decisions.” The PCR court equated valid trial
strategy decisions with reasonable performance, but
Strickland does not go so far. Rather, Strickland
held that decisions undertaken as part of an informed
trial strategy are “virtually unchallengeable” in
light of the “strong presumption” of reasonableness
that arises in such cases. Strickland, 466 U.S. at
690. “Virtually unchallengeable” is not the same as
actually unchallengeable . . . [and] even some “valid
trial strategies” . . . may nonetheless fall outside
the wide range of acceptable performance. By applying
a per se reasonableness rule, the PCR court did not
consider the next question, although almost always
answered against the petitioner, of whether the trial
strategy itself was unreasonable.
Boseman, 2008 U.S. Dist. LEXIS at *44-*46 (citation omitted).
The district court thus concluded the PCR court had unreasonably
applied Strickland. We disagree.
Strickland sets forth the standard for establishing a Sixth
Amendment ineffective assistance of counsel claim. The first
part of that standard requires a showing that trial counsel’s
performance was deficient, that is, that it “fell below an
objective standard of reasonableness.” 466 U.S. at 688. In
making this assessment, “[j]udicial scrutiny of counsel’s
18
performance must be highly deferential,” and “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance . . . .”
Id. at 689. This is so because “[t]here are countless ways to
provide effective assistance in any given case [and] [e]ven the
best criminal defense attorneys would not defend a particular
client in the same way.”
Id. Moreover, the Supreme Court has
recognized:
Strategic choices made after thorough investigation of
law and facts relevant to plausible options are
virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable
precisely to the extent that reasonable professional
judgments support the limitations on investigation.
In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to
investigate must be directly assessed for
reasonableness in all the circumstances, applying a
heavy measure of deference to counsel’s judgments.
Id. at 690-91.
To be sure, this language making strategic decisions by
counsel “virtually unchallengeable,” does leave room for such
decisions to still be successfully challenged. However, we do
not agree with the district court that the PCR court applied a
per se rule of reasonableness.
The district court’s decision is based on its specific
criticism of the PCR court’s use of the phrase “valid trial
strategy.” The district court read that phrase as reflecting
19
that the PCR court viewed trial counsel’s decision on the alibi
witnesses only as being made after appropriate investigation
(i.e., was “strategic”) and as failing to assess whether
counsel’s decision was reasonable. The PCR court’s opinion does
not support this conclusion.
The PCR court’s opinion accurately set forth Strickland’s
presumption of reasonableness standard for assessing counsel’s
performance: “The proper measure of performance is whether the
attorney provided representation within the range of competence
required in criminal cases. Courts presume that counsel
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment. The
Applicant must overcome this presumption to receive relief.”
J.A. 797-98 (citations omitted). This language shows that the
PCR court understood what Strickland required and that it was to
afford only a presumption of reasonableness to counsel’s
conduct.
Only after articulating this standard and reviewing the
reasons trial counsel proffered for his decision not to present
an alibi, did the PCR court hold: “Where trial counsel
articulates a valid reason for employing certain trial strategy,
such conduct should not be deemed ineffective assistance of
counsel. The Applicant has not shown that counsel was deficient
in his choice of tactics. A defense counsel is not ineffective
20
for making valid trial strategy decisions.” J.A. 799.
(Citations omitted.) Using the phrase “valid trial strategy”
indicates more than that the PCR court only believed that trial
counsel made an informed decision, as the district court
surmised. Rather, the PCR court’s phraseology includes the
qualitative assessment that the strategy was a “valid” one.
In context, counsel’s “valid” trial strategy was equivalent
to “reasonable” under a normal reading of those terms. Relevant
definitions of the word “valid” include: “having legal strength
or force” and “well grounded or justifiable.” Webster’s Third
New International Dictionary 2529 (2002). These definitions
support the conclusion that the PCR court properly undertook the
full Strickland performance prong analysis by concluding that
trial counsel’s conduct was made after appropriate investigation
(it was part of a “trial strategy”) and that it was a reasonable
choice to have made because that strategy had “legal strength or
force” and was “well grounded or justifiable.” In other words,
determination that the trial strategy was “valid” in this case
was equivalent and synonymous to saying it was a “reasonable”
trial strategy.”
This conclusion is bolstered by the numerous circuit courts
of appeal that have used the term “valid” when referring to both
the fact of and the reasonableness of counsel’s conduct as part
of the Strickland performance prong analysis. E.g., Lewis v.
21
Horn, 581 F.3d 92, 114 (3d Cir. 2009) (“A valid reason for
[counsel’s decision] not [to] present[] evidence is that it does
not exist.”); United States v. Culverhouse,
507 F.3d 888, 898
(5th Cir. 2007) (“Counsel may have had valid reasons not to
raise the objections.”); Morales v. Mitchell,
507 F.3d 916, 948
n.3 (6th Cir. 2007) (“In fact, it would have been a valid trial
strategy-not deficient performance-for Morales’s trial counsel
to decline to present Morales’s post-conviction evidence had he
known of its existence.”); Raley v. Ylst,
470 F.3d 792, 801 (9th
Cir. 2006) (“we hold that [counsel’s] decision was a valid
strategic choice warranting judicial deference.”); Thai v.
Mapes,
412 F.3d 970, 978-79 (8th Cir. 2005) (“[Defendant] had
the burden of proving that his lawyer’s performance was
unreasonable under prevailing professional standards, and that
his lawyer’s actions were not valid trial strategy.”); Bullock
v. Carver,
297 F.3d 1036, 1047 (10th Cir. 2002) (“[T]he
defendant [has] the burden of showing that counsel’s action or
inaction was not based on a valid strategic choice.”).
The PCR court’s use of the phrase “valid trial strategy”
simply does not transform its analysis into a per se rule of
reasonableness. As detailed above, the whole of the PCR court’s
opinion shows that it understood Strickland and applied a
presumption of reasonableness standard when analyzing Boseman’s
ineffective assistance claim. Accordingly, the district court
22
erred in holding the state PCR court’s analysis applied a per se
rule of reasonableness and was therefore contrary to or an
unreasonable application of Strickland.
C.
The Warden’s final argument is that the district court
erred in holding that the PCR court’s decision denying Boseman’s
ineffective assistance claim was objectively unreasonable under
Strickland and that “petitioner has shown that the PCR court was
incorrect by clear and convincing evidence.” The Warden
contends the PCR court did reasonably apply Strickland in
concluding that trial counsel’s decision not to present an alibi
defense was a strategic choice made after appropriate
investigation. Furthermore, the Warden asserts the PCR court’s
factual findings were reasonable, both as to the nature of the
alibi defense and the basis for counsel’s decision not to
present that defense. 6 (Appellant’s Br. 50-60.)
6
During oral argument, the Warden also contended that the
district court’s decision misconstrues South Carolina’s law as
to what constitutes an alibi defense. Citing Glover v. State,
458 S.E.2d 538 (S.C. 1995), the Warden asserted that presenting
evidence of where Boseman was during the time of the telephone
call does not provide Boseman with an alibi under South Carolina
law for the time of the murder and robbery. See
id. at 540
(holding that testimony placing the defendant at another
location prior to the time of the crime was not sufficient to
establish an alibi defense). Because we resolve the case in the
(Continued)
23
In Strickland, the Supreme Court set out a two-prong test
for evaluating ineffective assistance of counsel claims. A
defendant must show: (1) that his counsel’s performance did not
meet “an objective standard of reasonableness,” which is based
on “prevailing professional norms,” and (2) that his counsel’s
deficient performance prejudiced the defense. 466 U.S. at 687-
88; Rompilla v. Beard,
545 U.S. 374, 380 (2005). “‘Deficient
performance’ is not merely below-average performance; rather,
the attorney’s actions must fall below the wide range of
professionally competent performance.” Griffin v. Warden,
970
F.2d 1355, 1357 (4th Cir. 1992). To “eliminate the distorting
effects of hindsight,” this review of counsel’s performance
seeks to “reconstruct the circumstances of counsel’s challenged
conduct” and “evaluate the conduct from counsel’s perspective at
the time” his decision was made.
Strickland, 466 U.S. at 689.
As noted previously, a Strickland review of counsel’s conduct is
made with the strong presumption of reasonableness.
Id.
When trial counsel’s conduct is challenged for failing to
present certain evidence, the inquiry is generally focused on
whether the investigation supporting counsel’s decision not to
present certain evidence was reasonable. See Wiggins v. Smith,
Warden’s favor on another basis, we need not address this
argument.
24
539 U.S. 510, 521-23 (2003) (in context of limited scope of
investigation into potential mitigating evidence); Wilson v.
Ozmint,
352 F.3d 847, 860 (4th Cir. 2003) (same). “Strickland’s
objective reasonableness prong requires counsel to conduct
appropriate factual and legal inquiries and to allow adequate
time for trial preparation and development of defense
strategies.” Huffington v. Nuth,
140 F.3d 572, 580 (4th Cir.
1998). And “when evaluating decisions not to investigate
further, [the court] must regard counsel’s choice with an eye
for ‘reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments.’” Bunch v.
Thompson,
949 F.2d 1354, 1363 (4th Cir. 1991) (quoting
Strickland, 466 U.S. at 691); cf. Turner v. Williams,
35 F.3d
872, 896 (4th Cir. 1994) (in the context of ineffective
assistance of counsel claims, the court “address[es] not what is
prudent or appropriate, but only what is constitutionally
compelled.”), overruled on other grounds by O’Dell v.
Netherland,
95 F.3d 1214, 1222-23 (4th Cir. 1996).
We are also mindful of the additional measure of deference
afforded under AEDPA to a state court’s resolution of the habeas
claims of state prisoners. Bell v. Cone, 543 U.S. 447, 455
(2005) (AEDPA requires “a highly deferential standard for
evaluating state-court rulings, which demands that state-court
decisions be given the benefit of the doubt.” (internal
25
quotation marks and citation omitted)). Our review of the
record leads us to conclude that the district court erred in
finding the PCR court unreasonably applied Strickland and was
based on an unreasonable interpretation of the facts surrounding
trial counsel’s decision.
At the forefront of the district court’s analysis is its
conclusion that “under any reasonable view of the evidence trial
counsel premised their ‘strategic’ decision not to call
witnesses for the time of the robbery/murder on an ill-informed
and mistaken view of the facts of petitioner’s case.” J.A. 135.
In so holding, the district court misconstrued the evidence
presented during the PCR hearing and did not afford the proper
level of deference to the PCR court’s factual finding that trial
counsel’s interviews with the alibi witnesses “only established
an incomplete or partial alibi for [Boseman] and did not give
him an alibi for the actual time of the alleged incident.” J.A.
796.
To support its conclusion that trial counsel’s performance
failed to meet the Strickland standard, the district court first
cited trial counsel’s reliance on “the Rickborn report, which
stated that Walter and his college friends were with [Boseman]
from 8:30pm until 10:00pm.” J.A. 136. Based on this factual
conclusion, the district court found trial counsel’s trial
strategy defective as based on factual error. However, the
26
Rickborn report does not say what the district court asserts
that it says. The report, which summarizes Rickborn’s interview
with Walter in November 1996, states, in relevant part:
I asked Walter how he recalled that [sic] times of the
evening that he was with Brian. He told me that he
checked his watch on a regular basis that evening
because even though he and his friends were partying
they had to be back at S.C. State that evening. He
looked at his watch when the client was dropped off at
8:30 p.m. because they were going to the store for
more beer and he was keeping track of how much more
time they had to drink beer. He knows that they left
between 10:00 p.m. – 10:30 p.m. because they were just
going to have time to pick up some other S.C. State
students who were at a party at Benedict College and
get back to the S.C. State campus by 11:30 p.m. –
12:00 a.m. (midnight).
J.A. 792. Significantly, the Rickborn report does not state
where Boseman was “dropped off” at 8:30 p.m. or what periods of
time after 8:30 p.m. that Walter was actually with Boseman, if
any.
Boseman and the district court both assert the Rickborn
report states that Boseman was dropped off at his house around
8:30 p.m. and that Walter, his friends, and Boseman were
together from that point in time until Walter left between 10:00
and 10:30 p.m. An equally fair reading, if not a more
compelling reading, of the report’s actual language is that
Walter was with Boseman for undefined periods of the evening,
Boseman was dropped off at an undisclosed location at 8:30 p.m.,
and that Walter and his friends were either out buying beer or
27
at the house until they left around 10:00 p.m. Where Boseman
was during that time period is simply not determinable from the
Rickborn report. The report does not set forth the straight-
forward complete alibi that the district court erroneously
credits to it. Therefore, Boseman has failed to meet his burden
under AEDPA that there was clear and convincing evidence that
trial counsel misconstrued the nature of the potential alibi at
the time he was deciding whether to present an alibi defense.
The district court also called into question trial
counsel’s “reference to the same amorphous ‘handwritten note’
[from trial counsel’s own interviews with the potential alibi
witnesses], which indicated that the alibi witnesses left
Boseman’s house at 9:30pm.” 7 J.A. 136. The district court
dismissed the importance of this evidence because trial counsel
testified that he relied “solely” on the Rickborn report in
7
The district court clearly viewed trial counsel’s notes
skeptically, subsequently referring to it as the “mysterious
‘handwritten note’” that counsel purportedly possessed from his
own interviews with the potential alibi witnesses. J.A. 136.
However, the PCR court implicitly found counsel’s testimony
about his notes credible by finding that he conducted an
adequate investigation and that the investigation revealed the
existence of an incomplete alibi. The district court could not
overturn the state court’s credibility judgment unless Boseman
presented clear and convincing evidence that trial counsel was
not credible. See Buckner v. Polk, 453 F.3d 195, 204 n.8 (4th
Cir. 2006). As discussed above, Boseman has not satisfied this
burden, and presented no evidence to negate trial counsel’s
recollections of his note and its contents. The district court
thus erred in rejecting the PCR court’s finding.
28
deciding whether to present an alibi defense, and the district
court thought the report provided a complete alibi. However, as
noted above, the Rickborn report fell far short of providing a
complete alibi to Boseman. More importantly, the assertion that
trial counsel relied “solely” on the Rickborn report in making
his decision mischaracterizes trial counsel’s PCR hearing
testimony.
Trial counsel acknowledged that he would have “bas[ed] any
decision” he made about the alibi defense on the Rickborn
report. J.A. 736. But trial counsel never indicated that the
Rickborn report was the only basis for this decision. During
the same exchange, trial counsel repeatedly referred to the fact
that in addition to the information provided in the Rickborn
report, he had conducted his own interviews with the witnesses,
and the information reported in his notes of those interviews
conflicted with the information in the Rickborn report. 8
Specifically, counsel had “different times reflected” as to when
Walter and his friends departed the Boseman house. J.A. 736.
8
We also note that the Sixth Amendment does not always
compel counsel to undertake interviews and meetings with
potential witnesses where counsel is familiar with the substance
of their testimony. E.g., Huffington, 140 F.3d at 580. Here,
trial counsel’s knowledge of the alibi was based not only on his
private investigator’s report summarizing her interview with one
of Boseman’s potential alibi witnesses, but also his own
interviews of “at least some” of those witnesses.
29
Trial counsel unequivocally testified that both the report
and his own interviews established only a partial alibi, and
that this was one reason he decided not to present an alibi
defense. Counsel’s testimony thus provided the PCR court with
evidence regarding the nature of his investigation into the
available alibi defense, the conclusion that it was an
incomplete alibi, and counsel’s subsequent decision not to
present an incomplete alibi defense. For these reasons, the
district court erred in concluding that clear and convincing
evidence did not support the PCR court’s finding that only a
partial alibi defense was available.
Having concluded that the PCR court “grounded its decision”
on” an incorrect view of the facts, the district court held that
the PCR court unreasonably applied Strickland in finding trial
counsel’s performance was reasonable. J.A. 135-37. The
district court’s review of the reasonableness of the PCR court’s
application of Strickland’s performance prong was therefore
inextricably linked to its own erroneous view of the factual
conclusions regarding the nature of the potential alibi
evidence. Without reading more into the Rickborn report than
what it states, there was no basis for concluding that trial
counsel ignored or should have known that a credible alibi
existed for either the time of the telephone call or the murder
and robbery. Counsel does not render deficient performance for
30
failing to present evidence of something that does not exist,
nor is it necessarily deficient to decide not to present every
potential defense. See e.g., Wiggins, 539 U.S. at 521-25
(discussing adequate performance investigating potential
evidence to present prior to making a “strategic” decision not
to present that evidence); Darden v. Wainwright,
477 U.S. 168,
186-87 (1986) (discussing reasons why counsel’s decision not to
present certain evidence that was potentially damaging was not
deficient performance); Lewis v. Horn,
581 F.3d 92, 114 (3d Cir.
2009) (“A valid reason for [counsel’s decision] not [to]
present[] evidence is that it does not exist.”); Byram v.
Ozmint,
339 F.3d 203, 209-10 (4th Cir. 2003) (finding no
ineffective assistance where counsel conducted adequate
investigation and made strategic decision not to present
evidence that could have been viewed favorably or unfavorably by
the jury).
Here, the evidence supports trial counsel’s statements
during the PCR hearing that he investigated and considered
presenting an alibi defense. He ultimately decided not to do so
for several reasons related to specific defects in the alibi and
procedural concerns regarding the conduct of the trial. Counsel
also testified that he was concerned about the incomplete nature
of the alibi. In addition, he was concerned because the
principal alibi witness was a family member and presenting an
31
alibi defense would forfeit the right to make the last argument
to the jury. Significantly, in making the decision not to
present the alibi defense, counsel discussed his concerns with
Boseman, a fact Boseman has not disputed. 9
The PCR court concluded that trial counsel exercised
reasonable professional judgment regarding his decision not to
present the alibi witnesses. In light of Strickland’s analysis
of what constitutes reasonable performance as well as the
deferential review afforded such state court decisions, we do
not find error in the PCR court’s conclusion. Accordingly, we
also hold that the district court erred in concluding the PCR
court’s decision was contrary to or an unreasonable application
of Strickland’s performance prong. 10
9
A defendant’s consent to trial strategy is probative,
although not determinative, of the reasonableness of the chosen
strategy and of counsel’s performance. See Strickland, 466 U.S.
at 691.
10
In light of this conclusion, we need not address the
district court’s conclusion that the PCR court unreasonably
applied the prejudice prong of Strickland when considering
Boseman’s claim. A petitioner is required to prove both
deficient performance and prejudice in order to succeed on an
ineffective assistance claim. Hunt v. Nuth, 57 F.3d 1327, 1332
(4th Cir. 1995). Having failed to show deficient performance,
Boseman’s claim fails.
32
IV.
For the aforementioned reasons, we reverse the district
court’s judgment granting the writ of habeas corpus, and remand
for further proceedings consistent with this opinion.
REVERSED AND REMANDED
33
