KING, Circuit Judge:
In November 2002, Brandon Leon Basham and Chadrick Evan Fulks engaged in a seventeen-day multistate crime spree, for which they were both prosecuted. Basham was convicted in the District of South Carolina of multiple crimes and sentenced to death for two of them, carjacking resulting in death, in contravention of 18 U.S.C. § 2119(3), and kidnapping resulting in death, as proscribed by 18 U.S.C. § 1201. After we upheld Basham's convictions and death sentences on direct appeal, see United States v. Basham, 561 F.3d 302 (4th Cir.2009), cert. denied, 560 U.S. 938, 130 S.Ct. 3353, 176 L.Ed.2d 1245 (2010), he moved for habeas corpus relief pursuant to 28 U.S.C. § 2255. By its opinion of June 5, 2013, the district court denied Basham's § 2255 motion. See United States v. Basham, No. 4:02-cr-00992 (D.S.C. June 5, 2013), ECF No. 1577 (the "Opinion"). The court subsequently denied Basham's motion to alter or amend the judgment, made under Federal Rule of Civil Procedure 59(e), by way of its August 21, 2013 order. See United States v. Basham, No. 4:02-cr-00992 (D.S.C. Aug. 21, 2013), ECF No. 1583 (the "Reconsideration Order").
Our 2009 opinion disposing of Basham's direct appeal, authored by our distinguished former Chief Judge Karen Williams, detailed the pertinent facts of Basham's 2002 crime spree as follows:
Basham, 561 F.3d at 309-14 (alterations in original) (footnotes and citations omitted). Following our opinion, it was confirmed that Donovan's remains had been found in a wooded area in Horry County, South Carolina.
On December 17, 2002, Basham and Fulks were charged in the District of South Carolina for their crimes against Donovan. The operative eight-count superseding indictment was then returned on April 23, 2003. The first two counts — carjacking resulting in death, in violation of 18 U.S.C. § 2119, and kidnapping resulting in death, in contravention of 18 U.S.C. § 1201(a) — carried with them the possibility of a death sentence. On September 13, 2003, the Government filed a notice of intent to seek the death penalty against Basham under 18 U.S.C. § 3593(a), the Federal Death Penalty Act.
Basham's and Fulks's cases were severed for trial on January 29, 2004.
The penalty phase of the trial proceedings commenced on October 12, 2004. The prosecution introduced the trial record as its principal evidence. In addition, the prosecution presented testimony from correctional officers and a female nurse regarding Basham's misconduct, drug use, and sexual misconduct towards female employees in prison; testimony from Donovan's family regarding the impact of her death; and a videotape showing a courtroom scuffle between Basham and deputy U.S. Marshals that had occurred during the guilt phase of the trial. In mitigation, Basham put forth evidence that his parents encouraged his bad behavior, forced him to steal to support their drug habits, and introduced him to drugs, and that Basham was sexually abused by one of his father's friends. Basham also introduced mitigation evidence regarding his mental condition and ability to adapt to prison life. On November 2, 2004, the jury returned a verdict recommending that Basham be sentenced to death on Counts 1 and 2.
Basham's convictions and death sentences were entered on February 16, 2005.
On appeal, we affirmed Basham's convictions and sentence in all respects. See Basham, 561 F.3d at 339. On June 1, 2011, Basham timely filed his motion for habeas corpus relief pursuant to 28 U.S.C. § 2255. That motion listed thirty-four claims for relief, two of which Basham subsequently withdrew.
After conducting an evidentiary hearing over eight nonconsecutive days in late 2012 (the "§ 2255 hearing"), the district court denied Basham's § 2255 motion for reasons explained in its thorough and well-crafted Opinion of June 5, 2013. The district court granted Basham a certificate of appealability as to Claims 1 through 7, Claims 9 through 30, and Claim 32. The court subsequently denied Basham's motion to alter or amend the judgment, made under Federal Rule of Civil Procedure 59(e), by way of its August 21, 2013 Reconsideration Order. Basham timely noticed this appeal on October 17, 2013, and we possess jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(a), and 2255(d).
We review de novo a district court's legal conclusions in denying a 28 U.S.C. § 2255 motion. See United States v. Fulks, 683 F.3d 512, 516 (4th Cir.2012). Factual findings adduced from the evidence presented at a § 2255 hearing are reviewed for clear error. Id.
On appeal, Basham first pursues four claims relating to an inculpatory statement he made to a law enforcement officer demonstrating how Donovan had been strangled with a purse strap. Basham asserts that he was denied his right to the effective assistance of counsel when his lawyers permitted him to speak with investigators outside of their presence (Claim 1 of Basham's § 2255 motion), and later when his lawyers failed to challenge the admissibility of his inculpatory statement on the ground that it resulted from an unlawful interrogation (Claim 2). Additionally, Basham contends that the prosecution committed misconduct by presenting false testimony at trial to the effect that Basham's statement admitted that he was Donovan's killer (Claim 11), and that his lawyers were ineffective by not raising the misconduct contention on direct appeal (Claim 12).
Second, Basham mounts two challenges relating to his competency to stand trial. That is, he maintains that he was tried while incompetent, in violation of his due process rights (Claim 4). Relatedly, Basham alleges that his trial lawyers were constitutionally ineffective by not ably litigating his competency (Claim 5).
Third, Basham asserts that his trial lawyers rendered ineffective assistance in their handling of evidence presented by the prosecution relating to the murder of the second victim, Samantha Burns (Claim 15). The Burns evidence was presented during the guilt phase of Basham's trial, and he contends that his lawyers were deficient by failing to challenge the admissibility and scope of that evidence.
Fourth, Basham raises a final ineffective assistance claim, arguing that his trial counsel's file was not properly provided to the lawyers handling his direct appeal (Claim 30). That deficiency, he maintains, impeded his appellate lawyers from identifying viable challenges on appeal.
Basham's first set of claims arises from a statement he made to law enforcement
Following Basham's November 17, 2002, arrest, he made several statements to law enforcement officers, after being advised of his Miranda rights and on the advice of his state-appointed counsel, essentially admitting his involvement in the carjacking and kidnapping of Alice Donovan. Cameron Littlejohn and William Monckton, both death penalty-qualified lawyers, were appointed to represent Basham on November 27, 2002. The following day — Thanksgiving Day — Basham participated in a search for Donovan's body in Brunswick County, North Carolina (the "Thanksgiving search"). Littlejohn and Monckton had determined that participating in the Thanksgiving search could help Basham's case by possibly finding Donovan still alive, or by demonstrating his willingness to assist law enforcement. Basham had no proffer agreement from the government, exposing him to the risk that any statements he made during the search might be used against him. Littlejohn and Monckton therefore sought to limit Basham's participation to directing the search team in locating Donovan's body. Present during the search were FBI Agent Jeffrey Long, officers from the local Conway, South Carolina police department, Brunswick County Sheriff Ronald Hewett, several sheriff's deputies, and approximately twenty local volunteers.
The first several hours of the Thanksgiving search were unsuccessful. After consulting privately with Basham, Littlejohn advised the investigators that, "hypothetically," Fulks had raped Donovan, strangled her with a purse strap, and then slit her throat.
At the cemetery, Basham, Sheriff Hewett, and two of Hewett's deputies wandered about forty-five feet away from the rest of the group, including Basham's lawyers. Basham and Hewett remained within the sight of Littlejohn and Monckton, but the lawyers could not hear Basham's words. During that encounter, Basham made a statement to Hewett — part oral and part demonstrative (the "cemetery statement"). Specifically, Basham told Hewett that he believed the strap was from a Liz Claiborne purse and that he had thrown the strap into the woods. Although the search team was unable to locate the strap, Basham confirmed to Hewett several times that he believed they were at the correct location, directing the team where they should search. Basham used his hands to estimate the length of the purse strap and to show how he (Basham) had tossed the strap into the woods. He also demonstrated a movement depicting how Donovan was strangled with the strap (the "strangling demonstration").
Leading up to trial, Basham moved to suppress all of his post-arrest statements. The district court conducted an evidentiary hearing from February 24 through February 26, 2004 (the "suppression hearing"), to assess whether Basham's statements were voluntary and admissible under Jackson
Given that the strangling demonstration was not a directional statement, it was encompassed within the lawyers' suppression efforts. They did not, however, focus directly on that demonstration or contend that the broader cemetery statement was the product of an illegal interrogation pursuant to Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ("[A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."). The lawyers, rather, focused primarily on suppressing Littlejohn's hypotheticals. The district court ultimately excluded the hypotheticals, but ruled that the statements Basham made during the Thanksgiving search — including the cemetery statement and the strangling demonstration — were admissible.
At trial, during the guilt phase, the prosecution introduced evidence from the Thanksgiving search through Sheriff Hewett. On direct examination, Hewett testified to a number of inculpatory statements Basham had made during the search in Littlejohn's presence. Hewett also testified regarding the cemetery statement, mimicking Basham's strangling demonstration for the jury. Hewett's testimony on direct gave no indication as to whether it was Basham or Fulks who had strangled Donovan with the purse strap. On cross-examination, attorney Harris returned to the cemetery statement. Harris was aware that Hewett's notes from the Thanksgiving search contained no indication that Basham had suggested that he — rather than Fulks — had strangled Donovan. Seeking to draw out that point to the jury, Harris engaged in the following colloquy with Hewett:
J.A. 1358-59 (emphases added).
Neither the defense nor the prosecution followed up with Sheriff Hewett to clarify his testimony. In closing arguments at each trial phase, the prosecution briefly referenced Hewett's testimony regarding the strangling demonstration. During the guilt phase, near the end of its lengthy summation, the prosecution recounted that Basham had demonstrated that "a Liz Claiborne purse strap was used to kill Alice Donovan." See J.A. 1472. The prosecutor argued that, although Basham had not said he killed Alice Donovan, "he demonstrated it." Id. A few moments later, the prosecutor urged that after seeing Hewett "demonstrate how Brandon Basham demonstrated how Alice Donovan was strangled" — and hearing the testimony of Clifford Jay that Basham had admitted "we killed them" — the jury should return guilty verdicts. Id. at 1473-74. According to the prosecutor, that evidence, "alone, seals the deal." Id. at 1474. Thereafter, in its penalty-phase closing, the government again referenced the strangling demonstration in arguing that the statutory intent element had been proved.
The Sixth Amendment guarantees an accused the effective assistance of counsel, the familiar standards of which were established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a movant seeking collateral relief from his conviction or sentence through an ineffective assistance claim must show (1) that his counsel's performance was deficient and (2) that the deficiency prejudiced his defense. Id. at 687, 104 S.Ct. 2052.
The deficiency prong turns on whether "counsel's representation fell below an objective standard of reasonableness... under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. A reviewing court "must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). The Strickland standard is difficult to satisfy, in that the "Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." See Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003).
The prejudice prong of Strickland inquires into whether counsel's deficiency affected the judgment. See 466 U.S. at 691, 104 S.Ct. 2052. The movant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. In the context of a death sentence, "the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695, 104 S.Ct. 2052. The prejudice analysis "requires the court deciding the ineffectiveness claim to `consider the totality of the evidence before the judge or jury.'" Elmore v. Ozmint, 661 F.3d 783, 858 (4th Cir.2011) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052).
By way of his § 2255 motion, Basham advances three ineffective assistance claims relating to his cemetery statement and the resulting testimony offered by Sheriff Hewett at trial. With respect to the first two of those claims, Basham asserts, first, that Littlejohn and Monckton performed deficiently during the Thanksgiving search when they allowed Basham to speak to Hewett outside of their presence, and, second, that Swerling and Harris were deficient by not arguing at the suppression hearing that Basham's cemetery statement was the inadmissible product of an illegal interrogation.
Importantly, those two ineffective assistance claims rely on a shared argument as to Strickland's prejudice prong. Had his lawyers performed competently — either by remaining with him during the Thanksgiving search and preventing him from making the cemetery statement (Littlejohn and Monckton), or by securing the suppression of the cemetery statement through an Edwards argument (Swerling and Harris) — Sheriff Hewett would not have testified to the cemetery statement at Basham's trial. In the absence of that testimony, Basham contends that there is a reasonable probability that he would not have been sentenced to death. For purposes of establishing prejudice, not all of Basham's oral and demonstrative cemetery statement is relevant, as most of the statement was cumulative to other, uncontroverted statements Basham made. The strangling demonstration is the only noncumulative portion of the cemetery statement. Basham's argument as to prejudice also homes in on the actual killer suggestion made by Hewett while testifying to the strangling demonstration.
The district court determined that Basham failed to show that his lawyers' alleged deficiencies prejudiced his defense under Strickland.
On appeal, Basham urges that his lawyers' deficiencies prejudiced his defense at the penalty phase. Our task at this stage is to "reweigh the evidence in aggravation against the totality of available mitigating evidence." Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Basham contends that "the mitigating evidence presented to the jury might have carried greater weight had the jury not been told by the Government that Basham killed Donovan with his own hands." See Br. of Appellant 47.
The aggravating evidence against Basham was strong. The jury unanimously found, beyond a reasonable doubt, six of the seven nonstatutory aggravating factors alleged, including that Basham: escaped from a detention facility; carjacked and kidnapped Samantha Burns, resulting in her death; committed a first-degree burglary of Carl Jordan's residence and then attempted to murder him; kidnapped and carjacked James Hawkins; attempted to murder a police officer in Ashland, Kentucky; and impacted Donovan's families and friends. The jury did not find unanimously the future dangerousness factor. The trial record amply supported the six aggravators that the jury found against Basham. Because the aggravators do not directly concern Donovan's death, moreover, omitting the actual killer suggestion and the strangling demonstration would not have affected the aggravating factors.
The defense submitted to the jury five statutory mitigating factors and thirty nonstatutory mitigating factors. On the statutory factors, at least one juror found that Basham had impaired capacity and committed the offense while severely disturbed, while no jurors found duress, minor participation, or insignificant prior history. See 18 U.S.C. § 3592(a). The nonstatutory factors included issues such as Basham's role in the offense, family background, substance abuse, history of abuse, mental and emotional problems, and low intelligence. The jury's findings on the nonstatutory factors differed between its special verdict forms on the kidnapping and the carjacking charges but, in all, most of those factors were found present by at least one juror. Relevant here, however, is that no juror found as to either offense that Basham had proved by a preponderance of the evidence that "Brandon Leon Basham played a lesser role than Chadrick Evan Fulks in the kidnapping and carjacking of Alice Donovan, and this factor is mitigating." See J.A. 2472, 2484. The district court determined the foregoing to be the only factor potentially impacted by the actual killer suggestion, and we agree. We also agree with the court's conclusion that, considering the totality of the evidence, there is not a reasonable likelihood that the actual killer suggestion would have altered the jury's decision to recommend death.
First, the government's overarching theory in Basham's prosecution undermines the significance that Basham assigns to the actual killer suggestion. The prosecution took the position that Basham and Fulks aided and abetted each other in kidnapping, carjacking, and killing Donovan.
Second, the record clearly establishes that Basham actively participated with Fulks in committing the crimes against Donovan, and in ultimately ending her life. Basham does not suggest otherwise. Nor could he credibly make such an argument. Basham's strangling demonstration was but one piece of the "overwhelming case" establishing Basham's involvement in Donovan's murder. See Basham, 561 F.3d at 328. Removing Sheriff Hewett's contested testimony, the jury presentation included the following evidence:
The totality of the evidence leaves no doubt that Basham — at the very least — aided and abetted the crimes committed against Donovan. Moreover, as the district court aptly noted,
See Opinion 44. The jury thus could have concluded that Basham had actually strangled Donovan, even without Hewett's actual killer suggestion. Or, the jury could have decided that Fulks was the strangler, in which case Basham would still be deemed the killer, given the prosecution's aiding-and-abetting theory. Or, the jury could have chosen the path suggested by the government and simply found that Basham and Fulks, together, killed Donovan. The end result would be the same: Basham and Fulks were equally culpable for all of their acts, meaning Basham was responsible for killing Donovan.
Basham urges that "an overly mechanical analysis" of prejudice is flawed, in that a reviewing court cannot "account for the intangible factors at play in each juror's evaluation of whether Basham was deserving of death." See Br. of Appellant 46. Nonetheless, to succeed on his ineffective assistance claims, Basham is not entitled to satisfy the prejudice requirement through "rank speculation, defying calculation of a reasonable probability." See United States v. Fulks, 683 F.3d 512, 522 (4th Cir.2012). The Supreme Court observed in Strickland that errors might impact the underlying facts and inferences to sharply different degrees, and "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." See 466 U.S. at 695-96, 104 S.Ct. 2052. Here, assuming Hewett's actual killer suggestion and strangling demonstration were erroneously admitted, the totality of the evidence remains unaffected.
Subtracting the strangling demonstration and Hewett's actual killer suggestion from the sum of evidence received by the jury, we are convinced that Basham has not established prejudice by a reasonable probability, "sufficient to undermine confidence in the outcome" of his proceedings. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We thus agree with the district court that Basham's ineffective assistance claims must fail, in that he cannot satisfy
Basham advances two additional claims arising from the cemetery statement, and more specifically from Sheriff Hewett's actual killer suggestion. Basham contends, first, that his convictions must be reversed because the prosecution committed misconduct when it used that testimony knowing it was false, and, second, that his lawyers were ineffective in failing to raise the misconduct issue on direct appeal.
In prosecuting a criminal trial, the Due Process Clause obliges the government "not [to] knowingly use false evidence, including false testimony, to obtain a tainted conviction." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Due process is violated "regardless of whether the prosecution solicited testimony it knew to be false or simply allowed such testimony to pass uncorrected." Boyd v. French, 147 F.3d 319, 329 (4th Cir.1998) (citing Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). Testimony by a law enforcement officer that is knowingly false or misleading "is imputed to the prosecution." Id. On collateral attack, a movant alleging this sort of misconduct must demonstrate three elements: (1) that the testimony at issue was false; (2) that the prosecution knew or should have known of the falsity; and (3) that a reasonable probability exists that the false testimony may have affected the verdict. See United States v. Roane, 378 F.3d 382, 400 (4th Cir.2004); United States v. Kelly, 35 F.3d 929, 933 (4th Cir.1994). If the movant shows each of those elements, relief must be awarded. See United States v. Bagley, 473 U.S. 667, 679-80, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
Basham's prosecutorial misconduct claim relates to Sheriff Hewett's actual killer suggestion and the related portions of the government's closing arguments. Basham points to three instances in the record that, he contends, establish the prosecution knew or should have known that the testimony was false. First, FBI Agent Long prepared a report on December 4, 2002, summarizing the Thanksgiving search. In that report, Long recounted that Basham had informed investigators that "[a]fter FULKS raped [Donovan], FULKS used a purse strap, which was approximately 18 inches long, and strangled Donovan." See J.A. 2698. Second, on April 22, 2003, Long appeared before a grand jury to obtain the superseding indictment. Consistent with his report, Long testified that Basham had told law enforcement officers during the Thanksgiving search that Fulks had "actually killed" Donovan. Id. at 403. Third, while arguing an evidentiary issue in Fulks's trial, and outside the presence of the jury, Assistant United States Attorney Johnny Gasser stated, "Brandon Basham said that Chad Fulks took the purse strap and strangled [Donovan]." Id. at 1004.
The district court rejected Basham's misconduct claim. Initially, the court determined that the claim failed because it had been procedurally defaulted. Alternatively,
The district court returned to this claim in denying Basham's motion to amend or alter judgment. With respect to AUSA Gasser's argument during Fulks's trial, the court found that the prosecution "did not vouch for the accuracy of Basham's statement," and that "the government did not advance an argument to the court or to the jury that Basham was the one who used the strap to strangle Donovan." See Reconsideration Order 3. Similarly, although the prosecution presented Long's testimony to the grand jury, the court found that "the government did not in any way adopt" Long's statement that Fulks strangled Donovan "as its theory of the case regarding who actually strangled Donovan." Id. Further, the court observed that Basham "offered no evidence that Sheriff Hewett's testimony was perjured," compelling the court's determination that Basham had not demonstrated that Hewett gave false testimony. Id. at 3-4. Having found that Basham had "failed to satisfy the threshold requirement to show that the testimony of which he complains was false," the court determined that "no further analysis is required." Id. at 4.
On appeal, Basham maintains that he has satisfied his burden of establishing his prosecutorial misconduct claim because, "prior to Hewett's testimony at Basham's trial, the Government's understanding from all sources was that Basham told Hewett that Fulks wielded the strap." See Br. of Appellant 70. Therefore, according to Basham, the prosecution engaged in misconduct "when it not only failed to investigate and correct Hewett's [actual killer suggestion], but seized upon that testimony [in closing arguments] to bolster its case in both guilt and penalty phases." Id. at 72.
To succeed on his prosecutorial misconduct claim, Basham must show that the district court's finding that no false testimony was presented is clearly erroneous. See Rosencrantz v. Lafler, 568 F.3d 577, 586 (6th Cir.2009) (applying clear error review to district court's finding that government knowingly used false testimony); Pyles v. Johnson, 136 F.3d 986, 996-98 (5th Cir.1998) (same); United States v. Boyd, 55 F.3d 239, 242 (7th Cir.1995) (same). Our task, therefore, is to assess whether "the entire evidence" creates "the definite and firm conviction that a mistake [was] committed." Easley v. Cromartie,
Basham does not suggest that Hewett committed perjury, and he therefore must demonstrate that the record compels the conclusion that Hewett's actual killer suggestion "create[d] a false impression of facts which are known not to be true." United States v. Bartko, 728 F.3d 327, 335 (4th Cir.2013) (internal quotation marks omitted). Implicitly, Basham argues — as he must — that it was Fulks who strangled Donovan. But while Basham relies on isolated snippets of the record to establish that point, a fuller reading clarifies the uncertainty regarding the identity of Donovan's killer. For example, a complete reading of Long's report shows that his statement that "FULKS ... strangled Donovan" derived from Littlejohn's hypothetical statements, which the government successfully moved to suppress. See J.A. 2698. In the grand jury proceedings, Long testified not only that Basham had blamed Fulks for actually killing Donovan, but that Fulks had blamed Basham. Id. at 403, 408. Similarly, AUSA Gasser's statements during the evidentiary dispute in Fulks's trial were not made for the truth of the matter. Gasser was simply arguing that Basham made both inculpatory and exculpatory statements during the Thanksgiving search, and Fulks should not be permitted to admit only the favorable statements into evidence.
Basham suggests that Hewett's actual killer suggestion was false because at Fulks's trial, the prosecution took the position that Fulks — not Basham — had strangled Donovan. In addressing Fulks's § 2255 motion, we considered a similar argument. See Fulks, 683 F.3d at 523-25. Fulks contended that the prosecutors had violated his due process rights by pursuing mutually inconsistent theories against Basham and Fulks, and referenced many of the same statements that Basham now highlights. We rejected Fulks's claim because, "[v]iewed in the context of the entirety of both proceedings, the government's core theory was that Fulks and Basham were equally culpable in Donovan's murder and similarly deserving of the death penalty, regardless of which one physically ended her life." Id. at 524. Our reasoning in Fulks applies to Basham's claim here. The government's consistent position has remained that Basham and Fulks shared responsibility for Donovan's death.
In all, Basham has not shown that the district court clearly erred in finding that the prosecution did not present false testimony at his trial. That finding is plausible based on the entire record, and therefore must be affirmed. As the Supreme Court has recognized, "[t]he trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise." Anderson, 470 U.S. at 574, 105 S.Ct. 1504. As such, Basham cannot satisfy the first element of his prosecutorial misconduct claim, and we affirm the court's ruling.
Basham presents a separate ineffective assistance claim that is based on his lawyers'
Basham also maintains that he was tried and convicted while being legally incompetent, and that his lawyers were constitutionally ineffective by failing to raise the competency issue to the district court during trial. His arguments focus on two specific days — September 20 and October 26, 2004.
The Due Process Clause of the Fifth Amendment prohibits the federal government from trying and convicting a mentally incompetent defendant. See Pate v. Robinson, 383 U.S. 375, 384-86, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The test for determining competency in a federal court is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as a factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). A movant can pursue either substantive or procedural competency-related claims on collateral attack. In a substantive competency claim, the movant asserts that he was, in fact, tried and convicted while mentally incompetent. In a procedural claim, on the other hand, the movant contends that the trial court failed to properly ensure that the accused was competent to stand trial, as required by 18 U.S.C. § 4241. See Beck v. Angelone, 261 F.3d 377, 387-88 (4th Cir.2001). In pursuing a substantive competency claim, such as Basham raises in his § 2255 motion, the movant is presumed to have been competent during his trial. See Burket v. Angelone, 208 F.3d 172, 192 (4th Cir.2000). In that situation, the movant bears the burden of proving, by a preponderance of the evidence, that he was incompetent. See United States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005).
In its Opinion, the district court found that Basham was legally competent throughout his trial, including during the specific challenged incidents on September 20 and October 26, 2004. As explained below, the court's findings are not clearly erroneous, and its denial of Basham's competency-based claims must be affirmed.
Basham first maintains that he was incompetent during an incident that occurred on Monday, September 20, 2004, while the trial was in its guilt phase. Following the lunch break that afternoon, before the jury returned to the courtroom, the district court informed Basham that he could not use tobacco, referred to here as "dip," during the trial proceedings because the court was informed that Basham had previously thrown bodily fluids at deputy U.S. Marshals. Basham then requested to return downstairs to his holding cell, saying "I don't feel good." See J.A. 1159. Of note, Basham had made previous requests not to attend trial, which the court had declined. The court similarly denied Basham's request of September 20, ruled that the trial would proceed, and instructed Basham to sit down. Basham refused to take his seat, however, and became agitated. Soon, "a tussle ensued in the courtroom between [Basham] and the Marshals," which lasted approximately eight minutes. Id. at 1161. Six deputies sought to subdue Basham, but eight were ultimately required. Basham and the deputies maintained a dialogue during the tussle, with Basham cursing the officers, suggesting that one of them had lied in telling the court that he had thrown bodily fluids. Basham then told the court, prior to being escorted from the courtroom, "Judge, if I was going to spit, as mad as I am now, I would be spitting now. They just made that up." Id. at 1164.
Basham was then removed to his holding cell, and his lawyers requested a delay in the trial proceedings so that a psychiatrist could assess his competency. The district court granted that request, and Basham was evaluated that afternoon by forensic psychiatrist Donna Schwartz-Watts. Later that day, Dr. Watts testified that "[i]t is my opinion right now that because of his mental defect that [Basham] can't assist his attorneys." J.A. 1173. Dr. Watts stated that Basham's "mental state fluctuates," and opined that his competency would similarly fluctuate. Id. The court then adjourned the trial for the balance of that day.
Basham asserts in his § 2255 motion that he was not competent to stand trial during his scuffle with the deputy Marshals. Although the events of September 20, 2004, occurred outside the jury's presence, the video and audio of the tussle were admitted into evidence during the trial's penalty phase on behalf of the prosecution to show future dangerousness.
The district court denied Basham's competency claim as to September 20, 2004, finding that he had not satisfied his burden, by a preponderance of the evidence, of showing that he was incompetent during the courtroom scuffle. In so ruling, the court recognized that certain evidence supported Basham's argument that he had
On the other hand, the district court deemed Dr. Watts's testimony unclear "as to whether she believed Basham was incompetent at the time of the altercation or whether she believed that he got worked up from the altercation and was incompetent as a result." See Opinion 93 n. 37. The prosecutors also offered evidence that Basham had advised a deputy shortly before the incident that he would be "`coming back down'" to his holding cell from the courtroom, possibly indicating "that Basham may have planned to act out in court." Id. at 95 (quoting J.A. 1177). Additionally, the court related that Basham made statements during the scuffle, prior to being taken from the courtroom, showing that he "apparently had the presence of mind to make a last-ditch argument as to why he should have been allowed [dip], even as he was being escorted out of the courtroom." Id. Assessing all of the evidence, the court found that Basham was not incompetent during the September 20 scuffle, and thus his "constitutional rights were not violated when the government later showed both videotape and audiotape of the altercation to the jury." Id.
Basham maintains on appeal that the district court's ruling was clearly erroneous because the court misconstrued Basham's statements prior to and during the September 20 scuffle, and because the court should have accorded greater weight to the opinions of Dr. Watts and lawyer Harris. We disagree, as the record amply supports the court's findings. See Anderson, 470 U.S. at 574, 105 S.Ct. 1504 ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."). Basham's statement prior to the scuffle that he would soon be returning to his holding cell supports a finding that he intended to act up in the courtroom, in that the court had previously denied Basham's requests not to attend his trial. In light of that history, it is reasonable to infer that Basham would have known that he would not be permitted to return to his holding cell absent exigent circumstances. Basham's statements to the court during the scuffle also support the court's competency finding, because they show that Basham's thinking was goal-oriented and motivated. His behavior might have been bizarre, volatile, or irrational, but that does not necessarily render a defendant incompetent. See Robinson, 404 F.3d at 858; Burket, 208 F.3d at 192; see also United States v. Lebron, 76 F.3d 29, 32 (1st Cir.1996) ("[I]rrational and outrageous behavior in the courtroom ... may be uncontrolled, manipulative, or even theatrical. It is not determinative of competency.").
Moreover, the evidence upon which Basham relies does not mandate a finding that he was incompetent during the September 20 scuffle. For example, Dr. Watts's testimony that Basham was incompetent when she examined him after the scuffle did not have to be accepted — even if unimpeached. See Maggio v. Fulford, 462 U.S. 111, 117-18, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983). Indeed, Watts's opinion was limited to Basham's competency when she met with him following the scuffle. Although Basham suggests that it "defies reason" that he might have been competent during the scuffle and then incompetent a short while later, see Reply Br. 8, Watts testified that Basham's mental state and competence
In sum, the district court did not clearly err in finding that Basham was competent during the September 20 scuffle. As a result, Basham's rights were not violated when the video and audio recordings of the scuffle were shown to the jury during the penalty phase.
Next, Basham asserts that he was also incompetent on Tuesday, October 26, 2004, during the trial's penalty phase. That morning, before the jury was brought into the courtroom, Harris informed the district court that Basham "is in a very agitated state this morning," because he had not received one of his medications due to an error at the detention center where he was housed overnight. See J.A. 1919. The court then granted Basham's request to delay the trial until the afternoon, so that he could receive the missed dose of medication and allow for the medication to take effect. When the court reconvened that afternoon, however, Harris expressed concern that Basham "is not going to be able to sit in the courtroom and pay attention to the testimony, remain silent. And I am concerned that ... this jury will not look favorably upon the way he is appearing to me to be acting this afternoon." Id. at 1927. The prosecution took the position that the trial should proceed, arguing that the defense lawyers had not contacted Dr. Watts to evaluate Basham that morning, and contending that, "if it is a medical problem," she "should be here to testify about it." Id. at 1928. The following exchange then occurred:
Id. at 1928-29. Despite Harris's concerns, the trial proceedings went forward that day. Later that afternoon, Basham's counsel stated to the court that Basham was "slurring his words" and appeared to be "groggy and just out of it." Id. at 1936-37.
In his § 2255 motion, Basham claims that he was incompetent during the trial proceedings on the afternoon of October 26, 2004. The district court rejected that contention, finding a lack of evidence supporting Basham's assertion that he was incompetent. The court pointed out that Basham's lawyers had expressed concern about Basham's appearance, but offered no
We are satisfied that the district court's finding that Basham was competent during the proceedings on the afternoon of October 26 is not clearly erroneous. In arguing that the record compels a finding that he was incompetent, Basham relies on evidence that he was groggy and slurring his words. Those factors, however, do not necessarily render a defendant incompetent to stand trial. See Woods v. McBride, 430 F.3d 813, 819 (7th Cir.2005) ("[T]here is a big difference between the sort of temporary incompetence stemming from [medication]-induced drowsiness during voir dire and the sort that would render [the accused] incapable of standing trial altogether."). The finding that Basham was competent is further supported by the court's observations of Basham — both that day and throughout the trial. The record demonstrates that the court was sensitive to Basham's mental state throughout the trial proceedings, and made sustained efforts to ensure that his fair trial rights were protected. For example, during the morning of October 26, 2004, the court commented on the importance of ensuring that Basham receive his prescribed medication so that he could participate in his defense, anticipating that "if the defendant receives the death penalty, ... there will be a 2255 action" challenging his competency. See J.A. 7537. Given the court's commendable motivation to ensure Basham's competency, its decision to proceed with trial on the afternoon of October 26 supports a finding that Basham was competent. See United States v. Moussaoui, 591 F.3d 263, 294 (4th Cir.2010) (noting that trial court's interactions and experience with defendant over several years of proceedings was "compelling" factor supporting conclusion that defendant was competent). The court's finding that Basham was competent during the afternoon of October 26 is thus well supported by the record. The court's denial of Basham's substantive competency claim must therefore be affirmed.
Basham also argues that his defense lawyers were constitutionally ineffective with respect to his September 20 and October 26, 2004 instances of alleged incompetency. More specifically, with respect to the September 20 scuffle, Basham contends that his lawyers acted deficiently — not on that day — but when they failed to object on competency grounds to the admission of the video and audio footage during the penalty phase. As to the events of October 26, Basham maintains that his lawyers were constitutionally ineffective by failing to contact Dr. Watts and request that she examine Basham's competency before the trial proceedings could be resumed.
The foregoing contentions against the defense attorneys lack merit because Basham cannot satisfy Strickland's prejudice requirement, which requires that he show "counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Put simply, Basham was competent during the September 20 and October 24 incidents, foreclosing any suggestion that his trial was rendered unfair by his lawyers' decisions during those incidents. See Walton v. Angelone, 321 F.3d 442, 462 (4th Cir.2003)
Basham next claims that his defense lawyers were constitutionally ineffective with regard to the evidence presented during the trial's guilt phase about the crimes committed against Samantha Burns (the "Burns evidence").
The Basham defense, however, did not file a motion in limine with respect to the Burns evidence as it was presented during the guilt phase. Swerling and Harris also declined the district court's offer to give the jury a cautionary instruction under Federal Rule of Evidence 404(b) with respect to that testimony. At the charge conference in the guilt phase, the court again inquired whether the jury should receive an instruction limiting the purposes for which evidence of other acts — such as the Burns evidence — could be considered. Swerling objected to such an instruction, and alternatively requested that the court's proposed instruction be modified to permit the jury to consider the evidence of other acts to either prove "or disprove" pertinent facts. See S.A. 24.
On direct appeal, Basham argued that the prosecution had impermissibly used the Burns evidence in its closing argument in the guilt phase to show propensity, contravening Rule 404(b). We found no plain error, concluding that the government had "tied [the Burns] evidence entirely to a discussion of Basham's intent," and therefore did not run afoul of Rule 404(b). See Basham, 561 F.3d at 329-30.
Basham took a different tack on the Burns evidence in his § 2255 motion, maintaining that Swerling and Harris were constitutionally ineffective by not attempting to limit the scope and extent thereof. The district court rejected that claim. First, the court recognized that the record is "unclear as to whether [the Burns evidence] was admitted as being intrinsic to the crimes charged, or was admitted for one of the not-for-character purposes allowed under Rule 404(b)." See Opinion 123 n. 52. The court then relied on our decision rejecting Basham's direct appeal as foreclosing any challenge that the Burns evidence was admissible to show intent. Id. at 124. Additionally, given that "Basham's primary, if not sole, defense in this case was that at the time he and Fulks kidnapped Alive Donovan, he
In response to Basham's motion to alter or amend judgment, the district court clarified that Basham's claim with respect to the Burns evidence failed on both prongs of Strickland. First, the court determined that Basham's lawyers did not perform deficiently because their decisions on how to handle the Burns evidence were strategic. Predicated on the testimony of Swerling and Harris at the § 2255 hearing, the court found that they had both "concluded that the jury would probably find Basham guilty, thereby necessitating a penalty phase." See Reconsideration Order 6. Counsel therefore adopted "the recognized practice" of front-loading the emotionally charged Burns evidence into the guilt phase, so that it would not be "fresh in the minds of the jury as they deliberated on Basham's sentence." Id. at 6-7. Second, the court reasoned that the deficiencies alleged did not prejudice Basham because the Burns evidence would have been admitted even if his lawyers had mounted the challenges he now maintains were required. Id. at 5-6. To that end, the court noted that "any objection to the admissibility of [the Burns evidence] would have been overruled." Id. at 6.
We agree that Basham's claim fails Strickland scrutiny because he has not shown that his defense lawyers performed deficiently. Basham urges that competent counsel would have pursued a number of avenues to exclude or limit the Burns evidence, such as arguing that the evidence was not intrinsic, was unfairly prejudicial, or was needlessly cumulative. To succeed on this ineffective assistance claim, of course, Basham "must overcome the presumption that, under the circumstances," his lawyers' handling of the Burns evidence "`might be considered sound trial strategy.'" See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).
Swerling and Harris each testified during the § 2255 hearing that, as they prepared for trial, they believed Basham would be convicted of the charged offenses. Their overarching goal was to save Basham's life and avoid a death sentence. In line with that goal, as Swerling explained, the defense chose to front-load certain evidence into the trial's guilt phase. The lawyers purposely "let a lot of evidence come in in the guilt or innocence phase" in order to "desensitize" the jury "to what we knew was going to be coming in the penalty phase of the trial." See J.A. 4410; see also Humphries v. Ozmint, 397 F.3d 206, 234 (4th Cir.2005) ("[I]t is well established that failure to object to inadmissible or objectionable material for tactical reasons can constitute objectively reasonable trial strategy under Strickland.").
To rebut Swerling's testimony about trial strategy, Basham points out that Swerling made no mention of a front-loading strategy at the § 2255 hearing until he returned from a lunch break. Even then, Basham notes, Swerling testified that he "probably" employed that strategy. See Br. of Appellant 59 (quoting J.A. 4340). The district court credited Swerling's explanation, however, and the credibility determination
Basham's position that his lawyers acted unreasonably by not challenging the Burns evidence under Rule 403 overlooks the probative value of that testimony. See Fed.R.Evid. 403 ("The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."). Basham characterizes the probative value of the Burns evidence as "marginal," see Br. of Appellant 63, an assertion that is entirely inaccurate. During the guilt phase, Basham conceded his culpability to the offenses charged, except for the carjacking offense. On that charge, Basham disputed whether he had possessed the requisite "intent to cause death or serious bodily harm" when he and Fulks abducted Donovan. See 18 U.S.C. § 2119. To prove that intent element, the prosecution introduced the Burns evidence to show that Burns had neither voluntarily left home nor disappeared. Basham emphasizes that he had admitted Burns was dead in his opening argument, and further suggests that the prosecution could have used other evidence — such as testimony from the law enforcement officers who interviewed Burns's family — to introduce the same information in a less emotional way. The prosecution, however, is entitled to fashion its own case and present a continuing, logical story to satisfy its ultimate burden. See Old Chief v. United States, 519 U.S. 172, 189, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) ("[T]he accepted rule that the prosecution is entitled to prove its case free from any defendant's option to stipulate the evidence away rests on good sense. A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it."). Therefore, it is unlikely that a Rule 403 challenge would have been successful — particularly given the district court's statement that any such objection would have been overruled.
Basham's focus on the heartbreaking and emotional nature of the Burns evidence lends substantial credence to his lawyers' strategy. The government had provided notice that the crimes against Samantha Burns would be presented as an aggravating factor justifying a death sentence. Swerling and Harris thus understood that, if the Burns evidence did not come in during the guilt phase, the prosecution would use it during the penalty phase. Although the Rules of Evidence do not apply in the latter stage, an evidentiary restriction similar to Rule 403 is provided by statute: "information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c). The probative value of the Burns evidence would assuredly be high in the penalty phase, where the crimes against Burns were to be squarely at issue. Faced with the proposition that the Burns evidence would certainly be admitted at some point, Basham's lawyers cannot be faulted for ripping off the proverbial Band-Aid. See Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir. 2006) ("[E]xperienced trial counsel learn that objections to each potentially objectionable event could actually act to their party's detriment. Learned counsel ... use objections in a tactical manner.").
As the Supreme Court has explained, "[t]here are countless ways to provide effective assistance in any given case. Even
Finally, Basham contends that he was denied the effective assistance of counsel because Swerling failed to deliver Basham's complete file to the lawyers who represented Basham in his direct appeal. Basham noticed his direct appeal on February 17, 2005, and Swerling and Harris were appointed as his appellate lawyers the following week, on February 24, 2005. Thereafter, Swerling and Harris each were permitted to withdraw, on September 13, 2005, and August 14, 2007, respectively, and were replaced by lawyers from Jenner & Block, LLP. Timothy Sullivan was designated lead appellate counsel, although co-counsel Melissa Meister worked extensively on Basham's appeal and coordinated a team of associates.
Basham's appellate lawyers from Jenner & Block began requesting records from Swerling in January 2008. Sullivan requested, by letter of January 14, 2008, that Swerling "either provide me with a complete `master set' [of Basham's files, pleadings, and records] or, alternatively, provide access to the `master set' so it can be inspected and copied." See J.A. 7065. Also on January 14, 2008, the district court ordered "the clerk of court to provide [Basham's appellate lawyers] access to all documents which are reflected in the docket as sealed or otherwise restricted." Id. at 7066. On February 12, 2008, our briefing order was amended, extending the deadline for Basham's opening brief by sixty days, from February 29 to April 29, 2008. Meister made several requests during February and March 2008 that Swerling send Basham's file to Jenner & Block in Washington, D.C. Swerling, however, insisted on retaining physical possession of the file. Meister then travelled to Swerling's office in South Carolina on April 3, 2008, spent the afternoon reviewing the file, and had copies made of about two boxes of documents. On April 23, 2008, the deadline for Basham's opening brief was again extended, this time to May 13, 2008.
Second, and in the alternative, the district court ruled that, even if Basham's lawyers had performed deficiently, his claim failed under Strickland's prejudice prong. See Opinion 193-94. The court emphasized that Basham had not identified any particular argument that appellate counsel failed to raise because Swerling retained the physical file. And, although Basham contended that his lawyers might have raised some of the ineffective assistance claims on direct appeal that he raised in his § 2255 motion, the court explained that "appellate counsel were not ineffective in failing to raise the issues Basham identifies." Id. at 193. The court further relied on Meister's testimony that she received sufficient access to Basham's file and that "there were no claims appellate counsel could not have raised because of Swerling's behavior." Id. at 193-94. Thus, the court concluded that Basham could not have been prejudiced by any deficiency relating to his file.
On appeal, Basham reiterates his argument that "[i]n denying appellate counsel unfettered access" to the "thousands of trial-related documents in his possession," Swerling had "compromised Basham's appeal to an unknowable extent." See Br. of Appellant 74. To show that Swerling performed deficiently, Basham relies on legal authority requiring a lawyer to deliver a client's file to the client upon the termination of representation. See id. at 80-81 (citing Restatement (Third) of the Law Governing Lawyers § 46(3) (2000) (requiring that "a lawyer must deliver to [his] client or former client, at an appropriate time and in any event promptly after the representation ends, such originals and copies of other documents possessed by the lawyer relating to the representation as the client or former client reasonably needs"); S.C. Rules of Prof'l Conduct 1.16(d) ("Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as ... surrendering papers and property to which the client is entitled....")). Basham further disputes the court's finding that appellate counsel had reasonable access to the trial file, maintaining that "Meister's single day with the file" cannot constitute reasonable access "in light of the nature" of this capital case. Id. at 85.
We are satisfied to affirm the district court's ruling that Basham cannot demonstrate prejudice. Basham's prejudice argument relies on the "numerous
Finally, the record demonstrates that Basham's appellate lawyers made deliberate and considered decisions in selecting which claims to pursue. Meister confirmed at the § 2255 hearing that the appellate team strategized on what issues to appeal in order to "present the best brief possible" with the "most likelihood" of affording Basham relief. See J.A. 3827-28. As a result, Basham cannot show a reasonable probability that the result of the proceedings would have been different, "sufficient to undermine confidence in the outcome" of his direct appeal. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Therefore, we also affirm the ruling of the district court on this ineffective assistance claim.
Pursuant to the foregoing, we affirm the judgment of the district court.
AFFIRMED.
United States v. Basham, No. 4:02-cr-00992 (D.S.C. Mar. 27, 2006), ECF No. 951, at 214.
