Matthew Boseman v. Richard Bazzle

Filing 920100209

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Reversed and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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 conditionally the state Institute granted ("the Warden"). habeas The district holding PCR court that

Boseman's

petition, ("the

post-conviction

relief

court

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-yearold 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). counsel questioned the

On cross-examination, defense of M.S.'s statements to

consistency

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-ortreaters 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, a which state affirmed the conviction. for post-

Thereafter,

Boseman

filed

application

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

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.

1

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
2

He stated that in addition to the interviews

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

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. 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).
4

3

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 J.A.

certiorari to the South Carolina Supreme Court was denied. 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 Third, the PCR court's decision involved Strickland. an unreasonable application of Supreme Court precedent 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.
5

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. § 1291. J.A. 830. We have jurisdiction pursuant to 28 U.S.C.

II. We review de novo the district court's decision to grant Boseman's § 2254 petition, applying the same standards as the district court. Cir. 2002). Penalty Act Whittlesey v. Conroy, 301 F.3d 213, 216 (4th

Pursuant to the Antiterrorism and Effective Death ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214

(1996), however, our review of the relevant state court decision is very narrow. 2008). Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir.

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 "resulted by in the a Supreme Court of the United on an States," or

decision

that

was

based

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 14 judgment that the

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 of court judgment was when the state court's

determination However, a

the

facts

objectively of

unreasonable. issues is

state

court's

determination § 2254(e)(1). in a not state be

factual

presumed to be correct. adjudicated factual on the

Therefore, a decision court and based unless on a

merits will

determination

overturned

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. concluding He the then PCR asserts court the district a "per court se erred rule in of

applied

reasonableness" rather than a "presumption of reasonableness." 15

Lastly,

the

Warden PCR

contends court

the

district

court

erred

in and

concluding

the

unreasonably

applied

Strickland

made objectively unreasonable factual findings.

A. As an initial matter, we reject the Warden's procedural default argument. state PCR petition The Warden asserts that because Boseman's 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. 44.) Although arguments the in Warden the raises state a credible court point, Boseman's to (Appellee's Br. 34-

made

PCR

were

sufficient

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 arrival at call the to Domino's, around store by 9:15 p.m., p.m. and Griffis' Thus, the

convenience

10:00

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?" During the state PCR court that evidentiary witnesses hearing, could have

J.A. 706. Boseman's provided

appellate

counsel

argued

Boseman with an alibi for the relevant period of time during which the murder and robbery occurred, as it was "an ongoing criminal enterprise." time the same J.A. 726-27. he Boseman identified at that at present as the

individuals

identifies

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 arrival from at the the time of the telephone and call the through failure Griffis' of trial

convenience

store,

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 concluding Warden the next PCR contends court the district a court se erred rule in of

applied

"per

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 In

objective standard of reasonableness." making this assessment, "[j]udicial

466 U.S. at 688. 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." 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 Id. Moreover, the Supreme Court has

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 (i.e., only as being made and after as appropriate to investigation whether

was

"strategic")

failing

assess

counsel's decision was reasonable. not support this conclusion.

The PCR court's opinion does

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 must of reasonable this professional to judgment. receive The

Applicant

overcome

presumption

relief."

J.A. 797-98 (citations omitted).

This language shows that the

PCR court understood what Strickland required and that it was to afford conduct. Only after articulating this standard and reviewing the only a presumption of reasonableness to counsel's

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 A defense counsel is not ineffective 20

in his choice of tactics.

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 surmised. made an informed the PCR decision, court's as the district court the

Rather,

phraseology

includes

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. definitions of the word "valid" include: Relevant

"having legal strength Webster's Third These definitions

or force" and "well grounded or justifiable." New International Dictionary 2529 (2002).

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. 21 E.g., 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."); 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 choice hold that [counsel's] judicial decision was a valid v.

strategic

warranting

deference.");

Thai

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. opinion shows As detailed above, the whole of the PCR court's 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 contends by the clear PCR and convincing did evidence." apply The Warden in

court

reasonably

Strickland

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.)

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

6

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"`Deficient rather, of

88; Rompilla v. Beard, 545 U.S. 374, 380 (2005). performance' the is not merely below-average fall below

performance; the wide

attorney's

actions

must

range

professionally competent performance." F.2d 1355, 1357 (4th Cir. 1992). effects of hindsight," this

Griffin v. Warden, 970

To "eliminate the distorting of counsel's performance

review

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 argument.

on

another

basis,

we

need

not

address

this

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). objective reasonableness prong requires counsel

"Strickland's to conduct

appropriate factual and legal inquiries and to allow adequate time for trial preparation and development of defense

strategies." 1998). And

Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. "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 Thompson, of deference 949 F.2d to 1354, counsel's 1363 judgments.'" Cir. 1991) Bunch v.

(4th

(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, overruled but on only other what is constitutionally by O'Dell v.

compelled."),

grounds

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. (2005) (AEDPA requires "a Bell v. Cone, 543 U.S. 447, 455 highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given the benefit 25 of the doubt." (internal

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." In so holding, the district court misconstrued the J.A. 135. 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." 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." conclusion, strategy the district as J.A. 136. found factual Based on this factual trial counsel's trial the J.A.

court on 26

defective

based

error.

However,

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. reading, An of equally the fair reading, actual if not a is more that

compelling

report's

language

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. forward complete The report does not set forth the straightalibi 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
7

that

he

relied

"solely"

on

the

Rickborn

report

in

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" report. he made about the alibi defense on the Rickborn

J.A. 736.

But trial counsel never indicated that the During

Rickborn report was the only basis for this decision.

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.

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.

8

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. evidence available incomplete Counsel's testimony thus provided the PCR court with regarding alibi alibi, the nature the of his investigation that it into was not the an to

defense, and

conclusion subsequent

counsel's

decision

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 evidence. regarding the nature of the potential alibi

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. adequate See e.g., Wiggins, 539 U.S. at 521-25

(discussing

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 evidence 339 F.3d reason is 203, for it [counsel's does (4th not Cir. decision] exist."); 2003) not [to] v. no

present[] Ozmint,

that

Byram

209-10 where

(finding

ineffective investigation

assistance and made

counsel

conducted not to

adequate present

strategic

decision

evidence that could have been viewed favorably or unfavorably by the jury). Here, during the the PCR evidence hearing supports that he trial counsel's and statements considered

investigated

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. of what constitutes In light of Strickland's analysis performance as well as the

reasonable

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

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. 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.
10

9

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