Boseman v. Bazzle
Filing
55
ORDER denying 1 Petition for Writ of Habeas Corpus filed by Matthew Brian Boseman, adopting in part 25 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Matthew Brian Boseman, granting 14 MOTION for Summary Judgment filed by Richard E Bazzle, ruling on 53 MOTION for this court to address remaining allegations filed by Matthew Brian Boseman. Signed by Chief Judge David C Norton on 10/11/2011. (juwo, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
MATTHEW BRIAN BOSEMAN,
#238770,
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Plaintiff,
vs.
RICHARD E. BAZZLE, WARDEN,
PERRY CORRECTIONAL
INSTITUTION,
Defendant.
C/A No. 0:07-CV-01344-DCN
ORDER AND OPINION
This matter is before the court on a petition by Matthew Brian Boseman
(Boseman) for a writ of habeas corpus made under 28 U.S.C. § 2254. This court
issued an order on July 24, 2008, granting Boseman a conditional writ of habeas
corpus on the first of his four asserted grounds for relief. The Fourth Circuit reversed
and remanded. The court now addresses Boseman’s three remaining grounds.
I. BACKGROUND
In 1996, Boseman was indicted in the Court of General Sessions for Richland
County, South Carolina, on charges of murder and armed robbery. A jury found
Boseman guilty on both charges. Boseman exhausted his direct appeals and state
post-conviction relief (PCR) remedies and brought the instant petition on May 14,
2007. Appearing pro se, Boseman sought habeas corpus relief on the following four
grounds, all based on ineffective assistance of trial counsel: (1) failure to present
witnesses in support of an alibi defense; (2) failure to request an alibi instruction; (3)
failure to request a mere presence instruction; and (4) failure to present a rebuttal
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witness. Pet’r’s Pet. 6-11. Respondent moved for summary judgment on June 30,
2007, and Boseman filed a response in opposition on September 4, 2007.
On February 4, 2008, Magistrate Judge Bristow Marchant issued a report and
recommendation (R&R) recommending the court deny the writ and grant
respondent’s motion for summary judgment. This court rejected the R&R and
granted Boseman a conditional writ of habeas corpus on the first of his four asserted
grounds for relief. Specifically, this court found that under Strickland v. Washington,
466 U.S. 668 (1984), the PCR court unreasonably interpreted the facts and
unreasonably applied the law with respect to Boseman’s trial counsel’s failure to
present witnesses and evidence in support of an alibi defense. Boseman v. Bazzle,
No. 07-1344, 2008 WL 2850703, at *15 (D.S.C. July 24, 2008), rev’d, 364 Fed.
App’x 796 (4th Cir. 2010).
On appeal, the Fourth Circuit reversed, holding: (1) Boseman’s ineffective
assistance claim arising from his attorney’s failure to call an alibi witness was not
procedurally barred; (2) this court erred in finding the PCR court applied a per se rule
of reasonableness rather than a presumption of reasonableness; and (3) this court
erred in holding the PCR court’s decision was objectively unreasonable under
Strickland and was based on an unreasonable interpretation of the facts. Boseman,
364 Fed. App’x at 803-09. The Fourth Circuit remanded to this court for further
proceedings. On April 27, 2011, Boseman filed a motion asking this court to address
the remaining three grounds for relief in his habeas petition. On May 16, 2011,
respondent filed a response in support of the motion.
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II. STANDARD OF REVIEW
Petitioner is proceeding pro se in this case. Federal district courts are charged
with liberally construing a complaint or petition filed by a pro se litigant to allow the
development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10
(1980). Pro se complaints and petitions are therefore held to a less stringent standard
than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). Liberal construction, however, does not mean that the court can ignore a clear
failure in the pleading to allege facts that set forth a cognizable claim. See Weller v.
Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
This court has jurisdiction under 28 U.S.C. § 2254 to hear a petition for a writ
of habeas corpus made on behalf of a person in custody pursuant to the judgment of a
state court. A petitioner must exhaust all available state court remedies to properly
assert his claims in federal court. 28 U.S.C. § 2254(b)(1)(A). “[A] federal habeas
court may not review unexhausted claims that would be treated as procedurally barred
by state courts-absent cause and prejudice or a fundamental miscarriage of justice.”
Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004). To sufficiently exhaust
available state court remedies, the petitioner must “give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of
the State’s established appellate review process” and “fairly present[] to the state
court both the operative facts and the controlling legal principles associated with each
claim.” Id. at 448 (citation and internal quotation marks omitted). In other words,
“[t]he exhaustion doctrine bars a claim if it is raised for the first time in a federal
habeas petition.” Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001) (en banc).
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In accordance with the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, the court may only grant relief if the
state court’s decision was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. §
2254(d)(1), or “was based on an unreasonable determination of the facts in light of
evidence presented in the State court proceeding,” id. § 2254(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 differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Moreover, a
state court’s decision involves an unreasonable application of clearly established
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.
Determinations of factual issues made by the state court are presumed correct.
28 U.S.C. § 2254(e)(1). “The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” Id. In considering
under § 2254(d)(2) whether the state court’s decision was based on an unreasonable
determination of the facts, the court must apply the § 2254(e)(1) presumption of
correctness to the state court’s factual findings. See Lenz v. Washington, 444 F.3d
295, 300-01 (4th Cir. 2006).
Courts afford deference under AEDPA to state courts’ resolutions of the
habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). “As a
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condition for obtaining habeas corpus from a federal court, a state prisoner must show
that the state court's ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington v.
Richter, 131 S. Ct. 770, 786-87 (2011). “[E]ven a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. at 786. “If this
standard is difficult to meet, that is because it was meant to be.” Id.
Respondent has moved for summary judgment in this case. Summary
judgment is appropriate when “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The party seeking summary judgment bears the initial burden of
demonstrating the nonexistence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). When the party moving for summary judgment
does not bear the ultimate burden of persuasion at trial, the burden for summary
judgment may be discharged by “pointing out to the court that there is an absence of
evidence to support the nonmoving party’s case.” Id. at 325. The nonmoving party
must then “make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Id. at 322. Evidence should be viewed in the light most favorable to the
nonmoving party and all inferences drawn in its favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). However, a mere “scintilla” of evidence will not
preclude summary judgment. Id. at 252.
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III. DISCUSSION
Boseman raises three further grounds for relief:
Ground Two:
Trial counsel was ineffective for failing to request an
alibi instruction.
Ground Three:
Trial counsel was ineffective for failing to request a
“mere presence” instruction.
Ground Four:
Trial counsel was ineffective for failing to present a
rebuttal witness.
Pet’r’s Pet. 6-11.
The Sixth Amendment provides the right to effective assistance of counsel. In
Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a twopart test for adjudicating ineffective assistance of counsel claims. First, a petitioner
must show that counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms. Id. at 687. Next, the petitioner
must show that this deficiency prejudiced the defense. Id. at 694. The Supreme
Court has recently elaborated on the interplay between Strickland and § 2254, noting
that the standards are “both highly deferential,” and “when the two apply in tandem,
review is doubly so.” Harrington, 131 S. Ct at 788 (internal quotation marks
omitted); see Johnson v. Secretary, DOC, 643 F.3d 907, 911 (11th Cir. 2011)
(“Double deference is doubly difficult for a petitioner to overcome . . . .”).
The pivotal question is whether the state court's
application of the Strickland standard was unreasonable. This is
different from asking whether defense counsel's performance
fell below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two questions
are different. For purposes of § 2254(d)(1), “an unreasonable
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application of federal law is different from an incorrect
application of federal law.” A state court must be granted a
deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.
Harrington, 131 S. Ct. at 785 (citation omitted).
A.
Alibi Instruction
Boseman complains that his counsel was ineffective for failing to present an
alibi instruction to the jury. Pet’r’s Pet. 7-9. Boseman raised this issue in his
amended PCR application and the PCR court addressed the claim. On appeal to the
South Carolina Supreme Court, however, Boseman’s counsel did not specifically
raise the issue.1 The court notes that Boseman attempted to have his appellate
counsel relieved and proceed pro se, in which case he would have raised this issue,
but the South Carolina Supreme Court denied his motions. The South Carolina
Supreme Court held that Boseman’s appellate counsel “exercised reasonable
professional judgment in not raising the issue of the alibi instruction” in the petition
for writ of certiorari. Boseman v. State, at 2 (S.C. filed May 24, 2006).
A claim raised in a PCR application but not raised in the petition for writ of
certiorari following denial of PCR is procedurally barred. As stated by the South
Carolina Supreme Court, appellate counsel is not bound to raise every issue presented
by the record on appeal and is granted latitude to exercise professional judgment.
Further, Boseman has failed to show cause and actual prejudice to obtain relief from
his defaulted claim. Wainwright v. Sykes, 433 U.S. 72, 82-84 (1977); Longworth,
377 F.3d at 447-48. Because a petitioner has no constitutional right to counsel in
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The question presented in Boseman’s petition for writ of certiorari was: “Did trial counsel err in
failing to present favorable witnesses in support of an alibi defense in the case?” Pet’r’s Pet. for Writ
of Cert. 2.
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connection with a PCR application or appeal from a denial thereof, he cannot
establish cause for procedural default of a claim by showing that counsel was
ineffective. See Coleman v. Thompson, 501 U.S. 722, 756-57 (1991); Wise v.
Williams, 982 F.2d 142, 144-45 (4th Cir. 1992). Nor has Boseman produced any new
evidence to establish actual innocence and excuse default. Boseman was not
deprived of an opportunity to have the merits of this constitutional claim reviewed, as
the state PCR court addressed his claim. Out of concern for comity, see Dretke v.
Haley, 541 U.S. 386, 388 (2004), the court finds Boseman’s claim is not adequately
preserved for federal review,2 and rejects the magistrate judge’s R&R on this ground.
B.
Mere Presence Instruction
Boseman argues next that counsel was ineffective for failing to request a
“mere presence” instruction. This claim was presented to and ruled on by the PCR
court, and presented to the South Carolina Supreme Court; therefore, it is preserved
for federal review. The PCR court considered Boseman’s claim under Strickland,
finding “that [Boseman] failed to show any prejudice arising from the alleged failure
of counsel to request a ‘mere presence’ instruction” and that “defense counsel is not
ineffective for making valid trial strategy decisions.” Boseman v. State, No. 01-CP40-825, at 4-5 (Richland, S.C. Ct. Common Pleas July 21, 2005).
“The law to be charged is determined by the evidence presented at trial.”
Brunson v. State, 477 S.E.2d 711, 713 (S.C. 1996). Mere presence instructions are
2
The magistrate judge found that even though Boseman did not raise this issue in his appeal to the
South Carolina Supreme Court, the court nevertheless reached the merits of the issue in its May 24,
2006 order, and therefore the issue is preserved for federal review. The South Carolina Supreme Court
held, “Since counsel did not present an alibi defense at trial, petitioner was not entitled to an alibi
charge.” Boseman, at 2-3 (S.C. filed May 24, 2006) (emphasis added). This court disagrees. See
Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir. 2006) (internal quotation marks omitted) (“[W]hen the
state court relies on an independent procedural ground in order to deny relief, its discussion of the
merits of the claim will not disturb the procedural bar.”).
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required, for example, “when evidence supports the conclusion that the defendant was
merely present at the scene where drugs were found and it was questionable whether
the defendant had a right to exercise dominion and control over them,” id., or where
there is doubt as to whether the defendant is guilty as an accomplice to a crime. The
facts and evidence, however, must support such a jury instruction for it to be proper.
See State v. Crosby, 584 S.E.2d 110, 112-13 (S.C. 2003). The evidence here is not
sufficient to meet this standard. In support of a mere presence instruction, Boseman
refers to testimony from the state’s witness, Robert “Bubba” Simmons, who testified
on direct examination by the state as follows:
Q:
A:
Q:
A:
Q:
A:
Q:
A:
...
Q:
A:
Q:
A:
So you specifically asked [Boseman] after you heard Nate
say that, Did you kill the pizza man? That’s your
testimony?
Yes, sir.
And tell this jury what [Boseman’s] response was?
He said, No, he didn’t kill the pizza man.
What else, Bubba?
But he was there. You know what I’m saying? But he
told me he didn’t kill him, you know; that was it.
He said he didn’t kill the pizza man but he was there?
Yeah.
He was there but he didn’t pull the trigger?
He didn’t say he didn’t pull the trigger. He didn’t say who
pulled the trigger.
But he was there?
Yeah.
R. 453-54. At the PCR hearing, Boseman’s trial counsel could not specifically
recollect why he did not request a mere presence instruction, but noted that such an
instruction would have been “completely inconsistent with the defense we were
advancing.” R. 1736. The defense theory advanced at trial was that Boseman had
been framed by the co-defendant and his family and that Boseman was not present at
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the murder scene. Although the defense may propound inconsistent defenses,3
Boseman’s counsel most likely made a trial strategy decision not to request a mere
presence instruction because such an instruction would place Boseman at the scene of
the crime and negate the principal defense theory.
Even if the testimony by Robert “Bubba” Simmons was sufficient to warrant a
mere presence instruction under South Carolina law, and counsel’s performance was
deficient for that reason, Boseman fails to demonstrate the requisite prejudice. To
establish prejudice, a defendant must show “a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. The PCR court’s decision reflects a reasoned
application of the Strickland prejudice prong to counsel’s failure to request a mere
presence instruction based on the incongruity between a mere presence instruction
and the defense theory that Boseman was being framed. A mere presence instruction
would more likely have undermined Boseman’s defense at trial. Under the “highly
deferential” standard, the PCR court’s decision was neither contrary to, nor an
unreasonable application of, clearly established federal law (i.e., Strickland). 28
U.S.C. § 2254(d)(1); Harrington, 131 S. Ct. at 78. The court therefore adopts the
magistrate judge’s recommendation on this ground.
C.
Rebuttal Witness
Finally, Boseman contends that trial counsel was ineffective for failing to
present a rebuttal witness. This claim was not ruled on by the PCR court and the
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“As a general proposition a defendant is entitled to an instruction as to any recognized defense for
which there exists evidence sufficient for a reasonable jury to find in his favor,” and “[f]ederal
appellate cases also permit the raising of inconsistent defenses.” Mathews v. United States, 485 U.S.
58, 63-64 (1988).
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South Carolina Supreme Court found it was not preserved for review. Boseman has
failed to make a showing of cause, prejudice, and actual innocence resulting in a
fundamental miscarriage of justice to obtain relief from his defaulted claim. See
Wainwright, 433 U.S. at 82-84; Wise, 982 F.2d at 144-45. Accordingly, the court
adopts the magistrate judge’s recommendation on this ground and finds the claim
barred from consideration.
IV. CONCLUSION
For the reasons set forth above, the court ADOPTS IN PART the magistrate
judge’s R&R on the final two grounds for relief, DENIES the petition for a writ of
habeas corpus, and GRANTS respondent’s motion for summary judgment.
AND IT IS SO ORDERED.
________________________________________
DAVID C. NORTON
CHIEF UNITED STATES DISTRICT JUDGE
October 11, 2011
Charleston, South Carolina
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