Bowman v. Stirling et al

Filing 84

ORDER accepting 75 Report and Recommendation of Magistrate Judge Bristow Marchant. Bowman's 81 objections are overruled. The State's 56 Motion for summary judgment, is Granted. Bowman's 36 Amended petition for relief pursuant to § 2254,is Denied. This action is hereby Dismissed. Signed by Honorable Terry L Wooten on 03/26/2020.(cpeg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
Marion Bowman Jr.,

Case No. 9:18-cv-00287-TLW

PETITIONER
v.
Bryan P. Stirling, Commissioner, South
Carolina Department of Corrections;
Willie D. Davis, Warden, Kirkland
Correctional Institution,

Order

RESPONDENTS

This is a capital habeas corpus action brought pursuant to 28 U.S.C. § 2254
by Petitioner Marion Bowman Jr. against Respondents Bryan P. Stirling and Willie
D. Davis (collectively, the State). For the reasons set forth below, the Court grants
the State’s motion for summary judgment and denies Bowman’s habeas petition.

I.

Factual and Procedural History
A.

Trial and Sentencing

The South Carolina Supreme Court summarized the facts of Bowman’s case
as follows:
On February 17, 2001, Kandee Martin’s [] body was found in the trunk
of her burned car. She had been shot to death before being placed in
the trunk.
The previous day, several people gathered at Hank Koger’s house to
socialize and drink alcohol. [Bowman], who was wearing black pants,
arrived at Koger’s house around 11:00 a.m. that day. He subsequently
left to purchase meat. When [Bowman] returned, he became upset
1

because his gun had been moved. He accused James Tywan Gadson []
of taking the gun out of the trash barrel located on Koger’s property.
Hiram Johnson intervened and told [Bowman] he had moved the gun.
The gun was a .380 caliber pistol that [Bowman] had purchased a few
weeks before in the presence of Gadson and Travis Felder. After
retrieving his gun, [Bowman] left Koger’s house.
Later that afternoon, [Bowman] was riding in the car of his sister,
Yolanda Bowman, with another woman, Katrina West. [Bowman],
who had a gun in his back pocket, was sitting in the back seat. He
instructed Yolanda to park beside [Martin’s] car. At the time, [Martin]
was speaking to a man. [Bowman] tried to get [Martin’s] attention,
but she indicated to him that he should wait a moment. The man,
Yolanda, and Katrina testified as to what [Bowman] said next. The
man stated that [Bowman] said, “Fuck waiting a minute. I’m about to
kill this bitch.” Yolanda stated that [Bowman] said, “Fuck it, that
bitch. That bitch be dead by dark.” Katrina stated that [Bowman]
said, “Fuck that ride. That bitch be dead by dark fall.” After
[Bowman’s] comments, Yolanda drove away and [Bowman] informed
her [Martin] owed him money.
Around 7:30 p.m. that evening, [] Gadson saw [Bowman] riding with
[Martin] in her car. They stopped and [Bowman] told Gadson to get in.
Gadson had been drinking alcohol since 1:00 and was “feeling in good
shape.” [Martin] stopped for gas and they drove off without paying.
[Bowman] allegedly instructed [Martin] where to drive and instructed
her to stop on Nursery Road. Gadson and [Bowman] then exited the
vehicle and walked down the road while [Martin] remained in the car.
[Bowman] told Gadson he was going to kill [Martin] because she had
on a wire. [Martin] then came down the road, grabbed [Bowman’s]
arm and stated she was scared. At this point, a car drove by and they
all jumped into the woods. Then, [Martin] started walking to the car
with [Bowman] following her. [Bowman] allegedly shot his gun three
times. Gadson stated [Martin] ran toward him and then stopped and
faced [Bowman] and told him to please not shoot her anymore because
she had a child to take care of. Gadson stated [Bowman] shot two
more times. [Martin] fell to the ground and [Bowman] dragged her
body into the woods. Gadson stated he jumped into the car.
Afterwards, [Bowman] and Gadson parked [Martin’s] car and later
retrieved Yolanda’s car. They then went to a store to purchase beer
and went back to Koger’s house around 8:00 p.m. Later, Gadson
stayed at Koger’s house and [Bowman] left. Around 11:30 p.m.,
[Bowman] and Hiram Johnson approached James Gadson, Gadson’s
father. [Bowman] gave him money to buy four pairs of gloves.
2

[Bowman], Gadson, Hiram Johnson, and Darian Williams, then drove
to Murray’s Club in [Martin’s] car. [Bowman] handed out the gloves
for the occupants to wear and stated he had stolen the car. They
reached the club around midnight. Once at the club, [Bowman] tried
to sell [Martin’s] car. [Bowman], according to Hiram Johnson, said, “I
killed Kandee, heh, heh, heh.” [Bowman] had a gun with him while at
the club. They left the club an hour or two after arriving there.
Three people, Carolyn Brown, Valorna Smith, and [] Felder, left the
club together. They stopped by a gas station about 3:00 a.m. before
proceeding to Valorna’s home. Not long after they were there,
[Bowman] knocked on the door and asked for [Felder]. [Felder] left
and came back after a few minutes. He seemed normal upon his
return.
[Felder] testified [Bowman], who was wearing black jeans at the time,
stated he needed [Felder’s] help to park a car which turned out to be
[Martin’s] car.
[Felder] followed [Bowman] to Nursery Road.
[Bowman] parked the car, went into the woods and pulled [Martin’s]
body out by her feet. [Bowman] then put her body in the trunk. While
putting her body in the trunk, [Felder] saw a gun tucked into
appellant’s waist. [Bowman] allegedly told [Felder], “you didn’t think I
did it, did you?” [Felder] testified [Bowman] also stated, “I killed
Kandee Martin.” [Bowman] lit the car on fire. [Felder] then took
[Bowman] to his home and went back to Valorna’s house.
A resident of Nursery Road who had previously heard gunshots was
awakened late in the night by a loud noise. He investigated and
discovered a car on fire. The fire was reported at 3:54 a.m. There were
.380 Winchester cartridge casings found not far from the scene. The
casings, a blood stain, and a shoe were located with the help of a man
who had driven by and seen [Martin’s] car stopped on the road around
8:00 p.m. the previous evening.
The next day, police arrested [Bowman] at his wife’s house and seized
his black pants. His wife testified he had been wearing the pants
when he arrived at the house. They found a wristwatch belonging to
[Martin] in [Bowman’s] pants.
After the police left, [Bowman’s] wife [] found [Bowman’s] gun in a
chair in her home. She allegedly gave the gun to [Bowman’s] father.
The next day, [Bowman’s] father, Yolanda, and [Bowman’s] other
sister, Kendra, took the gun and dropped it off a bridge into the Edisto
River. It was later retrieved from the Edisto River and determined to
be the gun that was used in the murder.
3

The arson investigator testified there was the presence of a heavy
petroleum product on [Bowman’s] jeans, but the product was not
gasoline. The items found in the car had gasoline on them indicating
that was the product used to start the fire.
While the following evidence did not come out during the guilt phase,
during the sentencing phase, a video was introduced during [] Felder’s
testimony. The video showed [Felder] purchasing gasoline in a
gasoline can at about 3:14 a.m. [Bowman] was not with him on the
video. [Felder] stated [Bowman] gave him the can for the gas and told
him he needed $2–3 worth. When [Bowman] set fire to [Martin’s] car,
he retrieved the gas can from [Felder’s] car.

State v. Bowman (Bowman I), 623 S.E.2d 378, 380–82 (S.C. 2005) (footnotes
omitted).
Bowman was indicted in June 2001 for murder and arson, third degree. He
was represented by Norbert Cummings Jr. and Marva Hardee-Thomas in a jury
trial that began on May 17, 2002. The jury returned a guilty verdict on both counts.
During the trial’s sentencing phase, after hearing evidence and argument,
the jury returned a recommendation of death on the murder conviction, finding as
aggravating circumstances that the murder was committed while in the commission
of kidnapping and while in the commission of larceny with the use of a deadly
weapon. The presiding judge sentenced Bowman to death on the murder conviction
and ten years on the arson conviction.
B.

Direct Appeal

Bowman timely appealed and was represented on appeal by Robert Dudek,
Assistant Appellate Defender with the South Carolina Office of Appellate Defense.
On appeal, he raised issues relating to the trial court’s jury instructions, evidentiary

4

rulings, denial of a mistrial, jurisdiction, and denial of a suppression motion. The
South Carolina Supreme Court affirmed Bowman’s conviction and sentence.

Bowman, 623 S.E.2d at 387. He then submitted a petition for rehearing, which was
denied.
After Bowman’s petition for rehearing was denied, he filed a petition for a
writ of certiorari from the United States Supreme Court, which was denied.

Bowman v. South Carolina, 547 U.S. 1195 (2006).
C.

PCR Action

While awaiting the United States Supreme Court’s decision on his petition
for a writ of certiorari, Bowman submitted an application for post-conviction relief
(PCR). He was initially represented in the PCR action by James Brown Jr. and
Charlie Johnson Jr., though Johnson was later replaced by John Sinclaire III. PCR
counsel eventually submitted a fourth amended application raising numerous
grounds for relief. After briefing and an evidentiary hearing, the PCR court denied
his petition. He then filed a motion to alter or amend, which was also denied.
D.

PCR Appeal

On appeal to the South Carolina Supreme Court, Bowman was represented
by Robert Dudek, Chief Appellate Defender, and David Alexander, Appellate
Defender, both with the South Carolina Commission on Indigent Defense, as well as
Michael Anzelmo with Nelson Mullins Riley & Scarborough. Bowman’s amended
petition for a writ of certiorari raised the following issues:
5

1.

Whether trial counsel rendered ineffective assistance, in
derogation of the Sixth, Eighth. and Fourteenth Amendments to
the United States Constitution by failing to investigate and
prepare for the impeachment of Taiwan Gadson and by failing to
impeach the testimony of Taiwan Gadson in any meaningful
way, including, but not limited to, the fact that the state
threatened Gadson with the death penalty in his plea
agreement, how Gadson’s prior inconsistent statements showed
that his story changed, and the fact Gadson had access to the
murder weapon?

2.

Whether trial counsel rendered ineffective assistance, in
derogation of the Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution by failing to investigate and
prepare for the impeachment of Travis Felder and by failing to
impeach the testimony of Travis Felder in any meaningful way,
including impeaching Felder with a videotape that would have
shown Felder lied to the jury about buying the gas to burn the
decedent’s car, impeaching Felder on bias with his original
charges, and impeaching Felder with his prior inconsistent
statements?

3.

Whether trial counsel rendered ineffective assistance, in
derogation of the Sixth, Eighth, and Fourteenth Amendments to
the United States Constitution by failing to investigate and
prepare for the impeachment Hiram Johnson and by failing to
impeach the testimony of Hiram Johnson by cross-examining
Johnson on his prior inconsistent statement which, critically, did
not include his allegation at trial that petitioner confessed to the
murder?

4.

Whether petitioner is entitled to a new trial because the state
withheld information necessary for impeachment and necessary
for defense in violation of petitioner’s due process rights under
the Fourteenth Amendment and under the rules of discovery,
those items being a memorandum of a law enforcement
interview with Ricky Davis who heard Gadson confess to the
murder, Gadson’ s mental health evaluation, and the fact that
Hiram Johnson had unindicted pending charges at the time of
his testimony?

5.

Whether trial counsel rendered ineffective assistance of counsel
because counsel had a conflict of interest between two of her
clients—Petitioner Bowman and Ricky Davis—that caused
counsel to fail to call Ricky Davis as a witness, despite Davis’
6

statement that exculpated Petitioner Bowman and established
Gadson shot the victim?
6.

Whether defense counsel was ineffective for failing to object to
the solicitor’s examination of James Aiken regarding favorable
prison conditions and recreational facilities available to inmates
since this Court had long ago in State v. Plath, 281 S.C. 1, 313
S.E.2d 619 (1984), held such evidence was impermissible
because it did not relate to the character of the defendant or the
nature of his crime. This evidence was highly prejudicial in the
eyes of the jury, and the failure to object to it properly at trial
also barred consideration of this winning issue on petitioner’s
direct appeal?

7.

Whether petitioner’s rights under the Sixth, Eighth and
Fourteenth Amendments to the United States Constitution and
under state law were violated because the trial judge failed to
properly consider his application as evidenced by the PCR
court’s wholesale adoption of the state’s proposed order?

ECF No. 12-17 at 6–8.
The South Carolina Supreme Court granted the petition as to Question 6 and
denied it as to the rest. After briefing and argument, the court affirmed the PCR
court. Bowman v. State (Bowman II), 809 S.E.2d 232, 246 (S.C. 2018).
E.

Federal Habeas Action

Bowman commenced this action by filing a motion for a stay of execution and
a motion to appoint counsel. ECF No. 1. The Court stayed his execution pending
appointment of counsel.

ECF No. 6.

Bowman’s appointed counsel then filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 17. The
Court stayed his execution pending resolution of his habeas petition. ECF No. 24.
He later filed an amended petition, which raises the following issues:

7

Ground 1:

Trial counsel rendered ineffective assistance, in
derogation of the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution by failing
to investigate and prepare for the impeachment of Taiwan
Gadson and by failing to impeach the testimony of Taiwan
Gadson in any meaningful way, including, but not limited
to, the fact that the state threatened Gadson with the
death penalty in his plea agreement, how Gadson’s prior
inconsistent statements showed that his story changed,
and the fact Gadson had access to the murder weapon.

Ground 2:

Trial counsel rendered ineffective assistance, in
derogation of the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution by failing
to investigate and prepare for the impeachment of Travis
Felder and by failing to impeach the testimony of Travis
Felder in any meaningful way, including impeaching
Felder with a videotape that would have shown Felder
lied to the jury about buying the gas to burn the
decedent’s car, impeaching Felder on bias with his
original charges, and impeaching Felder with his prior
inconsistent statements.

Ground 3:

Trial counsel rendered ineffective assistance, in
derogation of the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution by failing
to investigate and prepare for the impeachment Hiram
Johnson and by failing to impeach the testimony of Hiram
Johnson by cross-examining Johnson on his prior
inconsistent statement which, critically, did not include
his allegation at trial that petitioner confessed to the
murder.

Ground 4:

Petitioner is entitled to a new trial because the state
withheld information necessary for impeachment and
necessary for defense in violation of Petitioner’s due
process rights under the Fourteenth Amendment and
under the rules of discovery, those items being a
memorandum of a law enforcement interview with Ricky
Davis who heard Gadson confess to the murder, Gadson’s
mental health evaluation, and the fact that Hiram
Johnson had unindicted pending charges at the time of
his testimony.

8

Ground 5:

Trial counsel rendered ineffective assistance of counsel
because counsel had a conflict of interest between two of
her clients—Petitioner Bowman and Ricky Davis—that
caused counsel to fail to call Ricky Davis as a witness,
despite Davis’ statement that exculpated Petitioner
Bowman and established Gadson shot the victim.

Ground 6:

Defense counsel was ineffective for failing to object to the
solicitor’s examination of James Aiken regarding
favorable prison conditions and recreational facilities
available to inmates since this evidence interjected an
arbitrary factor into Petitioner’s trial and violated his
right to due process.

Ground 8:

The trial court erred by refusing to instruct the jury on
the statutory mitigating circumstance that the capacity of
the defendant to appreciate the criminality of his conduct
or to conform his conduct to the requirements of the law
was substantially impaired, since there was expert
testimony of Petitioner’s substance abuse problem, and
evidence the parties were drinking alcohol throughout the
day. The South Carolina Supreme Court’s opinion,
holding there was no evidence that Petitioner was
intoxicated on the day of the murder, is based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.

Ground 10: The court erred by refusing to grant a mistrial where the
solicitor attempted to question James Aiken about the
possibility of escape, since the solicitor injected an
improper consideration and an arbitrary factor into the
sentencing phase. The jury’s attention is properly focused
on the penalties of death and life without parole, and not
speculative matters beyond Petitioner’s control. Defense
counsel correctly argued that the judge could not remove
the taint through a curative instruction once escape was
raised by the state as an issue.
Ground 11: Trial counsel rendered ineffective assistance of counsel for
failing to object to the Solicitor’s arguing to discount
Petitioner’s mitigation because there was no “nexus”
between Petitioner’s proffered mitigation and the crime.
Ground 12: Trial counsel rendered ineffective assistance of counsel by
failing to call a number of witnesses who were available to
9

trial counsel, and who would have provided the jury with
highly mitigating evidence of Petitioner’s dysfunctional
childhood that the jury did not otherwise here.
ECF No. 36 at 7–8, 26, 41–42, 46, 58, 65, 75, 78, 83, 85.1 The State filed a return to
the amended petition and a motion for summary judgment.

ECF Nos. 56, 57.

Bowman filed a response in opposition to the summary judgment motion, ECF No.
70, and the State filed a reply, ECF No. 74.
With briefing complete, the magistrate judge issued a Report and
Recommendation (Report), in which he recommended granting the State’s summary
judgment motion and denying the habeas petition. ECF No. 75. Bowman filed
objections to the Report, ECF No. 81, and the State filed a reply to those objections,
ECF No. 82.
This matter is now ripe for decision.

II.

Standards of Review
A.

Report and Recommendation

The magistrate judge issued his Report in accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.).

The Report is a

recommendation to the Court and has no presumptive weight. The responsibility to
make a final determination rests with the Court. See Mathews v. Weber, 423 U.S.
The petition does not include a Ground 7 or Ground 9, but the Court, like the
magistrate judge, has maintained the numbering used in the petition. However,
the Court, again like the magistrate judge, has renumbered the two additional
grounds, which are found in his petition under the heading of “Unexhausted
Claims,” as Grounds 11 and 12.
1

10

261, 270–71 (1976). The Court conducts a de novo determination of any portion of
the Report to which a specific objection is made, and the Court may accept, reject, or
modify, in whole or in part, the magistrate judge’s recommendation, or may
recommit the matter to the magistrate judge with instructions.

28 U.S.C.

§ 636(b)(1). In the absence of an objection, the Court is not required to give any
explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198,
200 (4th Cir. 1983). The district court reviewed the cited transcripts, and references
to transcripts included in the Report in evaluating the issues raised and addressed
in this order.

The Court also notes that the Report is 121 pages long, with

significant detailed discussion of the positions taken by counsel for the parties, the
PCR court’s analysis, caselaw, and the many issues raised.
B.

Summary Judgment

Summary judgment is appropriate when the materials in the record show
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 Court must view the
evidence in the light most favorable to the non-moving party and draw all justifiable
inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A fact is material if it “might affect the outcome of the suit under the governing
law.” Id. at 248.
The party seeking summary judgment bears the initial burden of
demonstrating to the Court that there is no genuine issue of material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this
11

threshold showing, in order to survive summary judgment, the nonmoving party
must demonstrate that specific, material facts exist that give rise to a genuine
issue. See id. at 324.
C.

Habeas Corpus Review
1.

Deference to state courts

Any claim in a § 2254 petition that was adjudicated on the merits in a state
court proceeding may not be granted unless the state court’s adjudication of the
claim
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d).
To meet this standard, the state court must have “arrive[d] at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or . . .
decide[d] a case differently than [the United States Supreme] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
“[A] federal habeas court may overturn a state court’s application of clearly
established federal law only if it is so erroneous that there is no possibility
fairminded jurists could disagree that the state court’s decision conflicts with [the
Supreme] Court’s precedents.” Nevada v. Jackson, 569 U.S. 505, 508–09 (2013).
“[A] federal court hearing a § 2254 petition may not substitute ‘its independent
12

judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly.’” Tyler v. Hooks, 945 F.3d 159, 166 (4th Cir. 2019)
(quoting Williams, 529 U.S. at 411).

This is a “highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given
the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations
omitted). “The Supreme Court has ‘often emphasized that this standard is difficult
to meet because it was meant to be.’” Tyler, 945 F.3d at 167 (quoting Sexton v.

Beaudreaux, 138 S. Ct. 2555, 2558 (2018)).
2.

Ineffective assistance of counsel

Criminal defendants have a constitutional right to the assistance of counsel.
U.S. Const. amend. VI. “[T]he right to counsel is the right to the effective assistance
of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (citation omitted).
To prevail on an ineffective assistance claim, a petitioner must show that (1)
counsel’s acts or omissions fell below an objective standard of reasonableness; and
(2) there is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. See id. at 687–88, 694. Failure of proof on
either prong ends the matter. United States v. Roane, 378 F.3d 382, 404 (4th Cir.
2004). There is “a strong presumption that counsel’s conduct falls within the wide
range of professional assistance,” and a petitioner has the burden of overcoming this
presumption.

Strickland, 466 U.S. at 689.

“Even under de novo review, the

standard for judging counsel’s representation is a most deferential one. Unlike a
later reviewing court, the attorney observed the relevant proceedings, knew of
13

materials outside the record, and interacted with the client, with opposing counsel,
and with the judge. It is all too tempting to second-guess counsel’s assistance after
conviction or adverse sentence.” Harrington v. Richter, 562 U.S. 86, 105 (2011)
(citing Strickland, 466 U.S. at 689).

“The question is whether an attorney’s

representation amounted to incompetence under prevailing professional norms, not
whether it deviated from best practices or most common custom.”

Id. (citing

Strickland, 466 U.S. at 690). An ineffective assistance of counsel allegation requires
the submission of specific facts in support of the claim.

See United States v.

Witherspoon, 231 F.3d 923, 926 (4th Cir. 2000).
When Strickland is applied in the federal habeas context, it is an even taller
hurdle to overcome. “The standards created by Strickland and § 2254(d) are both
highly deferential, and when the two apply in tandem, review is doubly so.”

Harrington, 562 U.S. at 105 (citations omitted).

“When § 2254(d) applies, the

question is not whether counsel’s actions were reasonable. The question is whether
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id. Thus, relief would be appropriate only if the petitioner demonstrates
that there is no reasonable argument that counsel satisfied Strickland.
3.

Exhaustion and procedural default

A habeas petitioner may not obtain relief in federal court unless he has
exhausted his state court remedies.

28 U.S.C. § 2254(b)(1)(A).

“To satisfy the

exhaustion requirement, a habeas petitioner must fairly present his claim to the
state’s highest court.”

Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997),
14

abrogated on other grounds by Miller-El v. Dretke, 545 U.S. 231 (2005).

“To

exhaust a claim, the petitioner must present the state court with ‘both the operative
facts and the controlling legal principles.’” Gray v. Zook, 806 F.3d 783, 798 (4th Cir.
2015) (quoting Winston v. Kelly, 592 F.3d 535, 549 (4th Cir. 2010)).
A petitioner’s failure to raise in state court a claim asserted in a § 2254
petition “implicates the requirements in habeas of exhaustion and procedural
default.” Gray v. Netherland, 518 U.S. 152, 161 (1996). “[A] habeas petitioner who
has failed to meet the State’s procedural requirements for presenting his federal
claims has deprived the state courts of an opportunity to address those claims in the
first instance,” and has therefore procedurally defaulted those claims. Coleman v.

Thompson, 501 U.S. 722, 732 (1991).

“[T]he procedural bar that gives rise to

exhaustion provides an independent and adequate state-law ground for the
conviction and sentence, and thus prevents federal habeas corpus review of the
defaulted claim, unless the petitioner can demonstrate cause and prejudice for the
default.” Gray, 518 U.S. at 162.
In general, a federal court will not entertain a procedurally defaulted claim
as long as the state’s procedural requirement barring the court’s review is adequate
to support the judgment and independence of federal law. See Martinez v. Ryan,
566 U.S. 1, 9–10 (2012). However, “[t]he doctrine barring procedurally defaulted
claims from being heard is not without exceptions. A prisoner may obtain federal
review of a defaulted claim by showing cause for the default and prejudice from a
violation of federal law.” Id. at 10.

15

A federal habeas petitioner cannot claim ineffective assistance of counsel in
state post-conviction proceedings to establish cause for default because there is no
constitutional right to counsel in state post-conviction proceedings. See Coleman,
501 U.S. at 752. However, the Supreme Court has recognized a “narrow exception”
to Coleman, specifically that “[i]nadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9. The Fourth Circuit
has summarized the Martinez exception as follows:
[A] federal habeas petitioner who seeks to raise an otherwise
procedurally defaulted claim of ineffective-assistance-of-trial-counsel
before the federal court may do so only if: (1) the ineffective-assistanceof-trial-counsel claim is a substantial one; (2) the “cause” for default
“consists of there being no counsel or only ineffective counsel during
the state collateral review proceeding”; (3) “the state collateral review
proceeding was the initial review proceeding in respect to the
ineffective-assistance-of-trial-counsel claim”; and (4) state law
“requires that an ineffective-assistance-of-trial-counsel claim be raised
in an initial-review collateral proceeding.”

Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (cleaned up) (quoting Trevino v.
Thaler, 569 U.S. 413, 423 (2013)). Essentially, if initial-review collateral counsel
was constitutionally ineffective in failing to raise the constitutional ineffectiveness
of trial counsel, collateral counsel’s ineffectiveness may excuse the petitioner’s
procedural default of a substantial claim of trial counsel’s ineffectiveness.

III.

Discussion
The Court will address each ground for relief that Bowman raised in his

habeas petition.

16

A.

Ground 1 – Ineffective assistance re: Taiwan Gadson

Ground 1 of the petition is as follows:
Trial counsel rendered ineffective assistance, in derogation of the
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution by failing to investigate and prepare for the impeachment
of Taiwan Gadson and by failing to impeach the testimony of Taiwan
Gadson in any meaningful way, including, but not limited to, the fact
that the state threatened Gadson with the death penalty in his plea
agreement, how Gadson’s prior inconsistent statements showed that
his story changed, and the fact Gadson had access to the murder
weapon.
ECF No. 36 at 7–8.
1.

Bowman’s claims

Gadson was a significant witness in the State’s case. He was with Bowman
at various times before, during, and after the murder. He saw Bowman with a gun
prior to the murder. He was the only witness who testified as to how the murder
occurred. He rode in Martin’s car with Bowman after the murder. At trial, he
testified that he had been charged with Martin’s murder, but that he had entered
into an agreement with the State in exchange for his testimony at Bowman’s trial.
The agreement called for the murder charge to be dropped and for him to plead
guilty to charges of accessory after the fact of murder and misprision of a felony,
with a negotiated sentence of twenty years imprisonment.
Bowman asserts that counsel was ineffective regarding Gadson by failing to
question him about his own exposure to the death penalty, by failing to confront
him with evidence that he fired the murder weapon prior to the day of the murder,

17

and by failing to press him on inconsistencies in various statements he made to
police regarding the murder.
As to Gadson’s exposure to the death penalty, Bowman argues that counsel
was ineffective for failing to specifically inform the jury that Gadson made a plea
deal with the State to avoid a capital murder charge. This argument is primarily
based on his plea agreement, which provides that if he did not cooperate against
Bowman, then the State could move to vacate Gadson’s plea and could “reinstate
the murder charge and seek the death penalty against [him].” R. p. 1946 (ECF No.
11-23 at 196).

Bowman argues that counsel was ineffective in “fail[ing] to

emphasize that Gadson was testifying to avoid the death penalty.” ECF No. 36 at
14.
As to Gadson’s previous use of the murder weapon, Bowman argues that
counsel was ineffective in failing to present evidence indicating that Gadson had
fired the murder weapon about two weeks before the murder.
As to Gadson’s inconsistencies, Bowman argues that counsel was ineffective
in failing to cross-examine Gadson regarding inconsistencies in several statements
he made to police regarding the murder.
2.

PCR order

Importantly, regarding Bowman’s claim of ineffective assistance regarding
Gadson’s death penalty exposure, the PCR court rejected that argument because
“[Bowman’s] allegation that Gadson expressly bargained to avoid a death sentence
is not supported by the record.” R. p. 9835 (ECF No. 11-27 at 65). Specifically, the
18

PCR court concluded that he did not bargain to avoid the death penalty, as the
State never served him with a death notice. Id. The PCR court also determined
that Bowman failed to establish prejudice based in part on its conclusion that
Gadson credibly testified at the PCR hearing that he thought he was avoiding a
potential life sentence, not a death sentence. See id. at 9836 (ECF No. 11-27 at 66).
Regarding Bowman’s claim of ineffective assistance regarding evidence that
Gadson had previously fired the murder weapon, the PCR court rejected that
argument because Bowman had given Gadson the gun to fire, and counsel was not
deficient in declining to introduce evidence that would indicate to the jury that
Bowman had control of the murder weapon shortly before the murder. See id. at
9845 (ECF No. 11-27 at 75).
Regarding Bowman’s claim of ineffective assistance regarding inconsistencies
in Gadson’s prior statements, the PCR court did not rule on this issue.
3.

Report

In the Report, the magistrate judge concluded that the PCR court did not
unreasonably apply federal law on either Strickland prong regarding Gadson’s
death penalty exposure. In particular, the magistrate judge noted that the PCR
court evaluated the claim as “presented by PCR counsel—that Gadson expressly
bargained to avoid a potential death sentence and that trial counsel should have
pointed that out during cross-examination,” ECF No. 75 at 20, not the slightly
different claim asserted now—that Gadson should have been impeached “with the
fact that he faced the death penalty,” ECF No. 36 at 20. The magistrate judge also
19

noted that there was testimony before the jury that Gadson agreed to a twenty-year
sentence on two lesser charges instead of facing a murder charge, and that counsel
did ask the jury during closing to consider Gadson’s bias as a result of the plea
agreement. Finally, the magistrate judge noted the PCR court’s determination that
Gadson credibly testified at the PCR hearing that he thought he was avoiding a
potential life sentence, not a death sentence, by entering into the plea agreement.
Regarding Gadson’s prior use of the murder weapon, the magistrate judge
concluded that the PCR court did not unreasonably apply federal law when it
concluded that counsel was not ineffective in declining to pursue that line of
questioning. The magistrate judge further concluded that the PCR court did not
unreasonably apply federal law in determining that Bowman was not prejudiced by
counsel’s decision.
Regarding inconsistencies in Gadson’s prior statements, the magistrate judge
concluded that this argument was not properly raised and preserved in Bowman’s
state court proceedings, so it was procedurally barred. To the extent that he is
seeking to bring this claim under Martinez, the magistrate judge also concluded
that Bowman did not meet his burden of proving cause and prejudice in order to
overcome the procedural default.
4.

Objections

In Bowman’s objections, he argues that counsel should have cross-examined
Gadson about the provision in the plea agreement that provided that if he did not
cooperate, the State could reinstate the murder charge and pursue the death
20

penalty.

Bowman says that it should have been up to the jury to determine

whether Gadson believed he was avoiding the death penalty by entering into the
plea agreement. Bowman also argues that “[t]estimony that Gadson pled guilty to a
lesser charge does not convey the magnitude of the incentive created by the
possibility of avoiding a death sentence.” ECF No. 81 at 3.
As to Gadson’s prior use of the murder weapon, Bowman objects that counsel
did not, in fact, have any reason not to question Gadson about his access to and use
of the murder weapon prior to trial in light of other witnesses tying the gun to
Bowman.
Bowman did not object to the magistrate judge’s conclusion that his claim
regarding Gadson’s prior inconsistencies was procedurally defaulted.
5.

Analysis

At the outset, the Court notes the deferential standard of review in this
matter as set forth in the caselaw. The question is not whether counsel could have
or should have more vigorously or thoroughly cross-examined Gadson.

Instead,

“[t]he question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard” by cross-examining Gadson the way that they
did.

Harrington, 562 U.S. at 105.

The Court answers that question in the

affirmative.
Regarding Gadson’s plea agreement, as the magistrate judge recognized, the
jury was informed that Gadson received the benefit of a plea agreement to twenty
years as a result of his cooperation and counsel addressed this potential source of
21

bias in his closing argument. Hence, it is clear that the jury knew that Gadson was
testifying in light of a plea offer and possible lessened sentence. Additionally, the
PCR court made the credibility determination that Gadson did not think he was
avoiding a death sentence, and that credibility determination is entitled to
substantial deference by this Court.

See 28 U.S.C. § 2254(e)(1); Marshall v.

Lonberger, 459 U.S. 422, 434 (1983). The fact that counsel could have explored this
topic more specifically as asserted does not mean that the decision not to focus on it
“so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.
Furthermore, Bowman was not prejudiced by counsel’s failure to cross-examine
Gadson about the plea deal because, based on the PCR court’s factual
determination, he would have testified that he thought he was avoiding a potential
life sentence, not a death sentence. This finding by the PCR court undermines the
strength of Bowman’s argument.
Regarding Gadson’s prior use of the murder weapon, counsel testified at the
PCR hearing that he did not want to invite evidence tying the murder weapon to
Bowman. Bowman’s response that there was other evidence in the record tying him
to the gun is merely an indication that counsel could have pursued a different
strategy. But that response does not overcome the presumption that this tactical
decision “might be considered sound strategy.” Strickland, 466 U.S. at 689 (citation
omitted). As the PCR court determined, putting the gun in Gadson’s hand for a

22

brief period of time two weeks prior to the murder would have had minimal benefit,
as he only had the gun because Bowman gave it to him.
Regarding Gadson’s inconsistent statements, the Court concludes that this
claim is procedurally defaulted for the reasons set forth by the magistrate judge and
Bowman did not meet his burden of proving cause and prejudice in order to
overcome the procedural default.2
For these reasons, Bowman has failed to establish that the PCR court’s
denial of his claims in Ground 1 was contrary to or involved an unreasonable
application of clearly established federal law, or was the result of unreasonable
factual findings. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 101. Accordingly,
the Court concludes that he has not met his burden and is therefore not entitled to
relief on Ground 1.
B.

Ground 2 – Ineffective assistance re: Travis Felder

Ground 2 of the petition is as follows:
Trial counsel rendered ineffective assistance, in derogation of the
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution by failing to investigate and prepare for the impeachment
of Travis Felder and by failing to impeach the testimony of Travis
Felder in any meaningful way, including impeaching Felder with a
videotape that would have shown Felder lied to the jury about buying
the gas to burn the decedent’s car, impeaching Felder on bias with his
original charges, and impeaching Felder with his prior inconsistent
statements.
ECF No. 36 at 26.
As noted above, Bowman did not object to the magistrate judge’s conclusions on
this issue.
2

23

1.

Bowman’s claims

Bowman asserts that counsel was ineffective regarding Felder by failing to
question him about him purchasing the gasoline that was used to burn Martin’s car,
about his original charges, and about his inconsistent statements.
Regarding Felder’s gasoline purchase, Bowman argues that counsel was
ineffective in not questioning Felder during the guilt phase of the trial about his
purchase of the gasoline that was used to burn Martin’s car. Bowman claims that
leaving this out gave the jury the false impression that he acted alone in Martin’s
murder and that if the jury knew that Felder was involved in the crime, the
outcome of the trial likely would have been different.
Regarding Felder’s original charges, Bowman argues that counsel was
ineffective in failing to impeach Felder regarding his original charge of accessory to
murder / arson. After he testified at Bowman’s trial, Felder was allowed to plead to
accessory after the fact of arson, for which he received a sentence of three years
imprisonment suspended to three years probation.
Lastly, Bowman argues that counsel was ineffective in failing to impeach
Felder regarding prior inconsistent statements that he had given to police,
specifically a proffer letter written by his attorney and a statement given during a
polygraph examination.

24

2.

PCR order

Regarding Bowman’s claim of ineffective assistance about Felder’s gasoline
purchase, the PCR court rejected that argument, crediting counsel’s explanation
that “he did not want it in because he felt it would corroborate [Bowman’s]
involvement in the plan to burn the car.” R. p. 9861 (ECF No. 11-27 at 91). The
PCR court also noted that the evidence was eventually introduced during the
sentencing phase, but that this “was done at [Bowman’s] insistence and was not in
line with [counsel’s] strategy.” Id. When Felder testified about this incident during
sentencing, he said that he purchased the gasoline at Bowman’s direction and that
Bowman provided the gasoline jug. Id. at 9861–62 (ECF No. 11-27 at 91–92). Thus,
the PCR court concluded that counsel had “a valid, reasonable strategic reason” for
not presenting this evidence of the purchase of gasoline by Felder for Bowman
during the guilt phase and therefore denied the claim. Id. at 9862 (ECF No. 11-27
at 92). The PCR court also concluded that Bowman failed to establish prejudice
because Felder’s omission did not indicate that he was involved in Martin’s murder,
because cross-examination on this issue would not have exculpated Bowman from
being a participant in the arson, and because there was overwhelming evidence of
his guilt of both the murder and the arson. Id.
Regarding Felder’s original charges, the PCR court concluded that “there is
no evidence that supports the implication that the accessory before the fact to the
murder charge was ‘reduced’ to accessory after the fact as a result of Felder’s
cooperation.” Id. at 9859 (ECF No. 11-27 at 89). The PCR court also determined
25

that counsel had a strategic reason for not discussing Felder’s initial charges: that
his original charges were based on statements that Bowman gave to police, which
could be used to further the theme that he tried to deflect blame by implicating
others.

Id. at 9860 (ECF No. 11-27 at 90).

As to prejudice, the PCR court

determined that there was no prejudice in light of the minimal benefit to be gained
and the potentially harmful response to that line of inquiry. Id. at 9860–61 (ECF
No. 11-27 at 90–91).
Regarding Felder’s prior inconsistent statements, that claim was not directly
addressed by the PCR court. However, the PCR court did note elsewhere that the
proffer letter could not be used for impeachment purposes because it was not
written by Felder. Id. at 9856 (ECF No. 11-27 at 86). The PCR also concluded that
“[a]ny minor differences in the proffer letter and the trial testimony do not overcome
the overwhelming evidence of [Bowman’s] guilt presented in this case . . . .” Id.
3.

Report

In the Report, the magistrate judge concluded that the PCR court did not
unreasonably apply federal law on either Strickland prong regarding Felder’s
gasoline purchase. The magistrate judge concluded that the record supported the
PCR court’s determination that counsel had a strategic reason for keeping out
Felder’s testimony during the guilt phase of the trial and that he only introduced it
during the sentencing phase due to Bowman’s insistence. The magistrate judge also
noted that the video, combined with Felder’s testimony about why he bought the
gasoline, fit a pattern throughout the trial where Bowman involved others in the
26

crime and directed their participation.

As to prejudice, the magistrate judge

determined that the PCR court did not make unreasonable factual findings or
unreasonably apply federal law in finding no prejudice, due primarily to Felder’s
testimony that he was directed to purchase the gasoline by Bowman.
Regarding Felder’s original charges, the magistrate judge concluded that the
record supported the PCR court’s determination that counsel had a strategic reason
for not discussing Felder’s initial charges.
Regarding Felder’s prior inconsistent statements, the magistrate judge first
noted that the PCR court didn’t directly address this claim, but noted that some of
the PCR court’s other findings were relevant to this question. The magistrate judge
also noted that, although counsel admitted that he did not have a strategic reason
for failing to impeach Felder on his prior statement during a polygraph exam that
he did not see Martin’s body being placed in the car, if counsel had questioned
Felder about that, it could have opened the door for the State to introduce evidence
that Felder’s response to that question indicated deception to the examiner.
Finally, the magistrate judge found that Bowman failed to show that there was a
reasonable probability that the result of the proceeding would have been different if
counsel had tried to impeach Felder with this information.
4.

Objections

Bowman’s sole objection on this ground is that counsel’s strategy of declining
to question Felder about his gasoline purchase was unsound because it would have
indicated that Bowman and Felder at least shared culpability for the arson.
27

Bowman did not object to the magistrate judge’s conclusions regarding Felder’s
original charges and inconsistent statements.
5.

Analysis

The Court again reiterates that the only relevant question “is whether there
is any reasonable argument that counsel satisfied Strickland’s deferential standard”
by declining to question Felder regarding his purchase of the gasoline. Harrington,
562 U.S. at 105. The Court concludes that, although counsel could have made a
different strategic decision, there is certainly a reasonable argument that counsel’s
strategy did not “amount[] to incompetence under prevailing professional norms.”

Id.
As to Felder’s original charges and prior inconsistent statements, the Court
concludes that counsel was not ineffective for the reasons set forth by the
magistrate judge.3
For these reasons, Bowman has failed to establish that the PCR court’s
denial of his claims in Ground 2 was contrary to or involved an unreasonable
application of clearly established federal law, or was the result of unreasonable
factual findings. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 101. Accordingly,
the Court concludes that he has not met his burden and is therefore not entitled to
relief on Ground 2.

As noted above, Bowman did not object to the magistrate judge’s conclusions on
these issues.
3

28

C.

Ground 3 – Ineffective assistance re: Hiram Johnson

Ground 3 of the petition is as follows:
Trial counsel rendered ineffective assistance, in derogation of the
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution by failing to investigate and prepare for the impeachment
Hiram Johnson and by failing to impeach the testimony of Hiram
Johnson by cross-examining Johnson on his prior inconsistent
statement which, critically, did not include his allegation at trial that
petitioner confessed to the murder.
ECF No. 36 at 41–42.
1.

Bowman’s claims

Bowman asserts that counsel was ineffective regarding his impeachment of
Johnson, whose most damaging testimony was when he told the jury that he heard
Bowman say that he killed Martin.

Specifically, he claims that counsel was

ineffective in failing to ask Johnson about a prior written statement he gave to law
enforcement that did not include Bowman’s confession.
2.

PCR order

The PCR court rejected this argument, crediting counsel’s argument that he
did not cross-examine Johnson on this issue because counsel did not want to risk
Johnson repeating Bowman’s damning confession in front of the jury. R. p. 9869
(ECF No. 11-27 at 99).

The PCR court also concluded that Bowman did not

establish prejudice because Johnson had told police about the confession during his
first interview, and this statement was reflected in the detective’s notes. Thus, the
confession being left out of the later written statement would have limited
29

impeachment value given that he had previously told police about Bowman’s
confession.
3.

Report

In the Report, the magistrate judge concluded that the PCR court did not
unreasonably apply federal law in determining that counsel had a valid, strategic
reason for not cross-examining Johnson on this issue because he did not want the
statement further emphasized. The magistrate judge also concluded that Bowman
did not meet Strickland’s prejudice prong because Johnson had said in his initial
interview with police that he heard Bowman confess to the murder.
4.

Objections

Bowman objects to the magistrate judge’s conclusion on this ground, arguing
that “[t]he only valid strategic decision in this regard was to undermine Johnson’s
damning testimony regarding the confession.” ECF No. 81 at 7. Bowman did not
address the argument that there was no prejudice in light of Johnson’s first
statement that included the confession.
5.

Analysis

The Court concludes, again, that although counsel could have made a
different strategic decision regarding his cross-examination of Johnson, there is a
reasonable argument that counsel’s strategy did not “amount[] to incompetence
under prevailing professional norms.”

Harrington, 562 U.S. at 105.
30

As the

magistrate judge concluded, it was reasonable for counsel to want to avoid having
Bowman’s admission repeated once more in front of the jury, particularly because
cross-examining Johnson about it would have minimal impeachment value due to
the fact that he had previously told police about the admission.
For these reasons, Bowman has failed to establish that the PCR court’s
denial of his claim in Ground 3 was contrary to or involved an unreasonable
application of clearly established federal law, or was the result of unreasonable
factual findings. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 101. Accordingly,
the Court concludes that he has not met his burden and is therefore not entitled to
relief on Ground 3.
D.

Ground 4 – Brady violations

Ground 4 of the petition is as follows:
Petitioner is entitled to a new trial because the state withheld
information necessary for impeachment and necessary for defense in
violation of Petitioner’s due process rights under the Fourteenth
Amendment and under the rules of discovery, those items being a
memorandum of a law enforcement interview with Ricky Davis who
heard Gadson confess to the murder, Gadson’s mental health
evaluation, and the fact that Hiram Johnson had unindicted pending
charges at the time of his testimony.
ECF No. 36 at 46.
1.

Bowman’s claims

Bowman asserts that the State withheld certain information in violation of

Brady v. Maryland, 373 U.S. 83 (1963). Specifically, he alleges that the State failed
to disclose a memorandum prepared by Sam Richardson, an investigator who
31

worked for the solicitor’s office (Sam Memo); Gadson’s mental health report; and
that Johnson had pending charges at the time of Bowman’s trial.
a.

Sam Memo

The Sam Memo is a memorandum written by an investigator for the
solicitor’s office describing an interview he conducted with Ricky Davis.

The

interview was conducted after Davis wrote a note describing a conversation he had
in jail with Gadson in which Gasdon said that he was the one who shot Martin. The
text of the Sam Memo is as follows:
Ricky Davis Interview
Conducted by Sam at Lieber Correctional Institution.
Ricky Davis states that he and James Taiwan Gadson along with 4 or
5 others were siting [sic] at a table on the A-side. Gadson was talking
to the group when he said something about killing a girl. He stated
that they were going to rob someone. They thought she was wired and
he shot her in the head with a .380.
This conversation occurred about 3 weeks before he wrote the letter.
(August 6, 2001).
Afterwards, Davis was playing chess with Marion Bowman in Cell 8.
Davis told Marion Bowman about the conversation he had with James
Gadson. Bowman said, “If you heard all this, write it down.” Bowman
showed him a picture of the dead girl. He also showed him a file from
his attorney.
Bowman said he had been smoking dope that day. He said it was him,
James Gadson and the girl at the scene. The girl was suppose [sic] to
help them rob a house to get drugs and money. Bowman knew the
intended victim.
Bowman never admitted he shot anyone.
Subsequent to this, Davis talked to James Gadson again. At this time,
Gadson said that Bowman shot her.
32

R. p. 9122 (ECF No. 11-24 at 165).4 The memorandum was not turned over to the
defense.
At the PCR hearing, it is appropriate to note that defense counsel testified
that, at trial, he had a copy of Davis’s handwritten note, but not the Sam Memo.
After receiving Davis’s note, counsel had a defense investigator interviewed him.
During that interview, it is appropriate to note that Davis recanted the statement
and said that Bowman told him to write it.
Bowman argues that the Sam Memo should have been disclosed under

Brady.

He says that it is “clearly relevant to guilt or innocence” because “[i]t

recounts a co-defendant confessing to the crime” and “directly contradict[s] the only
eyewitness to the murder.” ECF No. 36 at 51. He also argues that, because it was
an interview conducted by the State, the jury would likely have looked favorably on
a witness’s testimony that was confirmed by law enforcement.
b.
Gadson

Gadson’s mental health evaluation

underwent

indictment and trial.

a

mental

health

evaluation

between

Bowman’s

The evaluation concluded that Gadson had diagnoses of

“Cannabis Dependence” and “History of Seizure Disorder,” that he reported
suffering from blackouts, that he smoked cannabis on a daily basis, that he claimed
to hear a voice and a beeping noise, and that he had memory problems. See R. pp.

The memorandum was written in all-caps. It has been re-written using standard
capitalization to improve readability.
4

33

8957–61 (ECF No. 11-23 at 207–211). This evaluation was not turned over to the
defense.
Bowman argues that this evaluation should have been disclosed under

Brady, as it could have been used to impeach Gadson’s credibility.
c.

Johnson’s pending charges

At the time of Bowman’s trial, Johnson had pending charges for receiving
stolen goods, second degree burglary, and grand larceny. The warrants for these
offenses had been served, but he had not yet been indicted.

The charges were

eventually dismissed after Bowman’s trial. Information about these charges was
not turned over to the defense.
Bowman argues that these charges should have been disclosed under Brady,
as they could have been used to impeach Johnson’s credibility.
2.

PCR order

The PCR court concluded that the State did not violate Brady regarding the
Sam Memo, Gadson’s mental health evaluation, or Johnson’s pending charges.
As to the Sam Memo, the PCR court concluded that it was not favorable and
was not material. The PCR court concluded that it was not favorable because the
memorandum could only have been used to impeach Davis if he testified at trial,
and he would have been a poor witness for the defense to call based on his
statement to the defense investigator that he would recant the claims in the note if
called to testify and that he would say that Bowman put him up to it. The PCR
34

court also concluded that the Sam Memo was not material because if Davis had
been called and testified as he did at the PCR hearing, even if he had been
impeached with the Sam Memo, there is still not a reasonable probability of a
different result. R. pp. 9871–74 (ECF No. 11-27 at 101–04).
As to Gadson’s mental health evaluation, the PCR court concluded that the
State’s failure to turn it over did not violate Brady for several reasons. First, the
PCR court concluded that defense counsel had other means to obtain the report,
specifically by reviewing the public court order in Gadson’s case that ordered the
evaluation and then submitting a subpoena to obtain the report. Next, the PCR
court concluded that Bowman did not establish that the report was favorable or
impeaching evidence because “there was no indication that Gadson suffered from
any type of memory impairment that would have affected his ability to recall what
occurred in this case.”

Next, the PCR court concluded that the report was not

material because it did not indicate that he suffered any memory issues as a result
of his seizures and there was no evidence that he was using marijuana on the date
of the murder. Next, the PCR court concluded that the failure to disclose the report
did not undermine confidence in the verdict due to the overwhelming evidence of
guilt in this case. Finally, the PCR court concluded that Gadson’s credibility had
already been impeached due to his drinking on the day of the murder. Id. at 9829–
34 (ECF No. 11-27 at 59–64).
As to Johnson’s pending charges, the PCR court concluded that this
information was not material. The PCR court first based this determination on the

35

overwhelming evidence of Bowman’s guilt. The PCR court also concluded that the
impeachment value of Johnson’s pending charges was limited due to the lack of
evidence that his testimony resulted in any special consideration for his pending
charges, which were unrelated to the murder. Id. at 9864–65 (ECF No. 11-27 at 94–
95).
3.

Report

Regarding the Sam Memo, the magistrate judge concluded that the PCR
court improperly conflated the standards for favorability and materiality, and to the
extent that the PCR court failed to recognize how the Sam Memo could be favorable,
that finding was incorrect. However, the magistrate judge went on to conclude that
“[i]t was not unreasonable for the PCR court to find that favorable evidence was not
suppressed since the defense team was already aware of Gadson’s alleged
confession to Davis by way of Davis’s handwritten note.” ECF No. 75 at 53. The
magistrate judge also concluded that it was not unreasonable for the PCR court to
conclude that the Sam Memo was not material because the only way it could have
come out at trial would have been if (1) the defense had called Davis as a witness;
(2) Davis testified that he did not tell the investigator the information recorded in
the memorandum; and (3) the investigator testified that Davis did, in fact, make
that statement to him. The magistrate judge recognized that this would have likely
been detrimental to Bowman’s case given that Davis said he would recant his prior
statement about Gadson’s “confession” and would instead say that Bowman told
him to write the note.
36

Regarding Gadson’s mental health report, the magistrate judge concluded
that the PCR court incorrectly determined that the mental health report was not
favorable. However, the magistrate judge also concluded that the PCR court did not
unreasonably apply federal law in determining that there was no Brady violation
because defense counsel could have obtained the report by other means.

The

magistrate judge noted that several circuit courts, including the Fourth Circuit,
have concluded that Brady does not require the disclosure of evidence available to
the defendant from other sources.

And as to materiality, the magistrate judge

concluded that the PCR court was not unreasonable in finding that there was no
reasonable probability of a different outcome had the mental health report been
disclosed.
Regarding Johnson’s pending charges, the magistrate judge concluded that
Bowman failed to show that the PCR court’s determination that he failed to
establish materiality was based on unreasonable factual findings. The magistrate
judge’s conclusion was based on the PCR court’s determination that the
impeachment value was limited and its recognition of the overall strength of the
State’s case.
4.

Objections

In Bowman’s objections, he first argues that the magistrate judge overlooked
his argument that there was additional value in the fact that Davis repeated the
information about Gadson’s confession to a State investigator. Bowman says that
because he didn’t have the Sam Memo, counsel didn’t know that Davis had repeated
37

the statement, which would have impacted counsel’s decision on whether to call
Davis or the investigator as a witness.

He also says that Davis’s wavering

testimony on the topic of what he actually heard from Gadson, when combined with
cross-examination about him writing the statement and telling the investigator the
same thing, could have created a reasonable doubt as to Bowman’s guilt.
Bowman objects to the magistrate judge’s conclusion about Gadson’s mental
health report, arguing that the State violated Brady even though counsel could have
obtained the report by other means. He argues that under Banks v. Dretke, 540
U.S. 668 (2004), “[t]he duty to disclose under Brady is absolute—it does not depend
on defense counsel’s actions.” ECF No. 81 at 9. However, he did not object to the
magistrate judge’s conclusion regarding materiality.
Bowman also objects to the magistrate judge’s conclusion about Johnson’s
pending charges, arguing that the evidence was not overwhelming and that the
magistrate judge should have considered the statement made by the State during
closing arguments that the jury “hadn’t heard any testimony about Hiram Johnson
having any kind of charge against him or any kind of a deal with the State, any
reason to say something wasn’t true.” R. p. 4474 (ECF No. 11-10 at 467).
5.

Analysis

Regarding the Sam Memo, the Court concludes that the PCR court’s
determination that favorable evidence was not suppressed because Bowman already
had Davis’s note was not “so erroneous that there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with [the Supreme]
38

Court’s precedents.” Jackson, 569 U.S. at 508–09. Noting the PCR court’s position
regarding the overall weight of the evidence and the arguable impeachment value of
the undisclosed information, this Court “may not substitute ‘its independent
judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly.’” Tyler, 945 F.3d at 166 (quoting Williams, 529 U.S.
at 411). However, there is no basis to conclude that the PCR court was incorrect in
connection with its factual and legal determination that any error was not material.
Noting that Davis indicated that he would recant weakens the position that he
would be called at all.
Regarding Gadson’s mental health evaluation, the Court is not persuaded
that the Supreme Court’s 2004 decision in Banks abrogated the Fourth Circuit’s
2002 decision in Fullwood v. Lee, which held that Brady “does not compel the
disclosure of evidence available to the defendant from other sources.” 290 F.3d 663,
686 (4th Cir. 2002) (citation omitted).

The Fourth Circuit has relied on this

principle numerous times post-Banks, including as recently as one month ago. See

United States v. Fagot-Maximo, 795 F. App’x 213, 215 (4th Cir. 2020); United
States v. Catone, 769 F.3d 866, 871 (4th Cir. 2014); United States v. George, 466 F.
App’x 304, 307 (4th Cir. 2012); United States v. Higgs, 663 F.3d 726, 735 (4th Cir.
2011). Thus, the PCR court did not unreasonably apply federal law in concluding
that there was no Brady violation because Bowman could have obtained the report
by other means.

39

Regarding Johnson’s pending charges, the PCR court considered the
extensive and varied evidence of guilt, which came from multiple witnesses. The
PCR court also determined that the impeachment value of this information was
limited because there was no evidence that his testimony resulted in any special
consideration for his pending, unrelated charges.

Under the “highly deferential

standard for evaluating state-court rulings,” Cullen, 563 U.S. at 181, the Court
concludes that that the PCR court’s determination that this information was not
material was based on reasonable factual findings.
For these reasons, Bowman has failed to establish that the PCR court’s
denial of his claims in Ground 4 was contrary to or involved an unreasonable
application of clearly established federal law, or was the result of unreasonable
factual findings. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 101. Accordingly,
the Court concludes that he has not met his burden and is therefore not entitled to
relief on Ground 4.
E.

Ground 5 – Conflict of interest

Ground 5 of the petition is as follows:
Trial counsel rendered ineffective assistance of counsel because counsel
had a conflict of interest between two of her clients—Petitioner
Bowman and Ricky Davis—that caused counsel to fail to call Ricky
Davis as a witness, despite Davis’ statement that exculpated Petitioner
Bowman and established Gadson shot the victim.
ECF No. 36 at 58.

40

1.

Bowman’s claims

Bowman alleges that one of his counsel, Marva Hardee-Thomas, had a
conflict of interest because she had an attorney-client relationship with Davis,
whom she represented on two prior armed robbery charges. On October 16, 2001,
Davis was convicted at trial of one of the charges, and she filed a notice of appeal on
his behalf a week later, but had no further involvement in the case. On October 18,
2001, the other charge was nol prossed by the State. Bowman argues that she
represented both him and Davis at the same time and that she failed to call Davis
as a witness due to that conflict. He argues that, even though the second charge
was nol prossed, she still owed duties to Davis beyond the normal duties owed to
former clients because the State could have recharged him for that offense.
2.

PCR order

The PCR court determined that Hardee-Thomas’s representation of Davis
ended on October 24, 2001 when she filed his notice of appeal and that the second
charge had already been nol prossed by that time. R. p. 9879 (ECF No. 11-27 at
109). Thus, the PCR court found that when she was informed of Davis’s statement
regarding Bowman’s case in January 2002, she no longer owed attorney-client
duties to Davis beyond the duty of confidentiality owed to former clients. Id. The
PCR court further found that even if her representation of Davis was a potential
conflict of interest with her representation of Bowman, it never developed into an
actual conflict of interest. Id. Finally, the PCR court determined that he did not

41

establish that she failed to call Davis as a witness due to a conflict of interest. Id. at
9880–81 (ECF No. 11-27 at 110–11).
3.

Report

The magistrate judge first noted that Bowman did not respond to the State’s
motion for summary judgment on this claim, so it appeared that he was abandoning
the claim.

However, because he did not explicitly abandon the claim, the

magistrate judge addressed it on the merits.
On the merits, the magistrate judge noted that Bowman cited no authority
for the proposition that Hardee-Thomas still owed duties to Davis simply because
the State could have reinstated the charge. The magistrate also found that there is
support in the record for the PCR court’s conclusion that her representation of
Davis ended when she filed the notice of appeal and hence, no conflict existed.
Additionally, the magistrate judge noted the PCR court’s determination that the
decision to not call Davis was not the result of a conflict of interest. As noted in the
previous section, the record indicates that Davis intended to recant his statement if
called to testify. Thus, the magistrate judge concluded that Bowman did not show
that the PCR court’s conclusion on this issue was the result of unreasonable factual
findings or an unreasonable application of Supreme Court law.
4.

Objections

Bowman did not file objections on this ground.

42

5.

Analysis

For the reasons set forth by the magistrate judge, Bowman has failed to
establish that the PCR court’s denial of his claims in Ground 5 was contrary to or
involved an unreasonable application of clearly established federal law, or was the
result of unreasonable factual findings. See 28 U.S.C. § 2254(d); Harrington, 562
U.S. at 101. Accordingly, the Court concludes that he has not met his burden and is
therefore not entitled to relief on Ground 5.5
F.

Ground 6 – Ineffective assistance re: prison conditions evidence

Ground 6 of the petition is as follows:
Defense counsel was ineffective for failing to object to the solicitor’s
examination of James Aiken regarding favorable prison conditions and
recreational facilities available to inmates since this evidence
interjected an arbitrary factor into Petitioner’s trial and violated his
right to due process.
ECF No. 36 at 65.

The Court also notes that, because Bowman did not respond to the State’s motion
for summary judgment on this ground, it is waived. See, e.g., Wilson v. Dryvit Sys.,
Inc., 71 F. App’x 960, 962 (4th Cir. 2003) (“‘If a party fails to assert a legal reason
why summary judgment should not be granted, that ground is waived and cannot
be considered or raised on appeal.’”) (quoting Grenier v. Cyanamid Plastics, Inc., 70
F.3d 667, 678 (1st Cir. 1995)). Furthermore, he has failed to preserve this issue for
appeal by failing to file objections to the Report. See Martin v. Duffy, 858 F.3d 239,
245 (4th Cir. 2017) (“A plaintiff is deemed to have waived an objection to a
magistrate judge’s report if he does not present his claims to the district court. In
order to preserve for appeal an issue in a magistrate judge’s report, a party must
object to the finding or recommendation on that issue with sufficient specificity so
as reasonably to alert the district court of the true ground for the objection.”
(cleaned up and citations omitted)).
5

43

1.

Bowman’s claims

At sentencing, counsel called James Aiken, a prison adaptability expert, to
testify about Bowman’s history adjusting to the prison environment and his risk of
future dangerousness. Aiken told the jury that he had “no reservations whatsoever”
that Bowman could adapt to prison and, furthermore, that the prison
environment—where he would be kept “behind gun towers, behind fences, behind
bars, behind concrete”—could adequately manage him for the rest of his life. R. pp.
4844–45 (ECF No. 11-11 at 387–88).
On cross-examination, the solicitor asked Aiken about the levels of security
within a prison and how the level of security for an inmate might change based on
the inmate’s conduct.

Aiken answered the solicitor’s questions, all the while

emphasizing that “you are constantly under supervision and you’re constantly
around very predator inmate population.” R. p. 4856 (ECF No. 11-11 at 399).
On redirect examination, trial counsel questioned Aiken to elicit additional
details as to the level of security that someone who was sentenced to life without
parole would be subject to. Counsel also asked Aiken to describe “super max,” and
Aiken answered,
Q:

It is a confinement facility in which people stay in their cells 23
hours a day, they get out one hour a day as mandated by federal
judiciary. And this houses—the staff are especially trained to
use whatever force that’s legally necessary to manage the
behavior.

Q:

Describe a super max cell for these folks, please.

A:

I guess the best way to describe it is it’s about the size of a—
little bigger than a bathroom and it’s got steel and concrete to
44

include the bed and your toilet is right there with you and you
are under constant surveillance by a security staff or technology.
R. pp. 4865–66 (ECF No. 11-11 at 408–09). Counsel also asked Aiken about the
work that an inmate, such as Bowman, might be able to do “for society to pay his
debt back . . . .” R. p. 4866 (ECF No. 11-11 at 409). Aiken responded that an inmate
“can be constructively engaged in prison industry that is reducing your tax load by
providing cheap labor to pay back to the society that government does not have to
pay so much money for.” R. p. 4866 (ECF No. 11-11 at 409).
During a bench conference, the solicitor asked the judge if he could go into
the area of prison conditions “[i]n view of the fact that Mr. Cummings has
established that it’s not a kiddy camp and that there is work available and that he
probably would not be in super max since he’s such a model inmate . . . .” R. pp.
4873–74 (ECF No. 11-11 at 416–17). The judge allowed the State to go into the area
of prison conditions because “those issues are certainly before the jury at this point.”
R. p. 4874 (ECF No. 11-11 at 417).
During recross-examination, the solicitior asked Aiken about the work that
Bowman could do and how much he would be paid. R. pp. 4878–79 (ECF No. 11-11
at 421–22). The solicitor asked Aiken, “[W]hen he’s not at work what is he adapting
to, what is going on there?” R. p. 4879 (ECF No. 11-11 at 422). Aiken described a
general routine, and he also offered that there were programs that an inmate could
take advantage of, such as Bible study, education, and anger management. R. p.
4879 (ECF No. 11-11 at 422).

The solicitor then questioned Aiken about other

facilities that inmates have access to, like recreational facilities and libraries, and
45

activities that inmates can engage in, like organized sports, and watching movies
and television. R. pp. 4881–82 (ECF No. 11-11 at 424–25).
Bowman asserts that trial counsel were ineffective in failing to object to the
solicitor’s questions on recross-examination regarding prison conditions because
this evidence is prohibited during sentencing proceedings in accordance with South
Carolina case law.
2.

PCR order

The PCR court first summarized the law in South Carolina regarding the
introduction of prison conditions evidence during the penalty phase. R. pp. 9912–15
(ECF No. 11-28 at 55–58). The PCR court then concluded that counsel was not
deficient for going into the area of prison conditions when questioning Aiken and in
not objecting to the State’s responsive questions, particularly due to the state of the
law at the time of Bowman’s trial. R. pp. 9915–19 (ECF No. 11-28 at 58–62). In
finding no deficiency, the PCR court credited both counsel’s articulated strategy to
elicit evidence about prison conditions and also the state of the law in South
Carolina at the time of Bowman’s trial. The PCR court also found no prejudice.
Supp. R. pp. 113–15 (ECF No. 11-32 at 115–17).
3.

S.C. Supreme Court opinion

This issue was the only issue that the South Carolina Supreme Court
considered when it granted certiorari in Bowman’s PCR appeal. The state supreme
court thoroughly explored both Aiken’s testimony at Bowman’s trial and counsel’s
46

testimony at the PCR hearing. Bowman II, 809 S.E.2d at 238–41.
The South Carolina Supreme Court explained the history of its decisions
about the introduction of prison conditions evidence and how that case law
intersected with federal jurisprudence. Id. at 241–43. As discussed in detail in that
opinion, South Carolina law generally prohibits the introduction of prison
conditions evidence during the sentencing phase of a capital trial. See id. at 241
(indicating that evidence of prison adaptability is relevant and admissible, but
evidence of general prison conditions is not, as such evidence “does not bear on a
defendant’s character, prior record, or the circumstances of his offense”). However,
the court also expressly indicated that the general rule is not without exception,
stating
[T]he determination of what evidence is admissible during a capital
sentencing hearing is left to the states, subject of course to the
limitations of the constitution, including the Eighth Amendment. See,
e.g., Simmons v. South Carolina, 512 U.S. 154, 168 (1994)
(acknowledging that the federal courts will generally “defer to a State’s
determination as to what a jury should and should not be told about
sentencing”). Viewing as a whole both federal and state jurisprudence
on this issue, we believe retaining this state-law distinction serves the
purpose of preventing both the State and the defense from engaging in
immaterial forays into the microscopic details of a defendant’s prison
experience. However, in acknowledging this distinction as the general
rule applicable in the vast majority of cases, we also acknowledge that
in certain cases the Eighth Amendment may not forbid but rather
require that a defendant be permitted to present certain relevant
evidence in this regard. See State v. Torres, 703 S.E.2d 226, 229–30
(S.C. 2010) (finding video recording of capital defendant in prison did
not introduce an arbitrary factor at sentencing); [State v. Burkart, 640
S.E.2d 450, 453 (S.C. 2007)] (acknowledging that at times there may be
some overlap between evidence of a defendant’s adaptability to prison
and prison conditions generally and cautioning that prison conditions
evidence should be “narrowly tailored”). Thus, in reaffirming the rule

47

forbidding evidence of general prison conditions, we simply note that it
is not without exception.

Id. at 243.
The South Carolina Supreme Court affirmed the PCR court’s finding that
counsel was not deficient for failing to object to the prison conditions evidence. Id.
at 244–45.

Admitting that the issue presented “a close question,” the court

ultimately concluded that there was evidence in the record supporting the PCR
court’s finding since “counsel articulated a valid reason for employing this strategy,
and because the State’s response was proportional and confined to the topics to
which counsel had opened the door . . . .” Id. at 244.
As to the issue of prejudice, the South Carolina Supreme Court again
affirmed the PCR court’s determination, finding “there was ‘no reasonable
probability of a different result if a few pages of questioning on this issue during a
multi-day sentencing hearing had been excluded.’” Id. at 246.
4.

Report

The Report thoroughly covers the decision rendered by the South Carolina
Supreme Court in Bowman’s PCR appeal. In addressing Bowman’s arguments, the
magistrate judge first noted that Bowman did not identify any federal case
prohibiting the kind of prison conditions evidence presented during his sentencing
hearing. The magistrate judge also recognized that state law generally prohibited
such evidence. But the Report rejected Bowman’s comparisons to his own case and
that of State v. Burkhart, 640 S.E.2d 450 (S.C. 2007), finding that the fact that

48

Burkhart’s counsel handled a similar issue differently and got relief for their client
did not render Bowman’s counsel’s performance deficient. The Report also noted
that Burkhart’s case was not identical to Bowman’s since, in that case, the State
first introduced the evidence of prison conditions in his sentencing proceeding. The
Report gave deference to the PCR court’s determination that counsel articulated a
reasonable strategy for not objecting, based, in part, on the PCR court’s finding that
counsel was credible. After considering Bowman’s arguments, the magistrate judge
found that Bowman failed to meet his burden as to the deficiency prong of

Strickland.
The Report similarly rejected Bowman’s arguments on the prejudice prong.
For example, the Report gave deference to the state court’s findings that the prison
conditions evidence was limited.

Id. at 79.

The Report again discussed the

differences between Bowman’s case and Burkhart’s case and concluded that the
outcome of Burkhart’s case would not have been determinative of the outcome in
Bowman’s case had trial counsel objected. For those reasons, the magistrate judge
concluded that Bowman failed to show that the state court’s finding on the prejudice
prong of Strickland was either contrary to, or an unreasonable application of,
clearly established federal law.
5.

Objections

In his objections, Bowman asserts that the magistrate judge “misinterpreted
long-standing South Carolina evidentiary principles barring [general prison
conditions] evidence . . . .” ECF No. 81 at 11. According to Bowman’s argument,
49

the Magistrate Judge failed to recognize that the state court deviated
from its long-standing pronouncement that evidence presented at the
penalty phase of a capital trial must be relevant to the circumstances
of the crime and characteristics of the defendant, which, in turn,
underlies the established South Carolina evidentiary rule that prison
evidence must be narrowly tailored to demonstrate the defendant’s
personal behavior in those conditions and may not veer into evidence
regarding general prison conditions.

Id. at 12 (citations omitted). Bowman also disagrees with any finding that counsel
had a strategy to introduce evidence regarding general prison conditions.

He

contends that counsel’s testimony to any such strategy was merely a post hoc
rationalization of his conduct. Additionally, he argues that even if counsel did have
such a strategy at the time of trial, he believes the strategy was unreasonable
“because such evidence is improper when admitted by either the state or the
defense.” Id. at 14. As he did in his petition and response, Bowman again compares
his case to Burkhart and asserts that he would have had a similar outcome—a
reversal on direct appeal—had trial counsel properly preserved this issue for direct
appeal.
Turning to the prejudice prong, Bowman argues that “the Magistrate Judge
erroneously stated that Bowman’s arguments ‘rely primarily on speculation that the
prison conditions evidence must have heavily factored into the jury’s sentencing
decision.’” Id. at 16 (quoting ECF No. 75 at 79). He notes that, in addition to the
few pages of questioning regarding prison conditions, the solicitor also referenced
prison conditions during his closing argument.

He further asserts that any

overwhelming evidence of guilt does not negate the prejudice that results from the
introduction of an arbitrary factor—evidence of general prison conditions—during
50

the sentencing phase.

Finally, Bowman disagrees with the magistrate judge’s

conclusion that the outcome of the appeal would not have been different if trial
counsel had objected to the prison conditions evidence because that conclusion
“ignored the principle discussed above that the South Carolina Supreme Court
warned both ‘the State and the defense’ against the admission of such evidence.” Id.
(quoting Bowman I, 623 S.E.2d at 385).
6.

Analysis

In order to prevail on this ground, Bowman must show that the state courts
made unreasonable factual findings or unreasonably applied federal law in
concluding that counsel were not ineffective in failing to object to the solicitor’s
questions to Aiken regarding prison conditions. He has not met that burden.
Initially, it must be noted that much of Bowman’s arguments and objections
as to this ground rely, not on the application of federal law, but on the discussion
and application of state evidentiary law. Bowman claims that the magistrate judge
misinterpreted state law and failed to recognize the state court’s deviation from its
own law. He faults the magistrate judge for not conducting his own review of the
South Carolina evidentiary law.

However, the record reflects that the state

courts—both the PCR court and the South Carolina Supreme Court—discussed, in
great detail, the law regarding the general prohibition of prison conditions evidence
during capital sentencing proceedings. See Bowman II, 809 S.E.2d at 239–44; R.
pp. 9912–15 (ECF No. 11-28 at 55–58). To the extent the magistrate judge relied on
the state courts’ discussions of state law, Bowman has failed to show that such
51

reliance was improper. The United States Supreme Court has made it clear that
state courts are the arbiters of their own law, particularly state evidentiary law.

See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[W]e reemphasize that it is not
the province of a federal habeas court to reexamine state-court determinations on
state-law questions.”).
Moreover, the state courts’ discussions of the admissibility of general prison
conditions evidence largely comports with Bowman’s own interpretation. The state
courts, Bowman, and the magistrate judge all recognize that South Carolina state
law generally prohibits such evidence during capital sentencing proceedings.
However, in his argument, Bowman ignores an aspect of the law that was also
applicable at the time of his own trial. That is, while evidence of general prison
conditions is inadmissible and improper if propounded by the State, the defense can
“open the door” to the introduction of such evidence by the State if the defense first
introduced such evidence. See State v. Plath, 313 S.E.2d 619, 627–28 (S.C. 1984)
(“It should not be necessary in the future for this Court to remind the bench and bar
of the strict focus to be maintained in the course of a capital sentencing trial. In the
case before us, defendants elected to enter the forbidden field of social policy and
penology. It is neither surprising nor can it be deemed prejudicial that the State
responded in kind, attempting to show through defendants’ own witnesses that life
imprisonment was not the total abyss which they portrayed it to be . . . . The State
was entitled to make this response.”).
It was not until Bowman’s own direct appeal that the South Carolina

52

Supreme Court took the opportunity “to caution the State and the defense that the
evidence presented in a penalty phase of a capital trial is to be restricted to the
individual defendant and the individual defendant’s actions, behavior, and
character,” thus reaffirming the court’s stance on what was inadmissible in the
sentencing phase, despite intervening changes in the law as decided by the United
States Supreme Court. Bowman I, 623 S.E.2d at 385. His argument regarding the
state of the law appears to be based on his own interpretation, which disregards the
full scope of the law at the time of his trial. The state courts, on the other hand, did
not take such a narrow view of the law, and the magistrate judge appropriately
deferred to the state courts’ interpretation of their own law. As such, his objections
regarding the purported misinterpretation of state law are not persuasive.
Bowman objects to the PCR court’s finding that trial counsel actually had a
strategy to introduce prison conditions. But that determination is based on the
PCR court’s credibility assessment and is entitled to deference in this action. 28
U.S.C. § 2254(e).

Bowman fails to present clear and convincing evidence that

counsel’s explanation of his strategy was merely a post hoc rationalization of his
conduct. The timing or evolution of counsel’s strategy was not probed during the
PCR evidentiary hearing. Bowman speculates that counsel never had a strategy to
question Aiken about prison conditions, but the magistrate judge offered other
plausible strategies that counsel may have had, and the record does not dictate that
any one of these options is only correct path to take. Nor does the law dictate that
trial counsel’s strategy, as employed, fell outside of the wide range of reasonable

53

professional assistance. See Strickland, 466 U.S. at 689 (“There are countless ways
to provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.”).
Bowman asserts that “the Magistrate Judge found competent counsel at the
time of [Bowman’s] trial would not necessarily have known that general prison
condition evidence was improper.” ECF No. 81 at 14. But that finding may not be
explicitly in the Report. Instead the Report gave due deference to the state court’s
finding that counsel was aware of the risks of introducing prison conditions
evidence, but believed them to be outweighed by the benefits. See Bowman II, 809
S.E.2d at 244.
As to prejudice, Bowman objects to the magistrate judge’s finding that he
relied primarily on speculation that the prison conditions evidence must have
heavily factored into the jury’s sentencing decision. He claims that he relied on the
record—not only a few pages of questioning about prison conditions, which the state
courts recognized, but also the references to that evidence in the State’s closing
arguments. He asserts “this issue became a focal point of the state’s penalty phase
summation . . . .” ECF No. 81 at 16. The Court finds that this may not be a proper
characterization of the record. Additionally, Bowman fails to demonstrate that the
PCR court’s decision on prejudice was unreasonable where the court did not
mention the closing argument references to Aiken’s testimony.
Bowman also insists that the outcome of his direct appeal would have been
different had trial counsel objected to the introduction of prison conditions evidence

54

by the State.

He relies on Burkhart, which, as the magistrate judge correctly

pointed out, is not identical to Bowman’s situation since Bowman’s counsel first
introduced the topic of prison conditions, while in Burkhart, the State introduced
the topic. Bowman also relies on the South Carolina Supreme Court’s words in his
own direct appeal, but, of course, counsel would not have had the benefit of the
court’s admonition at the time of his trial. What Bowman does not address is the
precedent set by Plath, which demonstrates that the evidence of prison conditions is
generally inadmissible, but that defense counsel can open the door to such evidence
by being the first to introduce such evidence. Bowman has not shown that the
South Carolina Supreme Court would not have adhered to its decision in Plath had
counsel objected. In order for Bowman to have met his burden under Strickland, he
must have shown “a reasonable probability that . . . the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. The Court concludes that
he has not done so.
For these reasons, Bowman has failed to establish that the state courts’
denial of his claims in Ground 6 was contrary to or involved an unreasonable
application of clearly established federal law, or was the result of unreasonable
factual findings. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 101. Accordingly,
the Court concludes that he has not met his burden and is therefore not entitled to
relief on Ground 6.
G.

Ground 8 – Jury instructions re: mitigating evidence

Ground 8 of the petition is as follows:
55

The trial court erred by refusing to instruct the jury on the statutory
mitigating circumstance that the capacity of the defendant to
appreciate the criminality of his conduct or to conform his conduct to
the requirements of the law was substantially impaired, since there
was expert testimony of Petitioner’s substance abuse problem, and
evidence the parties were drinking alcohol throughout the day. The
South Carolina Supreme Court’s opinion, holding there was no
evidence that Petitioner was intoxicated on the day of the murder, is
based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
ECF No. 36 at 75.
1.

Bowman’s claims

In Ground 8, Bowman alleges that the trial judge erred in denying his
request to instruct the jury about the following mitigating circumstance:

“[t]he

capacity of the defendant to appreciate the criminality of his conduct or to conform
his conduct to the requirements of the law was substantially impaired.” ECF No. 36
at 76–77 (quoting S.C. Code Ann. § 16-3-20(C)(b)(6)).
2.

S.C. Supreme Court opinion

The trial judge originally denied the request to charge the mitigating
circumstance of Bowman’s capacity being substantially impaired because there was
no evidence to support it. R. pp. 4937–40 (ECF No. 11-11 at 479–82). The South
Carolina Supreme Court affirmed, finding that there was evidence in the record
that Bowman “possessed beer at different points in the day but none of the evidence
indicated appellant was drinking the beer.” Bowman I, 623 S.E.2d at 383. The
court also found that Bowman’s history of alcohol and drug abuse did not warrant
the charge. Id.
56

3.

Report

The magistrate judge found that this ground was not cognizable on federal
habeas review, as it was based only in state law. In the alternative, the magistrate
judge found the issue—to the extent it could be reframed as an issue of federal
law—to be procedurally barred. And even if the claim in Ground 8 was cognizable
and preserved, the magistrate judge found that there was no evidence to support
the charge regarding substantially impaired capacity, and Bowman did not
demonstrate that the absence of the charge rendered his trial fundamentally unfair.
4.

Objections

Bowman did not file objections on this ground.
5.

Analysis

For the reasons set forth by the magistrate judge, the Court concludes that
Bowman has not met his burden and is therefore not entitled to relief on Ground 8.
H.

Ground 10 – Denial of mistrial after prison escape question

Ground 10 of the petition is as follows:
The court erred by refusing to grant a mistrial where the solicitor
attempted to question James Aiken about the possibility of escape,
since the solicitor injected an improper consideration and an arbitrary
factor into the sentencing phase. The jury’s attention is properly
focused on the penalties of death and life without parole, and not
speculative matters beyond Petitioner’s control. Defense counsel
correctly argued that the judge could not remove the taint through a
curative instruction once escape was raised by the state as an issue.

57

ECF No. 36 at 78.
1.

Bowman’s claims

At the start of his recross-examination, the solicitor noted that Aiken had
testified that Bowman would never get out of prison. The solicitor then asked,
“During the time that you have been affiliated with the Department of Corrections
of South Carolina, how many inmates have escaped?” R. p. 4869 (ECF No. 11-11 at
412). Defense counsel immediately objected, and the judge excused the jury while
the parties discussed the issue. Defense counsel requested a mistrial, which was
denied.

However, the judge gave a curative instruction to the jury.

Without

mentioning escape, the judge told the jury that the previous question was improper
and should be disregarded, and that the jury should only be concerned with the
sentences of death and life without parole.
Bowman argues that the judge should have granted a mistrial.
2.

S.C. Supreme Court opinion

The South Carolina Supreme Court found that the trial court had properly
refused to allow Aiken to answer the solicitor’s question regarding past escapes by
other inmates. Bowman I, 623 S.E.2d at 385. The court also found that “the [trial]
court’s curative instruction removed any prejudice because it made it clear that the
question asked by the State was improper and asked the jury to disavow that
question from their minds.” Id. The court cited another South Carolina case, State

v. Vazsquez, where the court found that a trial judge had not erred in refusing to
58

grant a mistrial where a solicitor argued that the defendant might escape and kill
witnesses on the State’s witness list, but the trial judge issued a curative
instruction that the jury should disregard that argument. 613 S.E.2d 359, 362 (S.C.
2005), abrogated on other grounds by State v. Evans, 637 S.E.2d 313 (S.C. 2006). In

Vazsquez, the court found that “the curative instruction removed any prejudice
because it made clear that the jury was not to consider the argument made by the
solicitor related to escape and the existence of a ‘hit list.’ This instruction removed
any prejudice that might have been suffered and afforded [Vazsquez] a fair trial.”
613 S.E.2d at 362.
3.

Report

In the Report, the magistrate judge noted that there was no federal mistrial
standard that was applicable to the states. As such, unless Bowman was asserting
a due process violation, his claim was not cognizable in a habeas corpus action.
To the extent that this claim could be characterized as a due process violation
claim, the magistrate judge found that Bowman had not presented the claim to the
state courts as such.

Accordingly, even if cognizable, the magistrate judge

concluded that it was procedurally defaulted.
Finally, the magistrate judge noted that even this ground was cognizable and
preserved for habeas review, Bowman had not met his burden of showing “that the
statement infected his sentencing proceeding with unfairness to render the jury’s
imposition of the death penalty a denial of his due process rights.” Id. at 88–89.
The magistrate judge recognized that “[t]he statement was isolated and
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immediately objected to by defense counsel, following which a curative instruction
was given to the jury.” Id. at 89.
4.

Objections

In his objections, Bowman asserts that the magistrate judge erroneously
found that this issue was raised only as a matter of state law in his direct appeal.
Although the state court relied heavily on state law opinions, Bowman contends
that the principle underlying those cases comes from Woodson v. North Carolina,
428 U.S. 280 (1976), which “requires a capital sentencing hearing be tailored to
capital defendants as ‘uniquely individual human beings’ and to consideration of the
‘character and record of the individual offender and the circumstances of the
particular offense.’”

ECF No. 81 at 18 (quoting Woodson, 428 U.S. at 304).

Bowman also objects to the magistrate judge’s conclusion that the question did not
violate his due process rights because that finding “ignores the fact that the
question presumed the answer that ‘many inmates have escaped,’ . . . and was
emphasized by the immediate objection by defense counsel and a lengthy conference
to discuss the issue.” Id. at 19. Bowman believes the prejudice was exacerbated by
the questions after the bench conference and by the solicitor’s closing argument.
5.

Analysis

The magistrate judge correctly noted that there is no federal mistrial
standard applicable to the states.

However, even to the extent that the Court

presumes that this ground is cognizable and preserved based on an arguable
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overlap between the state mistrial standard and the federal due process standard,
Bowman must still meet his burden under § 2254 in order to be entitled to relief.
That is, he must demonstrate that the state court’s decision is either the result of
unreasonable factual findings or is contrary to, or based on an unreasonable
application of, federal law as determined by the Supreme Court. Bowman has not
done so.
Bowman argues that the question violated his due process rights because it
“presumed the answer that ‘many inmates have escaped . . . .’” ECF No. 81 at 19.
The Court disagrees.

Aiken was asked, “During the time that you have been

affiliated with the Department of Corrections of South Carolina, how many inmates
have escaped?” R. p. 4869 (ECF No. 11-11 at 412). That question did not presume
any number, and no answer was given. Then the jury was told by the trial judge to
disregard the question, which the South Carolina Supreme Court found sufficient to
cure any prejudice. Bowman I, 809 S.E.2d at 385. Moreover, the Court is not
persuaded that any of the other circumstances surrounding the improper question
enhanced the prejudice or rendered the curative instruction insufficient. Notably,
the Supreme Court has recognized an “almost invariable assumption of the law that
jurors follow their instructions . . . .” Richardson v. Marsh, 481 U.S. 200, 206 (1987)
(citation omitted).
For these reasons, even assuming this issue is cognizable and preserved,
Bowman has failed to establish that the PCR court’s denial of his claims in Ground
10 was contrary to or involved an unreasonable application of clearly established

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federal law, or was the result of unreasonable factual findings.

See 28 U.S.C.

§ 2254(d); Harrington, 562 U.S. at 101. Accordingly, the Court concludes that he
has not met his burden and is therefore not entitled to relief on Ground 10.
I.

Ground 11 – Ineffective assistance re: closing argument

Ground 11 of the petition is as follows:
Trial counsel rendered ineffective assistance of counsel for failing to
object to the Solicitor’s arguing to discount Petitioner’s mitigation
because there was no “nexus” between Petitioner’s proffered mitigation
and the crime.
ECF No. 36 at 83.6
1.

Bowman’s claims

Bowman objects to the following statements by the solicitor during closing
arguments:
Ladies and gentlemen, I ask you based on what you’ve heard here,
what does all that stuff that happened to Marion during his youth
have to do with Kandee Martin? How is she in any way involved in the
fact that he sold drugs, that he did drugs, that he drank liquor, that he
wasn’t a good student, that he was an adolescent, that his grandfather
died, and all the other stuff, what has it got to do with it? Nothing. He
knows right from wrong.
...
Now, as far as Marion Bowman’s background, who has a perfect
background? I mean, you see “Leave it to Beaver”, Ward and June,
and you see “The Bill Cosby Show.” None of us have a background like
that. But, again, where is the connection? Where is the connection,
anybody who’s gotten up here and drawn a line between anything
Bowman acknowledges that this ground has not been exhausted and is being
advanced pursuant to Martinez. ECF No. 36 at 82–83.
6

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involving Marion Bowman’s background or family or mentality and the
murder of Kandee Martin. There’s just no connection.
...
Everybody was a child at one time. That’s got nothing to do with the
man he turned into and the conduct he engaged in after that.
R. pp. 4962–64, 4967 (ECF No. 11-12 at 55–57, 60).

According to Bowman, in

making the above arguments, the solicitor misstated the law by indicating that
there had to be some nexus between the mitigation evidence and his crimes. ECF
No. 36 at 83–84.
Although this ground was not raised during Bowman’s state proceedings, he
asserts that he can overcome the procedural bar of this ground because PCR counsel
were ineffective in failing to raise this issue. Id. at 82–83.
2.

Report

The magistrate judge found that Bowman failed to meet his burden under

Martinez for multiple reasons. First, the magistrate judge concluded that Bowman
had failed to show that PCR counsel were ineffective for failing to raise this claim.
The magistrate judge relied on an affidavit from James Brown Jr., one of Bowman’s
PCR attorneys. In the affidavit, Brown said that he had no strategic reason for not
raising this issue. Nevertheless, the magistrate judge concluded that the lack of a
strategic reason alone did not render PCR counsel’s performance constitutionally
deficient. With no other evidence about PCR counsel’s performance regarding that
issue, and based on the lack of merit to the underlying claim, the magistrate judge
found that Bowman failed to show that PCR counsel was deficient.
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As to whether trial counsel was ineffective for failing to object to the
solicitor’s comments, the magistrate judge disagreed with Bowman’s interpretation
of those statements. For example, when read in the greater context of the closing
arguments, as opposed to discrete excerpts, the magistrate judge found that each of
the statements were part of a greater, and not improper, concept in the solicitor’s
closing argument. Rather than telling the jury that they could not consider the
mitigation evidence if there was no nexus, the magistrate judge concluded that the
solicitor was trying to persuade the jury to give little weight to some of the
mitigation evidence that had been presented. Additionally, the magistrate judge
noted that the solicitor expressly told the jury that the judge would instruct them as
to what the law was. The trial judge later did so, instructing the jury that they
should consider the mitigation evidence that had been presented and that they
could recommend a life sentence for any reason or no reason.

For all of those

reasons, the magistrate judge found that Bowman failed to prove either prong of

Strickland regarding trial counsel’s failure to object during closing argument.
For these reasons, the magistrate judge concluded that Bowman failed to
present a substantial Strickland claim and that the procedural default therefore
could not be excused pursuant to Martinez.
3.

Objections

Bowman objects to the magistrate judge’s conclusion that he “‘offer[ed] very
little’” on the issue of PCR counsel’s deficient performance.

ECF No. 81 at 20

(quoting ECF No. 75 at 95). Bowman notes that he provided Brown’s affidavit, and
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he also requested an evidentiary hearing on the issue of PCR counsel’s
ineffectiveness to provide additional proof of deficient performance. He argues that
he satisfied the pleading standard and “the Magistrate Judge erred in requiring
that [Bowman] provide more than the relevant rule requires.” Id.
Bowman further objects to the magistrate judge’s conclusion that he did not
demonstrate that his underlying ineffective assistance of counsel claim had merit.
He contends that the magistrate judge misconstrued the solicitor’s arguments. He
argues that the solicitor misstated the law. He argues that the Court should reject
the Report and order an evidentiary hearing.
4.

Analysis

As set forth above, in accordance with Martinez, for Bowman to overcome the
procedural default of his ineffective assistance of trial counsel claim, he must show
both that PCR counsel was ineffective for failing to raise the underlying claim and
that the underlying claim itself has merit.
Bowman asserts that he adequately pled that PCR counsel was deficient and
that he provided support for that pleading through PCR counsel’s affidavit stating
that he had no strategic reason for not raising the claim that trial counsel should
have objected to the solicitor’s closing argument.

However, the standard for

summary judgment is not whether Bowman’s pleadings were adequate—summary
judgment is appropriate when the record 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 magistrate judge appropriately considered PCR counsel’s
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affidavit as true for purposes of his review, but Bowman still did not meet his
burden of showing deficient performance by PCR counsel. Bowman had to show
that PCR counsel’s representation was constitutionally deficient. Brown’s affidavit
and the strength of the underlying claim are insufficient to meet that burden for the
reasons discussed by the magistrate judge.7
As to the merits of the underlying claim, the Court concludes that the jury
did consider the mitigation evidence as instructed and does not find persuasive
Bowman’s asserted impact of the solicitor’s closing argument on the jury in light of
the instruction given.

When considered in context with the remainder of the

solicitor’s closing argument, as is appropriate under the law,8 the statements that
Bowman believes were objectionable did not necessitate an objection. The solicitor
never told the jury that they could not consider mitigation evidence unless there
was some nexus to the crimes. The solicitor asked the jury to give the mitigation
evidence little weight, and Bowman has not shown that such arguments were
improper or objectionable. Furthermore, as highlighted in the Report, the solicitor
made clear to the jury that the judge would deliver instructions on the law. The
judge also instructed the jury that they should consider the mitigation evidence and

To the extent that Bowman believes he is entitled to an evidentiary hearing, the
Court disagrees for the reasons discussed below.
7

It is rarely appropriate to look at a statement in isolation as Bowman has done
with respect to this ground. For example, when looking at whether a prosecutor’s
arguments deprived a defendant of due process, the Supreme Court considered not
only the arguments themselves, but also how those arguments were responsive to
arguments made by defense counsel. Darden v. Wainwright, 477 U.S. 168, 178–83
(1986).
8

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that they could recommend a life sentence for any reason or no reason. Thus, even
if he could make a substantial claim as to deficiency, Bowman cannot do so as to
prejudice. Accordingly, he has failed to establish that there is some merit to his
underlying claim of ineffective assistance of trial counsel.
For these reasons, the underlying ineffective assistance claim for this ground
fails on the merits and Bowman therefore cannot rely on Martinez to overcome the
procedural default. Accordingly, he is not entitled to relief on Ground 11.
J.

Ground 12 – Failure to present additional mitigation evidence

Ground 12 of the petition is as follows:
Trial counsel rendered ineffective assistance of counsel by failing to
call a number of witnesses who were available to trial counsel, and
who would have provided the jury with highly mitigating evidence of
Petitioner’s dysfunctional childhood that the jury did not otherwise
here.
ECF No. 36 at 85.9
1.

Bowman’s claims

In Ground 12, Bowman asserts that counsel were ineffective for failing to
present additional mitigation evidence during the sentencing phase of his trial. He
has provided affidavits from numerous lay witnesses, some of whom testified at his
trial, and those affidavits contain some information that was presented to the jury
and some that was not. See ECF Nos. 36-1 (Joseph Sims), 36-2 (Kendra Bowman),

Bowman acknowledges that this ground has not been exhausted and is being
advanced pursuant to Martinez. ECF No. 36 at 82–83.
9

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36-3 (Dorothy Denise Bowman), 36-4 (Glenn Miller Sr.), 36-5 (Oretta Miller), 36-6
(Tyler Dufford), 36-7 (Jennifer Thompson), 36-8 (Velma Young), 36-9 (Tiffany
Grimmage), 36-10 (Dorothy Bowman).
The specifics of this ground were not raised during Bowman’s state
proceedings, although he did argue in his PCR action that counsel were ineffective
for failing to adequately investigate and present mitigation evidence. He argues
that he can overcome the procedural bar of this ground because PCR counsel were
ineffective in failing to specifically raise this issue.
2.

Report

As with Ground 11, the magistrate judge concluded that the simple fact that
PCR counsel did not have a strategic reason for failing to raise this issue did not
suffice to meet Bowman’s burden of establishing the deficiency prong of Strickland.
The magistrate judge then delved into the merits of the underlying ineffective
assistance claim, first considering whether Bowman had shown prejudice.

The

Report detailed the mitigation case that counsel presented during the sentencing
phase of his trial. The Report then compared what was presented to the jury to
what is contained in the affidavits. As to some of the evidence contained in the
affidavits, the magistrate judge concluded:
Many of the themes that [Bowman] argues should have been explored
by trial counsel during their mitigation phase were explored, albeit
sometimes through different witnesses or anecdotal evidence. To the
extent the evidence in the affidavits was already presented to the jury
by way of trial counsel’s mitigation presentation, [Bowman] cannot
meet his burden as to the prejudice prong of Strickland.

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ECF No. 75 at 109. The magistrate judge then assessed the information that was
never presented to the jury, such as evidence that Bowman’s mother was
“essentially a prostitute” and that children in his hometown were treated differently
based on their race.

Id.

After considering the entirety of the evidence, the

magistrate judge found that “‘[t]he evidence that [Bowman] says his trial counsel
should have offered at the sentencing hearing would barely have altered the
sentencing profile presented to the [jury].’” Id. at 110 (quoting Strickland, 466 U.S.
699–700). Thus, the magistrate judge concluded that Bowman failed to meet his
burden under Martinez as to the prejudice prong of the underlying ineffective
assistance claim.
Regarding deficiency, the magistrate judge noted that most of Bowman’s
arguments regarding counsel’s performance were based on evidence that had
already been considered by the PCR court. The Report quoted extensively from the
PCR court’s order of dismissal, which rejected the argument that trial counsel had
inadequately investigated and presented mitigation evidence. The Report stated,
“In sum, the record shows that trial counsel hired appropriate service providers to
investigate and present mitigating evidence for purposes of the sentencing phase.”

Id. at 117. In particular, the magistrate judge found that trial counsel had hired an
experienced mitigation investigator who interviewed many of the witnesses whose
affidavits Bowman now submits to the Court. The magistrate judge further noted
that Bowman did not “identify any evidence indicating that a failure on [the
mitigation investigator’s] part to discover the mitigating evidence that [Bowman]

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now presents can be attributed to trial counsel.”

Id.

The magistrate judge

concluded that Bowman failed to meet his burden of showing some merit to his
claim of deficient performance.
For these reasons, the magistrate judge concluded that Bowman failed to
present a substantial Strickland claim and that the procedural default therefore
could not be excused pursuant to Martinez.
3.

Objections

As with his other procedurally defaulted ground, Bowman asserts that he is
entitled to a hearing because he has met the pleading standard. Additionally, he
contends that the magistrate judge erred in finding that his claim had no merit
without first granting him an evidentiary hearing. Bowman summarizes some of
the evidence contained within the affidavits he submitted that was never presented
to the jury and asserts as follows:
This evidence is not exhaustive but is representative of what
[Bowman] would present at a hearing on the merits of this ineffective
assistance of counsel claim to demonstrate that there is a reasonable
probability that at least one juror would have struck a different
balance and voted for a life sentence if they had heard all of the
available mitigating evidence.
ECF No. 81 at 24 (citations omitted).
4.

Analysis

Bowman’s objections are primarily based on the magistrate judge’s denial of
an evidentiary hearing. As to Bowman’s contention that he is entitled to a hearing

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because he met the pleading standard, there is no support for that argument.10 As
will be discussed in more detail below, Bowman has not established that he is
entitled to an evidentiary hearing under the applicable habeas rules.
Bowman does not dispute the magistrate judge’s evaluation of the impact of
the newly-presented evidence when added to the mitigation presentation that the
jury heard.

Instead he argues that “[t]his evidence is not exhaustive but is

representative of what [he] would present at a hearing on the merits of his
ineffective assistance of counsel claim . . . .” ECF No. 81 at 24. But he did not seek
authorization from the Court to conduct discovery and gather such additional
evidence, either prior to filing his amended petition or prior to the State filing its
motion for summary judgment. It is not procedurally appropriate for a party to
submit threadbare or incomplete affidavits and then use those inadequate affidavits
to justify an evidentiary hearing. Here, the affidavits and documentation submitted
were sufficient to evaluate his claims, particularly if, as Bowman contends, the
evidence he has already submitted is “representative” of what would be presented
at an evidentiary hearing. See Runningeagle v. Ryan, 825 F.3d 970, 990 (9th Cir.
2016) (“Where documentary evidence provides a sufficient basis to decide a petition,
the court is within its discretion to deny a full hearing.”). And Bowman has not
forecast what additional evidence could be presented at an evidentiary hearing, or
how that evidence would go beyond that which he has already presented and which
Bowman’s reliance on Rule 8(a)(2) of the Federal Rules of Civil Procedure is not
persuasive. He was required to meet that standard in order to sufficiently plead his
claims, but that standard does not bear on whether he is entitled to an evidentiary
hearing.
10

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the magistrate judge considered as part of an expanded record. Cf. Cardwell v.

Greene, 152 F.3d 331, 338–39 (4th Cir. 1998) (“Despite repeated assertions that
analysis of his ineffective assistance claim requires an evidentiary hearing,
Cardwell has failed to forecast any evidence beyond that already contained in the
record, or otherwise to explain how his claim would be advanced by an evidentiary
hearing.”), overruled on other grounds by Bell v. Jarvis, 236 F.3d 149 (4th Cir.
2000).
Having reviewed the evidence that Bowman attached to his habeas petition
and the mitigation evidence presented in state court, the Court agrees with the
magistrate judge that the additional evidence would have done little to alter the
sentencing profile presented to the jury.

See ECF No. 75 at 110 (quoting

Strickland, 466 U.S. 699–700). Contrary to Bowman’s assertions and as discussed
in detail by the magistrate judge, the record reflects that counsel did not present a
weak mitigation case regarding his childhood and background. Such evidence was
presented. Additionally, as the PCR court thoroughly explored, and the magistrate
judge largely adopted, counsel’s investigation was constitutionally adequate.
Finally, the statement by PCR counsel that he had no strategic reason for not
raising this claim is not sufficient to establish deficient performance, particularly in
light of the lack of merit to the underlying ineffective assistance of counsel claim.
The Court adopts the magistrate judge’s reasoning and conclusion as to Ground 12.
For these reasons, the underlying ineffective assistance claim for this ground
fails on the merits and Bowman therefore cannot rely on Martinez to overcome the

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procedural default. Accordingly, he is not entitled to relief on Ground 12.
K.

Request for Evidentiary Hearing

For both of the procedurally defaulted grounds, Bowman asks the Court to
grant an evidentiary hearing in order for him to more fully develop the factual basis
for his claims. That request is denied.
Under the AEDPA, evidentiary hearings on habeas petitions are generally
limited. See Cullen, 563 U.S. at 181 (“We now hold that review under § 2254(d)(1)
is limited to the record that was before the state court that adjudicated the claim on
the merits.”). The Supreme Court has not specifically set forth a procedure for
determining when evidentiary hearings are permitted or required for the resolution
of Martinez claims.

In general, the AEDPA disallows such hearings, except in

limited circumstances:
If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that—
(A)

the claim relies on—
(i)

(ii)

(B)

a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable; or
a factual predicate that could not have been
previously discovered through the exercise of due
diligence; and

the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.

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28 U.S.C. § 2254(e)(2).

Nevertheless, federal courts have recognized that it is

sometimes appropriate to expand the record or to hold an evidentiary hearing in
certain situations, such as when determining whether cause and prejudice excuse a
petitioner’s defaulted claim.

Fielder v. Stevenson, 2:12-cv-412-JMC, 2013 WL

593657, at *3 (D.S.C. Feb. 14, 2013) (citing Cristin v. Brennan, 281 F.3d 404, 416
(3d Cir. 2002)). Additionally, Rules 7 and 8 of the Rules Governing Section 2254
Cases provide for both expansion of the record and for evidentiary hearings.
Here, the magistrate judge exercised his discretion to expand the record and
consider information not presented to the state court, including the affidavits
described in Ground 12, in determining whether Martinez excuses the procedural
default of Grounds 11 and 12. Though the magistrate judge expanded the record,
for the reasons set forth above, Bowman failed to establish a substantial claim of
ineffective assistance of counsel as to each claim. He had an ample opportunity to
submit evidence in support of his claims, and he has done so. 11 The magistrate
judge and this Court fully considered the evidence he submitted and took all of the
new facts to be true, but concluded that he is not entitled to relief for the reasons

Bowman implies that he is entitled to an evidentiary hearing because the
affidavits that he submitted were not detailed enough. See ECF No. 81 at 24 (“[The
affidavits are] not exhaustive but [are] representative of what [Bowman] would
present at a hearing on the merits of his ineffective assistance of counsel claim
. . . .”). It is not procedurally appropriate for a party to submit threadbare affidavits
and then use those inadequate affidavits to justify an evidentiary hearing. Here,
the affidavits and documentation submitted were sufficient to evaluate his claims.
See Runningeagle v. Ryan, 825 F.3d 970, 990 (9th Cir. 2016) (“Where documentary
evidence provides a sufficient basis to decide a petition, the court is within its
discretion to deny a full hearing.”).
11

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discussed above.

Accordingly, his request for an evidentiary hearing as to his

unexhausted claims is denied.

IV.

Conclusion
For the reasons stated, the Report, ECF No. 75, is ACCEPTED, and

Bowman’s objections to it, ECF No. 81, are OVERRULED. The State’s motion for
summary judgment, ECF No. 56, is GRANTED. Bowman’s amended petition for
relief pursuant to § 2254, ECF No. 36, is DENIED.

This action is hereby

DISMISSED.
The Court has reviewed this petition in accordance with Rule 11 of the Rules
Governing Section 2254 Cases.

In order for the Court to issue a certificate of

appealability, Rule 11 requires that a petitioner satisfy the requirements of 28
U.S.C. § 2253(c)(2), which in turn requires the petitioner to make “a substantial
showing of the denial of a constitutional right.” The Court concludes, based on the
analysis set forth, that Bowman has not made such a showing, and under Rule 11,
it is therefore not appropriate to issue a certificate of appealability. However, this
is a death penalty case, so review is anticipated and not opposed.

Bowman is

advised that he is entitled to seek a certificate from the Fourth Circuit Court of
Appeals under Rule 22 of the Federal Rules of Appellate Procedure.

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IT IS SO ORDERED.

s/ Terry L. Wooten
Terry L. Wooten
Senior United States District Judge
March 26, 2020
Columbia, South Carolina

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