United States v. Brandon Basham ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-9
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRANDON LEON BASHAM,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Joseph F. Anderson, Jr., Senior
District Judge. (4:02-cr-00992-JFA-2; 4:11-cv-70079-JFA)
Argued: March 25, 2015 Decided: June 15, 2015
Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Chief Judge Traxler and Judge Agee joined.
ARGUED: Michael L. Burke, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Phoenix, Arizona, for Appellant. Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Jon M. Sands, Federal Public Defender, Sarah Stone,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Phoenix, Arizona, for Appellant. William N. Nettles,
United States Attorney, Robert F. Daley, Jr., Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina; Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
KING, Circuit Judge:
In November 2002, Brandon Leon Basham and Chadrick Evan
Fulks engaged in a seventeen-day multistate crime spree, for
which they were both prosecuted. Basham was convicted in the
District of South Carolina of multiple crimes and sentenced to
death for two of them, carjacking resulting in death, in
contravention of 18 U.S.C. § 2119(3), and kidnapping resulting
in death, as proscribed by 18 U.S.C. § 1201. After we upheld
Basham’s convictions and death sentences on direct appeal, see
United States v. Basham, 561 F.3d 302 (4th Cir. 2009), cert.
denied, 560 U.S. 938 (2010), he moved for habeas corpus relief
pursuant to 28 U.S.C. § 2255. By its opinion of June 5, 2013,
the district court denied Basham’s § 2255 motion. See United
States v. Basham, No. 4:02–cr–00992 (D.S.C. June 5, 2013), ECF
No. 1577 (the “Opinion”). The court subsequently denied
Basham’s motion to alter or amend the judgment, made under
Federal Rule of Civil Procedure 59(e), by way of its August 21,
2013 order. See United States v. Basham, No. 4:02–cr–00992
(D.S.C. Aug. 21, 2013), ECF No. 1583 (the “Reconsideration
Order”). 1 Basham now appeals from those decisions. As explained
1
The district court’s unpublished Opinion is found at J.A.
177-374, and its Reconsideration Order is found at J.A. 375-82.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)
2
below, we reject Basham’s assignments of error and affirm the
judgment of the district court.
I.
A.
Our 2009 opinion disposing of Basham’s direct appeal,
authored by our distinguished former Chief Judge Karen Williams,
detailed the pertinent facts of Basham’s 2002 crime spree as
follows:
In 2002, Basham, a lifelong Kentucky resident,
was serving the final years of a felony forgery
conviction sentence at the Hopkins County Detention
Center in Kentucky. In October of that year, Chadrick
Evan Fulks became Basham’s new cellmate. In early
November, Fulks was charged with an additional (and
serious) state offense, first degree abuse of a child
aged twelve years or younger. On November 4, 2002,
Basham and Fulks escaped the detention center together
by scaling a wall in the recreation area and leaving
the area on foot.
By the evening of November 5, Basham and Fulks
reached the home of James Hawkins in nearby Hanson,
Kentucky. Basham approached the dwelling, knocked on
the door, and asked to use the telephone. Basham told
Hawkins that his car had broken down and, after Basham
made two calls, Hawkins agreed to drive him to a
nearby convenience store. When Basham and Hawkins
left the residence, Fulks joined them and the three
men left in Hawkins’s truck. The two men then told
Hawkins that their vehicle was disabled in Robards,
Kentucky, and they asked for a ride. During the
drive, Fulks told Hawkins that the disabled vehicle
was actually in Indiana and directed Hawkins to drive
there. Fulks later changed the directions again; by
this point, Basham was pointing a knife at Hawkins to
keep him driving to their preferred destination. At
some point, Fulks took the wheel, drove the truck into
3
a field, and ordered Basham to tie Hawkins to a tree.
Fulks became dissatisfied with Basham’s speed in tying
and eventually completed the job himself. They left
Hawkins clothed in shorts, flip-flops, and a short-
sleeved vest. Fifteen hours later, Hawkins freed
himself and flagged a passing motorist. When
interviewed by police officers later that day, Hawkins
identified Basham and Fulks as the individuals who
kidnapped him.
After abandoning Hawkins, Fulks and Basham drove
to Portage, Indiana, to visit one of Fulks’s former
girlfriends, Tina Severance. They abandoned Hawkins’s
vehicle at a hotel and walked to a trailer shared by
Severance and her friend Andrea Roddy. The four then
drove to a hotel in northern Indiana and stayed there
for the next few days. At some point, Basham and
Roddy began a consensual sexual relationship.
During their time in Indiana, Fulks asked
Severance if she knew anyone from whom he could obtain
firearms. Severance informed Fulks that a friend of
hers, Robert Talsma, kept several firearms at his
home; Severance and Roddy thereafter agreed to lure
Talsma out of his house by offering to buy him
breakfast. While Talsma was at breakfast with the
women, Basham and Fulks entered Talsma’s home and
stole four firearms, a ring, and several blank checks.
They then reunited with Severance and Roddy, and the
four traveled in Severance’s van to Sturgis, Michigan.
That night, November 8, Basham and Roddy stayed at a
hotel in Sturgis while Fulks and Severance drove to
Goshen, Indiana, to smoke marijuana and
methamphetamines with Fulks’s brother, Ronnie Fulks.
That evening, two police officers began knocking
on doors at the hotel where Basham and Roddy were
staying in Sturgis. Basham opened his room door, saw
the officers, closed the door, and cocked a .22
caliber revolver that he had stolen from Talsma. The
officers ended up leaving before reaching Basham’s
door. Basham told Roddy, however, “I was about to
shoot me a mother-f***er cop right. I was going to
blow the f***ing cop away.” The next morning,
November 9, Basham and Roddy drove to a local Kmart to
purchase sundries. Basham met a group of teenagers in
the parking lot, and he reported to Roddy that they
had some money and he wanted to kill them for it.
4
After purchasing sundries with some of Talsma’s stolen
checks, Basham invited the teenagers back to the hotel
room. Severance and Fulks arrived back at the hotel
shortly thereafter, and the teenagers left. Fulks,
Basham, Severance, and Roddy then drove Severance’s
van to the home of Fulks’s brother, Ronnie Fulks, in
Goshen, Indiana.
On November 10, 2002, the group of four drove to
Piketon, Ohio, in Severance’s van. Basham again used
Talsma’s checks to buy sundries, which Roddy later
returned for cash. Basham and Fulks also bought two
sets of camouflage clothing and Fulks stole a purse
and cell phone from a Wal–Mart parking lot. On
November 11, they drove to Kenova, West Virginia, near
Huntington, and rented a hotel room. Fulks and
Basham, wearing their sets of camouflage clothing,
left the hotel room by themselves and did not return
until the morning hours of November 12.
Samantha Burns, a nineteen-year-old Marshall
University student, worked at the J.C. Penney’s store
in the Huntington Mall. In addition, Burns also
participated in a school fundraiser by selling candy
boxes, which she kept in her car. On November 11,
Burns met her aunt at Penney’s to purchase clothing
for one of Burns’s nieces; they parked in separate
locations at the mall. At 9:46 p.m. that evening,
Burns called her mother to say she was staying at a
friend’s house that night. Burns has never been seen
since.
During the early morning hours of November 12,
2002, a local fire department responded to a reported
explosion and fire at a rural area three miles outside
of Huntington. The responding firemen found a car
later identified as belonging to Burns burned out at a
cemetery.
Meanwhile, Fulks and Basham returned to the hotel
carrying muddy clothing, and Fulks indicated that they
had stolen some money. Later that morning, the group
of four checked out of the motel and drove to South
Carolina, where Fulks had lived for several years in
the 1990s. Several facts emerged linking Basham and
Fulks to Burns’s disappearance. Roddy and Severance
reported seeing mud, as well as one of Burns’s candy
boxes, in the van. In addition, Basham began wearing
5
a heart-shaped ring around his neck that belonged to
Samantha Burns. Basham told the women that he had
stolen the candy from a girl selling it and that he
had stolen the ring from a car. Roddy also found
Burns’s photo ID discarded with other items linking
Burns to Fulks and Basham. Moreover, it was later
revealed that Fulks used Burns’s ATM card twice on the
evening of November 11 at local banks.
The evening of November 12, Fulks, Basham,
Severance and Roddy arrived at a motel in Little
River, South Carolina. The next day was a day of
relative rest; Fulks and Basham stole several purses
and wallets from unattended vehicles, went shopping,
and then returned to the motel room to smoke
marijuana, drink, and play cards. On November 14, the
four moved to a motel in Myrtle Beach, South Carolina.
Fulks and Basham left the women and drove to nearby
Conway, South Carolina. Hoping to steal firearms,
Fulks and Basham burglarized the Conway home of Sam
Jordan. Carl Jordan, Sam’s father, drove up to the
home as Fulks and Basham were leaving. Fulks
attempted to ram Jordan’s car with Severance’s van but
stopped short; Basham exited the house and fired a
shot at a nearby greenhouse. Fulks then fired a shot
that shattered the back-window of Jordan’s car.
Jordan fled the area, with Fulks and Basham in
pursuit, still firing. At some point, Fulks and
Basham ceased their chase, abandoned Severance’s van,
and stole a truck, which they drove to the Wal–Mart in
Conway.
Upon arriving at the Wal–Mart, Basham approached
a blue BMW sedan driven by forty-four year old Alice
Donovan. Basham entered the car and forced Donovan to
drive to the back of the parking lot, where Fulks
waited. There, Fulks entered the driver’s side of the
car and drove away; at 4:03 p.m., Fulks used Donovan’s
ATM card to purchase gas from a service station in
Shallote, North Carolina. At 4:30 p.m., Donovan
called her daughter to say she was shopping and would
be home late. Later that day, several men at the Bee
Tree Farms Hunt Club in Winnabow, North Carolina, saw
two men and a woman in a blue BMW drive to the end of
a road by the lodge, turn around, and leave the area.
Donovan, like Burns, was never seen again.
6
Basham and Fulks returned to their Myrtle Beach
motel later that day and told Severance and Roddy they
had to leave town because Basham shot at some police
officers and Severance’s van had been seized. Basham
and Fulks took Donovan’s BMW and began driving to West
Virginia, leaving Severance and Roddy behind in Myrtle
Beach. Donovan’s ATM card was used in Little River,
Myrtle Beach, and Raleigh, North Carolina. Meanwhile,
Severance filed a (false) police report alleging that
her van had been stolen.
On November 15, 2002, Fulks and Basham arrived at
the home of Beth McGuffin near Huntington, West
Virginia. McGuffin, a childhood friend of Fulks,
agreed to let Fulks and Basham stay at her home.
Fulks introduced Basham to her as “Tommy Blake.”
Later on November 15, Fulks and Basham purchased crack
cocaine to share. Basham and McGuffin also began a
sexual relationship and had sexual intercourse three
times over the next several days. Basham also gave
McGuffin Burns’s heart-shaped ring. On November 16,
the three watched a news story about the disappearance
of Samantha Burns. When McGuffin remarked that Burns
was likely dead, Fulks stated, “[s]he is dead.”
At the same time, the Federal Bureau of
Investigation (“FBI”) was investigating the kidnapping
of James Hawkins, which it believed Basham and Fulks
had committed after escaping from prison. The FBI
learned that the two men might be in Myrtle Beach,
South Carolina, and that Severance had reported her
van stolen. On November 16, the FBI and local
authorities interviewed Severance and learned that
Basham and Fulks had left the area. The FBI also
became aware of the disappearance of Alice Donovan and
suspected that Fulks and Basham might be involved.
On Sunday, November 17, Fulks, Basham, and
McGuffin smoked marijuana before Fulks and Basham left
McGuffin’s house, telling her they were headed to
Arizona. Instead, they stopped at the Ashland Mall in
Ashland, Kentucky, about 20 minutes from Huntington.
Sometime that evening, in a Wal–Mart parking lot,
Basham approached Deanna Francis’s fifteen-year-old
daughter as she entered the passenger side of their
vehicle. Basham pointed a gun into the teenager’s
side, attempted to enter the car, and asked for
directions to Greenville, Kentucky. When Basham
7
realized Deanna’s daughter was talking on her cell
phone, he said “[M]y bad, I didn’t mean to scare you”
and walked away. Deanna immediately called the
police.
Ashland Police Officer Matt Davis was
approximately four blocks from the Ashland Mall when
he heard the dispatch about the attempted carjacking.
Davis drove to the mall, where he saw Basham, who met
the description of the suspected carjacker. Davis
exited his patrol vehicle and approached Basham;
Basham immediately began to flee. As Davis chased
Basham through the mall area, Basham drew his weapon
and fired a shot in the air. As the chase continued,
Basham drew his weapon a second time, turned, and
fired at Davis, who fired three shots of his own in
return. Basham eventually made his way to a rail yard
on the banks of the Ohio River where he hid. Davis
radioed reinforcements, which surrounded the area.
More than an hour later, at approximately 9:00 p.m.,
Basham surrendered to police, identifying himself as
“Josh Rittman.” Police recovered a knife — later
identified as belonging to Alice Donovan — and a crack
cocaine pipe on Basham’s person. Basham’s pistol was
recovered from a rail car several days later.
Fulks returned to McGuffin’s home that evening
and watched a news report on Basham’s arrest. The
morning of November 18, Fulks left McGuffin’s
residence to drive Donovan’s BMW to his brother’s
house in Goshen, Indiana. Fulks stopped at a rest
area, where an Ohio state trooper, who had ascertained
that the BMW was stolen, approached him; a high-speed
chase then ensued at speeds in excess of 130 miles per
hour. During this chase, Fulks nearly struck another
trooper before managing to evade capture. Fulks
eventually arrived at his brother’s home in the early
morning hours of November 20. Police officers were
staking out Ronnie’s home, however, and when Fulks,
his brother Ronnie, and Ronnie’s girlfriend drove to a
barn to hide the BMW, Fulks was arrested. Fulks’s
semen and the bodily fluids from an unidentified
female were later found in the back seat of the BMW.
Back in West Virginia, investigators determined
that “Josh Rittman” was actually Basham, and that he
was a recent prison escapee. At 2:00 a.m. on November
8
19, Basham was interviewed for the first time. Basham
first told investigators that he and Fulks had escaped
from prison and committed several crimes along the
way. Later, he admitted that they had traveled to
South Carolina and kidnapped a woman in Conway, South
Carolina. Basham, however, insisted that the woman
was alive and with Fulks.
At 9:45 a.m. on November 19, investigators re-
interviewed Basham. Basham told investigators that he
and Fulks kidnapped a man after escaping from prison,
and carried firearms when kidnapping Donovan. He
further told investigators that they used her credit
cards to obtain cash, that they had driven Donovan to
Ashland, Kentucky, and that Fulks was waiting for
Basham when Basham was caught. This time, Basham said
he thought Donovan was dead because she was not with
Basham and Fulks at the Ashland Mall. During this
interview, Basham also told investigators that Fulks
“got a girl” in West Virginia as well.
On November 20, FBI agents interviewed Basham for
seven hours. On this occasion, Basham told
investigators that after they kidnapped Donovan, Fulks
dropped Basham off at the hotel, drove Donovan to a
resort area, raped her, tied her up, and left her.
Basham also claimed that Fulks was the one who
actually carjacked Donovan. Basham also clarified
that when he said Fulks “got a girl” in West Virginia,
that he meant they had stolen a girl’s credit cards,
not that they had kidnapped anyone else. At this
point, investigators believed Donovan may have been
still alive. Basham drew a map of the places Fulks
and Basham had been with Donovan. This map roughly
corresponded with the Savannah Bluff area of Horry
County, South Carolina. A two-day search of the area,
however, left investigators no closer to discovering
Donovan’s fate.
On November 25, Basham, now represented by
counsel, agreed to further aid investigators in
finding Donovan’s body. He drew a map, mentioned
passing through a cemetery, and informed investigators
that Donovan’s body was left covered but unburied in
the woods. Basham was unable to identify any specific
landmarks to aid investigators.
9
On November 26, through counsel, Basham informed
investigators that Samantha Burns was dead and that he
and Fulks had rolled her body down an embankment and
into the Guyandotte River near Huntington.
Two days later, on November 28, FBI and state
investigators organized a search team to search
Brunswick County, North Carolina, for Donovan’s body.
Basham, now represented by Cameron B. Littlejohn, Jr.
and William H. Monckton, VI, accompanied the agents.
During the ride, Basham saw a deer and said, “I never
could kill a deer and here I have,” but was cut off
before finishing his sentence. Later that day, Basham
told the investigators that he and Fulks had driven
past a park, taken Donovan’s body out of the car,
dragged it into the woods, and covered it. On two
occasions, Basham became emotional as he identified
landmarks where he and Fulks had taken Donovan.
Later, Basham told the investigators he had thrown out
a Liz Claiborne purse strap at the Bee Tree Farms
Cemetery. When they arrived, the local sheriff asked,
“Is this where it happened?” Basham responded, “This
is it. It is.” The cemetery was searched to no
avail. . . .
Starting in late November 2002, while in jail
awaiting trial, Basham began writing letters to
McGuffin, telling her his real name, claiming that he
loved her, that he had not “hurt that girl from South
Carolina”, and that Fulks was responsible for their
crime spree. On this last point, Basham wrote that
Fulks “lied to me” and “told me he had all kinds of
money, and a new car, and all of this stuff just
waiting on him, and all he needed me to do was to show
him the way away from the jail because I was raised in
that area.” Basham was not entirely forthright with
McGuffin, however, as he also wrote that Burns’s ring,
which he had given to McGuffin, was “not stolen or
anything like that.” Basham also confided that he
“did a lot of bad s**t with [Fulks].”
On December 24, 2002, Basham called a former
middle-school teacher in Madisonville, Kentucky,
Clifford Jay. When Jay asked whether Basham had
killed Alice Donovan, Basham replied, “Yes, Sir. We
killed them.” Jay was surprised by the use of the
term “them,” because he had only heard about the
Donovan killing.
10
Basham, 561 F.3d at 309-14 (alterations in original) (footnotes
and citations omitted). Following our opinion, it was confirmed
that Donovan’s remains had been found in a wooded area in Horry
County, South Carolina.
On December 17, 2002, Basham and Fulks were charged in the
District of South Carolina for their crimes against Donovan.
The operative eight-count superseding indictment was then
returned on April 23, 2003. The first two counts — carjacking
resulting in death, in violation of 18 U.S.C. § 2119, and
kidnapping resulting in death, in contravention of 18 U.S.C.
§ 1201(a) — carried with them the possibility of a death
sentence. On September 13, 2003, the Government filed a notice
of intent to seek the death penalty against Basham under 18
U.S.C. § 3593(a), the Federal Death Penalty Act.
Basham’s and Fulks’s cases were severed for trial on
January 29, 2004. 2 Basham’s trial commenced on September 13,
2004. The evidence during the guilt phase of the trial
proceedings included testimony from eighty-nine witnesses; post-
arrest statements made by Basham to the FBI, Clifford Jay, and
2
Fulks pleaded guilty and, after a penalty phase, was
sentenced to death. We affirmed his convictions and sentence on
direct appeal. United States v. Fulks, 454 F.3d 410 (4th Cir.
2006), cert. denied, 551 U.S. 1147 (2007). We also affirmed the
denial of his subsequent § 2255 motion. See United States v.
Fulks, 683 F.3d 512 (4th Cir. 2012), cert. denied, 134 S. Ct. 52
(2013).
11
McGuffin; and surveillance videos of Donovan’s abduction in the
Wal-Mart parking lot as well as ATM withdrawals made by Fulks
using Donovan’s ATM card. During trial, the defense conceded
Basham’s culpability in the carjacking and kidnapping. The
defense argued, however, that Fulks had committed Donovan’s
murder and was the instigator throughout the crime spree. To
that end, during Basham’s opening statement, defense counsel
asserted that the only “issue in controversy” was Basham’s
intent to commit serious bodily harm to Donovan at the time of
the abduction. After the thirteen-day guilt phase of the trial,
the jury convicted Basham of all eight counts in the superseding
indictment.
The penalty phase of the trial proceedings commenced on
October 12, 2004. The prosecution introduced the trial record
as its principal evidence. In addition, the prosecution
presented testimony from correctional officers and a female
nurse regarding Basham’s misconduct, drug use, and sexual
misconduct towards female employees in prison; testimony from
Donovan’s family regarding the impact of her death; and a
videotape showing a courtroom scuffle between Basham and deputy
U.S. Marshals that had occurred during the guilt phase of the
trial. In mitigation, Basham put forth evidence that his
parents encouraged his bad behavior, forced him to steal to
support their drug habits, and introduced him to drugs, and that
12
Basham was sexually abused by one of his father’s friends.
Basham also introduced mitigation evidence regarding his mental
condition and ability to adapt to prison life. On November 2,
2004, the jury returned a verdict recommending that Basham be
sentenced to death on Counts 1 and 2.
Basham’s convictions and death sentences were entered on
February 16, 2005. An aggregate sentence of 744 months in
prison was imposed on the remaining six counts.
B.
On appeal, we affirmed Basham’s convictions and sentence in
all respects. See Basham, 561 F.3d at 339. On June 1, 2011,
Basham timely filed his motion for habeas corpus relief pursuant
to 28 U.S.C. § 2255. That motion listed thirty-four claims for
relief, two of which Basham subsequently withdrew.
After conducting an evidentiary hearing over eight
nonconsecutive days in late 2012 (the “§ 2255 hearing”), the
district court denied Basham’s § 2255 motion for reasons
explained in its thorough and well-crafted Opinion of June 5,
2013. The district court granted Basham a certificate of
appealability as to Claims 1 through 7, Claims 9 through 30, and
Claim 32. The court subsequently denied Basham’s motion to
alter or amend the judgment, made under Federal Rule of Civil
Procedure 59(e), by way of its August 21, 2013 Reconsideration
Order. Basham timely noticed this appeal on October 17, 2013,
13
and we possess jurisdiction pursuant to 28 U.S.C. §§ 1291,
2253(a), and 2255(d).
II.
We review de novo a district court’s legal conclusions in
denying a 28 U.S.C. § 2255 motion. See United States v. Fulks,
683 F.3d 512, 516 (4th Cir. 2012). Factual findings adduced
from the evidence presented at a § 2255 hearing are reviewed for
clear error. Id.
III.
On appeal, Basham first pursues four claims relating to an
inculpatory statement he made to a law enforcement officer
demonstrating how Donovan had been strangled with a purse strap.
Basham asserts that he was denied his right to the effective
assistance of counsel when his lawyers permitted him to speak
with investigators outside of their presence (Claim 1 of
Basham’s § 2255 motion), and later when his lawyers failed to
challenge the admissibility of his inculpatory statement on the
ground that it resulted from an unlawful interrogation (Claim
2). Additionally, Basham contends that the prosecution
committed misconduct by presenting false testimony at trial to
the effect that Basham’s statement admitted that he was
Donovan’s killer (Claim 11), and that his lawyers were
14
ineffective by not raising the misconduct contention on direct
appeal (Claim 12).
Second, Basham mounts two challenges relating to his
competency to stand trial. That is, he maintains that he was
tried while incompetent, in violation of his due process rights
(Claim 4). Relatedly, Basham alleges that his trial lawyers
were constitutionally ineffective by not ably litigating his
competency (Claim 5).
Third, Basham asserts that his trial lawyers rendered
ineffective assistance in their handling of evidence presented
by the prosecution relating to the murder of the second victim,
Samantha Burns (Claim 15). The Burns evidence was presented
during the guilt phase of Basham’s trial, and he contends that
his lawyers were deficient by failing to challenge the
admissibility and scope of that evidence.
Fourth, Basham raises a final ineffective assistance claim,
arguing that his trial counsel’s file was not properly provided
to the lawyers handling his direct appeal (Claim 30). That
deficiency, he maintains, impeded his appellate lawyers from
identifying viable challenges on appeal.
A.
Basham’s first set of claims arises from a statement he
made to law enforcement authorities in November 2002, when he
demonstrated how Donovan had been strangled with a purse strap.
15
To provide context to those claims, we first review the relevant
background of the contested statement and how it was used by the
prosecution at Basham’s trial. We then address the merits of
the claims.
1.
Following Basham’s November 17, 2002, arrest, he made
several statements to law enforcement officers, after being
advised of his Miranda rights and on the advice of his state-
appointed counsel, essentially admitting his involvement in the
carjacking and kidnapping of Alice Donovan. Cameron Littlejohn
and William Monckton, both death penalty-qualified lawyers, were
appointed to represent Basham on November 27, 2002. The
following day — Thanksgiving Day — Basham participated in a
search for Donovan’s body in Brunswick County, North Carolina
(the “Thanksgiving search”). Littlejohn and Monckton had
determined that participating in the Thanksgiving search could
help Basham’s case by possibly finding Donovan still alive, or
by demonstrating his willingness to assist law enforcement.
Basham had no proffer agreement from the government, exposing
him to the risk that any statements he made during the search
might be used against him. Littlejohn and Monckton therefore
sought to limit Basham’s participation to directing the search
team in locating Donovan’s body. Present during the search were
FBI Agent Jeffrey Long, officers from the local Conway, South
16
Carolina police department, Brunswick County Sheriff Ronald
Hewett, several sheriff’s deputies, and approximately twenty
local volunteers.
The first several hours of the Thanksgiving search were
unsuccessful. After consulting privately with Basham,
Littlejohn advised the investigators that, “hypothetically,”
Fulks had raped Donovan, strangled her with a purse strap, and
then slit her throat. 3 Afterwards, in Littlejohn’s presence,
Basham told Sheriff Hewett that the search team should look for
a Liz Claiborne purse strap at the Bee Tree Farms cemetery. The
group then drove to that location.
At the cemetery, Basham, Sheriff Hewett, and two of
Hewett’s deputies wandered about forty-five feet away from the
rest of the group, including Basham’s lawyers. Basham and
Hewett remained within the sight of Littlejohn and Monckton, but
the lawyers could not hear Basham’s words. During that
encounter, Basham made a statement to Hewett — part oral and
part demonstrative (the “cemetery statement”). Specifically,
Basham told Hewett that he believed the strap was from a Liz
Claiborne purse and that he had thrown the strap into the woods.
Although the search team was unable to locate the strap, Basham
3
The hypotheticals shared by Littlejohn led to Littlejohn
and Monckton being disqualified, on April 9, 2003, from
continuing to represent Basham.
17
confirmed to Hewett several times that he believed they were at
the correct location, directing the team where they should
search. Basham used his hands to estimate the length of the
purse strap and to show how he (Basham) had tossed the strap
into the woods. He also demonstrated a movement depicting how
Donovan was strangled with the strap (the “strangling
demonstration”).
Leading up to trial, Basham moved to suppress all of his
post-arrest statements. The district court conducted an
evidentiary hearing from February 24 through February 26, 2004
(the “suppression hearing”), to assess whether Basham’s
statements were voluntary and admissible under Jackson v. Denno,
378 U.S. 368, 380 (1964) (“A defendant objecting to the
admission of a confession is entitled to a fair hearing in which
both the underlying factual issues and the voluntariness of his
confession are actually and reliably determined.”). By the time
of the suppression hearing, Basham was represented by lawyers
Jack Swerling and Gregory Harris. They sought to suppress all
statements Basham made during the Thanksgiving search, other
than statements providing directions to Donovan’s body and the
purse strap.
Given that the strangling demonstration was not a
directional statement, it was encompassed within the lawyers’
suppression efforts. They did not, however, focus directly on
18
that demonstration or contend that the broader cemetery
statement was the product of an illegal interrogation pursuant
to Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (“[A]n
accused, . . . having expressed his desire to deal with the
police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.”).
The lawyers, rather, focused primarily on suppressing
Littlejohn’s hypotheticals. The district court ultimately
excluded the hypotheticals, but ruled that the statements Basham
made during the Thanksgiving search — including the cemetery
statement and the strangling demonstration — were admissible.
At trial, during the guilt phase, the prosecution
introduced evidence from the Thanksgiving search through Sheriff
Hewett. On direct examination, Hewett testified to a number of
inculpatory statements Basham had made during the search in
Littlejohn’s presence. Hewett also testified regarding the
cemetery statement, mimicking Basham’s strangling demonstration
for the jury. Hewett’s testimony on direct gave no indication
as to whether it was Basham or Fulks who had strangled Donovan
with the purse strap. On cross-examination, attorney Harris
returned to the cemetery statement. Harris was aware that
Hewett’s notes from the Thanksgiving search contained no
19
indication that Basham had suggested that he — rather than Fulks
— had strangled Donovan. Seeking to draw out that point to the
jury, Harris engaged in the following colloquy with Hewett:
Q. Now, at the cemetery, and I would like you to
refer to your notes if that will help you.
A. Okay.
Q. There is nothing in your notes, nor is there
anything in Lieutenant Crocker’s notes that indicate
that Brandon Basham told you that he used the strap,
is there?
A. No, sir. He did not tell me he used the strap.
He demonstrated, though.
Q. He demonstrated?
A. Yes, sir.
Q. Your notes, nor Lieutenant Crocker’s notes say
that he did that; isn’t that true?
A. That is true because he didn’t say. He showed.
J.A. 1358-59 (emphases added). 4 Basham posits on collateral
attack that the underscored portions of the foregoing testimony
could suggest that, although Basham had not said that he used
the strap to strangle and kill Donovan, he demonstrated as much.
That is, the underscored language might be construed as Basham’s
4
Lieutenant Crocker, a law enforcement officer from North
Carolina’s Brunswick County, interviewed Sheriff Hewett
following the Thanksgiving search and prepared a report of those
events. The district court observed that Crocker’s report is
vague and written in the passive voice. It does not indicate
whether Basham stated or implied that he, rather than Fulks, had
strangled Donovan.
20
admission that he killed Donovan (the “actual killer
suggestion”).
Neither the defense nor the prosecution followed up with
Sheriff Hewett to clarify his testimony. In closing arguments
at each trial phase, the prosecution briefly referenced Hewett’s
testimony regarding the strangling demonstration. During the
guilt phase, near the end of its lengthy summation, the
prosecution recounted that Basham had demonstrated that “a Liz
Claiborne purse strap was used to kill Alice Donovan.” See J.A.
1472. The prosecutor argued that, although Basham had not said
he killed Alice Donovan, “he demonstrated it.” Id. A few
moments later, the prosecutor urged that after seeing Hewett
“demonstrate how Brandon Basham demonstrated how Alice Donovan
was strangled” — and hearing the testimony of Clifford Jay that
Basham had admitted “we killed them” — the jury should return
guilty verdicts. Id. at 1473-74. According to the prosecutor,
that evidence, “alone, seals the deal.” Id. at 1474.
Thereafter, in its penalty-phase closing, the government again
referenced the strangling demonstration in arguing that the
statutory intent element had been proved.
2.
a.
The Sixth Amendment guarantees an accused the effective
assistance of counsel, the familiar standards of which were
21
established in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a movant seeking collateral relief from his
conviction or sentence through an ineffective assistance claim
must show (1) that his counsel’s performance was deficient and
(2) that the deficiency prejudiced his defense. Id. at 687.
The deficiency prong turns on whether “counsel’s
representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.”
Strickland, 466 U.S. at 688. A reviewing court “must apply a
‘strong presumption’ that counsel’s representation was within
the ‘wide range’ of reasonable professional assistance.”
Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting
Strickland, 466 U.S. at 689). The Strickland standard is
difficult to satisfy, in that the “Sixth Amendment guarantees
reasonable competence, not perfect advocacy judged with the
benefit of hindsight.” See Yarborough v. Gentry, 540 U.S. 1, 8
(2003).
The prejudice prong of Strickland inquires into whether
counsel’s deficiency affected the judgment. See 466 U.S. at
691. The movant must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. In the context of a death sentence, “the
22
question is whether there is a reasonable probability that,
absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695. The prejudice analysis “requires
the court deciding the ineffectiveness claim to ‘consider the
totality of the evidence before the judge or jury.’” Elmore v.
Ozmint, 661 F.3d 783, 858 (4th Cir. 2011) (quoting Strickland,
466 U.S. at 695). In evaluating that evidence, “[w]e are not
bound . . . to view the facts in the light most favorable to the
prosecution.” Tice v. Johnson, 647 F.3d 87, 111 (4th Cir.
2011).
b.
By way of his § 2255 motion, Basham advances three
ineffective assistance claims relating to his cemetery statement
and the resulting testimony offered by Sheriff Hewett at trial.
With respect to the first two of those claims, Basham asserts,
first, that Littlejohn and Monckton performed deficiently during
the Thanksgiving search when they allowed Basham to speak to
Hewett outside of their presence, and, second, that Swerling and
Harris were deficient by not arguing at the suppression hearing
that Basham’s cemetery statement was the inadmissible product of
an illegal interrogation.
Importantly, those two ineffective assistance claims rely
on a shared argument as to Strickland’s prejudice prong. Had
23
his lawyers performed competently — either by remaining with him
during the Thanksgiving search and preventing him from making
the cemetery statement (Littlejohn and Monckton), or by securing
the suppression of the cemetery statement through an Edwards
argument (Swerling and Harris) — Sheriff Hewett would not have
testified to the cemetery statement at Basham’s trial. In the
absence of that testimony, Basham contends that there is a
reasonable probability that he would not have been sentenced to
death. For purposes of establishing prejudice, not all of
Basham’s oral and demonstrative cemetery statement is relevant,
as most of the statement was cumulative to other, uncontroverted
statements Basham made. The strangling demonstration is the
only noncumulative portion of the cemetery statement. Basham’s
argument as to prejudice also homes in on the actual killer
suggestion made by Hewett while testifying to the strangling
demonstration.
The district court determined that Basham failed to show
that his lawyers’ alleged deficiencies prejudiced his defense
under Strickland. 5 The court reached that conclusion through an
5
The district court did not analyze whether Littlejohn and
Monckton rendered deficient performance when they permitted
Basham to speak with Sheriff Hewett outside of their presence
during the Thanksgiving search. As to Basham’s claim relating
to Swerling and Harris, the court extensively assessed the
evidence presented during the suppression and § 2255 hearings,
and concluded that, “based on the totality of the circumstances
(Continued)
24
exceedingly thorough analysis of the issue, which we will
briefly summarize. See Opinion 23-46, 74-75. The court began
by examining Hewett’s trial evidence on cross-examination, which
the court acknowledged could be interpreted to suggest that
Basham had demonstrated how he had used the purse strap to
strangle Donovan. The court rejected Basham’s contention that
prejudice was evident simply from the prosecutor’s references to
Hewett’s testimony. Those summations, the court found,
repeatedly used passive language to indicate Basham had
demonstrated how Donovan was strangled. From there, the court
summarized the overall case against Basham, which, “viewed in
its totality, was overwhelming.” Id. at 39. Basham had not
shown, the court explained, that Hewett’s testimony regarding
the strangling demonstration or his actual killer suggestion
might have impacted the jury’s overall analysis of the
aggravating and mitigating factors. Id. at 43-46. Given that
the controverted testimony had, at most, a “less than
significant” impact only on one nonstatutory mitigating factor,
id. at 45, and in light of the overwhelming support in the
record justifying the death sentence, the court was “left with
. . . , no Edwards violation occurred. For at least this
reason, then, trial counsel’s performance was not deficient in
failing to raise the issue” at the suppression hearing. See
Opinion 74.
25
the firm conclusion that Basham has been unable to show that
‘the decision reached [by the jury] would reasonably likely have
been different absent the error[],’” id. at 46 (alterations in
original) (quoting Strickland, 466 U.S. at 696).
On appeal, Basham urges that his lawyers’ deficiencies
prejudiced his defense at the penalty phase. Our task at this
stage is to “reweigh the evidence in aggravation against the
totality of available mitigating evidence.” Wiggins v. Smith,
539 U.S. 510, 534 (2003). Basham contends that “the mitigating
evidence presented to the jury might have carried greater weight
had the jury not been told by the Government that Basham killed
Donovan with his own hands.” See Br. of Appellant 47.
The aggravating evidence against Basham was strong. The
jury unanimously found, beyond a reasonable doubt, six of the
seven nonstatutory aggravating factors alleged, including that
Basham: escaped from a detention facility; carjacked and
kidnapped Samantha Burns, resulting in her death; committed a
first-degree burglary of Carl Jordan’s residence and then
attempted to murder him; kidnapped and carjacked James Hawkins;
attempted to murder a police officer in Ashland, Kentucky; and
impacted Donovan’s families and friends. The jury did not find
unanimously the future dangerousness factor. The trial record
amply supported the six aggravators that the jury found against
Basham. Because the aggravators do not directly concern
26
Donovan’s death, moreover, omitting the actual killer suggestion
and the strangling demonstration would not have affected the
aggravating factors.
The defense submitted to the jury five statutory mitigating
factors and thirty nonstatutory mitigating factors. On the
statutory factors, at least one juror found that Basham had
impaired capacity and committed the offense while severely
disturbed, while no jurors found duress, minor participation, or
insignificant prior history. See 18 U.S.C. § 3592(a). The
nonstatutory factors included issues such as Basham’s role in
the offense, family background, substance abuse, history of
abuse, mental and emotional problems, and low intelligence. The
jury’s findings on the nonstatutory factors differed between its
special verdict forms on the kidnapping and the carjacking
charges but, in all, most of those factors were found present by
at least one juror. Relevant here, however, is that no juror
found as to either offense that Basham had proved by a
preponderance of the evidence that “Brandon Leon Basham played a
lesser role than Chadrick Evan Fulks in the kidnapping and
carjacking of Alice Donovan, and this factor is mitigating.”
See J.A. 2472, 2484. The district court determined the
foregoing to be the only factor potentially impacted by the
actual killer suggestion, and we agree. We also agree with the
court’s conclusion that, considering the totality of the
27
evidence, there is not a reasonable likelihood that the actual
killer suggestion would have altered the jury’s decision to
recommend death.
First, the government’s overarching theory in Basham’s
prosecution undermines the significance that Basham assigns to
the actual killer suggestion. The prosecution took the position
that Basham and Fulks aided and abetted each other in
kidnapping, carjacking, and killing Donovan. 6 Neither of their
convictions turned on which man killed Donovan. Rather, the
prosecution maintained that, in their crimes against Donovan,
Basham and Fulks “were acting together in unison as a team, a
death squad, if you will.” See J.A. 1404. As the prosecution
explained in its closing argument at the guilt phase of Basham’s
6
The jury charge during the trial’s guilt phase included an
instruction on aiding and abetting, reflecting the prosecution’s
theory. The district court charged the jury:
The guilt of a defendant in a criminal case may be
proved without evidence that he personally did every
act involved in the commission of the crime charged.
The law recognizes that ordinarily, anything a person
can do for himself may also be accomplished by acting
together with or under the direction of another person
in a joint effort. Simply put, to aid and abet means
to assist the perpetrator of the crime. So, if the
defendant aids and abets another person by willfully
joining together with that person in the commission of
a crime, then the law holds the defendant responsible
for the conduct of that other person just as though
the defendant had engaged in such conduct himself.
United States v. Basham, No. 4:02-cr-00992 (D.S.C. Mar. 27,
2006), ECF No. 951, at 214.
28
trial, “[t]he government does not have to prove, and more
importantly, you jurors do not have to find who, specifically,
killed Alice Donovan in order to convict Brandon Basham.” Id.
That was because, “but for the actions of Brandon Basham, Alice
Donovan would be alive today. But for the actions of Chad
Fulks, Alice Donovan would be alive today. The two of them are
responsible for the death of Alice Donovan.” Id. at 1405. The
prosecution made no distinction between the hands of Basham and
Fulks — if one had strangled her, so had the other. Thus, the
prosecutor argued in Basham’s penalty-phase summation: “Now,
does that mean Brandon Basham’s strangling of Alice Donovan is
the only hand that caused Alice Donovan’s death? The government
doesn’t submit that. The government submits, and submitted all
along, that Chad Fulks is just as responsible.” Id. at 2312.
That sentiment was repeated on rebuttal, when the prosecutor
declared that Donovan had died “at the hands of these two men.”
Id. at 2433.
Second, the record clearly establishes that Basham actively
participated with Fulks in committing the crimes against
Donovan, and in ultimately ending her life. Basham does not
suggest otherwise. Nor could he credibly make such an argument.
Basham’s strangling demonstration was but one piece of the
“overwhelming case” establishing Basham’s involvement in
Donovan’s murder. See Basham, 561 F.3d at 328. Removing
29
Sheriff Hewett’s contested testimony, the jury presentation
included the following evidence:
• Videotape footage of Basham carjacking Donovan in a
Wal-Mart parking lot;
• A map drawn by Basham during a November 20, 2002
interview with law enforcement, where he indicated
the location of Donovan’s body;
• Basham’s statement to investigators on November 25,
2002, that Donovan’s body should be at a cemetery,
which “is where [he and Fulks] did their thing,” see
J.A. 1280;
• Basham’s participation in the Thanksgiving search on
November 28, 2002, which indicated that he knew of
the crimes committed against Donovan and the
location of her body;
• Basham’s directions to the search team during the
Thanksgiving search, made with Littlejohn’s express
consent: “You need to be looking for a strap. It
is about this long. . . . It has Liz Claiborne on
the strap. . . . Back at the cemetery[,] you need
to go back to the cemetery and look for that strap,”
see id. at 1332-33;
• Basham’s statements during the Thanksgiving search,
made in Littlejohn’s presence, that after dragging
Donovan’s body out of the car, he and Fulks “pulled
her into the woods” and “covered the body with
leaves and what he described as limbs,” see id. at
1337;
• Basham’s statement during the Thanksgiving search
when, while riding in the van with Littlejohn,
Basham saw a doe jump onto the road and remarked,
“You know, I never could kill a deer and here I have
. . . ,” see id. at 1329;
• Basham’s admission to Clifford Jay on December 24,
2002, “Yes sir. We killed them,” see id. at 1388;
and
30
• Donovan’s knife being found in Basham’s possession
when he was arrested.
The totality of the evidence leaves no doubt that Basham —
at the very least — aided and abetted the crimes committed
against Donovan. Moreover, as the district court aptly noted,
elimination of the [strangling demonstration] would
not have led the jury to the conclusion that Fulks was
the one who strangled Donovan. Instead, the jury
would have been left with an absence of testimony on
the question of who did the strangling and a complete
record of Basham and Fulks’s seventeen-day cascade of
misdeeds, which included two rapes and murders and at
least five other attempted or potential murders.
See Opinion 44. The jury thus could have concluded that Basham
had actually strangled Donovan, even without Hewett’s actual
killer suggestion. Or, the jury could have decided that Fulks
was the strangler, in which case Basham would still be deemed
the killer, given the prosecution’s aiding-and-abetting theory.
Or, the jury could have chosen the path suggested by the
government and simply found that Basham and Fulks, together,
killed Donovan. The end result would be the same: Basham and
Fulks were equally culpable for all of their acts, meaning
Basham was responsible for killing Donovan.
Basham urges that “an overly mechanical analysis” of
prejudice is flawed, in that a reviewing court cannot “account
for the intangible factors at play in each juror’s evaluation of
whether Basham was deserving of death.” See Br. of Appellant
46. Nonetheless, to succeed on his ineffective assistance
31
claims, Basham is not entitled to satisfy the prejudice
requirement through “rank speculation, defying calculation of a
reasonable probability.” See United States v. Fulks, 683 F.3d
512, 522 (4th Cir. 2012). The Supreme Court observed in
Strickland that errors might impact the underlying facts and
inferences to sharply different degrees, and “a verdict or
conclusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record
support.” See 466 U.S. at 695-96. Here, assuming Hewett’s
actual killer suggestion and strangling demonstration were
erroneously admitted, the totality of the evidence remains
unaffected.
Subtracting the strangling demonstration and Hewett’s
actual killer suggestion from the sum of evidence received by
the jury, we are convinced that Basham has not established
prejudice by a reasonable probability, “sufficient to undermine
confidence in the outcome” of his proceedings. See Strickland,
466 U.S. at 694. We thus agree with the district court that
Basham’s ineffective assistance claims must fail, in that he
cannot satisfy Strickland’s prejudice requirement. 7
7
Having concluded that Basham cannot satisfy Strickland’s
prejudice prong on his ineffective assistance claims, we need
not assess whether he can meet the deficiency prong on either
claim. See Bell v. Cone, 535 U.S. 685, 695 (2002) (“Without
proof of both deficient performance and prejudice to the defense
(Continued)
32
3.
Basham advances two additional claims arising from the
cemetery statement, and more specifically from Sheriff Hewett’s
actual killer suggestion. Basham contends, first, that his
convictions must be reversed because the prosecution committed
misconduct when it used that testimony knowing it was false,
and, second, that his lawyers were ineffective in failing to
raise the misconduct issue on direct appeal.
a.
In prosecuting a criminal trial, the Due Process Clause
obliges the government “not [to] knowingly use false evidence,
including false testimony, to obtain a tainted conviction.”
Napue v. Illinois, 360 U.S. 264, 269 (1959). Due process is
violated “regardless of whether the prosecution solicited
testimony it knew to be false or simply allowed such testimony
to pass uncorrected.” Boyd v. French, 147 F.3d 319, 329 (4th
Cir. 1998) (citing Giglio v. United States, 405 U.S. 150, 153
(1972)). Testimony by a law enforcement officer that is
knowingly false or misleading “is imputed to the prosecution.”
. . . , it could not be said that the sentence or conviction
‘resulted from a breakdown in the adversary process that
rendered the result of the proceeding unreliable,’ and the
sentence or conviction should stand.” (quoting Strickland, 466
U.S. at 687)).
33
Id. On collateral attack, a movant alleging this sort of
misconduct must demonstrate three elements: (1) that the
testimony at issue was false; (2) that the prosecution knew or
should have known of the falsity; and (3) that a reasonable
probability exists that the false testimony may have affected
the verdict. See United States v. Roane, 378 F.3d 382, 400 (4th
Cir. 2004); United States v. Kelly, 35 F.3d 929, 933 (4th Cir.
1994). If the movant shows each of those elements, relief must
be awarded. See United States v. Bagley, 473 U.S. 667, 679-80
(1985).
Basham’s prosecutorial misconduct claim relates to Sheriff
Hewett’s actual killer suggestion and the related portions of
the government’s closing arguments. Basham points to three
instances in the record that, he contends, establish the
prosecution knew or should have known that the testimony was
false. First, FBI Agent Long prepared a report on December 4,
2002, summarizing the Thanksgiving search. In that report, Long
recounted that Basham had informed investigators that “[a]fter
FULKS raped [Donovan], FULKS used a purse strap, which was
approximately 18 inches long, and strangled Donovan.” See J.A.
2698. Second, on April 22, 2003, Long appeared before a grand
jury to obtain the superseding indictment. Consistent with his
report, Long testified that Basham had told law enforcement
officers during the Thanksgiving search that Fulks had “actually
34
killed” Donovan. Id. at 403. Third, while arguing an
evidentiary issue in Fulks’s trial, and outside the presence of
the jury, Assistant United States Attorney Johnny Gasser stated,
“Brandon Basham said that Chad Fulks took the purse strap and
strangled [Donovan].” Id. at 1004.
The district court rejected Basham’s misconduct claim.
Initially, the court determined that the claim failed because it
had been procedurally defaulted. Alternatively, the court
rejected the claim on its merits. First, the court observed
that AUSA Gasser made his statement in the context of an
evidentiary argument during Fulks’s trial, outside the presence
of the jury. Fulks had sought to introduce Basham’s inculpatory
statement, “‘You know I have never even killed a deer and here I
have . . . .’” See Opinion 26, 49 (quoting J.A. 1329). Citing
the rule of completeness set forth in Federal Rule of Evidence
106, Gasser argued that Basham’s deer statement should not be
admitted in isolation, considering that “Basham had on numerous
occasions indicated that Fulks was the killer.” Id. at 49. The
court concluded that “Gasser’s reliance on the rule of
completeness during debate over an evidentiary issue does not,
by any means, require a finding that at the Fulks trial the
government adopted Basham’s self-serving statement that Fulks
was the killer.” Id. As to Agent Long, the court noted that
his report — which was consistent with his grand jury testimony
35
— “was not introduced as an exhibit at Basham’s trial and merely
memorialized Basham’s self-serving statement during the
investigation.” Id. at 50. Long’s statements, the court
determined, in no way “reveal an inconsistent position or false
testimony employed by the government.” Id. The court thus
found that the prosecution had not presented false testimony and
denied Basham’s claim.
The district court returned to this claim in denying
Basham’s motion to amend or alter judgment. With respect to
AUSA Gasser’s argument during Fulks’s trial, the court found
that the prosecution “did not vouch for the accuracy of Basham’s
statement,” and that “the government did not advance an argument
to the court or to the jury that Basham was the one who used the
strap to strangle Donovan.” See Reconsideration Order 3.
Similarly, although the prosecution presented Long’s testimony
to the grand jury, the court found that “the government did not
in any way adopt” Long’s statement that Fulks strangled Donovan
“as its theory of the case regarding who actually strangled
Donovan.” Id. Further, the court observed that Basham “offered
no evidence that Sheriff Hewett’s testimony was perjured,”
compelling the court’s determination that Basham had not
demonstrated that Hewett gave false testimony. Id. at 3-4.
Having found that Basham had “failed to satisfy the threshold
requirement to show that the testimony of which he complains was
36
false,” the court determined that “no further analysis is
required.” Id. at 4.
On appeal, Basham maintains that he has satisfied his
burden of establishing his prosecutorial misconduct claim
because, “prior to Hewett’s testimony at Basham’s trial, the
Government’s understanding from all sources was that Basham told
Hewett that Fulks wielded the strap.” See Br. of Appellant 70.
Therefore, according to Basham, the prosecution engaged in
misconduct “when it not only failed to investigate and correct
Hewett’s [actual killer suggestion], but seized upon that
testimony [in closing arguments] to bolster its case in both
guilt and penalty phases.” Id. at 72.
To succeed on his prosecutorial misconduct claim, Basham
must show that the district court’s finding that no false
testimony was presented is clearly erroneous. See Rosencrantz
v. Lafler, 568 F.3d 577, 586 (6th Cir. 2009) (applying clear
error review to district court’s finding that government
knowingly used false testimony); Pyles v. Johnson, 136 F.3d 986,
996-98 (5th Cir. 1998) (same); United States v. Boyd, 55 F.3d
239, 242 (7th Cir. 1995) (same). Our task, therefore, is to
assess whether “the entire evidence” creates “the definite and
firm conviction that a mistake [was] committed.” Easley v.
Cromartie, 532 U.S. 234, 243 (2001) (internal quotation marks
omitted). Thus, “[i]f the district court’s account of the
37
evidence is plausible in light of the record,” we may not
reverse that finding even if we “would have weighed the evidence
differently.” Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 573-74 (1985).
Basham does not suggest that Hewett committed perjury, and
he therefore must demonstrate that the record compels the
conclusion that Hewett’s actual killer suggestion “create[d] a
false impression of facts which are known not to be true.”
United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013)
(internal quotation marks omitted). Implicitly, Basham argues —
as he must — that it was Fulks who strangled Donovan. But while
Basham relies on isolated snippets of the record to establish
that point, a fuller reading clarifies the uncertainty regarding
the identity of Donovan’s killer. For example, a complete
reading of Long’s report shows that his statement that “FULKS
. . . strangled Donovan” derived from Littlejohn’s hypothetical
statements, which the government successfully moved to suppress.
See J.A. 2698. In the grand jury proceedings, Long testified
not only that Basham had blamed Fulks for actually killing
Donovan, but that Fulks had blamed Basham. Id. at 403, 408.
Similarly, AUSA Gasser’s statements during the evidentiary
dispute in Fulks’s trial were not made for the truth of the
matter. Gasser was simply arguing that Basham made both
inculpatory and exculpatory statements during the Thanksgiving
38
search, and Fulks should not be permitted to admit only the
favorable statements into evidence.
Basham suggests that Hewett’s actual killer suggestion was
false because at Fulks’s trial, the prosecution took the
position that Fulks — not Basham — had strangled Donovan. In
addressing Fulks’s § 2255 motion, we considered a similar
argument. See Fulks, 683 F.3d at 523-25. Fulks contended that
the prosecutors had violated his due process rights by pursuing
mutually inconsistent theories against Basham and Fulks, and
referenced many of the same statements that Basham now
highlights. We rejected Fulks’s claim because, “[v]iewed in the
context of the entirety of both proceedings, the government’s
core theory was that Fulks and Basham were equally culpable in
Donovan’s murder and similarly deserving of the death penalty,
regardless of which one physically ended her life.” Id. at 524.
Our reasoning in Fulks applies to Basham’s claim here. The
government’s consistent position has remained that Basham and
Fulks shared responsibility for Donovan’s death.
In all, Basham has not shown that the district court
clearly erred in finding that the prosecution did not present
false testimony at his trial. That finding is plausible based
on the entire record, and therefore must be affirmed. As the
Supreme Court has recognized, “[t]he trial judge’s major role is
the determination of fact, and with experience in fulfilling
39
that role comes expertise.” Anderson, 470 U.S. at 574. As
such, Basham cannot satisfy the first element of his
prosecutorial misconduct claim, and we affirm the court’s
ruling. 8
b.
Basham presents a separate ineffective assistance claim
that is based on his lawyers’ failure to raise the misconduct
claim on direct appeal. The district court denied that claim in
conjunction with its determination that Basham had not shown
sufficient cause to excuse his procedural default. We affirm
the court’s ruling on this ineffective assistance claim, in that
the underlying misconduct claim is plainly without merit. See
Cooks v. Ward, 165 F.3d 1283, 1296-97 (10th Cir. 1998)
(concluding that appellate counsel “cannot be said to have been
ineffective for failing to raise [claim] on direct appeal” where
claim determined on collateral attack to lack merit); see also
United States v. McHan, 386 F.3d 620, 623 (4th Cir. 2004)
(observing that “we are, of course, entitled to affirm on any
ground appearing in the record, including theories not relied
8
Because we agree with the district court’s ruling that
Basham cannot satisfy the first element of his prosecutorial
misconduct claim, we need not decide whether Basham might
establish the remaining elements of that claim, or address the
court’s alternative determination that the prosecutorial
misconduct claim was procedurally defaulted.
40
upon or rejected by the district court” (alterations and
internal quotation marks omitted)).
B.
Basham also maintains that he was tried and convicted while
being legally incompetent, and that his lawyers were
constitutionally ineffective by failing to raise the competency
issue to the district court during trial. His arguments focus
on two specific days — September 20 and October 26, 2004.
1.
The Due Process Clause of the Fifth Amendment prohibits the
federal government from trying and convicting a mentally
incompetent defendant. See Pate v. Robinson, 383 U.S. 375, 384-
86 (1966). The test for determining competency in a federal
court is whether the defendant “has sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding — and whether he has a rational as well as a
factual understanding of the proceedings against him.” Dusky v.
United States, 362 U.S. 402, 402 (1960) (per curiam). A movant
can pursue either substantive or procedural competency-related
claims on collateral attack. In a substantive competency claim,
the movant asserts that he was, in fact, tried and convicted
while mentally incompetent. In a procedural claim, on the other
hand, the movant contends that the trial court failed to
properly ensure that the accused was competent to stand trial,
41
as required by 18 U.S.C. § 4241. See Beck v. Angelone, 261 F.3d
377, 387-88 (4th Cir. 2001). In pursuing a substantive
competency claim, such as Basham raises in his § 2255 motion,
the movant is presumed to have been competent during his trial.
See Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000). In
that situation, the movant bears the burden of proving, by a
preponderance of the evidence, that he was incompetent. See
United States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005). 9
In its Opinion, the district court found that Basham was
legally competent throughout his trial, including during the
specific challenged incidents on September 20 and October 26,
2004. As explained below, the court’s findings are not clearly
erroneous, and its denial of Basham’s competency-based claims
must be affirmed. 10
9
In contrast to a substantive competency claim, the movant
pursuing a procedural claim is presumed to have been incompetent
during the trial proceedings, and the government bears the
burden of showing competency. See Beck, 261 F.3d at 387-88.
10
In the § 2255 proceedings in the district court, the
government maintained that Basham’s substantive competency claim
was procedurally barred because it was not raised on direct
appeal. The court disagreed, determining that substantive
competency claims are not subject to procedural default. See
Opinion 92. The courts of appeal are divided on that issue.
Compare Hodges v. Colson, 727 F.3d 517, 540 (6th Cir. 2013)
(holding that substantive competency claims are subject to
procedural default rules), and LaFlamme v. Hubbard, 225 F.3d 663
(9th Cir. 2000) (unpublished per curiam decision) (same), with
Sena v. N.M. State Prison, 109 F.3d 652, 654 (10th Cir. 1997)
(concluding that substantive competency claims are exempt from
(Continued)
42
a.
Basham first maintains that he was incompetent during an
incident that occurred on Monday, September 20, 2004, while the
trial was in its guilt phase. Following the lunch break that
afternoon, before the jury returned to the courtroom, the
district court informed Basham that he could not use tobacco,
referred to here as “dip,” during the trial proceedings because
the court was informed that Basham had previously thrown bodily
fluids at deputy U.S. Marshals. Basham then requested to return
downstairs to his holding cell, saying “I don’t feel good.” See
J.A. 1159. Of note, Basham had made previous requests not to
attend trial, which the court had declined. The court similarly
denied Basham’s request of September 20, ruled that the trial
would proceed, and instructed Basham to sit down. Basham
refused to take his seat, however, and became agitated. Soon,
“a tussle ensued in the courtroom between [Basham] and the
Marshals,” which lasted approximately eight minutes. Id. at
procedural default rules), Medina v. Singletary, 59 F.3d 1095,
1107 (11th Cir. 1995) (same), and Zapata v. Estelle, 588 F.2d
1017, 1021 (5th Cir. 1979) (same). We weighed in on this issue
in Smith v. Moore, 137 F.3d 808, 819 (4th Cir. 1998), concluding
that “a claim of incompetency to stand trial asserted for the
first time in a federal habeas petition is subject to procedural
default.” Thus, the district court erred by failing to apply
the procedural default rule to Basham’s substantive competency
claim. We will nevertheless presume that Basham has not
defaulted that claim.
43
1161. Six deputies sought to subdue Basham, but eight were
ultimately required. Basham and the deputies maintained a
dialogue during the tussle, with Basham cursing the officers,
suggesting that one of them had lied in telling the court that
he had thrown bodily fluids. Basham then told the court, prior
to being escorted from the courtroom, “Judge, if I was going to
spit, as mad as I am now, I would be spitting now. They just
made that up.” Id. at 1164.
Basham was then removed to his holding cell, and his
lawyers requested a delay in the trial proceedings so that a
psychiatrist could assess his competency. The district court
granted that request, and Basham was evaluated that afternoon by
forensic psychiatrist Donna Schwartz-Watts. Later that day, Dr.
Watts testified that “[i]t is my opinion right now that because
of his mental defect that [Basham] can’t assist his attorneys.”
J.A. 1173. Dr. Watts stated that Basham’s “mental state
fluctuates,” and opined that his competency would similarly
fluctuate. Id. The court then adjourned the trial for the
balance of that day.
Basham asserts in his § 2255 motion that he was not
competent to stand trial during his scuffle with the deputy
Marshals. Although the events of September 20, 2004, occurred
outside the jury’s presence, the video and audio of the tussle
44
were admitted into evidence during the trial’s penalty phase on
behalf of the prosecution to show future dangerousness.
The district court denied Basham’s competency claim as to
September 20, 2004, finding that he had not satisfied his
burden, by a preponderance of the evidence, of showing that he
was incompetent during the courtroom scuffle. In so ruling, the
court recognized that certain evidence supported Basham’s
argument that he had been incompetent. For example, immediately
following the scuffle, defense attorney Harris questioned
Basham’s competence and observed that he “[l]ooked like someone
who didn’t have the ability to control the simple function of
sitting down in a seat.” See J.A. 1168. Similarly, Dr. Watts
opined that, based on her examination of Basham following the
scuffle, he was not competent. See id. at 1173.
On the other hand, the district court deemed Dr. Watts’s
testimony unclear “as to whether she believed Basham was
incompetent at the time of the altercation or whether she
believed that he got worked up from the altercation and was
incompetent as a result.” See Opinion 93 n.37. The prosecutors
also offered evidence that Basham had advised a deputy shortly
before the incident that he would be “‘coming back down’” to his
holding cell from the courtroom, possibly indicating “that
Basham may have planned to act out in court.” Id. at 95
(quoting J.A. 1177). Additionally, the court related that
45
Basham made statements during the scuffle, prior to being taken
from the courtroom, showing that he “apparently had the presence
of mind to make a last-ditch argument as to why he should have
been allowed [dip], even as he was being escorted out of the
courtroom.” Id. Assessing all of the evidence, the court found
that Basham was not incompetent during the September 20 scuffle,
and thus his “constitutional rights were not violated when the
government later showed both videotape and audiotape of the
altercation to the jury.” Id.
Basham maintains on appeal that the district court’s ruling
was clearly erroneous because the court misconstrued Basham’s
statements prior to and during the September 20 scuffle, and
because the court should have accorded greater weight to the
opinions of Dr. Watts and lawyer Harris. We disagree, as the
record amply supports the court’s findings. See Anderson, 470
U.S. at 574 (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly
erroneous.”). Basham’s statement prior to the scuffle that he
would soon be returning to his holding cell supports a finding
that he intended to act up in the courtroom, in that the court
had previously denied Basham’s requests not to attend his trial.
In light of that history, it is reasonable to infer that Basham
would have known that he would not be permitted to return to his
holding cell absent exigent circumstances. Basham’s statements
46
to the court during the scuffle also support the court’s
competency finding, because they show that Basham’s thinking was
goal-oriented and motivated. His behavior might have been
bizarre, volatile, or irrational, but that does not necessarily
render a defendant incompetent. See Robinson, 404 F.3d at 858;
Burket, 208 F.3d at 192; see also United States v. Lebron, 76
F.3d 29, 32 (1st Cir. 1996) (“[I]rrational and outrageous
behavior in the courtroom . . . may be uncontrolled,
manipulative, or even theatrical. It is not determinative of
competency.”).
Moreover, the evidence upon which Basham relies does not
mandate a finding that he was incompetent during the September
20 scuffle. For example, Dr. Watts’s testimony that Basham was
incompetent when she examined him after the scuffle did not have
to be accepted — even if unimpeached. See Maggio v. Fulford,
462 U.S. 111, 117-18 (1983). Indeed, Watts’s opinion was
limited to Basham’s competency when she met with him following
the scuffle. Although Basham suggests that it “defies reason”
that he might have been competent during the scuffle and then
incompetent a short while later, see Reply Br. 8, Watts
testified that Basham’s mental state and competence
“fluctuate[d],” see J.A. 1173. Similarly, Harris’s testimony
does not mandate a finding that Basham was incompetent. Indeed,
Swerling testified to the contrary at the § 2255 hearing,
47
stating that Basham was not incompetent during the scuffle. See
id. at 4288-89.
In sum, the district court did not clearly err in finding
that Basham was competent during the September 20 scuffle. As a
result, Basham’s rights were not violated when the video and
audio recordings of the scuffle were shown to the jury during
the penalty phase.
b.
Next, Basham asserts that he was also incompetent on
Tuesday, October 26, 2004, during the trial’s penalty phase.
That morning, before the jury was brought into the courtroom,
Harris informed the district court that Basham “is in a very
agitated state this morning,” because he had not received one of
his medications due to an error at the detention center where he
was housed overnight. See J.A. 1919. The court then granted
Basham’s request to delay the trial until the afternoon, so that
he could receive the missed dose of medication and allow for the
medication to take effect. When the court reconvened that
afternoon, however, Harris expressed concern that Basham “is not
going to be able to sit in the courtroom and pay attention to
the testimony, remain silent. And I am concerned that . . .
this jury will not look favorably upon the way he is appearing
to me to be acting this afternoon.” Id. at 1927. The
prosecution took the position that the trial should proceed,
48
arguing that the defense lawyers had not contacted Dr. Watts to
evaluate Basham that morning, and contending that, “if it is a
medical problem,” she “should be here to testify about it.” Id.
at 1928. The following exchange then occurred:
THE COURT: Mr. Harris, I have tried to bend over
backwards to do everything possible to keep [Basham]
on an even keel and a good frame of mind, and
especially so that he won’t show out in front of the
jury. But the jury is really worn out. They have
sent signals indirectly to me. They really want to
see this case move along. I think there is a danger
to be balanced against what you say. These continued
delays are going to be held against [Basham], I think.
I think the jury will figure out that it is [Basham]
that is causing these delays. So, I think I have got
to weigh in the balance of that aspect of it, versus
the danger of going forward with him appearing to be a
little bit disheveled over there.
MR. HARRIS: Judge, I agree with all of those
things. Those are dangers that we had weighed. And I
will point out that as I am addressing the court right
now, the record should reflect that my client is
discussing over my shoulder, loud enough that I can
hear, and certainly loud enough for the jury could
[sic] hear, having discussions with Mr. Swerling about
the fact that he will be good.
Id. at 1928-29. Despite Harris’s concerns, the trial
proceedings went forward that day. Later that afternoon,
Basham’s counsel stated to the court that Basham was “slurring
his words” and appeared to be “groggy and just out of it.” Id.
at 1936-37.
In his § 2255 motion, Basham claims that he was incompetent
during the trial proceedings on the afternoon of October 26,
2004. The district court rejected that contention, finding a
49
lack of evidence supporting Basham’s assertion that he was
incompetent. The court pointed out that Basham’s lawyers had
expressed concern about Basham’s appearance, but offered no
evidence going to competency. The record showed that Basham
appeared disheveled and sleepy, but those behaviors were
consistent with his conduct throughout the trial. See Opinion
96. The court further observed: “If there had been any
indication that he was incompetent, the court would have sought
the testimony of a doctor on Basham’s competency, as this court
did on other occasions.” Id.
We are satisfied that the district court’s finding that
Basham was competent during the proceedings on the afternoon of
October 26 is not clearly erroneous. In arguing that the record
compels a finding that he was incompetent, Basham relies on
evidence that he was groggy and slurring his words. Those
factors, however, do not necessarily render a defendant
incompetent to stand trial. See Woods v. McBride, 430 F.3d 813,
819 (7th Cir. 2005) (“[T]here is a big difference between the
sort of temporary incompetence stemming from [medication]-
induced drowsiness during voir dire and the sort that would
render [the accused] incapable of standing trial altogether.”).
The finding that Basham was competent is further supported by
the court’s observations of Basham — both that day and
throughout the trial. The record demonstrates that the court
50
was sensitive to Basham’s mental state throughout the trial
proceedings, and made sustained efforts to ensure that his fair
trial rights were protected. For example, during the morning of
October 26, 2004, the court commented on the importance of
ensuring that Basham receive his prescribed medication so that
he could participate in his defense, anticipating that “if the
defendant receives the death penalty, . . . there will be a 2255
action” challenging his competency. See J.A. 7537. Given the
court’s commendable motivation to ensure Basham’s competency,
its decision to proceed with trial on the afternoon of October
26 supports a finding that Basham was competent. See United
States v. Moussaoui, 591 F.3d 263, 294 (4th Cir. 2010) (noting
that trial court’s interactions and experience with defendant
over several years of proceedings was “compelling” factor
supporting conclusion that defendant was competent). The
court’s finding that Basham was competent during the afternoon
of October 26 is thus well supported by the record. The court’s
denial of Basham’s substantive competency claim must therefore
be affirmed.
2.
Basham also argues that his defense lawyers were
constitutionally ineffective with respect to his September 20
and October 26, 2004 instances of alleged incompetency. More
specifically, with respect to the September 20 scuffle, Basham
51
contends that his lawyers acted deficiently — not on that day —
but when they failed to object on competency grounds to the
admission of the video and audio footage during the penalty
phase. As to the events of October 26, Basham maintains that
his lawyers were constitutionally ineffective by failing to
contact Dr. Watts and request that she examine Basham’s
competency before the trial proceedings could be resumed.
The foregoing contentions against the defense attorneys
lack merit because Basham cannot satisfy Strickland’s prejudice
requirement, which requires that he show “counsel’s errors were
so serious as to deprive [him] of a fair trial, a trial whose
result is reliable.” Strickland, 466 U.S. at 687. Put simply,
Basham was competent during the September 20 and October 24
incidents, foreclosing any suggestion that his trial was
rendered unfair by his lawyers’ decisions during those
incidents. See Walton v. Angelone, 321 F.3d 442, 462 (4th Cir.
2003) (ruling that, under Strickland, accused was not prejudiced
by counsel’s failure to raise competency issue where record
showed defendant had been competent); Beck v. Angelone, 261 F.3d
377, 393 (4th Cir. 2001) (same).
C.
Basham next claims that his defense lawyers were
constitutionally ineffective with regard to the evidence
presented during the trial’s guilt phase about the crimes
52
committed against Samantha Burns (the “Burns evidence”). 11 The
prosecution notified the defense during a pretrial hearing held
on August 4, 2004, of its intention to use the Burns evidence
during the guilt phase. The prosecution’s position was that the
Burns evidence was intrinsic to the crimes on trial, in that
Basham’s and Fulks’s crime spree constituted a single criminal
episode. Basham’s lawyers — Swerling and Harris — raised no
objections to the admissibility of the Burns evidence during the
pretrial hearings, though Swerling preserved the right to later
object.
The Basham defense, however, did not file a motion in
limine with respect to the Burns evidence as it was presented
during the guilt phase. Swerling and Harris also declined the
district court’s offer to give the jury a cautionary instruction
under Federal Rule of Evidence 404(b) with respect to that
testimony. At the charge conference in the guilt phase, the
court again inquired whether the jury should receive an
instruction limiting the purposes for which evidence of other
acts — such as the Burns evidence — could be considered.
11
Basham pleaded guilty in 2005 in the Southern District of
West Virginia to the offense of carjacking resulting in the
death of Samantha Burns, and aiding or abetting that offense,
and was sentenced to life imprisonment. See United States v.
Basham, No. 3:03-00138-02 (S.D. W. Va. July 25, 2005), ECF Nos.
105, 109.
53
Swerling objected to such an instruction, and alternatively
requested that the court’s proposed instruction be modified to
permit the jury to consider the evidence of other acts to either
prove “or disprove” pertinent facts. See S.A. 24. 12 The court
overruled that objection, but incorporated the modification
proposed by Swerling. The Burns evidence was not presented to
the jury during the sentencing phase.
On direct appeal, Basham argued that the prosecution had
impermissibly used the Burns evidence in its closing argument in
the guilt phase to show propensity, contravening Rule 404(b).
We found no plain error, concluding that the government had
“tied [the Burns] evidence entirely to a discussion of Basham’s
intent,” and therefore did not run afoul of Rule 404(b). See
Basham, 561 F.3d at 329-30.
Basham took a different tack on the Burns evidence in his
§ 2255 motion, maintaining that Swerling and Harris were
constitutionally ineffective by not attempting to limit the
scope and extent thereof. The district court rejected that
claim. First, the court recognized that the record is “unclear
as to whether [the Burns evidence] was admitted as being
intrinsic to the crimes charged, or was admitted for one of the
12
Our citation to “S.A. __” refers to the contents of the
Supplemental Appendix filed by the government in this appeal.
54
not-for-character purposes allowed under Rule 404(b).” See
Opinion 123 n.52. The court then relied on our decision
rejecting Basham’s direct appeal as foreclosing any challenge
that the Burns evidence was admissible to show intent. Id. at
124. Additionally, given that “Basham’s primary, if not sole,
defense in this case was that at the time he and Fulks kidnapped
Alive Donovan, he (Basham) did not have the requisite intent,”
the Burns evidence “was relevant to show intent.” Id. The
court deemed the Burns evidence as probative to showing that
Burns had not voluntarily disappeared. Nonetheless, the court
found that one piece of the Burns evidence constituted
impermissible victim impact testimony. Id. at 128-29.
Specifically, Burns’s mother testified that Burns would never be
able to move into the family’s new home. The court then
reasoned, however, that any error with respect to that statement
was harmless beyond a reasonable doubt. Id. at 129.
In response to Basham’s motion to alter or amend judgment,
the district court clarified that Basham’s claim with respect to
the Burns evidence failed on both prongs of Strickland. First,
the court determined that Basham’s lawyers did not perform
deficiently because their decisions on how to handle the Burns
evidence were strategic. Predicated on the testimony of
Swerling and Harris at the § 2255 hearing, the court found that
they had both “concluded that the jury would probably find
55
Basham guilty, thereby necessitating a penalty phase.” See
Reconsideration Order 6. Counsel therefore adopted “the
recognized practice” of front-loading the emotionally charged
Burns evidence into the guilt phase, so that it would not be
“fresh in the minds of the jury as they deliberated on Basham’s
sentence.” Id. at 6-7. Second, the court reasoned that the
deficiencies alleged did not prejudice Basham because the Burns
evidence would have been admitted even if his lawyers had
mounted the challenges he now maintains were required. Id. at
5-6. To that end, the court noted that “any objection to the
admissibility of [the Burns evidence] would have been
overruled.” Id. at 6.
We agree that Basham’s claim fails Strickland scrutiny
because he has not shown that his defense lawyers performed
deficiently. Basham urges that competent counsel would have
pursued a number of avenues to exclude or limit the Burns
evidence, such as arguing that the evidence was not intrinsic,
was unfairly prejudicial, or was needlessly cumulative. To
succeed on this ineffective assistance claim, of course, Basham
“must overcome the presumption that, under the circumstances,”
his lawyers’ handling of the Burns evidence “‘might be
considered sound trial strategy.’” See Strickland, 466 U.S. at
689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
56
Swerling and Harris each testified during the § 2255
hearing that, as they prepared for trial, they believed Basham
would be convicted of the charged offenses. Their overarching
goal was to save Basham’s life and avoid a death sentence. In
line with that goal, as Swerling explained, the defense chose to
front-load certain evidence into the trial’s guilt phase. The
lawyers purposely “let a lot of evidence come in in the guilt or
innocence phase” in order to “desensitize” the jury “to what we
knew was going to be coming in the penalty phase of the trial.”
See J.A. 4410; see also Humphries v. Ozmint, 397 F.3d 206, 234
(4th Cir. 2005) (“[I]t is well established that failure to
object to inadmissible or objectionable material for tactical
reasons can constitute objectively reasonable trial strategy
under Strickland.”).
To rebut Swerling’s testimony about trial strategy, Basham
points out that Swerling made no mention of a front-loading
strategy at the § 2255 hearing until he returned from a lunch
break. Even then, Basham notes, Swerling testified that he
“probably” employed that strategy. See Br. of Appellant 59
(quoting J.A. 4340). The district court credited Swerling’s
explanation, however, and the credibility determination warrants
our deference. See United States v. Abu Ali, 528 F.3d 210, 232
(4th Cir. 2008) (“We particularly defer to a district court’s
credibility determinations, for it is the role of the district
57
court to observe witnesses and weigh their credibility.”
(internal quotation marks omitted)).
Basham’s position that his lawyers acted unreasonably by
not challenging the Burns evidence under Rule 403 overlooks the
probative value of that testimony. See Fed. R. Evid. 403 (“The
court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”). Basham characterizes the probative
value of the Burns evidence as “marginal,” see Br. of Appellant
63, an assertion that is entirely inaccurate. During the guilt
phase, Basham conceded his culpability to the offenses charged,
except for the carjacking offense. On that charge, Basham
disputed whether he had possessed the requisite “intent to cause
death or serious bodily harm” when he and Fulks abducted
Donovan. See 18 U.S.C. § 2119. To prove that intent element,
the prosecution introduced the Burns evidence to show that Burns
had neither voluntarily left home nor disappeared. Basham
emphasizes that he had admitted Burns was dead in his opening
argument, and further suggests that the prosecution could have
used other evidence — such as testimony from the law enforcement
officers who interviewed Burns’s family — to introduce the same
information in a less emotional way. The prosecution, however,
58
is entitled to fashion its own case and present a continuing,
logical story to satisfy its ultimate burden. See Old Chief v.
United States, 519 U.S. 172, 189 (1997) (“[T]he accepted rule
that the prosecution is entitled to prove its case free from any
defendant’s option to stipulate the evidence away rests on good
sense. A syllogism is not a story, and a naked proposition in a
courtroom may be no match for the robust evidence that would be
used to prove it.”). Therefore, it is unlikely that a Rule 403
challenge would have been successful — particularly given the
district court’s statement that any such objection would have
been overruled.
Basham’s focus on the heartbreaking and emotional nature of
the Burns evidence lends substantial credence to his lawyers’
strategy. The government had provided notice that the crimes
against Samantha Burns would be presented as an aggravating
factor justifying a death sentence. Swerling and Harris thus
understood that, if the Burns evidence did not come in during
the guilt phase, the prosecution would use it during the penalty
phase. Although the Rules of Evidence do not apply in the
latter stage, an evidentiary restriction similar to Rule 403 is
provided by statute: “information may be excluded if its
probative value is outweighed by the danger of creating unfair
prejudice, confusing the issues, or misleading the jury.” 18
U.S.C. § 3593(c). The probative value of the Burns evidence
59
would assuredly be high in the penalty phase, where the crimes
against Burns were to be squarely at issue. Faced with the
proposition that the Burns evidence would certainly be admitted
at some point, Basham’s lawyers cannot be faulted for ripping
off the proverbial Band-Aid. See Lundgren v. Mitchell, 440 F.3d
754, 774 (6th Cir. 2006) (“[E]xperienced trial counsel learn
that objections to each potentially objectionable event could
actually act to their party’s detriment. Learned counsel . . .
use objections in a tactical manner.”).
As the Supreme Court has explained, “[t]here are countless
ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a
particular client in the same way.” Strickland, 466 U.S. at
689. The tactical decisions made by Swerling and Harris with
respect to the Burns evidence were logical and strategic. In
the context of a capital case, those decisions could not be
characterized as being outside of the wide range of professional
norms, and thus were not constitutionally deficient. See
Florida v. Nixon, 543 U.S. 175, 191 (2004) (“Attorneys
representing capital defendants face daunting challenges in
developing trial strategies, not least because the defendant’s
guilt is often clear. . . . In such cases, avoiding execution
may be the best and only realistic result possible. Counsel
therefore may reasonably decide to focus on the trial’s penalty
60
phase, at which time counsel’s mission is to persuade the trier
that his client’s life should be spared.” (alterations and
internal quotation marks omitted)). In sum, we are satisfied
that Swerling and Harris did not render constitutionally
ineffective assistance when they decided to allow the Burns
evidence to be admitted without objection during the guilt phase
of Basham’s trial. 13
D.
Finally, Basham contends that he was denied the effective
assistance of counsel because Swerling failed to deliver
Basham’s complete file to the lawyers who represented Basham in
his direct appeal. Basham noticed his direct appeal on February
17, 2005, and Swerling and Harris were appointed as his
appellate lawyers the following week, on February 24, 2005.
Thereafter, Swerling and Harris each were permitted to withdraw,
on September 13, 2005, and August 14, 2007, respectively, and
were replaced by lawyers from Jenner & Block, LLP. Timothy
Sullivan was designated lead appellate counsel, although co-
13
Although we need only decide that Basham’s claim fails at
Strickland’s deficiency prong, that claim would similarly fail
at the prejudice prong. The district court gave the jury a
cautionary instruction during the charge in the guilt phase,
limiting the purposes for which the jury could consider the
Burns evidence. Moreover, the court emphasized in its
Reconsideration Order that “any objection to the admissibility
of [the Burns evidence] would have been overruled.” See
Reconsideration Order 6.
61
counsel Melissa Meister worked extensively on Basham’s appeal
and coordinated a team of associates.
Basham’s appellate lawyers from Jenner & Block began
requesting records from Swerling in January 2008. Sullivan
requested, by letter of January 14, 2008, that Swerling “either
provide me with a complete ‘master set’ [of Basham’s files,
pleadings, and records] or, alternatively, provide access to the
‘master set’ so it can be inspected and copied.” See J.A. 7065.
Also on January 14, 2008, the district court ordered “the clerk
of court to provide [Basham’s appellate lawyers] access to all
documents which are reflected in the docket as sealed or
otherwise restricted.” Id. at 7066. On February 12, 2008, our
briefing order was amended, extending the deadline for Basham’s
opening brief by sixty days, from February 29 to April 29, 2008.
Meister made several requests during February and March 2008
that Swerling send Basham’s file to Jenner & Block in
Washington, D.C. Swerling, however, insisted on retaining
physical possession of the file. Meister then travelled to
Swerling’s office in South Carolina on April 3, 2008, spent the
afternoon reviewing the file, and had copies made of about two
boxes of documents. On April 23, 2008, the deadline for
Basham’s opening brief was again extended, this time to May 13,
2008.
62
The district court rejected Basham’s claim that Swerling’s
refusal to surrender possession of the file constituted
constitutionally ineffective assistance, determining that the
claim failed at both prongs of Strickland. First, as to
deficient performance, the court found that Basham’s appellate
lawyers had reasonable access to his trial files. See Opinion
192-93. Although Swerling insisted on retaining the physical
file, the court found that “when appellate counsel wanted access
[to the file], they were given it, and Swerling did not deny
them access to any document requested.” Id. at 192. The court
further noted that “Swerling assisted appellate counsel
throughout the month of May 2008 in preparing and filing the
opening appeal brief.” Id. Because Swerling had provided the
appeals team with reasonable access to Basham’s file, the court
determined that Swerling did not perform deficiently. Id. at
193. Similarly, although Basham’s appellate lawyers’ “task
would have been easier had they had the entire file in their
possession,” the court reasoned that those lawyers did not
perform deficiently because they “could obtain many documents
from the court’s docket, had access to the entire physical file,
and were allowed to copy what they wished therefrom.” Id.
Second, and in the alternative, the district court ruled
that, even if Basham’s lawyers had performed deficiently, his
claim failed under Strickland’s prejudice prong. See Opinion
63
193-94. The court emphasized that Basham had not identified any
particular argument that appellate counsel failed to raise
because Swerling retained the physical file. And, although
Basham contended that his lawyers might have raised some of the
ineffective assistance claims on direct appeal that he raised in
his § 2255 motion, the court explained that “appellate counsel
were not ineffective in failing to raise the issues Basham
identifies.” Id. at 193. The court further relied on Meister’s
testimony that she received sufficient access to Basham’s file
and that “there were no claims appellate counsel could not have
raised because of Swerling’s behavior.” Id. at 193-94. Thus,
the court concluded that Basham could not have been prejudiced
by any deficiency relating to his file.
On appeal, Basham reiterates his argument that “[i]n
denying appellate counsel unfettered access” to the “thousands
of trial-related documents in his possession,” Swerling had
“compromised Basham’s appeal to an unknowable extent.” See Br.
of Appellant 74. To show that Swerling performed deficiently,
Basham relies on legal authority requiring a lawyer to deliver a
client’s file to the client upon the termination of
representation. See id. at 80-81 (citing Restatement (Third) of
the Law Governing Lawyers § 46(3) (2000) (requiring that “a
lawyer must deliver to [his] client or former client, at an
appropriate time and in any event promptly after the
64
representation ends, such originals and copies of other
documents possessed by the lawyer relating to the representation
as the client or former client reasonably needs”); S.C. Rules of
Prof’l Conduct 1.16(d) (“Upon termination of representation, a
lawyer shall take steps to the extent reasonably practicable to
protect a client’s interests, such as . . . surrendering papers
and property to which the client is entitled . . . .”)). Basham
further disputes the court’s finding that appellate counsel had
reasonable access to the trial file, maintaining that “Meister’s
single day with the file” cannot constitute reasonable access
“in light of the nature” of this capital case. Id. at 85.
We are satisfied to affirm the district court’s ruling that
Basham cannot demonstrate prejudice. Basham’s prejudice
argument relies on the “numerous claims of ineffective
assistance of appellate counsel,” as well as the competency
claims that he raised in his § 2255 motion. See Br. of
Appellant 86. That contention, of course, is entirely undercut
by the fact that Basham has not advanced a meritorious claim in
his § 2255 motion.
Finally, the record demonstrates that Basham’s appellate
lawyers made deliberate and considered decisions in selecting
which claims to pursue. Meister confirmed at the § 2255 hearing
that the appellate team strategized on what issues to appeal in
order to “present the best brief possible” with the “most
65
likelihood” of affording Basham relief. See J.A. 3827-28. As a
result, Basham cannot show a reasonable probability that the
result of the proceedings would have been different, “sufficient
to undermine confidence in the outcome” of his direct appeal.
See Strickland, 466 U.S. at 694. Therefore, we also affirm the
ruling of the district court on this ineffective assistance
claim. 14
IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
14
Because we resolve this ineffective assistance claim
under Strickland’s prejudice prong, it is unnecessary to decide
whether Swerling’s failure to deliver Basham’s file to his
appellate lawyers constituted deficient performance.
66