Toby Bolzer v. United States , 183 F. App'x 597 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3104
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Toby Bolzer, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: March 13, 2006
Filed: June 14, 2006
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Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
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PER CURIAM.
A jury convicted Toby Bolzer of second degree murder, see 18 U.S.C. §§ 1111,
1153, and the use of a firearm during the commission of a crime of violence, see
18 U.S.C. § 924(c)(1)(A)(iii). After unsuccessfully appealing his conviction, see
United States v. Bolzer, 367 F.3d 1032 (8th Cir. 2004), Mr. Bolzer filed a motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, which the district
court1 denied. The district court granted Mr. Bolzer a certificate of appealability with
1
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
respect to whether he received "ineffective assistance of counsel as to the failure of
the indictment to give [him] notice of the charges." We take this to mean that
Mr. Bolzer may appeal the ineffective-assistance claims that he raised in the district
court.
Mr. Bolzer lived with Holly Quinn and Santana Standing Bear. Ms. Quinn and
Ms. Standing Bear were involved in a romantic relationship, and Ms. Quinn rebuffed
Mr. Bolzer's advances. Mr. Bolzer then became abusive and hostile toward
Ms. Standing Bear. Ms. Standing Bear, who had psychological difficulties, locked
herself in a bedroom with a handgun and threatened to kill herself; when she did not
come out, Mr. Bolzer shot mace under the door, entered the room, grabbed the gun
and shot Ms. Standing Bear. He was indicted for second-degree murder and a related
firearms charge.
Although Mr. Bolzer includes in his brief some new grounds for claiming
ineffective assistance of counsel, we confine our attention to the claims that he
effectively raised below: that his lawyer was ineffective because he did not object to
the murder charge in the indictment as unconstitutionally confusing and because he
did not act to dispel any confusion of the jury about the murder charge.
We review a district court's denial of ineffective-assistance claims de novo, but
review the underlying predicate facts for clear error. Anderson v. United States,
393 F.3d 749, 753 (8th Cir. 2005), cert. denied, 126 S. Ct. 221 (2005). To prevail on
his ineffective-assistance-of-counsel claims, Mr. Bolzer must show that his attorney
did not provide him with professionally competent assistance and that had his attorney
done so, there is a reasonable probability that the trial would have had a different
result. Strickland v. Washington, 466 U.S. 668, 687-89 (1984).
The indictment in this case specifically stated that it was charging Mr. Bolzer
with second-degree murder. The indictment further recited that "Bolzer, an Indian,
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did unlawfully and with malice aforethought, kill Santana Standing Bear, by shooting
her with a firearm in violation of 18 U.S.C. §§ 1111 and 1153." Section 1111 defines
murder as "the unlawful killing of a human being with malice aforethought." It
defines some murders, including "willful, deliberate, malicious, and premeditated"
killings, as first-degree murder; all other murders are classified as second-degree
murder. 18 U.S.C. § 1111(a).
Mr. Bolzer asserts that his attorney failed him by not objecting to the indictment
as unconstitutionally confusing because the murder charge included the term "malice
aforethought." We have previously held, however, that an indictment that alleged that
the defendant unlawfully took a human life "with malice aforethought" made out a
sufficient charge of second-degree murder under § 1111. United States v. Lame,
716 F.2d 515, 517-18 (8th Cir. 1983). Therefore, counsel's failure to object to the
indictment could not have fallen below an objective standard of reasonableness.
Mr. Bolzer also contends that this his attorney failed to dispel any confusion on
the part of the jury as to the nature of the murder charge. The jury instructions
provided at his trial, however, clearly and correctly defined the elements of second-
degree murder. A failure to object to such instructions thus could not have constituted
ineffective assistance of counsel.
We affirm the district court's judgment.
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