Paul Bolin v. Ron Davis ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL C. BOLIN, No. 16-99009
Petitioner-Appellant,
D.C. No.
v. 1:99-cv-05279-
LJO-SAB
RONALD DAVIS, Warden, San
Quentin State Prison,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted June 2, 2021
Pasadena, California
Filed September 15, 2021
Before: M. Margaret McKeown, Jacqueline H. Nguyen,
and Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress
2 BOLIN V. DAVIS
SUMMARY *
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of
California state prisoner Paul Bolin’s habeas corpus petition
challenging his jury conviction for two counts of first-degree
murder and his capital sentence.
Applying the deferential standards of review in the
Antiterrorism and Effective Death Penalty Act, the panel
held that the district court properly denied Bolin’s claims
that his trial counsel was ineffective in not renewing a
motion to change venue based on pretrial publicity and in
failing to develop additional mitigating evidence.
The panel held that Bolin did not show that the California
Supreme Court’s denial of his claim that his trial counsel was
ineffective in failing to renew the change of venue motion
after jury selection was an unreasonable application of
Strickland v. Washington. The panel held that reasonable
jurists could conclude that Bolin could not overcome the
strong presumption that his counsel acted reasonably and
appropriately in failing to renew the motion based on pretrial
publicity, including episodes of America’s Most Wanted.
Bolin did not show that it would be objectively unreasonable
for the state court to conclude that counsel could, as a matter
of strategy, forego a likely quixotic change of venue motion
in exchange for trying to secure a jury that would be more
favorable to Bolin.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BOLIN V. DAVIS 3
In connection with Bolin’s claim that his counsel acted
ineffectively in not seeking a further continuance to develop
additional mitigating evidence for the penalty phase, the
panel granted Bolin’s request to expend the certificate of
appealability to include the entirety of his claim of
ineffective assistance in counsel’s failure to investigate and
prepare for the penalty phase. The panel held that Bolin was
not entitled to relief under Strickland for counsel’s
investigation and presentation of mitigating evidence at the
penalty phase or for counsel’s related determination not to
seek a further continuance. Assuming without deciding that
counsel’s performance was constitutionally defective, the
panel held that Bolin could not show prejudice under
AEDPA’s deferential standard of review. That is, a
fairminded jurist could reasonably conclude that the further
investigation and presentation of mitigating evidence Bolin
claimed should have occurred was not substantially likely to
change the outcome. The panel concluded that the
mitigating evidence that Bolin claimed his counsel should
have discovered and presented was either cumulative of
other evidence that counsel did present, or was inconclusive
and insufficiently compelling. Further, a reasonable jurist
could also conclude that the new mitigating evidence did not
overcome the serious aggravating factors associated with
Bolin’s crimes and his history of violent criminal conduct.
COUNSEL
Robert D. Bacon (argued), Oakland, California; Heather E.
Williams, Federal Defender; Brian Abbington, Assistant
Federal Defender; Office of the Federal Public Defender,
Sacramento, California; for Petitioner-Appellant.
4 BOLIN V. DAVIS
Rachelle A. Newcomb (argued) and Sean M. McCoy,
Deputy Attorneys General; Michael P. Farrell, Senior
Assistant Attorney General; Office of the Attorney General,
Sacramento, California; for Respondent-Appellee.
OPINION
BRESS, Circuit Judge:
A California jury convicted Paul Bolin of two counts of
first-degree murder and he was sentenced to death. Bolin
now seeks federal habeas relief, arguing that his trial counsel
was ineffective in not renewing a motion to change venue
and in failing to develop additional mitigating evidence.
Applying the deferential standards of review in the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), we hold that Bolin is not entitled to relief.
I
A
On Labor Day weekend in 1989, Paul Bolin shot three
men, killing two of them. Bolin killed one man as he pleaded
for his life in the fetal position. He shot the other man’s
motionless body with a second firearm and staged the scene
to make the murders look like a drug deal gone bad. When
his third victim escaped, Bolin disabled the man’s truck and
left him to die in a secluded area of the Sierra Nevada
foothills. Given the testimony of two eyewitnesses, the
events were not in significant dispute. We now summarize
the facts based on the record before us and the California
Supreme Court’s decision on Bolin’s direct appeal. See
People v. Bolin, 956 P.2d 374 (Cal. 1998).
BOLIN V. DAVIS 5
In 1989, Bolin was living in a cabin in a remote,
mountainous part of Walker Basin in Kern County,
California. Vance Huffstuttler lived on the property in a
trailer and assisted Bolin in growing marijuana there. Steve
Mincy and Jim Wilson were spending their Labor Day
weekend with family and friends at a campsite that Mincy’s
father owned in the vicinity. On the Saturday, Mincy and
Wilson went to a local bar and were drinking there with a
group of people that included Huffstuttler and Bolin.
Sometime after Bolin returned to his cabin, Wilson agreed
to drive Huffstuttler back to his trailer. Mincy went along
for the ride. Tragically, that decision would prove fateful.
When the trio arrived at the cabin, they saw Bolin there
with his friend Eloy Ramirez. Huffstuttler took Wilson and
Mincy across a creek bed by the cabin to show them a patch
of marijuana plants he and Bolin were cultivating. Bolin
then became agitated. He followed the three men across the
creek bed and confronted Huffstuttler about bringing
outsiders to see the marijuana grow operation.
According to Wilson, who testified at Bolin’s trial, Bolin
and Huffstuttler crossed back over to the other side of the
creek bed, heading toward the cabin and leaving Wilson’s
view. Then Wilson heard a gunshot from that direction. A
moment later, Bolin “came out from behind the tree line with
a gun [a revolver] in his hand.” He “started apologizing to”
Wilson and Mincy, and said, “I have got nothing against you
guys, . . . but.” When Bolin said “but,” Wilson turned and
ran. As he turned, Bolin shot him in the shoulder. Wilson
ducked behind a tree.
From behind the tree, Wilson heard Bolin shoot Mincy.
Wilson could hear Mincy pleading with Bolin, saying, “no,
please don’t. You don’t have to do this. Please don’t.”
6 BOLIN V. DAVIS
Wilson then heard several more gunshots ring out. Staying
hidden behind trees, Wilson ran away up and over a hill.
Ramirez confirmed Wilson’s testimony and provided
additional details for the jury. Ramirez testified that once
Wilson had fled, Bolin retrieved a rifle he kept by his bed.
Using the rifle, Bolin shot Huffstuttler’s inert body several
times as he lay collapsed on the ground. Then, Bolin
searched for Wilson after he escaped wounded into the
forest; when he could not find him, Bolin commented to
Ramirez that Wilson “would bleed to death” before he got
off the hill.
After shooting Huffstuttler and Mincy, Bolin told
Ramirez that he was going to make the scene “look like a
bad dope deal.” Bolin broke bottles and poured both
marijuana and what Ramirez thought was chili on the dead
bodies. Bolin placed the revolver in Huffstuttler’s dead
hand. Bolin also disabled Wilson’s truck by removing wires
and throwing them in a gully. Bolin and Ramirez then fled
for southern California.
Later analysis revealed that Mincy was shot four times,
once while he was upright and three more times while he was
in the fetal position lying in the creek bed. Huffstuttler was
also shot four times. Wilson, who had traveled all night
through the remote, mountainous area, managed to survive
after finding refuge in a nearby ranch.
Law enforcement found Ramirez at his girlfriend’s
house in southern California shortly after the killings. But
they were unable to find Bolin for several months. Finally,
after the television program America’s Most Wanted
featured a reenactment of Bolin’s murders, one of Bolin’s
family members alerted the police that Bolin was staying in
Chicago. That led to Bolin’s arrest.
BOLIN V. DAVIS 7
As discussed further below, Bolin had a history of
violent crime. In addition to domestic violence incidents
during the 1970s, in 1983 a California jury convicted Bolin
of attempted voluntary manslaughter for shooting his
goddaughter’s then-boyfriend, Kenneth Ross, in the chest.
Bolin was sent to state prison and paroled in May 1985. In
January 1986, Bolin was arrested in Oklahoma for stabbing
Jack Baxter. A jury acquitted Bolin based on Bolin’s claim
of self-defense, but California still revoked his parole. Bolin
was released from prison in March 1987.
Then, on September 2, 1989, Bolin murdered
Huffstuttler and Mincy. Since shooting Ross in 1981, up
until the day he murdered Huffstuttler and Mincy in 1989,
Bolin was out of custody for less than forty months.
B
Bolin was charged in Kern County Superior Court with
two counts of first-degree murder, one count of attempted
murder, and cultivation of marijuana. Bolin was eligible for
the death penalty because the state tried him for multiple
murders. See Cal. Penal Code § 190.2(a)(3).
The state trial court appointed Charles Soria as Bolin’s
lead counsel and William Cater as second chair. Soria and
Cater were both experienced attorneys. Soria had worked as
a criminal defense lawyer in Kern County for almost a
decade, and in that time he served as counsel in
approximately fifteen murder cases, three of which were
capital cases. Cater had served in the local public defender’s
office and defended “lots of cases” before entering private
practice. He had also tried two other capital cases. Cater
was familiar with the California Death Penalty Defense
Manual, and he had attended the Capital Case Defense
Seminar at least twice.
8 BOLIN V. DAVIS
Defense counsel initially filed a motion to change venue
due to allegedly prejudicial pretrial publicity. This motion
was largely based on the America’s Most Wanted
reenactment. The trial court reserved judgment on the
motion to see how this issue came up in voir dire of potential
jurors. Following jury selection, defense counsel did not
renew the change of venue motion. This issue is the basis
for one of Bolin’s claims of ineffective assistance of counsel,
and we provide more background on it below.
On December 12, 1990, the jury found Bolin guilty on
all charges. The following day, after the guilt phase closed,
Bolin expressed unhappiness with his lead counsel, Soria.
The trial judge granted Bolin’s request to remove Soria
under People v. Marsden, 465 P.2d 44 (Cal. 1970), based on
a breakdown in the attorney-client relationship. With
Bolin’s agreement and at his request, the trial judge
appointed Cater to handle the penalty phase.
On December 14, 1990, the judge granted a continuance
until January 7, 1991 to give Cater more time to prepare
Bolin’s penalty phase defense. On January 7, 1991, Cater
requested and received another two-week extension. The
penalty phase began on January 22, 1991. The jury in the
penalty phase was the same jury that had convicted Bolin
during the guilt phase.
The jury returned a death verdict on January 24, 1991.
We discuss at greater length below Cater’s investigation into
Bolin’s mitigating circumstances and his presentation of
mitigating evidence, which forms the basis for Bolin’s other
ineffective assistance of counsel claim.
The California Supreme Court affirmed Bolin’s
convictions and sentence on direct appeal. Bolin, 956 P.2d
BOLIN V. DAVIS 9
at 348. The United States Supreme Court then denied
certiorari. Bolin v. California, 526 U.S. 1006 (1999) (mem.).
C
Bolin filed state and federal habeas petitions on August
8, 2000. His federal habeas petition was held in abeyance
through completion of his state habeas proceedings. In his
state habeas petition, Bolin asserted numerous claims,
including the two ineffective assistance claims now before
us.
In his state habeas proceedings, Bolin did not submit
declarations from trial counsel, nor did he submit a
declaration on his own behalf. But he did come forward with
some additional evidence, including: a declaration from
Dr. Zakee Matthews, M.D., a psychiatrist who evaluated
Bolin in 1999 and 2000; a declaration from Dr. Natasha
Khazanov, Ph.D., a clinical psychologist who evaluated
Bolin in 2000; the pretrial report of Dr. Ronald Markman,
M.D., a forensic psychiatrist who evaluated Bolin in 1990;
reports from Roger Ruby, Bolin’s investigator for the
penalty phase; declarations from family members and a
friend; and a letter Bolin sent to Jerry Halfacre, Bolin’s
daughter’s former boyfriend. The California Supreme Court
summarily denied Bolin’s state habeas petition “on the
merits.”
Bolin then filed an amended federal habeas petition. In
support, Bolin included 51 exhibits that he had used to
support his state habeas petition. Bolin also requested an
evidentiary hearing on numerous claims. On April 27, 2012,
the district court granted a hearing on Claim C2, regarding
Bolin’s counsel not renewing the change of venue motion
based on pretrial publicity. The district court held the
evidentiary hearing on May 14, 2013.
10 BOLIN V. DAVIS
On June 9, 2016, the district court denied all of Bolin’s
claims, most of which are not at issue here, in a 305-page
ruling. The district court issued a certificate of appealability
on four claims:
Claim C2: whether trial counsel was
ineffective for failing to renew the change of
venue motion following voir dire of the jury.
Claim I13: whether trial counsel was
ineffective because of irregularities and
improprieties that occurred during the jury’s
view of the crime scene and related locations.
Claim L (L1–L4): whether the jury view of
the crime scene violated [Bolin’s] state and
federal rights.
Claim W2: whether trial counsel was
ineffective by failing to move for a further
continuance at the penalty phase.
In this court, Bolin presses only two of the four certified
claims—Claims C2 and W2. 1 He does not argue Claims I13
and L, thus abandoning them. See, e.g., Styers v. Schriro,
547 F.3d 1026, 1028 n.3 (9th Cir. 2008) (per curiam). Bolin
also seeks a certificate of appealability on two additional
claims.
1
For ease of reference, we will use the claim numbering and
lettering conventions used in the district court.
BOLIN V. DAVIS 11
II
We review a district court’s denial of a 28 U.S.C. § 2254petition de novo. Cain v. Chappell, 870 F.3d 1003, 1012
(9th Cir. 2017).
Bolin claims that his counsel violated his Sixth
Amendment rights by providing ineffective assistance. The
Supreme Court’s decision in Strickland v. Washington,
466 U.S. 668 (1984), provides the established federal law
governing ineffective assistance of counsel claims. To
prevail on such a claim, a petitioner needs to “show both that
his counsel provided deficient assistance and that there was
prejudice as a result.” Harrington v. Richter, 562 U.S. 86,
104 (2011).
Under Strickland’s performance prong, “[a] convicted
defendant making a claim of ineffective assistance must
identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment.”
Strickland, 466 U.S. at 690. We “must then determine
whether, in light of all the circumstances, the identified acts
or omissions were outside the wide range of professionally
competent assistance.” Id. We evaluate whether “counsel’s
representation fell below an objective standard of
reasonableness.” Richter, 562 U.S. at 104 (quoting
Strickland, 466 U.S. at 688). “Representation is
constitutionally ineffective only if it ‘so undermined the
proper functioning of the adversarial process’ that the
defendant was denied a fair trial.” Id. at 110 (quoting
Strickland, 466 U.S. at 686).
In evaluating counsel’s performance after the fact, we
must also be careful to “apply the strong presumption of
competence that Strickland mandates,” Cullen v. Pinholster,
563 U.S. 170, 196 (2011), namely, that “counsel’s conduct
12 BOLIN V. DAVIS
falls within the wide range of reasonable professional
assistance,” Strickland, 466 U.S. at 689. We are required not
only to give Bolin’s attorneys the benefit of the doubt, but to
consider the possible reasons they may have had for their
decisions. See Pinholster, 563 U.S. at 196. Strickland
applies to counsel’s decisions in the penalty phase of a
capital case. “Under Strickland, ‘counsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary’ during the
penalty phase of a trial.” Carter v. Davis, 946 F.3d 489, 513
(9th Cir. 2019) (per curiam) (emphasis in original) (quoting
Strickland, 466 U.S. at 691).
Bolin also bears the burden of showing that counsel’s
ineffective performance prejudiced him. To make that
showing, Bolin must first demonstrate that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “In the capital
sentencing context, the prejudice inquiry asks ‘whether there
is a reasonable probability that, absent the errors, the
sentencer—including an appellate court, to the extent it
independently reweighs the evidence—would have
concluded that the balance of aggravating and mitigating
circumstances did not warrant death.’” Shinn v. Kayer,
141 S. Ct. 517, 522–23 (2020) (per curiam) (quoting
Strickland, 466 U.S. at 695). This standard is “highly
demanding.” Id. at 523 (quoting Kimmelman v. Morrison,
477 U.S. 365, 382 (1986)). It requires showing a
“‘substantial,’ not just ‘conceivable,’ likelihood of a
different result.” Id. (quoting Pinholster, 563 U.S. at 189).
Moreover, Bolin’s Strickland claims must be evaluated
under AEDPA’s additionally deferential standard of review
because he filed his § 2254 petition after AEDPA’s effective
BOLIN V. DAVIS 13
date. See, e.g., Woodford v. Garceau, 538 U.S. 202, 207
(2003). Although the California Supreme Court’s denial of
state habeas relief consisted of a summary denial on the
merits, that decision must still be reviewed under AEDPA.
See Richter, 562 U.S. at 98 (“[D]etermining whether a state
court’s decision resulted from an unreasonable legal or
factual conclusion does not require that there be an opinion
from the state court explaining the state court’s reasoning.”).
AEDPA substantially constrains our review of Bolin’s
claims. Under AEDPA,
[a]n application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d).
This is a challenging standard to meet. To satisfy
AEDPA’s “unreasonable application of” prong, a petitioner
“must show far more than that the state court’s decision was
14 BOLIN V. DAVIS
‘merely wrong’ or ‘even clear error.’” Kayer, 141 S. Ct.
at 523 (quoting Virginia v. LeBlanc, 137 S. Ct. 1726, 1728
(2017) (per curiam)). Instead, “[t]he prisoner must show that
the state court’s decision is so obviously wrong that its error
lies ‘beyond any possibility for fairminded disagreement.’”
Id. (quoting Richter, 562 U.S. at 103). That is, the state
court’s application of clearly established federal law “must
be objectively unreasonable.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003).
When, as here, the California Supreme Court did not
offer reasoning when denying Bolin’s state habeas petition
on the merits, “the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the state
court to deny relief.” Richter, 562 U.S. at 98. In that
circumstance, we “must determine what arguments or
theories . . . could have supported[] the state court’s
decision; and then [we] must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of [the Supreme] Court.” Id. at 102. 2
We will address Bolin’s claims in the order in which they
arose in the guilt and penalty phases. We thus begin with
the motion to change venue. We then turn to Bolin’s claim
2
Bolin insists that the California Supreme Court as a matter of state
law accepted his allegations as true. But Bolin’s reliance on California
pleading rules is inapposite, and his description of California law is in
any event incomplete. See Pinholster, 563 U.S. at 188 n.12 (explaining
that while the California Supreme Court “generally assumes the
allegations in the petition to be true,” it “does not accept wholly
conclusory allegations” and “will also ‘review the record of the trial . . .
to assess the merits of the petitioner’s claims’” (quoting In re Clark,
855 P.2d 729, 742 (Cal. 1993)).
BOLIN V. DAVIS 15
that his counsel failed to develop and present mitigating
evidence.
III
In Claim C2, Bolin argues that his trial counsel was
ineffective in failing to renew a change of venue motion after
jury selection. We hold that under AEDPA, Bolin has not
shown that the state court’s rejection of this claim was an
unreasonable application of Strickland. We first set forth the
relevant factual background for this claim. We then explain
why under AEDPA, Bolin is not entitled to relief.
A
Before voir dire of prospective jurors, Bolin moved for a
change of venue based on pretrial publicity that, in Bolin’s
view, unfairly prejudiced the jury pool in Kern County.
Besides his crime being featured on an episode of America’s
Most Wanted and his later arrest being mentioned in a second
episode, the local print and television media also had
covered the murders. In connection with his venue motion,
Bolin submitted videotapes of the America’s Most Wanted
episodes and newspaper clippings. Bolin, 956 P.2d at 385.
In particular, Bolin argued that the first episode of America’s
Most Wanted included an inflammatory and misleading
reenactment of his crimes.
Bolin also submitted in connection with his motion
results from a public opinion survey specific to Kern County
that his counsel commissioned. Id. His counsel
“represented that 45 percent of the people responding
indicated they had some knowledge of the case due to the
media attention,” while approximately 20 percent of those
respondents said they had seen the America’s Most Wanted
reenactment. Id.16 BOLIN V. DAVIS
The trial judge initially said he was “very, very
concerned” about the America’s Most Wanted program. But
the court also stated: “I’m not inclined to grant the motion to
change venue.” The judge instead “reserve[d] ruling on” the
venue motion, indicating that he wanted to see the responses
given by potential jurors during voir dire. The court also
“ma[d]e it perfectly clear, but for this reenactment on
America’s Most Wanted, I do not think there are grounds to
change the venue.” The trial court allowed, however, that it
might consider granting requests to strike jurors for cause
based on their reactions to the television program.
In conducting voir dire, Bolin’s counsel asked jurors a
variety of questions to get a sense of how they may react to
the evidence, including prospective jurors’ likely
perspectives on the death penalty and their exposure to the
America’s Most Wanted episodes. Bolin’s counsel
challenged for cause every juror who had seen the America’s
Most Wanted program. The trial court denied these requests.
Bolin’s counsel did not use peremptory challenges on every
juror who acknowledged having seen the show. Bolin’s
counsel also did not renew the motion to change venue at the
close of voir dire. The trial thus took place in Kern County,
where the murders occurred.
On direct appeal, Bolin asserted that counsel was
incompetent for failing to renew the change of venue motion.
The California Supreme Court rejected this argument
because counsel’s decision “did not result from ignorance or
inadvertence and reflected a reasonable trial strategy.”
Bolin, 956 P.2d at 386. The pretrial publicity, especially
from America’s Most Wanted, “was a critical focus of the
voir dire.” Id. And “[a]lthough many prospective jurors had
been exposed to some pretrial publicity, including the
segment reenacting the killings, for the most part few
BOLIN V. DAVIS 17
recalled the specifics or had formed a resolute impression of
defendant’s guilt.” Id. The court also found it relevant that
the impaneled jurors “all gave assurances they would decide
the case based solely on the courtroom evidence.” Id.The California Supreme Court on direct appeal thus
concluded that “counsel could well have recognized the
effect of the publicity had not been as substantial as feared,
especially after an 11-month interim.” Id. at 386–87. This
made renewing the venue motion “futile” because the trial
court had indicated a willingness to reconsider its tentative
denial of the motion only on a showing that an impartial jury
could not be seated. Id. at 387. Bolin then reasserted this
ineffective assistance claim again in his state and federal
habeas petitions. 3
B
The California Supreme Court’s rejection of Bolin’s
ineffective assistance Claim C2 was not objectively
unreasonable. Instead, fairminded jurists could conclude
that Bolin’s counsel was not deficient.
3
The district court held an evidentiary hearing on Claim C2, which
included testimony from Cater and Soria. In Pinholster, however, the
Supreme Court clarified that “review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the
merits.” 563 U.S. at 181. In other words, “evidence later introduced in
federal court is irrelevant to § 2254(d)(1) review.” Id. at 184; see also
id. at 203 n.20 (“We are barred from considering the evidence Pinholster
submitted in the District Court that he contends additionally supports his
claim.”). We thus limit our discussion to the record before the state
habeas court. We note, however, that the result would be the same even
if we were to consider the additional evidence developed in connection
with the federal evidentiary hearing.
18 BOLIN V. DAVIS
Under Strickland’s performance prong, “counsel should
be ‘strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of
reasonable professional judgment.’” Pinholster, 563 U.S.
at 189 (quoting Strickland, 466 U.S. at 690). This means
that “[e]ven under de novo review, the standard for judging
counsel’s representation is a most deferential one.” Richter,
562 U.S. at 105. But with AEDPA’s overlay, our review is
even more forgiving: “[t]he standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the
two apply in tandem, review is ‘doubly’ so.” Id. (citations
omitted) (first quoting Strickland, 466 U.S. at 689; and then
quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
In this case, reasonable jurists could conclude that Bolin
cannot overcome the strong presumption that his counsel
acted reasonably and appropriately in not renewing the
change of venue motion. That is because counsel could have
concluded that the motion stood little chance of success and
that using peremptory strikes on jurors only to support this
likely futile motion would result in striking jurors potentially
favorable to Bolin.
In evaluating change of venue motions, California courts
consider “the gravity and nature of the crime or crimes, the
extent and nature of the pretrial publicity, the size and nature
of the community, the status of the victim, the status of the
accused, and any indication from the voir dire of prospective
and actual jurors that the publicity did in fact have a
prejudicial effect.” People v. Coleman, 768 P.2d 32, 41–42
(Cal. 1989). Even before the trial court’s skeptical
comments on the motion to change venue, Bolin faced an
uphill battle under the governing legal standards.
Although the crimes were sensational, there is no
indication Bolin or the victims were well-known in the
BOLIN V. DAVIS 19
community. Kern County’s size, perhaps the most important
factor in California’s change of venue cases, also weighed
heavily against Bolin. See People v. Balderas, 711 P.2d 480,
497–98 (Cal. 1985) (“Kern County, with a 1981 population
of 405,600, ranked 14th among California’s 58 counties in
that respect. Cases in which venue changes were granted or
ordered on review have usually involved counties with much
smaller populations.” (citation omitted)). In addition, the
America’s Most Wanted broadcast was some time in the past
by the time of jury selection. See Coleman, 768 P.2d at 43(“The publicity did not pervade the proceedings so as to give
rise to any inference or presumption of prejudice.”).
Bolin’s counsel also could have taken cues from the trial
court when it initially reserved ruling on the change of venue
motion. Although the trial court had expressed concern
about the America’s Most Wanted episodes, it also indicated
it was not inclined to grant the motion. The court wanted to
see how potential jurors responded to the issue in voir dire,
while making clear that the television show was the only
possible basis for changing venue.
But voir dire all but confirmed that any renewed venue
motion would fail. Compared to the survey results counsel
had commissioned, a similar percentage of jurors at voir dire
indicated they had seen or believed they may have seen the
America’s Most Wanted program. But voir dire revealed that
those respondents did not necessarily remember much, if
anything, of the program a year later. Jurors also gave
credible assurances that they would decide the case based
only on the evidence presented in court, not based on the
reenactment. Having observed the voir dire, the trial court
denied defense counsel’s for-cause challenges to jurors that
were based solely on jurors having acknowledged seeing the
America’s Most Wanted episode. As the district court
20 BOLIN V. DAVIS
reasoned, “it is unlikely that a trial judge who may have just
denied a challenge to a juror for cause based on prejudice
stemming from publicity will grant a motion to change
venue a short time later.” (quoting Jeffrey G. Adachi et al.,
California Criminal Law Procedure and Practice § 15.17
(2013)).
Renewing the change of venue motion also carried
considerable risks as well. Under California law, counsel’s
failure to exhaust all their peremptory challenges is at the
very least a “significant” factor supporting the denial of a
renewed motion to change venue. Coleman, 768 P.2d at 43–
44; see also People v. Sommerhalder, 508 P.2d 289, 297–98
(Cal. 1973). Without having exercised all available
peremptory challenges, the change of venue motion, if
renewed, would have had a limited prospect of success. But
using all of Bolin’s peremptory challenges would have
meant striking jurors that counsel thought could be favorable
to Bolin, including jurors perceived as less likely to vote for
the death penalty. Especially when the venue motion was
unlikely to succeed, Bolin’s experienced counsel could have
decided that knocking out potentially favorable jurors was
not a wise strategy. Under AEDPA, Bolin’s defense lawyers
were not required to pursue a change of venue motion at all
costs.
Much of Bolin’s briefing has less to do with whether his
counsel were constitutionally ineffective by not renewing
the motion for a change of venue. Instead, Bolin’s opening
brief primarily argues that “at the time voir dire began, no
meaningful investigation had been undertaken. As a result,
trial counsel had no knowledge of Mr. Bolin’s life
experience and social history upon which to base strategic
decisions regarding jurors.” Although this argument relates
to voir dire, Bolin does not explain how it relates to the
BOLIN V. DAVIS 21
change of venue motion or the America’s Most Wanted
episodes. We explain below why, under AEDPA, Bolin has
not shown that counsel’s investigation and presentation of
mitigating circumstances prejudiced him. To the extent
Bolin repackages that argument as support for Claim C2
regarding the change of venue motion, it fails for the reasons
we explain below.
In short, Bolin has not shown that it would be objectively
unreasonable for the state court to conclude that counsel
could, as a matter of strategy, forego a likely quixotic change
of venue motion in exchange for trying to secure a jury that
would be more favorable to Bolin.
IV
We turn next to Claim W2, that Cater acted ineffectively
in not seeking a further continuance to develop additional
mitigating evidence for the penalty phase. Within this
certified claim, the parties have briefed the broader question
of whether trial counsel conducted an inadequate
investigation into mitigating circumstances.
In connection with Claim W2, Bolin also asks us to
expand the certificate of appealability to include the entirety
of Claim W. See 28 U.S.C. § 2253(c)(2); Ninth Cir. R.
22-1(d), (e). Claim W consists of counsel’s alleged
“wholesale failure to investigate and prepare for” the penalty
phase. Because of the nature of Claim W2, Bolin’s
arguments under Claims W and W2 largely overlap. And
the State’s briefing of Claim W2 is already responsive to
Bolin’s request for an expanded certificate of appealability
on Claim W. We grant Bolin’s request to expand the
certificate of appealability to include Claim W, to the extent
of Bolin addressing Claim W in his opening brief. See White
22 BOLIN V. DAVIS
v. Ryan, 895 F.3d 641, 645 n.1 (9th Cir. 2018) (citing
Browning v. Baker, 875 F.3d 444, 471 (9th Cir. 2017)). 4
We hold that under AEDPA’s deferential standard of
review, Bolin has not shown he is entitled to relief under
Strickland for counsel’s investigation and presentation of
mitigating evidence at the penalty phase or for counsel’s
related determination not to seek a further continuance.
Although we question whether Bolin could make the
required showing given Cater’s substantial efforts to develop
mitigating evidence, we will assume without deciding that
Cater’s performance was constitutionally deficient (and that
under AEDPA, no reasonable jurist could conclude
otherwise). Even so, Bolin cannot show prejudice under
AEDPA’s deferential standard of review. That is, a
fairminded jurist could reasonably conclude that the further
investigation and presentation of mitigating evidence Bolin
claims should have occurred was not substantially likely to
4
Claim W also includes subparts that Bolin has not briefed. For
example, Claim W8 relates to alleged ineffectiveness in not objecting to
certain penalty phase jury instructions. By not raising these arguments
in his opening brief, Bolin has forfeited them. See Floyd v. Filson,
949 F.3d 1128, 1138 n.2 (9th Cir.), cert. denied, 141 S. Ct. 660 (2020);
Ninth Cir. R. 22-1(e).
We also deny Bolin’s request to expand the certificate of
appealability to include whether we should remand under Martinez v.
Ryan, 566 U.S. 1 (2012). Martinez held that “[i]nadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a
prisoner’s procedural default of a claim of ineffective assistance at trial.”
Id. at 9. Bolin has not demonstrated that Martinez is relevant here or that
he would be entitled to relief under it. Thus, Bolin has not made a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
BOLIN V. DAVIS 23
change the outcome. See, e.g., Kayer, 141 S. Ct. at 522–23;
Pinholster, 563 U.S. at 197–98.
To explain this holding, it is necessary first to recount
Cater’s investigation of mitigating evidence. Next, we
discuss the penalty phase presentations that both sides made
to the jury. We then examine the additional mitigating
evidence that Bolin claims his counsel should have
discovered and presented. As we will explain, that
mitigating evidence either is cumulative of other evidence
that counsel did present, or it is inconclusive and
insufficiently compelling. A reasonable jurist could also
conclude that the new mitigating evidence does not
overcome the serious aggravating factors associated with
Bolin’s crimes and his history of violent criminal conduct.
Considered as a whole, the record thus shows that at the
very least, under AEDPA, Bolin cannot establish Strickland
prejudice based on Cater’s alleged failure to develop
additional mitigating evidence and to seek a further
continuance for that purpose.
A
1
We start with Cater’s investigation of mitigating
evidence. When the trial judge on December 14, 1990
granted Bolin’s motion to have Soria removed as counsel,
Cater was appointed lead counsel for the penalty phase. At
that hearing, Cater said that he was “quite familiar with the
case, obviously, and somewhat prepared and very much
acquainted with the theory of the death penalty
presentation,” so he thought he could be ready by January 7,
1991. Thus, the judge granted Cater a continuance of three
and a half weeks. On January 7, 1991, after Cater expressed
24 BOLIN V. DAVIS
dissatisfaction with the investigatory work done by Soria and
Soria’s investigator, Bruce Binns, Cater requested and
received another two-week continuance.
Among the more significant documents that Cater
received from Soria was a report from Dr. Ronald Markman,
who had conducted a psychiatric evaluation of Bolin at
Soria’s direction. Dr. Markman had conducted that
evaluation on September 22, 1990, and he sent a written
report to Soria on November 12, 1990.
Dr. Markman diagnosed Bolin with polysubstance
dependence and a personality disorder with paranoid,
explosive, and antisocial features. But Dr. Markman’s
“examination revealed [Bolin] to be fully oriented in all
spheres, alert, cooperative and of above normal intelligence
with an excellent fund of knowledge.” Dr. Markman also
wrote that “[t]here was no evidence of a major mental
diso[r]der, thought disorder or psychosis, judgment was not
impaired and insight into his status was adequate.” The
report contains some background life history on Bolin while
noting that Bolin was unwilling to provide much
information.
Dr. Markman reported that Bolin had “no history of
previous psychiatric treatment or hospitalization.” Bolin
“admit[ted] to poly-drug abuse ‘years ago—you name it,’ to
include intravenous heroin and cocaine.” He also had “an
extended history of daily alcohol use.” Bolin reported to
Dr. Markman that he had “consumed a substantial amount of
alcohol, both beer and bourbon ‘to calm my nerves’ and
smoked cocaine prior” to killing Huffstuttler and Mincy.
Dr. Markman’s report also discusses Bolin’s “extensive and
repeated history of aggressive behavior,” including Bolin’s
prior convictions.
BOLIN V. DAVIS 25
When he spoke with Dr. Markman, Bolin claimed he was
injured in Vietnam when his boat was hit by a “rocket.”
Dr. Markman noted that this claim had “not been
corroborated” and that Bolin’s claims about his injury and
subsequent discharge were “highly unusual.” (In a much
more detailed account of Bolin’s time in Vietnam prepared
for the state habeas proceedings, Dr. Matthews did not
mention that Bolin was injured in the conflict. Dr. Matthews
did report, however, that when Bolin was later stationed in
San Diego, he seriously injured his back while working on a
ship.)
When it came to other investigative reports and work
product, however, Cater determined that the record was
lacking. Cater thus undertook substantial efforts to
investigate mitigating circumstances that he could raise on
Bolin’s behalf. Within two days of Cater being appointed as
sole counsel, he and Ruby went to interview Bolin in jail.
Bolin told them that he had behaved well when he had been
incarcerated previously and had received several
commendations from the prison for maintenance work he
had done.
When Cater requested a two-week continuance at the
January 7, 1991 hearing, Cater told the judge that he had
made good progress on the investigation. Ruby had
“practically closed down his office” and was “working full
time” investigating Bolin’s life history. By that time, Ruby
had already traveled to Oklahoma, Chicago, Arizona, and
several places in California to meet with potential witnesses.
Among others, Ruby spoke to Mary and Paula (Bolin’s
daughters), Pamela Castillo (Bolin’s stepdaughter), Fran and
Rosemary (Bolin’s sisters), and various other relatives,
including Gary Monto (cousin), Marilyn Perez (cousin),
Trina Perez (Marilyn’s daughter), Florence Monto (Gary’s
26 BOLIN V. DAVIS
wife), Betty Monto (aunt), Jeremiah Monto (Gary and
Florence’s son), Sylvester Monto (uncle), and David
Alexander (Bolin’s probation officer in Oklahoma). After
the hearing, Ruby (with Cater) went to southern California
as part of the investigation. These various meetings yielded
considerable information about Bolin’s background and
upbringing.
In Chicago in particular, Bolin’s sisters and other
relatives “gave [Ruby] a wealth of information on [Bolin’s]
background,” and Ruby determined that several relatives
would be appropriate witnesses. Ruby learned of the
family’s claims that Bolin’s childhood included physical
abuse at the hands of his father William Bolin, and that Bolin
spent time bouncing from place to place, including time
living on the streets when he was nine or ten years old.
According to Ruby’s notes, Bolin’s sister Fran told Ruby
that when they were growing up, their “father would beat
them for nothing.” After their parents divorced, Bolin tried
living with his father and stepmother. This did not work out
because the stepsiblings would blame Bolin for anything
they did wrong, and Bolin’s father “would then beat Paul
until the dad could no longer raise his arms.”
Fran did not remember Bolin ever needing to go to a
hospital but relayed that one time their father had “hit him
and knocked him into the wall,” and that Bolin “was out for
over an hour from the blow.” Bolin “never tried to fight
back, he finally just left home and lived from place to place
[wherever] he could. Most of the time the grandmother
raised him or at least tried to.” According to Ruby’s notes,
Fran said that Bolin “became an orphan on the streets at age
10 and his first ten years were a living hell.”
BOLIN V. DAVIS 27
Rosemary, Bolin’s other sister, also told Ruby that her
father had physically abused the children and their mother.
Rosemary claimed that her father once tried to stab her
mother in front of the children. She also recalled that her
father beat her with a leather strap, and, as a result, she had
trouble with her legs as an adult. Rosemary recalled that
Bolin “went to the streets at about age 9.” He moved from
place to place but mostly lived with his grandmother. When
he would try to return home, it ended with Bolin being
beaten by his father. Ruby concluded, however, that
Rosemary likely would not make a good witness because she
would “come across to the jury as one that is better than the
rest of the family.” Rosemary also expressed some
unwillingness to attend the proceedings due to her family
obligations.
Ruby further learned that Bolin’s living situation became
more stable when he was fourteen and his mother married
his stepfather, Jim. According to Fran, Jim wanted to “put
the family back together.” The family moved around with
some frequency. The family had been living in Salt Lake
City for about a year when Bolin joined the military. Fran
did not see Bolin much, if at all, until he came to Chicago
after the murders.
Other family members in Chicago conveyed to Ruby
their positive recollections of Bolin. For example, Marilyn
Perez, Bolin’s cousin, told Ruby that Bolin loved his family,
and that Bolin had helped perform home renovations for her
when he was in Chicago (after the murders). Marilyn’s
daughter Trina discussed Vietnam with Bolin, and he told
her that it was a “horr[i]d place and was not a place for any
man to have to be.”
From Pamela Castillo, Bolin’s stepdaughter, and Mary
Bolin, Bolin’s daughter, Ruby obtained information about
28 BOLIN V. DAVIS
Bolin’s role as a protective parent figure. When Mary was
five and Bolin was serving in the Navy, Mary’s mother
began a relationship with another man. She abandoned her
two daughters, leaving it to friends and neighbors to care for
them. Bolin eventually obtained custody of Mary and Paula.
Ruby’s notes indicate that he also spoke with Paula as well.
Ruby also learned how Bolin allowed Pamela to come and
live with him after Pamela’s mother left the country for a
new relationship.
In southern California, Cater and Ruby talked to more
than twice as many people as Binns, Soria’s investigator.
They found “several important witnesses,” and they were
evaluating whether to use them.
2
The penalty phase began on January 22, 1991. In
addition to emphasizing the murders for which the jury had
already convicted Bolin, the State presented evidence of
other incidents when Bolin engaged in violent and
threatening conduct.
The State first called Kenneth Ross, Bolin’s victim on
his conviction for attempted voluntary manslaughter, for
which Bolin was sentenced to five years in prison. Ross told
the jury that in 1981, Bolin shot him in the chest while Ross
was having an argument with Bolin’s goddaughter, Nyla
Olson (now Nyla Ross, Kenneth’s wife). Ross testified that
the shot Bolin fired “tore up my liver, punctured my
diaphra[g]m, front and rear, went through my lung, broke my
rib,” and that pieces of the bullet were still inside him. Bolin
also beat Ross with his rifle after he shot him. As a result of
this incident, Ross was hospitalized for several weeks. Nyla
Ross also testified, and she confirmed that Kenneth was
unarmed when Bolin shot him.
BOLIN V. DAVIS 29
The State then put on Matthew Spencer. Spencer
testified that in 1979, he and his friend Brian Martinez went
over to Bolin’s house at the invitation of “Becky,” who was
renting a room from Bolin. Bolin became upset at Spencer’s
presence in the home and assaulted Spencer with help from
a friend, Ricky Balsamico. Balsamico beat Spencer with a
stick, and Bolin beat him with a pipe. Bolin was not charged
for this conduct.
The State also presented evidence that Bolin sent a
threatening letter to his daughter Paula’s former boyfriend,
Jerry Halfacre. In the letter, which Bolin sent while he was
awaiting his double-murder trial, Bolin warned Halfacre that
if he saw Bolin’s daughter again, Bolin would have him
“permanently removed from the face of this Earth.”
In her closing argument, the prosecutor emphasized
Bolin’s callousness for his victims, his failure to take
responsibility, and his gravitation toward violence. The
prosecutor also reminded the jury of the crimes for which
Bolin was convicted, reiterating Bolin’s heartlessness in the
killings, including how he left Wilson to die in the
mountains.
3
For the defense presentation at the penalty phase, Cater
put on eight witnesses: Mary Bolin (Bolin’s daughter), Paula
Halfacre (Bolin’s other daughter), Pamela Castillo (Bolin’s
former stepdaughter), Nancy Belden (a correctional officer
who had observed Bolin’s earlier behavior in prison), Fran
Bolin (Bolin’s sister), Marilyn Perez (Bolin’s cousin), Trina
Perez (Marilyn’s daughter), and Jeremiah Monto (Bolin’s
first cousin once removed). Through these witnesses, Cater
largely focused on eliciting Bolin’s positive attributes and
redeeming qualities and how Bolin had helped his family.
30 BOLIN V. DAVIS
But Cater also had witnesses touch on Bolin’s difficult
upbringing and military service, albeit briefly, and the
incidents of other violent crimes that the State had raised in
aggravation.
Bolin’s daughters, Mary and Paula, testified that Bolin
took them in and cared for them as a single father after his
first wife abandoned the girls while Bolin was serving in the
Navy. Pamela Castillo, Bolin’s stepdaughter, similarly told
the jury how Bolin had allowed her to live with him after her
mother left the country, even though Bolin and Pamela’s
mother were no longer married by that point. Pamela
recalled how Bolin provided food, shelter, and money for the
household, and how he also allowed Pamela’s friend, Nyla
Olson (later Nyla Ross), to live at the home too. Paula and
Pamela both noted Bolin’s positive relationships with their
own children.
Bolin’s daughters filled in other details about Bolin’s
life. Paula explained the circumstances of Bolin coming to
live in his remote mountain cabin, testifying that Bolin had
relocated there after Bolin’s fiancée, Rhonda, died in a car
accident. Mary testified about her father’s service in the
Navy, including in Vietnam.
Mary Bolin was the only defense witness to testify about
the Spencer and Ross incidents. She claimed that Bolin was
not the one to strike Spencer and that Bolin was trying to
protect her because Spencer was trying to touch her
inappropriately and was using drugs in the house. As to the
Ross shooting, Mary testified that Kenneth Ross was acting
violently toward Nyla and was carrying a stick as a weapon.
(The prosecution later cross-examined Mary based on
inconsistencies between her accounts of the incidents and the
police reports.)
BOLIN V. DAVIS 31
Bolin’s sister Fran, who is four years younger than Bolin,
testified as well. Cater did not ask Fran about the physical
abuse she had recounted to Ruby. Fran did, however, tell the
jury some of Bolin’s life story. When their parents divorced
(Fran was then four or five years old, and Bolin eight or
nine), Fran went to live with their grandmother, but Bolin
stayed with their father, William Bolin. Fran testified about
the difficult relationships Bolin had with both William and
Bolin’s first stepfather. She also spoke about the general
hardship Bolin endured during his childhood, recalling that
Bolin sometimes “lived with his friends on the street, in
cars.”
Fran and other Chicago relatives also emphasized
Bolin’s good character, telling the jury how, after Bolin
returned to Chicago following the murders, he tried to get
family members to spend time together, took the lead on
home renovation projects, and served as a mentor figure to
younger family members. Nancy Belden, a correctional
officer assigned to Bolin’s housing unit while he was
incarcerated for shooting Kenneth Ross, recalled Bolin as a
“cooperative inmate” and was unaware of him having caused
problems in prison.
In his closing argument, Cater argued that Bolin should
be sentenced to life in prison. Cater focused on Bolin’s
positive attributes, including his military service and how he
provided for Mary, Paula, and Pamela after their mothers
abandoned them: “This is not a man whose life is not without
redemption. He provided a shelter, he provided food, he
provided a home and a father to these children, and this is
not a man that has sought out and gone and done things that
you have [to] execute[] him for.”
32 BOLIN V. DAVIS
B
Bolin’s principal claim on appeal is that Cater should
have sought more time to develop mitigating evidence and
that had he done so, Cater would have discovered new
evidence that would have led the jury to sentence Bolin to
life in prison instead of death. Under AEDPA, we are
constrained to disagree. We hold that a reasonable jurist
could conclude that a further continuance of the penalty
phase, and Cater’s discovery and presentation of the
additional mitigating evidence Bolin now identifies, was not
reasonably likely to have changed the result in Bolin’s case.
The reason lies in the “balance of aggravating and
mitigating circumstances” that Bolin’s case presents.
Strickland, 466 U.S. at 695; see also Pinholster, 563 U.S.
at 198 (explaining that courts evaluating Strickland
prejudice must “reweigh the evidence in aggravation against
the totality of available mitigating evidence” (quoting
Wiggins v. Smith, 539 U.S. 510, 534 (2003)). The new
mitigating evidence that Bolin has developed in connection
with his habeas petition is “hardly overwhelming.” Kayer,
141 S. Ct. at 525 (quoting Kayer v. Ryan, 923 F.3d 692, 727
(9th Cir. 2019) (Owens, J., dissenting)). Although that
evidence presents Bolin in a more sympathetic light in some
respects, it also suffers from a variety of shortcomings. At
times, it is variously speculative, double-edged, ambiguous,
or otherwise unpersuasive. In other instances, it is
cumulative of evidence and mitigation themes that Cater had
presented. Especially when compared to the “undisputedly
strong aggravating factor[s],” id. (quoting Kayer, 923 F.3d
at 727 (Owens, J., dissenting)), a reasonable jurist could
conclude that the claimed ineffective assistance of counsel
during the penalty phase did not prejudice Bolin.
BOLIN V. DAVIS 33
We first address the several areas of allegedly
undeveloped mitigating evidence that Bolin identifies. We
explain why, taken as a whole, they are insufficiently
compelling. We then turn to the aggravating factors that the
State presented.
1
Bolin argues that his counsel should have investigated
and presented evidence that primarily consists of the
following: (1) Bolin’s possible neurological deficits; (2) his
substance abuse prior to the murders; (3) his traumatic
childhood; (4) his military service, including his time in
Vietnam; (5) his good character, based on Bolin’s role as a
protective parent and his good behavior in prison; and
(6) expert testimony to synthesize his life history. While we
must necessarily address each of these areas individually,
our ultimate conclusion turns not only on deficiencies within
each category of mitigation evidence, but in all the
mitigation theories when considered as a collective whole.
Neurological deficits. Bolin claims that his counsel
failed to inform the jury that Bolin had “neuropsychological
dysfunction localized to the frontal lobes” of his brain, which
Bolin attributes to “[h]is numerous head injuries, alcohol
abuse, and exposure to neurotoxins on a daily basis for
fifteen years, including solvents, petroleum products and
lead particles.” According to Bolin, “[b]ecause his frontal
lobes have been damaged, [he] has profound impairments in
flexibility (the ability to shift or adapt thinking or behavior
to changed circumstances) and the ability to inhibit
unwanted responses.”
The basis for this theory is the expert declarations of
Drs. Khazanov and Matthews. Dr. Khazanov performed a
neurological assessment on Bolin and concluded that Bolin
34 BOLIN V. DAVIS
exhibited evidence of brain damage, which Dr. Khazanov
attributed to potential head trauma from Bolin’s childhood,
exposure to neurotoxins from his time in the Navy and his
work as a pipefitter and welder, and his excessive
consumption of alcohol. Dr. Khazanov opined that because
of his brain damage, Bolin is “prone to confabulate and fill
in the large gaps in his memory with incorrect information,”
and is further “unable to adequately plan complex actions,
learn from his mistakes, or . . . shift his thinking or behaviors
in response to environmental or verbal cues.”
In his separate report, Dr. Matthews relied on both
Bolin’s life history, including childhood trauma and alleged
neurotoxin exposure, and Dr. Khazanov’s conclusions, to
opine that Bolin “is psychiatrically and
neuropsychologically impaired,” and that “such deficits
were causally related to his behavior at the time of the
offenses for which he has been sentenced to death.”
Dr. Matthews echoed Dr. Khazanov’s determination that
Bolin “has a tendency to confabulate” and that because of
his brain damage, “he unintentionally fills in the gaps with
misinformation.” Dr. Matthews concluded that based on
Bolin’s impairments, “at the time of the crime [Bolin]
became frightened and suddenly perceived great danger to
himself in the actions of Vance Huffstuttler, which caused
him to believe that he had to defend himself against that
danger.”
Drs. Khazanov and Matthews conducted their analyses
approximately ten years after the murders. And their
assessment of Bolin is largely at odds with the conclusions
of Dr. Ronald Markman, who evaluated Bolin prior to trial
and whose report (which Cater received) concluded that
“[t]here was no evidence of a major mental disorder.” Even
setting these points aside, there are a number of significant
BOLIN V. DAVIS 35
shortcomings in Bolin’s neurological deficits theory. We
need identify only some of them to show that a reasonable
jurist could conclude that this theory lacks support and is
thus unlikely to have affected the jury’s decision.
As an initial matter, while Dr. Khazanov concluded that
Bolin’s test results were consistent with brain injury, she
acknowledged that Bolin’s medications, “underlying
depression and anxiety,” and possible malingering could
affect the results. More importantly, while Drs. Khazanov
and Matthews tried to connect Bolin’s claimed neurological
deficits to childhood trauma and neurotoxin exposure, that
connection was speculative, or at least a reasonable jurist
could so conclude. Cf. Leavitt v. Arave, 646 F.3d 605, 614
(9th Cir. 2011) (“[S]peculative mitigation evidence is not
entitled to significant weight.”).
Dr. Khazanov suggested that Bolin may have developed
brain injuries from his father’s abuse. But she based this on
several scars on Bolin’s head, a “definite indentation” she
identified near a scar site, and one incident in which Bolin’s
father allegedly threw Bolin against a wall. Dr. Matthews
similarly asserted that based on “reports that Paul was
knocked unconscious by his father’s blows on more than one
occasion, it is quite likely that [Bolin’s] brain was damaged
by his injuries.” Dr. Matthews further suggested that Bolin
“may have experienced neuropsychological damage in utero
before he was born.” A reasonable jurist could conclude that
opinions such as these fail to draw a sufficient causal
connection between Bolin’s childhood and his later claimed
brain damage. See Bible v. Ryan, 571 F.3d 860, 871 (9th Cir.
2009).
The same is true of his alleged neurotoxin exposure.
Dr. Khazanov opined that Bolin had been exposed to
neurotoxins, such as lead paints, solvents, and fuels, which
36 BOLIN V. DAVIS
“may result in organic brain damage.” Dr. Matthews
similarly tried to connect Bolin’s alleged psychological
impairments to neurotoxins, including based on his parents
working in a Chicago factory where they “were exposed to
noxious fumes and vapors.” But as was true with possible
brain damage from childhood injuries, a reasonable jurist
could conclude that the relationship between Bolin’s alleged
mental deficiencies and his (or his family’s) neurotoxin
exposure is insufficient—and that it is inconsistent with the
lack of any other medical records bearing on this issue.
Finally, a reasonable jurist could conclude that Bolin’s
neurological deficits theory is of uncertain relevance to the
offenses for which he was convicted. Drs. Khazanov and
Matthews linked Bolin’s brain injuries to his confabulating.
But it is unclear how Bolin’s confabulation explains his
murdering Huffstuttler and Mincy. Similarly, a reasonable
jurist (and jury) could well find the opinions of Bolin’s
medical experts unpersuasive given Bolin’s deliberate
shooting of three people and his strategic thinking after the
murders, when Bolin recreated the scene as a failed drug deal
and disabled Wilson’s vehicle to prevent his escape.
Although Bolin’s experts have pointed to possible
neurological deficiencies attributable to childhood trauma
and environmental exposures, “reasonable jurists could
debate the extent to which these factors significantly
impaired his ability to appreciate the wrongfulness of his
conduct or to conform his conduct to the law at the time of
the murder.” Kayer, 141 S. Ct. at 525.
Substance abuse at time of murders. Bolin maintains his
counsel should have also argued to the jury that Bolin’s
“ingestion of alcohol and cocaine before the crime, along
with the many stressors in his life, exacerbated the effects of
his deficits and made it even more likely that he would act
BOLIN V. DAVIS 37
in response to perceived danger.” Once again, Bolin does
not demonstrate prejudice under AEDPA.
As an initial matter, it is not self-evident that under the
circumstances of this case, the jury would necessarily regard
Bolin’s alleged contemporaneous substance abuse as
mitigating. See, e.g., Pinholster, 563 U.S. at 201 (explaining
that some mitigating evidence, such as “more serious
substance abuse,” can be a “two-edged sword” because it
might cause the jury to conclude the petitioner is “simply
beyond rehabilitation” (quoting Atkins v. Virginia, 536 U.S.
304, 321 (2002))); Wackerly v. Workman, 580 F.3d 1171,
1178 & n.1 (10th Cir. 2009) (discussing case law
“demonstrat[ing] that substance abuse evidence often can
have more aggravating than mitigating effect”); Clisby v.
Alabama, 26 F.3d 1054, 1056 (11th Cir. 1994) (“[M]any
lawyers justifiably fear introducing evidence of alcohol and
drug use.”).
Nor is it apparent that a jury would regard an intoxication
theory as mitigating alongside Cater’s dominant theory that
Bolin was a loving and protective father who cared for
others. As the Supreme Court has explained, the prejudicial
impact of not presenting certain potentially mitigating
evidence is lessened if that evidence would “undercut” a
mitigation theory that counsel did present. Pinholster,
563 U.S. at 202.
Regardless, the evidence that Bolin was under the
influence of drugs and alcohol when he killed Huffstuttler
and Mincy is seemingly based only on Bolin’s own
statements to Drs. Markman and Matthews, the latter some
ten years after the fact. A reasonable jurist could thus
conclude not only that Bolin’s theory of drug and alcohol
inducement was not mitigating, but also that it was
unsupported.
38 BOLIN V. DAVIS
Childhood trauma. We turn next to Bolin’s claim that
Cater failed to develop and present evidence about Bolin’s
traumatic childhood. The evidence of Bolin’s childhood is
set forth most comprehensively in Dr. Matthews’s expert
declaration, which describes, among other things, how
Bolin’s father William was prone to violent outbursts,
including screaming, beating his wife and children, and on
one occasion throwing Bolin down the stairs and knocking
him unconscious.
We note at the outset that Bolin’s arguments
notwithstanding, Cater did investigate Bolin’s childhood by
having Roger Ruby, his investigator, speak with Bolin’s
sisters, Fran and Rosemary, and other members of Bolin’s
extended family. As we discussed above, these interviews
yielded information about Bolin’s difficult upbringing,
including the physical abuse at the hands of his father. It is
thus not clear that a further continuance would have made a
material difference in the information Cater was able to
obtain.
We also note that though Bolin claims the jury was not
told about his childhood, Bolin’s sister Fran did shed some
light on it in her testimony. While it was not a dominant
theme of Cater’s overall presentation, Fran told the jury
about how their parents divorced when the children were
young and how neither Bolin’s father nor his first stepfather
wanted him in their homes. Fran recalled for jurors how
Bolin was “thrown out” of the house and how he lived “on
the streets.”
It is true, of course, that Fran did not testify about her
father’s physical abuse, which she had disclosed to Ruby
during her meeting with him. We acknowledge that the
accounts of Bolin’s difficult upbringing are disturbing. And
we do not deny their potential value as a mitigation theory.
BOLIN V. DAVIS 39
It is possible, of course, that Cater may have had a reasonable
strategic judgment in avoiding this topic or not dwelling on
Bolin’s childhood further—an issue we do not decide.
Regardless, under AEDPA, we cannot conclude that the state
court would be objectively unreasonable in determining that
further development of this issue was unlikely to have
changed the result.
Based on Ruby’s investigation, Bolin’s sister Fran
offered the most extensive account of Bolin’s father’s abuse.
But Bolin’s parents divorced when Bolin was eight or nine
years old, and Fran was four years younger than Bolin. The
impact of her testimony would thus need to be considered
alongside the fact that Fran was only four or five years old
when she last lived with Bolin on a regular basis. And while
Fran provided Ruby with information about Bolin’s father
beating Bolin following their parents’ divorce, it is not
apparent Fran and Bolin lived in the same home at this time.
In evaluating the prejudice from Fran not testifying about
Bolin’s childhood abuse, a reasonable jurist could thus
consider that Fran’s base of knowledge may have been
limited.
And while Bolin’s other sister, Rosemary, corroborated
some of Fran’s account, Rosemary lacked knowledge of the
full timeframe, and Ruby otherwise questioned whether she
would make a good witness. The prejudice to Bolin of
Rosemary not testifying therefore must include the
possibility that the jury may have viewed Rosemary
unfavorably, as Ruby feared.
Further affecting the potential mitigation value of
Bolin’s abusive childhood is the fact that William’s violent
conduct, while deplorable, was not so severe that it resulted
in Bolin receiving medical attention. The extent of harm that
Bolin experienced as a child makes this case analogous to
40 BOLIN V. DAVIS
other cases involving either comparable or far more
egregious childhood abuse where § 2254 relief was
nonetheless denied. See, e.g., Pinholster, 563 U.S. at 201(denying relief even though petitioner came forward with
additional evidence that he was “beaten with fists, belts, and
even wooden boards”); Apelt v. Ryan, 878 F.3d 800, 815–16
(9th Cir. 2017) (denying relief despite counsel’s failure to
present evidence that “Apelt ‘came from a family
background of gross poverty, alcoholism and violence which
included emotional, physical and sexual abuse’”; that
Apelt’s “abusive,” “alcoholic” father “beat his wife and
children, including Apelt, with an iron rod”; and that Apelt
was sexually assaulted as a child); Cain v. Chappell,
870 F.3d 1003, 1021 (9th Cir. 2017) (denying relief even
though petitioner endured “severe beatings and punishment”
during his childhood, including an “untreated head injury”).
William’s violent conduct toward Bolin, we also must
note, does not rise nearly to the level of Bolin’s own
depraved and lethal conduct. That as well makes Bolin’s
difficult upbringing a more uncertain basis for mitigation.
See, e.g., Wong v. Belmontes, 558 U.S. 15, 21, 27–28 (2009)
(per curiam) (explaining that while petitioner endured a
“‘terrible’ childhood” with an “extremely abusive” father,
“[i]t is hard to imagine expert testimony and additional facts
about [petitioner’s] difficult childhood outweighing the facts
of [the] murder” for which he received a death sentence
(emphasis omitted)); Benson v. Chappell, 958 F.3d 801, 833
(9th Cir. 2020) (explaining that evidence of petitioner’s
childhood sexual abuse “does not explain or justify [his]
murder of Laura and her three children”); Samayoa v. Ayers,
649 F.3d 919, 929 (9th Cir. 2011) (similar).
Further, a reasonable jurist could also discount the
prejudicial value of Bolin’s childhood experience based on
BOLIN V. DAVIS 41
the amount of time that had elapsed between Bolin’s
childhood and his much later murders of Huffstuttler and
Mincy. Dr. Matthews, who provided the most extensive
account of Bolin’s abuse, focuses largely on the period
before Bolin’s parents divorced, when Bolin was eight or
nine years old. And while Bolin allegedly continued to
experience beatings after that (even though he was evidently
spending less time with his father at this point), by the time
Bolin was fourteen he had moved in with his mother and her
new husband, James Amsbury (Bolin’s second stepfather).
Thereafter, according to Dr. Matthews, Bolin’s “life changed
dramatically” because Amsbury “took both Fran and [Bolin]
in as though they were his own” and “did his best to be a
father to [Bolin].” Meanwhile, Bolin would not murder
Huffstuttler and Mincy until he was 42 years old.
A reasonable jurist could conclude that the substantial
gap in time between Bolin’s worst childhood experiences
and his murders of Huffstuttler and Mincy is another feature
of the record that weakens the mitigatory effect of William’s
abusive conduct. See, e.g., Callahan v. Campbell, 427 F.3d
897, 937 (11th Cir. 2005) (holding that when evidence of
physical abuse predated crimes by “several decades,” its
mitigation value was “minimal”).
Finally, if Cater had introduced evidence of Bolin’s own
childhood abuse, it risked opening the door to rebuttal
evidence of Bolin’s domestic abuse of his wife and children.
See Belmontes, 558 U.S. at 18–19, 24–26 (recognizing
counsel’s “grave concerns” that, under “California
evidentiary rules,” if his mitigation argument “swept too
broadly,” evidence counsel had succeeded in having
excluded “would come in for rebuttal”).
The record indicates that Bolin had been arrested for
battery of his second wife and for assault with a deadly
42 BOLIN V. DAVIS
weapon and child cruelty toward one of his stepdaughters.
When asked about the latter, he told his probation officer, “I
whipped my stepdaughter’s ass with a belt.” Bolin had also
been arrested for assault with a deadly weapon involving one
of his stepdaughter’s teenage friends. As Bolin explained, a
boy came at him, so he “kicked the shit out of him.” These
incidents would have at least provided a counterpoint to
Bolin’s own history of abuse as a child. And they would
have likely dampened the mitigation impact of Cater’s
central theory that Bolin was unworthy of the death penalty
because of how he cared for his family. See Pinholster,
563 U.S. at 202.
In short, while Bolin’s violent upbringing may be the
most compelling mitigation evidence that Cater did not
present, a reasonable jurist could conclude that it is not so
compelling, in combination with the other mitigating and
aggravating factors, to indicate that it could have changed
the result in Bolin’s case.
Military service. Bolin also argues that Cater should
have developed and presented more evidence about Bolin’s
military service. But contrary to the suggestion that the jury
was unaware of this aspect of Bolin’s life, Cater during the
penalty phase peppered his witness questioning with
references to Bolin’s service in the Navy and Vietnam. The
jury heard from Mary and Frances that Bolin had served in
the Navy in Vietnam when Mary was a young child. And
Cater repeatedly reminded the jury in his closing argument
about Bolin’s military service in Vietnam and how Bolin had
“served his country.”
Although Cater could have presented more detail about
the specifics of Bolin’s experience in the Navy, it is not
apparent that this additional information creates a materially
different portrait in mitigation. Although Bolin now
BOLIN V. DAVIS 43
suggests that his service in Vietnam caused him to develop
unidentified mental health problems, including through
possible neurotoxin exposure, Bolin’s time in Vietnam was
short (approximately 6 months).
Bolin does point to some positive reviews from military
superiors, his stay in a military hospital for an “anxiety
reaction” (prior to going to Vietnam), and the back injury he
sustained on a ship after returning from Vietnam. But this
further background information does not change our
conclusion. We can agree that, like Bolin’s military service
generally, these additional details may have additional value
in mitigation. Nonetheless, a reasonable jurist could
conclude that Bolin identifies nothing in his military service
that presents a supported and compelling basis from which
the jury would have reached a different conclusion in the
penalty phase.
That is especially so considering that the more favorable
or sympathetic aspects of Bolin’s time in the Navy must be
considered alongside other more negative aspects, which the
State might have used in rebuttal had Cater dwelled on the
issue more. See Belmontes, 558 U.S. at 26 (courts must
consider evidence “that would have been presented had [the
petitioner] submitted the additional mitigation evidence”).
Among other things, Dr. Matthew’s report discusses how
Bolin’s stepfather pushed Bolin to join the service, hoping
the Navy would straighten Bolin out after he was arrested
and put on probation for burglary. Once in the Navy, Bolin
had further disciplinary problems, including a court martial,
for offenses that included intoxication on duty from
“chemicals” and alcohol, unauthorized absence, and use of
an “unissued identification card.” Bolin also had told a Navy
psychiatrist that he wanted to “beat up someone” and
reportedly showed hostility to others. That Bolin’s military
44 BOLIN V. DAVIS
career does not tell a consistently positive story—or even a
consistent one—means that a reasonable jurist could
determine that more information on Bolin’s military service
would not have likely changed the jury’s decision.
Good character. Bolin argues that Cater should have
developed and presented additional evidence of his good
character, based on Bolin’s role as a protective parent and
his positive prison adjustment. We need not dwell on this
point for long. As we described above, the jury heard
considerable testimony about Bolin’s role as a protective
parent to his daughters and stepdaughters. Indeed, this was
the primary theme of Cater’s presentation to the jury.
Additional evidence on this point would have been
cumulative, and thus unlikely to affect the result. See, e.g.,
Pinholster, 563 U.S. at 200 (rejecting Strickland claim under
AEDPA when “[t]he ‘new’ evidence largely duplicated the
mitigation evidence at trial”).
A similar point answers Bolin’s argument that Cater
should have said more about Bolin’s ability to adjust to
prison life. Cater had already called as a witness Nancy
Belden, a correctional officer, and she told the jury that Bolin
was cooperative and did not cause problems in custody,
agreeing that he was a “model inmate” while he was
incarcerated in 1985. Cater used that testimony in his
closing to argue that Bolin functioned well in a structured
environment, lumping in his time in the Navy. Once again,
Bolin has not demonstrated that additional information on
his behavior in prison would have altered the result in his
case. See, e.g., id.Expert testimony. Finally, we consider Bolin’s argument
that Cater should have put on expert testimony to support
Bolin’s penalty phase defense. Contrary to Bolin’s premise,
Cater was not without expert opinion: he had Dr. Markman’s
BOLIN V. DAVIS 45
evaluation, which was largely unfavorable. But once again,
even assuming Cater was deficient in not consulting further
experts and bringing forward expert testimony to synthesize
Bolin’s life history, we cannot conclude Bolin has shown
prejudice under AEDPA on the facts of this case.
Bolin cites no authority suggesting that a defense
lawyer’s determination not to use an expert witness during
the penalty phase constitutes per se prejudice under
Strickland. And we are aware of no such authority either,
especially in the AEDPA context. Such a rule would be
contrary to counsel’s well-established discretion, within the
bounds of reasonable professional judgment, as to whether
to use experts. See Richter, 562 U.S. at 106–07 (“Rare are
the situations in which the ‘wide latitude counsel must have
in making tactical decisions’ will be limited to any one
technique or approach. . . . Here it would be well within the
bounds of a reasonable judicial determination for the state
court to conclude that defense counsel could follow a
strategy that did not require the use of experts . . . .” (quoting
Strickland, 466 U.S. at 689)); Bonin v. Calderon, 59 F.3d
815, 834 (9th Cir. 1995) (“[T]he presentation of expert
testimony is not necessarily an essential ingredient of a
reasonably competent defense.”).
Instead, we must evaluate Bolin’s charge that Cater
should have used an expert based on the expert testimony
Bolin now proffers and the overall record in this case. For
the reasons we have discussed above, the expert testimony
that Bolin advanced to the state habeas court—from
Drs. Khazanov and Matthews—has limited mitigation
value.
Further weakening Bolin’s focus on the lack of expert
testimony is that if Bolin had offered such testimony, the
State could have offered its own expert in rebuttal. See
46 BOLIN V. DAVIS
Pinholster, 563 U.S. at 201 (psychiatric evidence could have
“opened the door to rebuttal by a state expert”); Belmontes,
558 U.S. at 25 (explaining that the “‘more-evidence-is-
better’ approach” “might seem appealing” but carried
significant risks of rebuttal evidence in response to
“heavyhanded” attempts to “portray [the defendant] in a
positive light, with or without experts”).
We need look no further than Dr. Markman, the expert
Bolin’s own counsel had retained prior to trial.
Dr. Markman evaluated Bolin in 1990, not long after the
murders. And his conclusions were not helpful to Bolin’s
current theory of mental impairment. In particular, and
among other things, Dr. Markman opined that Bolin was
“fully oriented in all spheres,” of “above normal intelligence
with an excellent fund of knowledge,” with “no evidence of
a major mental disorder, thought disorder[,] or psychosis.”
Dr. Markman also cited Bolin’s “repeated history of
aggressive behavior” while noting that if Bolin had
“fabricated” information he provided to Markman, Bolin
was “fully aware that he is doing so.”
While Bolin now maintains that Dr. Markman’s
evaluation was not translatable for penalty phase purposes
and that Markman based his opinions on insufficient
information, those arguments misunderstand the relevance
of Dr. Markman’s report for purposes of our present
analysis. Dr. Markman’s opinions could themselves have
had some shortcomings. But they reflect the type of expert
opinions that the State could have put on, had Cater put on
an expert like Drs. Matthews or Khazanov. That
Dr. Markman had evaluated Bolin more contemporaneously
with the murders, and was an expert that Bolin’s own
counsel had retained, only further underscore the State’s
ability to offer its own expert in rebuttal. It would be
BOLIN V. DAVIS 47
objectively reasonable for the state habeas court to conclude
that under the facts of this case, Bolin was not prejudiced by
the lack of expert testimony because the prosecution could
have presented an opinion similar to Dr. Markman’s, which
was unhelpful to Bolin.
2
Viewed as a collective whole, the additional mitigating
evidence Bolin has brought forward in habeas is not
inevitably compelling under AEDPA. This on its own would
be sufficient to deny relief under § 2254. Pinholster,
563 U.S. at 202. But that conclusion is bolstered when the
new mitigating evidence is considered alongside the
aggravating circumstances that the State presented.
As the Supreme Court has explained, even before the
AEDPA overlay, “to establish prejudice” Bolin “must show
a reasonable probability that the jury would have rejected a
capital sentence after it weighed the entire body of
mitigating evidence . . . against the entire body of
aggravating evidence.” Belmontes, 558 U.S. at 20; see also
Mickey v. Ayers, 606 F.3d 1223, 1245 (9th Cir. 2010)
(explaining that the Supreme Court has “reaffirmed that the
facts of the crime play an important role in the prejudice
inquiry”). And under AEDPA, Bolin must show even more:
that the state habeas court’s reweighing of the aggravating
and mitigating circumstances was not merely unpersuasive,
but “objectively unreasonable.” Andrade, 538 U.S. at 75.
Bolin cannot make this showing.
The crimes that lead to capital convictions often present
highly aggravated circumstances. This case is no exception.
But if anything, it involves uniquely cruel and unjustified
conduct that reflected an appreciable indifference to human
life. In an apparent effort to maintain the secrecy of his
48 BOLIN V. DAVIS
marijuana grow operation, Bolin shot two men four times
each. Mincy implored Bolin to spare him, but Bolin killed
him anyway. Bolin took the effort to get a second weapon
to use on Huffstuttler’s motionless body after he had already
shot him once. And Bolin then elaborately dressed the scene
with broken glass, marijuana, and chili, placing a gun in
Huffstuttler’s dead hand. Bolin also shot Wilson in the
shoulder, hunted for him in the forest, and, when he failed to
find him, immobilized Wilson’s vehicle and left Wilson to
perish in an unforgiving mountainous terrain. And this is to
say nothing of the other past incidents of violent conduct that
the State presented involving Kenneth Ross and Matthew
Spencer—conduct that resulted in serious injury and, in the
case of Ross, could have resulted in death.
Taken as a whole, “[t]he State presented extensive
aggravating evidence.” Pinholster, 563 U.S. at 198. A
reasonable jurist could easily conclude that the additional
mitigating evidence Bolin now proffers was unlikely to have
led the jury to choose a different sentence. We thus hold that
even if Cater acted deficiently in failing to develop and
present more mitigating evidence and in failing to seek
additional time for that endeavor, under AEDPA Bolin
cannot show he was prejudiced.
V
Lastly, we address Bolin’s request for new counsel. On
two earlier occasions, Bolin filed pro se requests for
alternative counsel, and both times we ordered his appointed
counsel to respond. Both times, we concluded that his
counsel’s response was satisfactory under Martel v. Clair,
565 U.S. 648 (2012). Thus, we denied Bolin’s requests.
Since then, Bolin has filed several additional pro se
motions requesting alternative counsel and related relief.
BOLIN V. DAVIS 49
We have carefully reviewed those filings as well. We deny
Bolin’s latest requests. Although Bolin has not prevailed in
this appeal, his appointed counsel ably discharged their
duties in representing him before this Court.
* * *
The judgment of the district court is AFFIRMED.