PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATHAN WAYNE BOWIE,
Petitioner-Appellant,
v.
GERALD J. BRANKER, Warden, No. 06-25
Central Prison, Raleigh, North
Carolina,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Frank D. Whitney, District Judge.
(5:03-cv-00137)
Argued: October 31, 2007
Decided: January 3, 2008
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Judge Michael and Judge King concurred.
COUNSEL
ARGUED: Mark Alexander Charns, CHARNS & CHARNS, Dur-
ham, North Carolina; Steven Robert Edelstein, EDELSTEIN &
PAYNE, Raleigh, North Carolina, for Appellant. Jill Ledford Cheek,
Special Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON
2 BOWIE v. BRANKER
BRIEF: Roy Cooper, Attorney General, Raleigh, North Carolina, for
Appellee.
OPINION
DUNCAN, Circuit Judge:
Nathan Wayne Bowie petitions this court for review of the district
court’s denial of his petition under 28 U.S.C. § 2254 for relief from
the sentences of death he received in connection with two North Car-
olina first-degree murder convictions. For the reasons that follow, we
affirm.
I.
A.
The unchallenged facts adduced at trial and found by the state court
follow. On May 23, 1991, at around 11:00 p.m., the uncle, William
Barfield Bowie ("William"), and aunt, Rochelle Bowie ("Rochelle"),
of Nathan Wayne Bowie ("Bowie") approached Nelson Shuford
("Shuford") and Calvin Wilson ("Wilson") in the street. An argument
ensued between Rochelle and Shuford. Seeing acquaintances of Shu-
ford’s gathering, William and Rochelle walked away from the argu-
ment. They then heard shots fired from behind them. Rochelle
believed that Shuford and Wilson were shooting at her, but in fact
Wilson was shooting into the air.
William and Rochelle returned to Rochelle’s residence, where Wil-
liam attempted to contact Bowie. Reaching Bowie’s mother by tele-
phone, William left a message for Bowie, explaining what had
transpired and asking Bowie to meet him at Rochelle’s residence as
soon as possible. Shortly thereafter, Bowie, then twenty-years old,
arrived, carrying a .45 firearm. Bowie explained, "I had a funny feel-
ing something was going to go down so I brought the gun." J.A. 579.
William then retrieved a .25 firearm and checked it for bullets. Bowie
was overheard telling William, "I know where he live[s]. He live[s]
BOWIE v. BRANKER 3
in Newton." Id. (alteration in original). Shuford in fact resided in
Newton.
Early the next morning, Bowie and William left Rochelle’s house.
Around 8:00 a.m., Bowie was seen pounding on the front door of
Shuford’s residence in Newton, calling for Shuford to come out,
claiming to be "Neal" from Charlotte. Finding Shuford not at home,
Bowie left, angry and cursing, and sped away in his truck. Three wit-
nesses, including two who knew Bowie from high school, identified
Bowie as the man banging on Shuford’s door.
Approximately two hours later, Shuford and Wilson were standing
and socializing with four friends in the yard of Phillip Link. Accord-
ing to multiple eyewitnesses, Bowie and William appeared from
behind a building and approached the group. Shuford asked,
"[W]hat’s up, man[?]", J.A. 580, then Bowie and William began fir-
ing, killing Shuford and Wilson.
Later forensics revealed that Shuford had been shot once in the
chest by a large-caliber bullet, dying instantly. Wilson was shot in the
chest with a small-caliber bullet and in the head with a large-caliber
bullet. One of the gunshot wounds was delivered after Wilson was
already on the ground suffering from the other. Wilson died several
days later from the head wound. Neither victim was armed at the time
of the shootings, though Wilson’s gun was some distance away in the
trunk of his car.
Immediately after the killings, Bowie and William fled to Philadel-
phia, where they were soon apprehended and charged with the mur-
ders. Bowie and William were tried together, each for two counts of
first-degree murder, in the Catawba County Superior Court in North
Carolina. Bowie was represented at trial by two court-appointed attor-
neys: W. Thomas Portwood, Jr. ("Portwood") and Mark Killian
("Killian"). Portwood had a general practice that included court-
appointed criminal work. He had previously represented several capi-
tal defendants. It was later revealed that Portwood struggled with
alcohol dependence during his representation of Bowie.1 Killian was
1
Portwood later insisted, however, that he was never intoxicated while
actually performing work on Bowie’s case.
4 BOWIE v. BRANKER
a young attorney from a firm that engaged primarily in civil matters
and had no capital experience. Before trial, the two attorneys negoti-
ated a plea offer for Bowie in which Bowie would have pleaded guilty
to two counts of second-degree murder, for which he would have
received life imprisonment but been spared a potential death sentence.
Bowie declined the proffered plea agreement, electing instead to go
to trial.
A number of witnesses testified at trial as to the essential facts sur-
rounding the killings. For example, disinterested eyewitnesses testi-
fied to Bowie and William’s discussion and handling of firearms the
night before the killings, to Bowie’s pounding on Shuford’s door, and
to the killings themselves. In addition to the undisputed testimony of
those witnesses, the government read into evidence two statements
that are at issue in this appeal.
The government introduced a voluntary statement that co-
defendant William had given to police shortly after his arrest. In the
statement, William explained that either Shuford or Wilson took jew-
elry from Rochelle’s house, which prompted the argument in the
street the night before the murders. The next day, William continued,
he met up with "someone" at Rochelle’s house.2 J.A. 33. The two left
together in search of Shuford and Wilson, whom they found in Link’s
yard. William and Shuford started arguing. William stated that he
heard a shot issue from behind him and saw Shuford fall to the
ground. William explained that he panicked, pulled out his own fire-
arm and fired two rounds in the direction of Shuford and Wilson
before the gun jammed. He heard another shot, then began to run,
hearing one final shot behind him as he escaped the scene. William
insisted to police that he had brought his gun with him that morning
only as a precaution, knowing that at least one of the men had been
armed the night before, and that he did not intend to kill anyone.
Bowie’s counsel made no objection to the admission of the statement,
nor did they ask that a limiting instruction be provided to ensure the
jury did not consider the statement to implicate Bowie.
2
The statement had been sanitized so as not to expressly identify
Bowie, referring instead to "someone" or "we."
BOWIE v. BRANKER 5
The government also introduced a statement that Rochelle had pro-
vided to investigators on the night of the murders. Bowie objected to
admission of the statement on the ground, inter alia, that it would vio-
late his rights under the Confrontation Clause of the Sixth Amendment.3
The trial court overruled the objection and allowed the statement to
be admitted under Rule 804 of the North Carolina Rules of Evidence,
governing admission of statements made by unavailable witnesses.
Rochelle explained in her statement that she had argued with Shu-
ford regarding the location of her missing jewelry. She confirmed the
testimony of other witnesses that Bowie and William handled fire-
arms that night at her house. She also stated that the duo drove off the
next morning in Bowie’s truck, returning a few hours later in haste
to take Rochelle and her children to stay with a relative. En route,
either Bowie or William told her, "[W]e got them." J.A. 30. Bowie
and William told her they were going to Philadelphia.
In the face of the essentially undisputed testimony at trial that
Bowie and William shot Shuford and Wilson, Bowie’s counsel
focused their closing statements on the government’s supposed failure
to prove premeditation, asking the jury to return verdicts for second-
degree murder. The jury nevertheless found Bowie and William guilty
of both counts of first-degree murder under the theory of acting in
concert.
B.
At sentencing, Killian took the lead in representing Bowie. He
presented the testimony of six witnesses: Bowie’s mother, Joan Hunt;
his former social worker from the Catawba County Department of
Social Services ("DSS"), Joanne Sigmon; two of his high school foot-
ball coaches; his high school principal; and his eighth-grade teacher.
Joan Hunt testified that during Bowie’s childhood she was a single
parent with no permanent address, staying where she could for the
first several years of his life. She explained that Bowie had been sexu-
ally abused as a child by her mother’s boyfriend. She admitted that
3
Rochelle had moved to Philadelphia after the murders. Law enforce-
ment attempted to locate her there, but friends and family indicated that
she had moved again and had not provided her new address.
6 BOWIE v. BRANKER
she abused heroin, cocaine and other drugs during that time, on occa-
sion using Bowie to consummate transactions with a local dealer on
her behalf. She testified that she sought treatment for her drug addic-
tions more than once, with Bowie ultimately moving to the Sipes
Orchard Home ("Sipes"), an orphanage, so she could devote herself
to treatment. She explained that Bowie’s biological father was absent
for much of his childhood serving a jail sentence for a "gang war mur-
der." J.A. 97.
Joanne Sigmon testified that she had supervised Bowie’s foster
care from age twelve to age nineteen, one year prior to the murders.
She explained that Bowie was generally well-liked, and that she
developed a close relationship with him over his years in the foster
system. For example, she and her family hosted a high-school gradua-
tion party for him, and she made a personal loan to him to help him
buy a truck. The other witnesses also testified positively about
Bowie’s character, commenting on his popularity in school, his mod-
est academic success, and his willingness to learn from his mistakes
on the football field.
Three statutory aggravating factors were submitted to the jury,
which found two to exist: that each murder "was committed while the
defendant was engaged . . . in the commission of . . . any [other]
homicide," N.C. Gen. Stat. § 15A-2000(e)(5); and that each murder
"was part of a course of conduct in which the defendant engaged and
which included the commission by the defendant of other crimes of
violence against another person or persons," id. § 15A-2000(e)(11).4
The jury was also asked to consider fifteen mitigating factors. It found
the statutory mitigating factor that Bowie "ha[d] no significant history
of prior criminal activity," id. § 15A-2000(f)(1). The jury also found
nine non-statutory mitigating factors, focusing primarily on the hard-
ships Bowie suffered throughout his childhood, such as the paucity of
reliable parental support available to him, and on his successes in high
school. The jury rejected the proffered mitigating factors relating to
Bowie’s residency at Sipes, finding them not to have mitigating value.
The jury recommended sentences of death for both first-degree mur-
4
The jury did not find that the murder of Wilson "was committed for
the purpose of avoiding or preventing a lawful arrest," id. § 15A-
2000(e)(4).
BOWIE v. BRANKER 7
der convictions, and the trial court entered judgment in accordance
with those recommendations.5
Through the same counsel, Bowie exhausted his direct appeals.
State v. Bowie, 456 S.E.2d 771 (N.C. 1995), cert. denied, 516 U.S.
994 (1995). He then filed a Motion for Appropriate Relief ("MAR")
in the Superior Court for Catawba County (the "MAR court").
Bowie’s MAR, as later amended, put forth, inter alia, three claims
that counsel rendered ineffective assistance, in (1) failing to investi-
gate certain aspects of Bowie’s background, including his mental-
health history, in preparation for sentencing; (2) failing to object to
the admission of William’s statement, or, alternatively, failing to
request an instruction limiting its relevance to William’s guilt; and (3)
failing to appeal the admission of Rochelle’s statement as violative of
the Confrontation Clause of the Sixth Amendment. The MAR court
denied all three claims. Bowie’s petitions for writ of certiorari in the
North Carolina Supreme Court, State v. Bowie, 572 S.E.2d 789 (N.C.
2002), and in the United States Supreme Court, Bowie v. North Caro-
lina, 539 U.S. 961 (2003), were both denied.
Bowie then turned to the federal courts for relief, filing a 28 U.S.C.
§ 2254 petition for a writ of habeas corpus in the United States Dis-
trict Court for the Western District of North Carolina. The district
court found that counsel had been deficient in failing to investigate
Bowie’s background properly before selecting their sentencing strat-
egy, and that the MAR court had erred in finding otherwise.6 The dis-
trict court found that such failure did not prejudice Bowie, however,
5
William also received two sentences of death for his convictions,
which were affirmed on appeal. See State v. Bowie, 456 S.E.2d 771, 778
(N.C. 1995).
6
The district court noted, for example, that counsel could not have
made a reasonable decision to forgo mental-health testimony at sentenc-
ing when they had not first conducted an investigation into Bowie’s
background. The district court concluded that "an attorney’s decision not
to conduct a mitigation investigation because he might find out some-
thing that ruins his rosy image of his client does not constitute a ‘reason-
able decision’" under clearly established Federal law. Bowie v. Polk, No.
5:03-CV-137-MU, 2006 WL 2846980, at *21 (W.D.N.C. Sept. 29,
2006).
8 BOWIE v. BRANKER
and, finding no other MAR court error, denied the petition. Bowie
was ultimately granted a certificate of appealability as to all three
issues.
II.
We review de novo the district court’s denial of Bowie’s petition
for a writ of habeas corpus, applying the same standards as did the
district court. Robinson v. Polk, 438 F.3d 350, 354 (4th Cir. 2006).
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), 28
U.S.C. § 2254, governs our consideration of Bowie’s challenges to his
sentence.
For claims adjudicated on the merits in state court, a writ of habeas
corpus should be granted under AEDPA if such adjudication "resulted
in a decision that was contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by the
Supreme Court of the United States." § 2254(d)(1). "A decision is
‘contrary to’ clearly established federal law if it either applies a legal
rule that contradicts prior Supreme Court holdings or reaches a con-
clusion different from that of the Supreme Court ‘on a set of materi-
ally indistinguishable facts.’" Buckner v. Polk, 453 F.3d 195, 198 (4th
Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)).
A decision is an unreasonable application of clearly established fed-
eral law if it "‘unreasonably applies’ a Supreme Court precedent to
the facts of the petitioner’s claim." Id. (quoting Williams, 529 U.S. at
413).
III.
All three of Bowie’s claims focus on the allegedly ineffective assis-
tance of counsel he received at sentencing or on direct appeal. Claims
that counsel provided ineffective assistance are governed by the
familiar two-pronged test set forth in Strickland v. Washington, 466
U.S. 668 (1984). To succeed on a claim of ineffective assistance of
counsel, a petitioner must show both that (1) counsel’s performance
was deficient; and (2) the deficient performance prejudiced the
defense. Id. at 687. In light of the deferential standard of review under
AEDPA, we are limited to determining whether, for each ineffective
BOWIE v. BRANKER 9
assistance claim, the MAR court reached a decision contrary to, or
unreasonably applied, Supreme Court precedent.
We now analyze each of Bowie’s ineffective assistance of counsel
claims.
A.
Bowie’s primary argument is that his counsel rendered constitu-
tionally ineffective assistance by failing to investigate and present at
sentencing mitigating evidence contained in the records of his stay at
Sipes, in his county mental-health records, and in the records of his
involvement with DSS; and additional mitigating evidence available
from witnesses with personal knowledge of Bowie’s character or the
events surrounding the murders. Had counsel performed such investi-
gation, Bowie surmises, they would have submitted three additional
statutory mitigating factors to the jury for consideration. See N.C.
Gen. Stat. § 15A-2000(f)(2) ("The capital felony was committed
while the defendant was under the influence of mental or emotional
disturbance."), (f)(6) ("The capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the require-
ments of the law was impaired."), and (f)(7) ("The age of the defen-
dant at the time of the crime.").7 He asserts that, had the additional
evidence been introduced at trial and the mitigating factors submitted
to the jury, there is a reasonable probability that the jury would not
have returned a death sentence, and therefore his counsel was consti-
tutionally ineffective.
1.
Ordinarily, we would begin our analysis of Bowie’s claim by
examining the first prong of Strickland, finding counsel’s perfor-
mance to be deficient if it "fell below an objective standard of reason-
7
Under North Carolina law, "chronological age is not the determinative
factor with regard to th[e] mitigating circumstance" found in § 15A-
2000(f)(2). State v. Bowie, 456 S.E.2d at 773 (citing State v. Oliver, 307
S.E.2d 304, 332 (N.C. 1983)). "The defendant’s immaturity, youthful-
ness, or lack of emotional or intellectual development at the time of the
crime must also be considered." Id.
10 BOWIE v. BRANKER
ableness . . . under prevailing professional norms." 466 U.S. at 688.8
Here, however, the government did not challenge in any meaningful
way in its brief the district court’s finding that counsel’s performance
was deficient for purposes of the first prong of Strickland. We thus
turn directly to the second prong—whether counsel’s deficient perfor-
mance prejudiced Bowie at sentencing.9
2.
Bowie initially presented the "failure to investigate" issue to the
MAR court. The MAR court scheduled a hearing to review the addi-
tional mitigating evidence that allegedly could have been presented
but for counsel’s failure to investigate. At the hearing, Bowie again
elicited testimony from his mother, Joan Hunt, and social worker,
Joanne Sigmon, who had both already testified at trial. They testified
that Bowie began drinking heavily at an early age, showing signs of
a substance abuse problem in high school. Bowie’s sister Mekia also
testified, corroborating the dire circumstances of Bowie’s upbringing.
In addition, Bowie called a number of current and former Sipes
employees, who testified that Bowie was generally well-liked at
Sipes. They also testified as to an incident in which a Sipes employee
was terminated for sexually abusing a Sipes resident. No evidence
was presented to establish that Bowie himself was a victim of sexual
abuse at Sipes.
Bowie also called Dr. Nathan Strahl, a clinical and forensic psychi-
atrist, who opined that Bowie suffered from alcohol dependence, can-
nabis dependence, major depression, impulse-control disorder and
8
In assessing counsel’s performance against that standard, the court
must "indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance." Strickland, 46 U.S.
at 699. Nevertheless, counsel may not be viewed to have acted reason-
ably in making a strategic choice without first conducting "either a full
investigation of the law and facts or an abbreviated investigation of the
law and facts" limited by reasonable professional judgments that further
investigation would be fruitless. Buckner, 453 F.3d at 201.
9
In any event, our conclusion with respect to the prejudice prong
would obviate the need to decide the deficiency issue. See Buckner, 453
F.3d at 202 & n.6.
BOWIE v. BRANKER 11
anti-social personality disorder, among others, at the time of the mur-
ders. Dr. Strahl explained that individuals with such disorders can be
"dangerous people," especially when drinking. J.A. 1619. The state
introduced its own medical experts, however, who testified that, at the
time of the murders, Bowie did not suffer from a mental or emotional
disturbance, nor did he lack the capacity to appreciate the criminality
of his conduct.
Additionally, Bowie’s trial counsel were called to testify at the
MAR hearing. Portwood explained that he had settled upon a sentenc-
ing strategy after his first meeting with Bowie—to present Bowie in
a positive light, focusing on the popularity and accolades he achieved
despite a rough upbringing, instead of presenting him as suffering
from various mental-health problems and dependencies. Portwood
based this strategy, he explained, on his previous capital experience;
he had met with success in avoiding a death sentence for a prior client
by presenting only positive character evidence. Portwood acknowl-
edged, however, that he abused alcohol during the time he was repre-
senting Bowie, but he insisted that he was never intoxicated while
actually performing work on Bowie’s case.
Considering the proffered evidence, the MAR court found that
counsel had not provided deficient assistance by pursuing its sentenc-
ing strategy of avoiding opening the door to negative evidence of
Bowie’s behavioral problems at Sipes, his mental health, and his sub-
stance abuse.10 The MAR court also found that any error in counsel’s
failing to investigate did not prejudice Bowie in light of the other evi-
dence before the jury at sentencing. The district court reviewed the
MAR court’s prejudice analysis and found it not unreasonable.
3.
Under AEDPA, the narrow question presented us on appeal is
whether the MAR court reached a decision contrary to, or unreason-
ably applied, Strickland and its progeny in finding that Bowie had not
10
As mentioned supra, this MAR finding regarding sentencing strategy
and deficiency was found unreasonable by the district court. Because the
government did not challenge the district court’s conclusion on this ques-
tion in its brief, we decline to discuss it further.
12 BOWIE v. BRANKER
shown that he was prejudiced by his counsel’s failure to investigate.
Under this second prong of Strickland, the habeas petitioner bears the
burden of affirmatively proving prejudice. Strickland, 466 U.S. at
693. "It is not enough for the [petitioner] to show that the [deficient
performance] had some conceivable effect on the outcome of the pro-
ceeding." Id. Instead, the petitioner "must show that there is a reason-
able probability that, but for counsel’s unprofessional errors, the
[sentence] would have been different." Id. at 694. "A reasonable prob-
ability is a probability sufficient to undermine confidence in the out-
come" of the proceeding. Id. Under North Carolina law, a jury cannot
recommend death over life imprisonment unless the members unani-
mously decide that "the mitigating . . . circumstances are insufficient
to outweigh the aggravating . . . circumstances found." N.C. Gen.
Stat. § 15A-2000(b), (c)(3). Therefore, the prejudice inquiry in this
case distills to whether Bowie has shown that there is a reasonable
probability that, but for counsel’s deficient performance, at least one
jury member would have found the mitigating circumstances to out-
weigh the aggravating circumstances and recommended life imprison-
ment. In making this determination, we must "re-weigh the evidence
in aggravation against the totality of available mitigating evidence."
Wiggins v. Smith, 539 U.S. 510, 534 (2003).
Bowie cannot meet his substantial burden of showing that the
MAR court was unreasonable in finding a lack of prejudice. First, the
additional evidence adduced at the MAR hearing does little to under-
mine the evidence supporting the aggravating factors found by the
jury. Both aggravating factors found here spring from the fact that
each murder occurred in conjunction with other violence, namely the
other murder. See N.C. Gen. Stat. § 15A-2000(e)(5), (11). Bowie’s
history, however underprivileged, would not have impacted the jury’s
finding of these two aggravating factors. Beyond the statutory aggra-
vating factors, the undisputed testimony as to the cold-blooded nature
of the murders remained before the jury at sentencing. Without con-
test, the evidence showed that Bowie and William handled firearms
the night before the murders and discussed where Shuford lived. The
undisputed evidence showed that Bowie had banged on Shuford’s
door looking for him the next morning, then waited a couple of hours
before confronting him in a friend’s yard. The undisputed evidence
showed that Bowie killed Shuford and Wilson without proximate
BOWIE v. BRANKER 13
provocation. Therefore, in the "reweighing" required by Wiggins, we
find the evidence in aggravation to remain substantial indeed.
On the other side of the balance, the mitigating evidence presented
at Bowie’s MAR hearing should be discounted, under our precedent,
as double-edged, see Moody v. Polk, 408 F.3d 141, 152 (4th Cir.
2005), or duplicative, see Buckner, 453 F.3d at 207. For example, evi-
dence of Bowie’s alcoholism and the absence of parental oversight
during his childhood could be viewed as either supporting or detract-
ing from the mitigating circumstances of immaturity and youthful-
ness. See N.C. Gen. Stat. § 15A-2000(f)(7). Likewise, had counsel for
Bowie introduced its mental-health expert at sentencing, the govern-
ment could have introduced its own experts who, as they indicated at
the MAR hearing, would have vigorously opposed the characteriza-
tion of Bowie as suffering from mental illness. See id. § 15A-
2000(f)(2), (6). We cannot say that, had such equivocal mental-health
evidence been introduced, there is a reasonable probability that the
jury would not have recommended death. See Moody, 408 F.3d at 151
(discounting certain MAR evidence because it "is a double-edged
sword that might as easily have condemned [the petitioner] to death
as excused his actions") (internal quotations omitted).
Finally, the mitigating evidence presented at the MAR hearing was
substantially duplicative of evidence that had been presented to the
jury. The additional evidence of Bowie’s squalid upbringing would
have added little to the self-effacing testimony his mother had already
provided. Furthermore, additional witnesses who could testify to
Bowie’s good character would have presented overlapping testimony
with that of the football coaches, school personnel, and social worker
who already testified in detail as to Bowie’s personality. Even the wit-
nesses from Sipes would have presented testimony falling mostly into
these same two categories of poor upbringing and good character. See
Buckner, 453 F.3d at 207 (finding that duplicative evidence "would
[not] have added measurably to [the petitioner’s] mitigation case").
Weighing the aggravating circumstances surrounding the murders
against the totality of mitigating evidence, we cannot say in the bal-
ance that the MAR court unreasonably applied Supreme Court prece-
dent in concluding that counsel’s failure to introduce such ostensibly
mitigating evidence prejudiced Bowie.
14 BOWIE v. BRANKER
B.
Next, Bowie argues cursorily that his counsel rendered constitu-
tionally ineffective assistance by failing to object to the admission of
William’s statement and by failing to request a limiting instruction
that the statement was to be used only against William.11 The MAR
court considered this argument insofar as Bowie’s conviction was
implicated, finding no prejudicial error. Bowie now argues that the
MAR court erred by not analyzing this argument in the context of his
sentencing.12 The district court found that Bowie had procedurally
defaulted on this claim by not properly raising it before the MAR
court. We agree.
"[A] federal habeas court may consider only those issues which
have been ‘fairly presented’ to the state courts." Matthews v. Evatt,
105 F.3d 907, 911 (4th Cir. 1997) (quoting Picard v. Connor, 404
U.S. 270, 275-78 (1971)). The burden lies with the petitioner to show
that the claim was exhausted. Id.
Bowie did present a version of this ineffective assistance argument
to the MAR court. Under the heading "First Claim (Ineffective Assis-
tance of Counsel: Guilt Innocence Phase)" in his MAR, J.A. 342,
Bowie argued without citation to any caselaw or legal principle,
"Counsel erred when they did not object to the content of the sani-
tized statement of William Bowie in that it contained statements that
could be utilized against defendant Nathan Bowie," J.A. 345. Not-
withstanding the brevity of the argument, the MAR court considered
the argument in detail, finding the statement properly admitted but
finding counsel deficient for not requesting a limiting instruction.
11
A co-defendant’s statement that has been "redacted to eliminate not
only the defendant’s name, but any reference to his or her existence" is
admissible if given with a limiting instruction confining its use to consid-
eration of the co-defendant’s case. Marsh v. Richardson, 481 U.S. 200,
211 (1987).
12
We surmise that analysis of harmlessness would differ in the context
of sentencing, because instead of deciding whether the jury would still
have returned a conviction beyond a reasonable doubt, the court would
have to decide whether the jury would still have unanimously recom-
mended a death sentence.
BOWIE v. BRANKER 15
Nevertheless, the MAR court found such error to be harmless beyond
a reasonable doubt because the evidence of Bowie’s guilt was over-
whelming. Therefore, the MAR court concluded, counsel’s failure to
request the instruction did not prejudice Bowie. The MAR court did
not consider whether the failure to issue a limiting instruction was
also harmless error with respect to Bowie’s sentencing.
Despite the fact that he presented the argument to the MAR court
only under the "Guilt Innocence Phase" portion of his MAR, without
citations or explication, Bowie now points to certain stock language
in his MAR to argue that the sentencing argument was adequately
presented to the MAR court. Bowie’s MAR provided that "[c]ounsel
incorporates by reference all facts alleged in the claim respecting inef-
fective assistance of counsel at the guilt phase. All of these factors
[sic] would be applicable to the sentencing phase." J.A. 349 (empha-
sis added). This provision in Bowie’s complaint incorporates only
facts, not arguments, and presents only boilerplate language. It is
therefore far from sufficient to put the MAR court on notice that, in
addition to alleging that counsel’s failure prejudiced him in his con-
viction, Bowie intended to argue also the question of whether the
admission of William’s statement prejudiced him at sentencing, an
analysis requiring application of a different standard of harmlessness.
We therefore find that the district court properly regarded this
claim as procedurally defaulted.
C.
Finally, Bowie argues that his counsel provided ineffective assis-
tance in failing to renew on direct appeal his trial objection, on Con-
frontation Clause grounds, to the admission of Rochelle’s statement.
Bowie presented this argument to the MAR court, which found first
that the admission did not violate the Confrontation Clause, and sec-
ond that an appellate court would have found any error to be harmless
in light of the other evidence available at sentencing. The district
court upheld the MAR court’s analysis, finding that counsel’s failure
to appeal the admission of Rochelle’s statement did not constitute
deficient performance and did not prejudice Bowie in any event.
We decline to determine whether the MAR court properly applied
the deficiency prong of Strickland because we find that it was not
16 BOWIE v. BRANKER
unreasonable in finding that any deficiency on appeal did not preju-
dice Bowie with respect to his sentence. Had counsel appealed the
Confrontation Clause issue, the reviewing court would have tested
any error it found for harmlessness. See United States v. Banks, 482
F.3d 733, 741 (4th Cir. 2007). That is, the reviewing court would
have analyzed whether there was a reasonable probability that, had
Rochelle’s statement been excluded at trial, the jury would have rec-
ommended a sentence other than death. See Strickland, 466 U.S. at
694.
Rochelle’s statement added little to the body of evidence before the
jury. Her recount of the events leading up to the murders was corrob-
orated by other witnesses, and served mainly to provide background
to the otherwise undisputed accounts. The only material portion of her
statement not also available to the jury from other witnesses is the
statement by Bowie or William, "we got them," J.A. 30. While this
statement may have bolstered the evidence for the convictions of
Bowie, it does little to speak to the aggravating and mitigating factors
that determined Bowie’s sentence. There was overwhelming evidence
otherwise available to support the finding of the aggravating factors
relating to multiplicity of the murders, and the statement does not call
into question the mitigating circumstances such as, for example, that
Bowie was well-liked or suffered a tumultuous upbringing.
We conclude that the MAR court did not unreasonably apply
Supreme Court precedent in concluding that counsel’s failure to
appeal the admission of Rochelle’s statement did not prejudice Bowie
in his sentencing.
IV.
Because we find that the district court properly rejected each of
Bowie’s claims underlying his petition for habeas corpus, the judg-
ment of the district court denying the petition is
AFFIRMED.