Bowman v. Johnson

Present: All the Justices

CALVIN LAMONT BOWMAN, SR.

v. Record No. 102471 OPINION BY JUSTICE DONALD W. LEMONS
November 4, 2011
GENE M. JOHNSON, DIRECTOR,
VIRGINIA DEPARTMENT OF CORRECTIONS

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
R. Terrence Ney, Judge

In this appeal, we consider whether the Circuit Court of

Fairfax County erred in denying a writ of habeas corpus to

Calvin Lamont Bowman ("Bowman").

I. Facts and Proceedings Below

A. Procedural History

On August 1, 2006, Bowman was arrested for a bank robbery

that occurred at a BB&T bank branch in Fairfax County on July

28, 2006, at approximately 11:00 a.m. Bowman was found guilty

by a jury on March 5, 2008, in the Circuit Court of Fairfax

County of robbery, abduction, and two counts of use of a

firearm during the commission of a felony. He was sentenced to

twenty-eight years' imprisonment.

Bowman appealed his convictions to the Court of Appeals

and to this Court; however, both the Court of Appeals and this

Court denied Bowman's petitions for appeal. Bowman v.

Commonwealth, Record No. 0631-08-4 (Sept. 24, 2008); Bowman v.

Commonwealth, Record No. 082558 (June 1, 2009).

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 Bowman subsequently filed a petition for a writ of habeas

corpus ("petition") in the Circuit Court of Fairfax County 1 on

May 3, 2010, making four claims. In an order entered on August

12, 2010, the habeas court held that Bowman's first claim was

"procedurally defaulted" and "could have been raised at trial

and on direct appeal and was not." On Bowman's other three

claims, the habeas court held Bowman failed to prove his

attorney's performance was deficient or prejudicial as required

under Strickland v. Washington, 466 U.S. 668 (1984), and his

attorney's trial strategy "easily satisfie[d] the highly

deferential standard of review under Strickland."

B. Bowman's Criminal Trial

Prior to trial, pursuant to a discovery order, the

Commonwealth provided Bowman's attorney, Ms. McGennis Williams

("Williams"), with, among other materials, the following:

NOVARIS 2 latent fingerprint examination results; Bowman's

Miranda waiver; photographs of the robbery in progress; and a

certificate of analysis proving Bowman's DNA did not match the

DNA on a glove found in the getaway vehicle.

1
For clarity, references to Bowman's underlying criminal
trial will utilize the phrase "trial court," and references to
Bowman's habeas corpus proceeding will utilize the phrase
"habeas court."
2
NOVARIS stands for Northern Virginia Regional
Identification System, an agency hosted by the Fairfax Police
Department.
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 The evidence against Bowman at trial included testimony

from three "eyewitnesses" to the robbery, Chen Chen ("Chen"),

Sirisha Alaparthi ("Alaparthi"), and Samuel L. Appelbaum

("Appelbaum"). Also, two detectives with the Fairfax County

Police Department, Detectives Matt Anderson ("Anderson") and

Stephen Needels ("Needels"), testified. Additionally, the

Commonwealth's fingerprint expert, Detective William Reeves

("Reeves"), and a crime scene detective, Detective Geoffrey E.

Miller ("Miller"), presented testimony at trial.

None of the "eyewitnesses" were able to identify Bowman as

one of the robbers. Chen testified that two African American

males entered the bank, and one "pulled a gun yelling at us,"

and the other "jump[ed] over the teller line, teller counter,

and he start[ed] to take money from the teller drawers."

Alaparthi testified that two men entered the bank, and one of

the robbers "came to me, grabbed my collar and left me in my

manager's office" before he jumped the teller counter.

Appelbaum testified that one of the robbers "raised up his arms

and said, everybody down on the ground," and that Appelbaum

"heard [the robbers] open up [his] drawer and take all the

money out."

Anderson testified that he and Needels viewed surveillance

pictures, which "gave [them] an idea of where the suspects had

moved through the bank." Anderson stated that he processed the

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area surrounding teller station number two for fingerprints

while Hardy processed the area surrounding teller station

number four. Reeves testified that he took Bowman's

fingerprints to compare to the fingerprints lifted from teller

stations two and four by Anderson and Hardy. Reeves further

testified that Bowman's fingerprints matched fingerprints

lifted from the glass counter and window at teller stations two

and four, where the photographs showed one of the robbers

vaulting the bank counter.

Anderson testified that impressions from footwear were on

the teller's counter. Evidence presented at trial revealed

that the tread of the boots recovered from Bowman after his

arrest matched the shoe prints on the bank counter. Miller

testified that he compared Bowman's boots with the photographs

of the shoe prints and found three identical characteristics –

the size, the design, and the anatomical wear of the footwear.

During cross examination, Williams asked Needels whether

he took a buccal swab, which she referred to as a "DNA swab,"

of Bowman's mouth, and he replied, "I believe so." Williams

then asked Needels if he sent the DNA swab to the Division of

Forensic Science, and he responded, "I did not," and "I do not

believe the DNA was ever submitted."

At a bench conference, the prosecutor explained to the

trial judge the reason that the DNA swab was not submitted to

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the forensic laboratory for testing was "because the Defendant

confesse[d] to the bank robbery." Williams stated she did not

know the reason Bowman's DNA swab was not tested and declared

that "if we had better discovery, I would have known that and I

wouldn't have brought it up." Significantly, Bowman's

confession had been ruled inadmissible in pre-trial

proceedings.

The prosecutor asked for an instruction to the jury that

the case had nothing to do with DNA "because it leaves the

impression that the detectives did not do everything they could

when the reason that they didn't is legitimate." The parties

agreed the trial court should instruct the jury that "DNA

analysis has nothing to do with this case," and "the fact that

a swab may have been done is completely irrelevant to the issue

put to you for decision." In fact, the DNA swab was sent to

the forensic laboratory, and the results were in the possession

of both the prosecutor and defense counsel.

C. Bowman's Habeas Corpus Proceeding

On May 3, 2010, Bowman filed his petition, claiming that:

(a) the Commonwealth failed to correct false testimony by its

witness; (b) he was denied the effective assistance of counsel

because his attorney failed to present exculpatory DNA evidence

on a glove and t-shirt provided to her by the prosecutor; (c)

he was denied the effective assistance of counsel because his

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attorney presented inculpatory fingerprint evidence and failed

to cross-examine the Commonwealth's witness regarding a

fingerprint from the bank counter having been lifted twice; and

(d) he was denied the effective assistance of counsel when his

attorney accepted a cautionary instruction instead of asking

for a mistrial.

Gene M. Johnson, Director of the Virginia Department of

Corrections (the "Director"), filed a motion to dismiss

Bowman's petition on June 17, 2010. The Director argued that

Bowman's first claim regarding the alleged false testimony

could have been raised at trial and on direct appeal, and

pursuant to Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d

680, 682 (1974), cert. denied, 419 U.S. 1108 (1975), is not

cognizable in a petition for habeas corpus. The Director

further argued that Bowman's second, third, and fourth claims

alleging ineffective assistance of counsel failed to meet

either the "performance" or the "prejudice" prong of the two-

part test set forth in Strickland, 466 U.S. at 687.

The habeas court ruled in its August 12, 2010 order that

Bowman's claim that "[t]he Commonwealth failed to correct the

false testimony of its witness" was "procedurally defaulted"

and "could have been raised at trial and on direct appeal and

was not." The habeas court also dismissed each of Bowman's

claims that he was denied effective assistance of counsel

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pursuant to Strickland. On August 16, 2010, Bowman filed a

motion to vacate the August 12, 2010 order, and a suspending

order was entered by the habeas court on September 1, 2010.

Then on September 29, 2010, the habeas court dismissed Bowman's

Petition for Habeas Corpus "for the reasons set out in the

Order of August 1[2], 2010." 3

Bowman timely filed his petition for appeal, and we

granted Bowman's appeal on the following assignments of error:

1. Finding that Petitioner's issues 4 could have been raised
on direct appeal, despite the failure to present them in
the trial court, as required by Rule 5A:18.

2. Ignoring Napue v. Illinois, 360 U.S. 264 (1959), and the
issue of the Commonwealth's false representation that
there had been no DNA comparison of Mr. Bowman's DNA with
DNA seized from the getaway vehicle, which had occurred
and exculpated him and, addressing, instead, who had
submitted the evidence for testing; a non-issue.

3. Finding defense counsel's failure to present DNA evidence
eliminating Bowman as a robber and a test of a t-shirt,
also eliminating him as a robber was a tactical decision
when the lawyer swore that it was not and could not say
that she had even interviewed the analysts though she had
copies of their test results months before trial.

4. Finding that the Petition did not proffer the t-shirt
examiner's testimony when his test results were stated,
adopted and incorporated in the Petition.

3
The habeas court actually stated "in the Order of August
17, 2010;" however, no such order exists. The only possible
order the habeas court could have been referencing was the
order entered on August 12, 2010.
4
"Petitioner's issues" refer to claims (a) through (d)
raised by Bowman in his petition filed in the habeas court.
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 5. Finding defense counsel's corroboration of prosecution
finger print evidence, instead of impeaching it, was
"cumulative" and not prejudicial.

II. Analysis

A. Standard of Review

It is well-established that "[o]ne attacking a judgment of

conviction in a habeas corpus proceeding has the burden of

proving by a preponderance of evidence the allegations

contained in [the] petition." Nolan v. Peyton, 208 Va. 109,

112, 155 S.E.2d 318, 321 (1967) (citing Smyth v. Morrison, 200

Va. 728, 732, 107 S.E.2d 430, 433 (1959)). The determination

whether one is entitled to habeas relief "is a mixed question

of law and fact." Hash v. Director, Dep't of Corr., 278 Va.

664, 672, 686 S.E.2d 208, 212 (2009) (quoting Curo v. Becker,

254 Va. 486, 489, 493 S.E.2d 368, 369 (1997) (citing Williams

v. Warden, Mecklenburg Corr. Ctr., 254 Va. 16, 24, 487 S.E.2d

194, 198 (1997))). Additionally, "the [habeas] court's

findings and conclusions are not binding upon this Court, but

are subject to review to determine whether the [habeas] court

correctly applied the law to the facts." Id. (quoting Curo,

254 Va. at 489, 493 S.E.2d at 369) (citing Williams, 254 Va. at

24, 487 S.E.2d at 198).

B. Assignment of Error One

Bowman alleges that the habeas court erred in finding that

his "issues could have been raised on direct appeal." In its

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order of September 29, 2010, the habeas court stated: "[t]he

errors complained of now could have been raised on appeal but

were not." In the same order, however, the habeas court

dismissed Bowman's petition "for the reasons set out in the

Order of August 1[2], 2010." Additionally, the habeas court's

September 29, 2010 order reinstated the August 12, 2010 order.

With the exception of the issue raised in assignment of error

two, the reasons stated in the prior order for the remaining

issues were based upon a Strickland analysis and not a Slayton

analysis. On appeal, we will consider the issues raised by

assignments of error three, four, and five as not barred by

Slayton and will consider them on the merits under Strickland.

C. Assignment of Error Two

Bowman argues that the Commonwealth violated his right to

a fair trial when the prosecutor knowingly permitted his

witness to testify falsely. Of course, we must consider

Bowman's assignments of error in the context of the actual

claims made in his habeas corpus petition. In his petition, he

maintains that "the Commonwealth failed to correct false

testimony by its witness." In support of his argument, Bowman

relies primarily on Napue v. Illinois, 360 U.S. 264 (1959).

However, Bowman's situation is quite different than that

presented in Napue.

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 In Napue, four men including the defendant entered a

dimly-lit bar and announced their intention to commit a

robbery. 360 U.S. at 265. One of the customers was an off-

duty police officer who fired upon the robbers. One of the

robbers was killed as was the police officer. Another of the

robbers was wounded. The wounded robber, who had already

received a prison term of 199 years for his participation in

the crime, testified against Napue at Napue's trial. Id. at

265-66. The prosecutor asked the witness if he had received a

promise or a reward for his testimony, and the witness denied

any such arrangement. Id. at 267 n.2. Napue was convicted and

sentenced to 199 years in jail. Id. at 266. After his

conviction, it was discovered that the prosecutor had made a

promise to the witness to seek a reduction in the witness'

sentence in return for his testimony against Naupe. Id. at

266-67.

The most significant difference between Napue and this

case has to do with when the information was known. In Napue,

the information became known to Napue post-conviction. In this

case, the information was available to Bowman prior to trial.

Non-jurisdictional claims that could be raised at trial

and on appeal are not cognizable in a habeas corpus proceeding.

Slayton, 215 Va. at 29, 205 S.E.2d at 682. We have previously

concluded that "[a]bsent any indication that counsel or

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petitioner knew or should have known of the complained of

conduct at a time when the trial court could address the

misconduct allegations, the procedural bar in Slayton does not

apply." Lenz v. Warden, Sussex I State Prison, 267 Va. 318,

326, 593 S.E.2d 292, 296 (2004) (emphasis added). Here, before

trial, Williams received a copy of the certificate of analysis

that proved Bowman's DNA did not match the DNA from the glove

found in the getaway vehicle. Despite her failure to utilize

such evidence, Williams knew of the exculpatory DNA evidence

during Bowman's trial. It must be emphasized that Bowman's

claim focuses upon alleged inaction by the Commonwealth rather

than his own counsel.

Accordingly, we hold that Bowman's claim that the

Commonwealth failed to correct false testimony of its witness

is barred because this non-jurisdictional issue could have been

raised at trial and on appeal. Slayton, 215 Va. at 29, 205

S.E.2d at 682. Additionally, Bowman argues that the habeas

court improperly ignored Napue. The record clearly

demonstrates that the habeas court did not ignore Napue;

rather, it correctly held that the claim was barred by Slayton.

D. Assignments of Error Three, Four, and Five

Bowman's remaining claims covered by his assignments of

error allege that the habeas court erred in finding that: (a)

it was a tactical decision of counsel not "to present DNA

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evidence eliminating Bowman as a robber and a test of a t-

shirt, also eliminating him as a robber;" (b) the habeas

petition "did not proffer the t-shirt examiner's testimony when

his test results were stated, adopted and incorporated in the

Petition;" and (c) "defense counsel's corroboration of

prosecution finger print evidence, instead of impeaching it,

was 'cumulative' and not prejudicial."

In Strickland, the United States Supreme Court established

a two-prong test to assess whether an attorney's representation

was ineffective. 466 U.S. at 687. To prevail on an

ineffective assistance of counsel claim, Bowman must satisfy

both the "performance" prong and the "prejudice" prong under

Strickland. Id. To satisfy the first component of the

Strickland test, "the defendant must show that counsel's

representation fell below an objective standard of

reasonableness." Id. at 688. Under the second component, "the

defendant must show that the deficient performance prejudiced

the defense. This requires showing that counsel's errors were

so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable." Id. at 687.

In deciding Bowman's ineffective assistance of counsel

claim, we need not address the Strickland components in a

particular order or even address both components of the

inquiry. Id. at 697. If Bowman makes an insufficient showing

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on either component of the Strickland test, we need not

consider the other. Id.

Accordingly, we will focus upon the prejudice analysis.

In analyzing the "prejudice" component, we must consider the

totality of the evidence before the habeas court. Lewis v.

Warden, Fluvanna Corr. Ctr., 274 Va. 93, 113, 645 S.E.2d 492,

504 (2007). However, "[a]n error by counsel, even if

professionally unreasonable, does not warrant setting aside the

judgment of a criminal proceeding if the error had no effect on

the judgment." Strickland, 466 U.S. at 691. In order to prove

the judgment was affected by counsel's errors,

[t]he defendant must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability
sufficient to undermine the confidence in the
outcome. . . . [T]he question is whether there
is a reasonable probability that, absent the
errors, the factfinder would have had a
reasonable doubt respecting guilt.

Id. at 694-95.

Bowman maintains that he was prejudiced because counsel

failed to use the absence of his DNA from the glove recovered

from the getaway van to his advantage at trial. Photographs of

the robbery show two robbers in the bank. It appeared that the

robber who vaulted the counter was not wearing gloves. The

Commonwealth argues that Bowman vaulted the teller counter at

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position 2 to get behind the counter and at position 4 to come

back over the counter. His fingerprints were found at both

places and were consistent with the direction he was heading at

each position. Furthermore, the existence of the prints on the

counter is inconsistent with the robbers' wearing gloves inside

the bank. We hold that evidence of the lack of Bowman's DNA on

the glove did not prejudice him under the Strickland standard.

The evidence at trial indicated that a red dye pack

inserted within the package of money taken from the bank

exploded, and items in the getaway van were stained with dye.

Bowman contends that he was prejudiced when his counsel failed

to present forensic test results that confirmed that no red-dye

was detected on the black T-shirt recovered from Bowman when he

was arrested. However, there is no evidence that this t-shirt

was worn by Bowman on the day of the robbery or that he was in

the getaway van. Additionally, four days elapsed between the

robbery and Bowman's arrest. We hold that evidence of the lack

of red dye on a particular black t-shirt recovered from Bowman

when he was arrested did not prejudice him under the Strickland

standard.

Finally, Bowman maintains that it was prejudicial to him

when his own counsel presented expert testimony that

corroborated the conclusion of the Commonwealth's fingerprint

expert witness that the three fingerprints lifted from the

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glass partitions on the counter at the bank belonged to Bowman.

Additionally, while Bowman recognizes that Williams questioned

the Commonwealth's expert concerning the fact that two

different fingerprint cards contained lifts of the same

fingerprint, Bowman faults his counsel for not questioning the

Commonwealth's expert regarding the fact that "one of the three

fingerprints was not identified as that of Bowman until a

second examination."

In the Commonwealth's case in chief, Anderson testified

from a diagram that demonstrated that Bowman's print was

pointing one way as he vaulted the counter and pointed the

opposite way as he vaulted back over to exit the bank.

Bowman's expert, while confirming that the prints were

Bowman's, testified that looking at the fingerprint card did

not prove which direction the robber was facing. He also

contradicted the Commonwealth's expert by testifying that

cleaning a bank counter daily does not guarantee that all of

the latent prints were removed and that a fingerprint could

survive as long as 15 years on a surface. Bowman's expert

offered the possibility of a different explanation for Bowman's

prints on the surface of the teller counter. We hold that

introduction of evidence by Bowman's expert that confirmed the

existence of his prints but provided the opportunity for

15
explanation did not prejudice him under the Strickland

standard.

III. Conclusion

For the reasons stated, we find no error in the habeas

court's denial of Bowman's petition. Accordingly, we will

affirm the judgment of the habeas court.

Affirmed.

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