United States v. Brandon Basham

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-9

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

BRANDON LEON BASHAM,

Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Joseph F. Anderson, Jr., Senior
District Judge. (4:02-cr-00992-JFA-2; 4:11-cv-70079-JFA)

Argued: March 25, 2015 Decided: June 15, 2015

Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in
which Chief Judge Traxler and Judge Agee joined.

ARGUED: Michael L. Burke, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Phoenix, Arizona, for Appellant. Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Jon M. Sands, Federal Public Defender, Sarah Stone,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Phoenix, Arizona, for Appellant. William N. Nettles,
United States Attorney, Robert F. Daley, Jr., Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina; Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
KING, Circuit Judge:

In November 2002, Brandon Leon Basham and Chadrick Evan

Fulks engaged in a seventeen-day multistate crime spree, for

which they were both prosecuted. Basham was convicted in the

District of South Carolina of multiple crimes and sentenced to

death for two of them, carjacking resulting in death, in

contravention of 18 U.S.C. § 2119(3), and kidnapping resulting

in death, as proscribed by 18 U.S.C. § 1201. After we upheld

Basham’s convictions and death sentences on direct appeal, see

United States v. Basham, 561 F.3d 302 (4th Cir. 2009), cert.

denied, 560 U.S. 938 (2010), he moved for habeas corpus relief

pursuant to 28 U.S.C. § 2255. By its opinion of June 5, 2013,

the district court denied Basham’s § 2255 motion. See United

States v. Basham, No. 4:02–cr–00992 (D.S.C. June 5, 2013), ECF

No. 1577 (the “Opinion”). The court subsequently denied

Basham’s motion to alter or amend the judgment, made under

Federal Rule of Civil Procedure 59(e), by way of its August 21,

2013 order. See United States v. Basham, No. 4:02–cr–00992

(D.S.C. Aug. 21, 2013), ECF No. 1583 (the “Reconsideration

Order”). 1 Basham now appeals from those decisions. As explained

1
The district court’s unpublished Opinion is found at J.A.
177-374, and its Reconsideration Order is found at J.A. 375-82.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)

2
below, we reject Basham’s assignments of error and affirm the

judgment of the district court.

I.

A.

Our 2009 opinion disposing of Basham’s direct appeal,

authored by our distinguished former Chief Judge Karen Williams,

detailed the pertinent facts of Basham’s 2002 crime spree as

follows:

In 2002, Basham, a lifelong Kentucky resident,
was serving the final years of a felony forgery
conviction sentence at the Hopkins County Detention
Center in Kentucky. In October of that year, Chadrick
Evan Fulks became Basham’s new cellmate. In early
November, Fulks was charged with an additional (and
serious) state offense, first degree abuse of a child
aged twelve years or younger. On November 4, 2002,
Basham and Fulks escaped the detention center together
by scaling a wall in the recreation area and leaving
the area on foot.

By the evening of November 5, Basham and Fulks
reached the home of James Hawkins in nearby Hanson,
Kentucky. Basham approached the dwelling, knocked on
the door, and asked to use the telephone. Basham told
Hawkins that his car had broken down and, after Basham
made two calls, Hawkins agreed to drive him to a
nearby convenience store. When Basham and Hawkins
left the residence, Fulks joined them and the three
men left in Hawkins’s truck. The two men then told
Hawkins that their vehicle was disabled in Robards,
Kentucky, and they asked for a ride. During the
drive, Fulks told Hawkins that the disabled vehicle
was actually in Indiana and directed Hawkins to drive
there. Fulks later changed the directions again; by
this point, Basham was pointing a knife at Hawkins to
keep him driving to their preferred destination. At
some point, Fulks took the wheel, drove the truck into

3
a field, and ordered Basham to tie Hawkins to a tree.
Fulks became dissatisfied with Basham’s speed in tying
and eventually completed the job himself. They left
Hawkins clothed in shorts, flip-flops, and a short-
sleeved vest. Fifteen hours later, Hawkins freed
himself and flagged a passing motorist. When
interviewed by police officers later that day, Hawkins
identified Basham and Fulks as the individuals who
kidnapped him.

After abandoning Hawkins, Fulks and Basham drove
to Portage, Indiana, to visit one of Fulks’s former
girlfriends, Tina Severance. They abandoned Hawkins’s
vehicle at a hotel and walked to a trailer shared by
Severance and her friend Andrea Roddy. The four then
drove to a hotel in northern Indiana and stayed there
for the next few days. At some point, Basham and
Roddy began a consensual sexual relationship.

During their time in Indiana, Fulks asked
Severance if she knew anyone from whom he could obtain
firearms. Severance informed Fulks that a friend of
hers, Robert Talsma, kept several firearms at his
home; Severance and Roddy thereafter agreed to lure
Talsma out of his house by offering to buy him
breakfast. While Talsma was at breakfast with the
women, Basham and Fulks entered Talsma’s home and
stole four firearms, a ring, and several blank checks.
They then reunited with Severance and Roddy, and the
four traveled in Severance’s van to Sturgis, Michigan.
That night, November 8, Basham and Roddy stayed at a
hotel in Sturgis while Fulks and Severance drove to
Goshen, Indiana, to smoke marijuana and
methamphetamines with Fulks’s brother, Ronnie Fulks.

That evening, two police officers began knocking
on doors at the hotel where Basham and Roddy were
staying in Sturgis. Basham opened his room door, saw
the officers, closed the door, and cocked a .22
caliber revolver that he had stolen from Talsma. The
officers ended up leaving before reaching Basham’s
door. Basham told Roddy, however, “I was about to
shoot me a mother-f***er cop right. I was going to
blow the f***ing cop away.” The next morning,
November 9, Basham and Roddy drove to a local Kmart to
purchase sundries. Basham met a group of teenagers in
the parking lot, and he reported to Roddy that they
had some money and he wanted to kill them for it.
4
After purchasing sundries with some of Talsma’s stolen
checks, Basham invited the teenagers back to the hotel
room. Severance and Fulks arrived back at the hotel
shortly thereafter, and the teenagers left. Fulks,
Basham, Severance, and Roddy then drove Severance’s
van to the home of Fulks’s brother, Ronnie Fulks, in
Goshen, Indiana.

On November 10, 2002, the group of four drove to
Piketon, Ohio, in Severance’s van. Basham again used
Talsma’s checks to buy sundries, which Roddy later
returned for cash. Basham and Fulks also bought two
sets of camouflage clothing and Fulks stole a purse
and cell phone from a Wal–Mart parking lot. On
November 11, they drove to Kenova, West Virginia, near
Huntington, and rented a hotel room. Fulks and
Basham, wearing their sets of camouflage clothing,
left the hotel room by themselves and did not return
until the morning hours of November 12.

Samantha Burns, a nineteen-year-old Marshall
University student, worked at the J.C. Penney’s store
in the Huntington Mall. In addition, Burns also
participated in a school fundraiser by selling candy
boxes, which she kept in her car. On November 11,
Burns met her aunt at Penney’s to purchase clothing
for one of Burns’s nieces; they parked in separate
locations at the mall. At 9:46 p.m. that evening,
Burns called her mother to say she was staying at a
friend’s house that night. Burns has never been seen
since.

During the early morning hours of November 12,
2002, a local fire department responded to a reported
explosion and fire at a rural area three miles outside
of Huntington. The responding firemen found a car
later identified as belonging to Burns burned out at a
cemetery.

Meanwhile, Fulks and Basham returned to the hotel
carrying muddy clothing, and Fulks indicated that they
had stolen some money. Later that morning, the group
of four checked out of the motel and drove to South
Carolina, where Fulks had lived for several years in
the 1990s. Several facts emerged linking Basham and
Fulks to Burns’s disappearance. Roddy and Severance
reported seeing mud, as well as one of Burns’s candy
boxes, in the van. In addition, Basham began wearing

5
a heart-shaped ring around his neck that belonged to
Samantha Burns. Basham told the women that he had
stolen the candy from a girl selling it and that he
had stolen the ring from a car. Roddy also found
Burns’s photo ID discarded with other items linking
Burns to Fulks and Basham. Moreover, it was later
revealed that Fulks used Burns’s ATM card twice on the
evening of November 11 at local banks.

The evening of November 12, Fulks, Basham,
Severance and Roddy arrived at a motel in Little
River, South Carolina. The next day was a day of
relative rest; Fulks and Basham stole several purses
and wallets from unattended vehicles, went shopping,
and then returned to the motel room to smoke
marijuana, drink, and play cards. On November 14, the
four moved to a motel in Myrtle Beach, South Carolina.
Fulks and Basham left the women and drove to nearby
Conway, South Carolina. Hoping to steal firearms,
Fulks and Basham burglarized the Conway home of Sam
Jordan. Carl Jordan, Sam’s father, drove up to the
home as Fulks and Basham were leaving. Fulks
attempted to ram Jordan’s car with Severance’s van but
stopped short; Basham exited the house and fired a
shot at a nearby greenhouse. Fulks then fired a shot
that shattered the back-window of Jordan’s car.
Jordan fled the area, with Fulks and Basham in
pursuit, still firing. At some point, Fulks and
Basham ceased their chase, abandoned Severance’s van,
and stole a truck, which they drove to the Wal–Mart in
Conway.

Upon arriving at the Wal–Mart, Basham approached
a blue BMW sedan driven by forty-four year old Alice
Donovan. Basham entered the car and forced Donovan to
drive to the back of the parking lot, where Fulks
waited. There, Fulks entered the driver’s side of the
car and drove away; at 4:03 p.m., Fulks used Donovan’s
ATM card to purchase gas from a service station in
Shallote, North Carolina. At 4:30 p.m., Donovan
called her daughter to say she was shopping and would
be home late. Later that day, several men at the Bee
Tree Farms Hunt Club in Winnabow, North Carolina, saw
two men and a woman in a blue BMW drive to the end of
a road by the lodge, turn around, and leave the area.
Donovan, like Burns, was never seen again.

6
 Basham and Fulks returned to their Myrtle Beach
motel later that day and told Severance and Roddy they
had to leave town because Basham shot at some police
officers and Severance’s van had been seized. Basham
and Fulks took Donovan’s BMW and began driving to West
Virginia, leaving Severance and Roddy behind in Myrtle
Beach. Donovan’s ATM card was used in Little River,
Myrtle Beach, and Raleigh, North Carolina. Meanwhile,
Severance filed a (false) police report alleging that
her van had been stolen.

On November 15, 2002, Fulks and Basham arrived at
the home of Beth McGuffin near Huntington, West
Virginia. McGuffin, a childhood friend of Fulks,
agreed to let Fulks and Basham stay at her home.
Fulks introduced Basham to her as “Tommy Blake.”
Later on November 15, Fulks and Basham purchased crack
cocaine to share. Basham and McGuffin also began a
sexual relationship and had sexual intercourse three
times over the next several days. Basham also gave
McGuffin Burns’s heart-shaped ring. On November 16,
the three watched a news story about the disappearance
of Samantha Burns. When McGuffin remarked that Burns
was likely dead, Fulks stated, “[s]he is dead.”

At the same time, the Federal Bureau of
Investigation (“FBI”) was investigating the kidnapping
of James Hawkins, which it believed Basham and Fulks
had committed after escaping from prison. The FBI
learned that the two men might be in Myrtle Beach,
South Carolina, and that Severance had reported her
van stolen. On November 16, the FBI and local
authorities interviewed Severance and learned that
Basham and Fulks had left the area. The FBI also
became aware of the disappearance of Alice Donovan and
suspected that Fulks and Basham might be involved.

On Sunday, November 17, Fulks, Basham, and
McGuffin smoked marijuana before Fulks and Basham left
McGuffin’s house, telling her they were headed to
Arizona. Instead, they stopped at the Ashland Mall in
Ashland, Kentucky, about 20 minutes from Huntington.
Sometime that evening, in a Wal–Mart parking lot,
Basham approached Deanna Francis’s fifteen-year-old
daughter as she entered the passenger side of their
vehicle. Basham pointed a gun into the teenager’s
side, attempted to enter the car, and asked for
directions to Greenville, Kentucky. When Basham
7
realized Deanna’s daughter was talking on her cell
phone, he said “[M]y bad, I didn’t mean to scare you”
and walked away. Deanna immediately called the
police.

Ashland Police Officer Matt Davis was
approximately four blocks from the Ashland Mall when
he heard the dispatch about the attempted carjacking.
Davis drove to the mall, where he saw Basham, who met
the description of the suspected carjacker. Davis
exited his patrol vehicle and approached Basham;
Basham immediately began to flee. As Davis chased
Basham through the mall area, Basham drew his weapon
and fired a shot in the air. As the chase continued,
Basham drew his weapon a second time, turned, and
fired at Davis, who fired three shots of his own in
return. Basham eventually made his way to a rail yard
on the banks of the Ohio River where he hid. Davis
radioed reinforcements, which surrounded the area.
More than an hour later, at approximately 9:00 p.m.,
Basham surrendered to police, identifying himself as
“Josh Rittman.” Police recovered a knife — later
identified as belonging to Alice Donovan — and a crack
cocaine pipe on Basham’s person. Basham’s pistol was
recovered from a rail car several days later.

Fulks returned to McGuffin’s home that evening
and watched a news report on Basham’s arrest. The
morning of November 18, Fulks left McGuffin’s
residence to drive Donovan’s BMW to his brother’s
house in Goshen, Indiana. Fulks stopped at a rest
area, where an Ohio state trooper, who had ascertained
that the BMW was stolen, approached him; a high-speed
chase then ensued at speeds in excess of 130 miles per
hour. During this chase, Fulks nearly struck another
trooper before managing to evade capture. Fulks
eventually arrived at his brother’s home in the early
morning hours of November 20. Police officers were
staking out Ronnie’s home, however, and when Fulks,
his brother Ronnie, and Ronnie’s girlfriend drove to a
barn to hide the BMW, Fulks was arrested. Fulks’s
semen and the bodily fluids from an unidentified
female were later found in the back seat of the BMW.

Back in West Virginia, investigators determined
that “Josh Rittman” was actually Basham, and that he
was a recent prison escapee. At 2:00 a.m. on November

8
19, Basham was interviewed for the first time. Basham
first told investigators that he and Fulks had escaped
from prison and committed several crimes along the
way. Later, he admitted that they had traveled to
South Carolina and kidnapped a woman in Conway, South
Carolina. Basham, however, insisted that the woman
was alive and with Fulks.

At 9:45 a.m. on November 19, investigators re-
interviewed Basham. Basham told investigators that he
and Fulks kidnapped a man after escaping from prison,
and carried firearms when kidnapping Donovan. He
further told investigators that they used her credit
cards to obtain cash, that they had driven Donovan to
Ashland, Kentucky, and that Fulks was waiting for
Basham when Basham was caught. This time, Basham said
he thought Donovan was dead because she was not with
Basham and Fulks at the Ashland Mall. During this
interview, Basham also told investigators that Fulks
“got a girl” in West Virginia as well.

On November 20, FBI agents interviewed Basham for
seven hours. On this occasion, Basham told
investigators that after they kidnapped Donovan, Fulks
dropped Basham off at the hotel, drove Donovan to a
resort area, raped her, tied her up, and left her.
Basham also claimed that Fulks was the one who
actually carjacked Donovan. Basham also clarified
that when he said Fulks “got a girl” in West Virginia,
that he meant they had stolen a girl’s credit cards,
not that they had kidnapped anyone else. At this
point, investigators believed Donovan may have been
still alive. Basham drew a map of the places Fulks
and Basham had been with Donovan. This map roughly
corresponded with the Savannah Bluff area of Horry
County, South Carolina. A two-day search of the area,
however, left investigators no closer to discovering
Donovan’s fate.

On November 25, Basham, now represented by
counsel, agreed to further aid investigators in
finding Donovan’s body. He drew a map, mentioned
passing through a cemetery, and informed investigators
that Donovan’s body was left covered but unburied in
the woods. Basham was unable to identify any specific
landmarks to aid investigators.

9
 On November 26, through counsel, Basham informed
investigators that Samantha Burns was dead and that he
and Fulks had rolled her body down an embankment and
into the Guyandotte River near Huntington.

Two days later, on November 28, FBI and state
investigators organized a search team to search
Brunswick County, North Carolina, for Donovan’s body.
Basham, now represented by Cameron B. Littlejohn, Jr.
and William H. Monckton, VI, accompanied the agents.
During the ride, Basham saw a deer and said, “I never
could kill a deer and here I have,” but was cut off
before finishing his sentence. Later that day, Basham
told the investigators that he and Fulks had driven
past a park, taken Donovan’s body out of the car,
dragged it into the woods, and covered it. On two
occasions, Basham became emotional as he identified
landmarks where he and Fulks had taken Donovan.
Later, Basham told the investigators he had thrown out
a Liz Claiborne purse strap at the Bee Tree Farms
Cemetery. When they arrived, the local sheriff asked,
“Is this where it happened?” Basham responded, “This
is it. It is.” The cemetery was searched to no
avail. . . .

Starting in late November 2002, while in jail
awaiting trial, Basham began writing letters to
McGuffin, telling her his real name, claiming that he
loved her, that he had not “hurt that girl from South
Carolina”, and that Fulks was responsible for their
crime spree. On this last point, Basham wrote that
Fulks “lied to me” and “told me he had all kinds of
money, and a new car, and all of this stuff just
waiting on him, and all he needed me to do was to show
him the way away from the jail because I was raised in
that area.” Basham was not entirely forthright with
McGuffin, however, as he also wrote that Burns’s ring,
which he had given to McGuffin, was “not stolen or
anything like that.” Basham also confided that he
“did a lot of bad s**t with [Fulks].”

On December 24, 2002, Basham called a former
middle-school teacher in Madisonville, Kentucky,
Clifford Jay. When Jay asked whether Basham had
killed Alice Donovan, Basham replied, “Yes, Sir. We
killed them.” Jay was surprised by the use of the
term “them,” because he had only heard about the
Donovan killing.
10
Basham, 561 F.3d at 309-14 (alterations in original) (footnotes

and citations omitted). Following our opinion, it was confirmed

that Donovan’s remains had been found in a wooded area in Horry

County, South Carolina.

On December 17, 2002, Basham and Fulks were charged in the

District of South Carolina for their crimes against Donovan.

The operative eight-count superseding indictment was then

returned on April 23, 2003. The first two counts — carjacking

resulting in death, in violation of 18 U.S.C. § 2119, and

kidnapping resulting in death, in contravention of 18 U.S.C.

§ 1201(a) — carried with them the possibility of a death

sentence. On September 13, 2003, the Government filed a notice

of intent to seek the death penalty against Basham under 18

U.S.C. § 3593(a), the Federal Death Penalty Act.

Basham’s and Fulks’s cases were severed for trial on

January 29, 2004. 2 Basham’s trial commenced on September 13,

2004. The evidence during the guilt phase of the trial

proceedings included testimony from eighty-nine witnesses; post-

arrest statements made by Basham to the FBI, Clifford Jay, and

2
Fulks pleaded guilty and, after a penalty phase, was
sentenced to death. We affirmed his convictions and sentence on
direct appeal. United States v. Fulks, 454 F.3d 410 (4th Cir.
2006), cert. denied, 551 U.S. 1147 (2007). We also affirmed the
denial of his subsequent § 2255 motion. See United States v.
Fulks, 683 F.3d 512 (4th Cir. 2012), cert. denied, 134 S. Ct. 52
(2013).

11
McGuffin; and surveillance videos of Donovan’s abduction in the

Wal-Mart parking lot as well as ATM withdrawals made by Fulks

using Donovan’s ATM card. During trial, the defense conceded

Basham’s culpability in the carjacking and kidnapping. The

defense argued, however, that Fulks had committed Donovan’s

murder and was the instigator throughout the crime spree. To

that end, during Basham’s opening statement, defense counsel

asserted that the only “issue in controversy” was Basham’s

intent to commit serious bodily harm to Donovan at the time of

the abduction. After the thirteen-day guilt phase of the trial,

the jury convicted Basham of all eight counts in the superseding

indictment.

The penalty phase of the trial proceedings commenced on

October 12, 2004. The prosecution introduced the trial record

as its principal evidence. In addition, the prosecution

presented testimony from correctional officers and a female

nurse regarding Basham’s misconduct, drug use, and sexual

misconduct towards female employees in prison; testimony from

Donovan’s family regarding the impact of her death; and a

videotape showing a courtroom scuffle between Basham and deputy

U.S. Marshals that had occurred during the guilt phase of the

trial. In mitigation, Basham put forth evidence that his

parents encouraged his bad behavior, forced him to steal to

support their drug habits, and introduced him to drugs, and that

12
Basham was sexually abused by one of his father’s friends.

Basham also introduced mitigation evidence regarding his mental

condition and ability to adapt to prison life. On November 2,

2004, the jury returned a verdict recommending that Basham be

sentenced to death on Counts 1 and 2.

Basham’s convictions and death sentences were entered on

February 16, 2005. An aggregate sentence of 744 months in

prison was imposed on the remaining six counts.

B.

On appeal, we affirmed Basham’s convictions and sentence in

all respects. See Basham, 561 F.3d at 339. On June 1, 2011,

Basham timely filed his motion for habeas corpus relief pursuant

to 28 U.S.C. § 2255. That motion listed thirty-four claims for

relief, two of which Basham subsequently withdrew.

After conducting an evidentiary hearing over eight

nonconsecutive days in late 2012 (the “§ 2255 hearing”), the

district court denied Basham’s § 2255 motion for reasons

explained in its thorough and well-crafted Opinion of June 5,

2013. The district court granted Basham a certificate of

appealability as to Claims 1 through 7, Claims 9 through 30, and

Claim 32. The court subsequently denied Basham’s motion to

alter or amend the judgment, made under Federal Rule of Civil

Procedure 59(e), by way of its August 21, 2013 Reconsideration

Order. Basham timely noticed this appeal on October 17, 2013,

13
and we possess jurisdiction pursuant to 28 U.S.C. §§ 1291,

2253(a), and 2255(d).

II.

We review de novo a district court’s legal conclusions in

denying a 28 U.S.C. § 2255 motion. See United States v. Fulks,

683 F.3d 512, 516 (4th Cir. 2012). Factual findings adduced

from the evidence presented at a § 2255 hearing are reviewed for

clear error. Id.

III.

On appeal, Basham first pursues four claims relating to an

inculpatory statement he made to a law enforcement officer

demonstrating how Donovan had been strangled with a purse strap.

Basham asserts that he was denied his right to the effective

assistance of counsel when his lawyers permitted him to speak

with investigators outside of their presence (Claim 1 of

Basham’s § 2255 motion), and later when his lawyers failed to

challenge the admissibility of his inculpatory statement on the

ground that it resulted from an unlawful interrogation (Claim

2). Additionally, Basham contends that the prosecution

committed misconduct by presenting false testimony at trial to

the effect that Basham’s statement admitted that he was

Donovan’s killer (Claim 11), and that his lawyers were

14
ineffective by not raising the misconduct contention on direct

appeal (Claim 12).

Second, Basham mounts two challenges relating to his

competency to stand trial. That is, he maintains that he was

tried while incompetent, in violation of his due process rights

(Claim 4). Relatedly, Basham alleges that his trial lawyers

were constitutionally ineffective by not ably litigating his

competency (Claim 5).

Third, Basham asserts that his trial lawyers rendered

ineffective assistance in their handling of evidence presented

by the prosecution relating to the murder of the second victim,

Samantha Burns (Claim 15). The Burns evidence was presented

during the guilt phase of Basham’s trial, and he contends that

his lawyers were deficient by failing to challenge the

admissibility and scope of that evidence.

Fourth, Basham raises a final ineffective assistance claim,

arguing that his trial counsel’s file was not properly provided

to the lawyers handling his direct appeal (Claim 30). That

deficiency, he maintains, impeded his appellate lawyers from

identifying viable challenges on appeal.

A.

Basham’s first set of claims arises from a statement he

made to law enforcement authorities in November 2002, when he

demonstrated how Donovan had been strangled with a purse strap.

15
To provide context to those claims, we first review the relevant

background of the contested statement and how it was used by the

prosecution at Basham’s trial. We then address the merits of

the claims.

1.

Following Basham’s November 17, 2002, arrest, he made

several statements to law enforcement officers, after being

advised of his Miranda rights and on the advice of his state-

appointed counsel, essentially admitting his involvement in the

carjacking and kidnapping of Alice Donovan. Cameron Littlejohn

and William Monckton, both death penalty-qualified lawyers, were

appointed to represent Basham on November 27, 2002. The

following day — Thanksgiving Day — Basham participated in a

search for Donovan’s body in Brunswick County, North Carolina

(the “Thanksgiving search”). Littlejohn and Monckton had

determined that participating in the Thanksgiving search could

help Basham’s case by possibly finding Donovan still alive, or

by demonstrating his willingness to assist law enforcement.

Basham had no proffer agreement from the government, exposing

him to the risk that any statements he made during the search

might be used against him. Littlejohn and Monckton therefore

sought to limit Basham’s participation to directing the search

team in locating Donovan’s body. Present during the search were

FBI Agent Jeffrey Long, officers from the local Conway, South

16
Carolina police department, Brunswick County Sheriff Ronald

Hewett, several sheriff’s deputies, and approximately twenty

local volunteers.

The first several hours of the Thanksgiving search were

unsuccessful. After consulting privately with Basham,

Littlejohn advised the investigators that, “hypothetically,”

Fulks had raped Donovan, strangled her with a purse strap, and

then slit her throat. 3 Afterwards, in Littlejohn’s presence,

Basham told Sheriff Hewett that the search team should look for

a Liz Claiborne purse strap at the Bee Tree Farms cemetery. The

group then drove to that location.

At the cemetery, Basham, Sheriff Hewett, and two of

Hewett’s deputies wandered about forty-five feet away from the

rest of the group, including Basham’s lawyers. Basham and

Hewett remained within the sight of Littlejohn and Monckton, but

the lawyers could not hear Basham’s words. During that

encounter, Basham made a statement to Hewett — part oral and

part demonstrative (the “cemetery statement”). Specifically,

Basham told Hewett that he believed the strap was from a Liz

Claiborne purse and that he had thrown the strap into the woods.

Although the search team was unable to locate the strap, Basham

3
The hypotheticals shared by Littlejohn led to Littlejohn
and Monckton being disqualified, on April 9, 2003, from
continuing to represent Basham.

17
confirmed to Hewett several times that he believed they were at

the correct location, directing the team where they should

search. Basham used his hands to estimate the length of the

purse strap and to show how he (Basham) had tossed the strap

into the woods. He also demonstrated a movement depicting how

Donovan was strangled with the strap (the “strangling

demonstration”).

Leading up to trial, Basham moved to suppress all of his

post-arrest statements. The district court conducted an

evidentiary hearing from February 24 through February 26, 2004

(the “suppression hearing”), to assess whether Basham’s

statements were voluntary and admissible under Jackson v. Denno,

378 U.S. 368, 380 (1964) (“A defendant objecting to the

admission of a confession is entitled to a fair hearing in which

both the underlying factual issues and the voluntariness of his

confession are actually and reliably determined.”). By the time

of the suppression hearing, Basham was represented by lawyers

Jack Swerling and Gregory Harris. They sought to suppress all

statements Basham made during the Thanksgiving search, other

than statements providing directions to Donovan’s body and the

purse strap.

Given that the strangling demonstration was not a

directional statement, it was encompassed within the lawyers’

suppression efforts. They did not, however, focus directly on

18
that demonstration or contend that the broader cemetery

statement was the product of an illegal interrogation pursuant

to Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (“[A]n

accused, . . . having expressed his desire to deal with the

police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.”).

The lawyers, rather, focused primarily on suppressing

Littlejohn’s hypotheticals. The district court ultimately

excluded the hypotheticals, but ruled that the statements Basham

made during the Thanksgiving search — including the cemetery

statement and the strangling demonstration — were admissible.

At trial, during the guilt phase, the prosecution

introduced evidence from the Thanksgiving search through Sheriff

Hewett. On direct examination, Hewett testified to a number of

inculpatory statements Basham had made during the search in

Littlejohn’s presence. Hewett also testified regarding the

cemetery statement, mimicking Basham’s strangling demonstration

for the jury. Hewett’s testimony on direct gave no indication

as to whether it was Basham or Fulks who had strangled Donovan

with the purse strap. On cross-examination, attorney Harris

returned to the cemetery statement. Harris was aware that

Hewett’s notes from the Thanksgiving search contained no

19
indication that Basham had suggested that he — rather than Fulks

— had strangled Donovan. Seeking to draw out that point to the

jury, Harris engaged in the following colloquy with Hewett:

Q. Now, at the cemetery, and I would like you to
refer to your notes if that will help you.

A. Okay.

Q. There is nothing in your notes, nor is there
anything in Lieutenant Crocker’s notes that indicate
that Brandon Basham told you that he used the strap,
is there?

A. No, sir. He did not tell me he used the strap.
He demonstrated, though.

Q. He demonstrated?

A. Yes, sir.

Q. Your notes, nor Lieutenant Crocker’s notes say
that he did that; isn’t that true?

A. That is true because he didn’t say. He showed.

J.A. 1358-59 (emphases added). 4 Basham posits on collateral

attack that the underscored portions of the foregoing testimony

could suggest that, although Basham had not said that he used

the strap to strangle and kill Donovan, he demonstrated as much.

That is, the underscored language might be construed as Basham’s

4
Lieutenant Crocker, a law enforcement officer from North
Carolina’s Brunswick County, interviewed Sheriff Hewett
following the Thanksgiving search and prepared a report of those
events. The district court observed that Crocker’s report is
vague and written in the passive voice. It does not indicate
whether Basham stated or implied that he, rather than Fulks, had
strangled Donovan.

20
admission that he killed Donovan (the “actual killer

suggestion”).

Neither the defense nor the prosecution followed up with

Sheriff Hewett to clarify his testimony. In closing arguments

at each trial phase, the prosecution briefly referenced Hewett’s

testimony regarding the strangling demonstration. During the

guilt phase, near the end of its lengthy summation, the

prosecution recounted that Basham had demonstrated that “a Liz

Claiborne purse strap was used to kill Alice Donovan.” See J.A.

1472. The prosecutor argued that, although Basham had not said

he killed Alice Donovan, “he demonstrated it.” Id. A few

moments later, the prosecutor urged that after seeing Hewett

“demonstrate how Brandon Basham demonstrated how Alice Donovan

was strangled” — and hearing the testimony of Clifford Jay that

Basham had admitted “we killed them” — the jury should return

guilty verdicts. Id. at 1473-74. According to the prosecutor,

that evidence, “alone, seals the deal.” Id. at 1474.

Thereafter, in its penalty-phase closing, the government again

referenced the strangling demonstration in arguing that the

statutory intent element had been proved.

2.

a.

The Sixth Amendment guarantees an accused the effective

assistance of counsel, the familiar standards of which were

21
established in Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, a movant seeking collateral relief from his

conviction or sentence through an ineffective assistance claim

must show (1) that his counsel’s performance was deficient and

(2) that the deficiency prejudiced his defense. Id. at 687.

The deficiency prong turns on whether “counsel’s

representation fell below an objective standard of

reasonableness . . . under prevailing professional norms.”

Strickland, 466 U.S. at 688. A reviewing court “must apply a

‘strong presumption’ that counsel’s representation was within

the ‘wide range’ of reasonable professional assistance.”

Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting

Strickland, 466 U.S. at 689). The Strickland standard is

difficult to satisfy, in that the “Sixth Amendment guarantees

reasonable competence, not perfect advocacy judged with the

benefit of hindsight.” See Yarborough v. Gentry, 540 U.S. 1, 8

(2003).

The prejudice prong of Strickland inquires into whether

counsel’s deficiency affected the judgment. See 466 U.S. at

691. The movant must demonstrate “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. In the context of a death sentence, “the

22
question is whether there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that

the balance of aggravating and mitigating circumstances did not

warrant death.” Id. at 695. The prejudice analysis “requires

the court deciding the ineffectiveness claim to ‘consider the

totality of the evidence before the judge or jury.’” Elmore v.

Ozmint, 661 F.3d 783, 858 (4th Cir. 2011) (quoting Strickland,

466 U.S. at 695). In evaluating that evidence, “[w]e are not

bound . . . to view the facts in the light most favorable to the

prosecution.” Tice v. Johnson, 647 F.3d 87, 111 (4th Cir.

2011).

b.

By way of his § 2255 motion, Basham advances three

ineffective assistance claims relating to his cemetery statement

and the resulting testimony offered by Sheriff Hewett at trial.

With respect to the first two of those claims, Basham asserts,

first, that Littlejohn and Monckton performed deficiently during

the Thanksgiving search when they allowed Basham to speak to

Hewett outside of their presence, and, second, that Swerling and

Harris were deficient by not arguing at the suppression hearing

that Basham’s cemetery statement was the inadmissible product of

an illegal interrogation.

Importantly, those two ineffective assistance claims rely

on a shared argument as to Strickland’s prejudice prong. Had

23
his lawyers performed competently — either by remaining with him

during the Thanksgiving search and preventing him from making

the cemetery statement (Littlejohn and Monckton), or by securing

the suppression of the cemetery statement through an Edwards

argument (Swerling and Harris) — Sheriff Hewett would not have

testified to the cemetery statement at Basham’s trial. In the

absence of that testimony, Basham contends that there is a

reasonable probability that he would not have been sentenced to

death. For purposes of establishing prejudice, not all of

Basham’s oral and demonstrative cemetery statement is relevant,

as most of the statement was cumulative to other, uncontroverted

statements Basham made. The strangling demonstration is the

only noncumulative portion of the cemetery statement. Basham’s

argument as to prejudice also homes in on the actual killer

suggestion made by Hewett while testifying to the strangling

demonstration.

The district court determined that Basham failed to show

that his lawyers’ alleged deficiencies prejudiced his defense

under Strickland. 5 The court reached that conclusion through an

5
The district court did not analyze whether Littlejohn and
Monckton rendered deficient performance when they permitted
Basham to speak with Sheriff Hewett outside of their presence
during the Thanksgiving search. As to Basham’s claim relating
to Swerling and Harris, the court extensively assessed the
evidence presented during the suppression and § 2255 hearings,
and concluded that, “based on the totality of the circumstances
(Continued)
24
exceedingly thorough analysis of the issue, which we will

briefly summarize. See Opinion 23-46, 74-75. The court began

by examining Hewett’s trial evidence on cross-examination, which

the court acknowledged could be interpreted to suggest that

Basham had demonstrated how he had used the purse strap to

strangle Donovan. The court rejected Basham’s contention that

prejudice was evident simply from the prosecutor’s references to

Hewett’s testimony. Those summations, the court found,

repeatedly used passive language to indicate Basham had

demonstrated how Donovan was strangled. From there, the court

summarized the overall case against Basham, which, “viewed in

its totality, was overwhelming.” Id. at 39. Basham had not

shown, the court explained, that Hewett’s testimony regarding

the strangling demonstration or his actual killer suggestion

might have impacted the jury’s overall analysis of the

aggravating and mitigating factors. Id. at 43-46. Given that

the controverted testimony had, at most, a “less than

significant” impact only on one nonstatutory mitigating factor,

id. at 45, and in light of the overwhelming support in the

record justifying the death sentence, the court was “left with

. . . , no Edwards violation occurred. For at least this
reason, then, trial counsel’s performance was not deficient in
failing to raise the issue” at the suppression hearing. See
Opinion 74.

25
the firm conclusion that Basham has been unable to show that

‘the decision reached [by the jury] would reasonably likely have

been different absent the error[],’” id. at 46 (alterations in

original) (quoting Strickland, 466 U.S. at 696).

On appeal, Basham urges that his lawyers’ deficiencies

prejudiced his defense at the penalty phase. Our task at this

stage is to “reweigh the evidence in aggravation against the

totality of available mitigating evidence.” Wiggins v. Smith,

539 U.S. 510, 534 (2003). Basham contends that “the mitigating

evidence presented to the jury might have carried greater weight

had the jury not been told by the Government that Basham killed

Donovan with his own hands.” See Br. of Appellant 47.

The aggravating evidence against Basham was strong. The

jury unanimously found, beyond a reasonable doubt, six of the

seven nonstatutory aggravating factors alleged, including that

Basham: escaped from a detention facility; carjacked and

kidnapped Samantha Burns, resulting in her death; committed a

first-degree burglary of Carl Jordan’s residence and then

attempted to murder him; kidnapped and carjacked James Hawkins;

attempted to murder a police officer in Ashland, Kentucky; and

impacted Donovan’s families and friends. The jury did not find

unanimously the future dangerousness factor. The trial record

amply supported the six aggravators that the jury found against

Basham. Because the aggravators do not directly concern

26
Donovan’s death, moreover, omitting the actual killer suggestion

and the strangling demonstration would not have affected the

aggravating factors.

The defense submitted to the jury five statutory mitigating

factors and thirty nonstatutory mitigating factors. On the

statutory factors, at least one juror found that Basham had

impaired capacity and committed the offense while severely

disturbed, while no jurors found duress, minor participation, or

insignificant prior history. See 18 U.S.C. § 3592(a). The

nonstatutory factors included issues such as Basham’s role in

the offense, family background, substance abuse, history of

abuse, mental and emotional problems, and low intelligence. The

jury’s findings on the nonstatutory factors differed between its

special verdict forms on the kidnapping and the carjacking

charges but, in all, most of those factors were found present by

at least one juror. Relevant here, however, is that no juror

found as to either offense that Basham had proved by a

preponderance of the evidence that “Brandon Leon Basham played a

lesser role than Chadrick Evan Fulks in the kidnapping and

carjacking of Alice Donovan, and this factor is mitigating.”

See J.A. 2472, 2484. The district court determined the

foregoing to be the only factor potentially impacted by the

actual killer suggestion, and we agree. We also agree with the

court’s conclusion that, considering the totality of the

27
evidence, there is not a reasonable likelihood that the actual

killer suggestion would have altered the jury’s decision to

recommend death.

First, the government’s overarching theory in Basham’s

prosecution undermines the significance that Basham assigns to

the actual killer suggestion. The prosecution took the position

that Basham and Fulks aided and abetted each other in

kidnapping, carjacking, and killing Donovan. 6 Neither of their

convictions turned on which man killed Donovan. Rather, the

prosecution maintained that, in their crimes against Donovan,

Basham and Fulks “were acting together in unison as a team, a

death squad, if you will.” See J.A. 1404. As the prosecution

explained in its closing argument at the guilt phase of Basham’s
6
The jury charge during the trial’s guilt phase included an
instruction on aiding and abetting, reflecting the prosecution’s
theory. The district court charged the jury:

The guilt of a defendant in a criminal case may be
proved without evidence that he personally did every
act involved in the commission of the crime charged.
The law recognizes that ordinarily, anything a person
can do for himself may also be accomplished by acting
together with or under the direction of another person
in a joint effort. Simply put, to aid and abet means
to assist the perpetrator of the crime. So, if the
defendant aids and abets another person by willfully
joining together with that person in the commission of
a crime, then the law holds the defendant responsible
for the conduct of that other person just as though
the defendant had engaged in such conduct himself.

United States v. Basham, No. 4:02-cr-00992 (D.S.C. Mar. 27,
2006), ECF No. 951, at 214.

28
trial, “[t]he government does not have to prove, and more

importantly, you jurors do not have to find who, specifically,

killed Alice Donovan in order to convict Brandon Basham.” Id.

That was because, “but for the actions of Brandon Basham, Alice

Donovan would be alive today. But for the actions of Chad

Fulks, Alice Donovan would be alive today. The two of them are

responsible for the death of Alice Donovan.” Id. at 1405. The

prosecution made no distinction between the hands of Basham and

Fulks — if one had strangled her, so had the other. Thus, the

prosecutor argued in Basham’s penalty-phase summation: “Now,

does that mean Brandon Basham’s strangling of Alice Donovan is

the only hand that caused Alice Donovan’s death? The government

doesn’t submit that. The government submits, and submitted all

along, that Chad Fulks is just as responsible.” Id. at 2312.

That sentiment was repeated on rebuttal, when the prosecutor

declared that Donovan had died “at the hands of these two men.”

Id. at 2433.

Second, the record clearly establishes that Basham actively

participated with Fulks in committing the crimes against

Donovan, and in ultimately ending her life. Basham does not

suggest otherwise. Nor could he credibly make such an argument.

Basham’s strangling demonstration was but one piece of the

“overwhelming case” establishing Basham’s involvement in

Donovan’s murder. See Basham, 561 F.3d at 328. Removing

29
Sheriff Hewett’s contested testimony, the jury presentation

included the following evidence:

• Videotape footage of Basham carjacking Donovan in a
Wal-Mart parking lot;

• A map drawn by Basham during a November 20, 2002
interview with law enforcement, where he indicated
the location of Donovan’s body;

• Basham’s statement to investigators on November 25,
2002, that Donovan’s body should be at a cemetery,
which “is where [he and Fulks] did their thing,” see
J.A. 1280;

• Basham’s participation in the Thanksgiving search on
November 28, 2002, which indicated that he knew of
the crimes committed against Donovan and the
location of her body;

• Basham’s directions to the search team during the
Thanksgiving search, made with Littlejohn’s express
consent: “You need to be looking for a strap. It
is about this long. . . . It has Liz Claiborne on
the strap. . . . Back at the cemetery[,] you need
to go back to the cemetery and look for that strap,”
see id. at 1332-33;

• Basham’s statements during the Thanksgiving search,
made in Littlejohn’s presence, that after dragging
Donovan’s body out of the car, he and Fulks “pulled
her into the woods” and “covered the body with
leaves and what he described as limbs,” see id. at
1337;

• Basham’s statement during the Thanksgiving search
when, while riding in the van with Littlejohn,
Basham saw a doe jump onto the road and remarked,
“You know, I never could kill a deer and here I have
. . . ,” see id. at 1329;

• Basham’s admission to Clifford Jay on December 24,
2002, “Yes sir. We killed them,” see id. at 1388;
and

30
 • Donovan’s knife being found in Basham’s possession
when he was arrested.

The totality of the evidence leaves no doubt that Basham —

at the very least — aided and abetted the crimes committed

against Donovan. Moreover, as the district court aptly noted,

elimination of the [strangling demonstration] would
not have led the jury to the conclusion that Fulks was
the one who strangled Donovan. Instead, the jury
would have been left with an absence of testimony on
the question of who did the strangling and a complete
record of Basham and Fulks’s seventeen-day cascade of
misdeeds, which included two rapes and murders and at
least five other attempted or potential murders.

See Opinion 44. The jury thus could have concluded that Basham

had actually strangled Donovan, even without Hewett’s actual

killer suggestion. Or, the jury could have decided that Fulks

was the strangler, in which case Basham would still be deemed

the killer, given the prosecution’s aiding-and-abetting theory.

Or, the jury could have chosen the path suggested by the

government and simply found that Basham and Fulks, together,

killed Donovan. The end result would be the same: Basham and

Fulks were equally culpable for all of their acts, meaning

Basham was responsible for killing Donovan.

Basham urges that “an overly mechanical analysis” of

prejudice is flawed, in that a reviewing court cannot “account

for the intangible factors at play in each juror’s evaluation of

whether Basham was deserving of death.” See Br. of Appellant

46. Nonetheless, to succeed on his ineffective assistance

31
claims, Basham is not entitled to satisfy the prejudice

requirement through “rank speculation, defying calculation of a

reasonable probability.” See United States v. Fulks, 683 F.3d

512, 522 (4th Cir. 2012). The Supreme Court observed in

Strickland that errors might impact the underlying facts and

inferences to sharply different degrees, and “a verdict or

conclusion only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record

support.” See 466 U.S. at 695-96. Here, assuming Hewett’s

actual killer suggestion and strangling demonstration were

erroneously admitted, the totality of the evidence remains

unaffected.

Subtracting the strangling demonstration and Hewett’s

actual killer suggestion from the sum of evidence received by

the jury, we are convinced that Basham has not established

prejudice by a reasonable probability, “sufficient to undermine

confidence in the outcome” of his proceedings. See Strickland,

466 U.S. at 694. We thus agree with the district court that

Basham’s ineffective assistance claims must fail, in that he

cannot satisfy Strickland’s prejudice requirement. 7

7
Having concluded that Basham cannot satisfy Strickland’s
prejudice prong on his ineffective assistance claims, we need
not assess whether he can meet the deficiency prong on either
claim. See Bell v. Cone, 535 U.S. 685, 695 (2002) (“Without
proof of both deficient performance and prejudice to the defense
(Continued)
32
 3.

Basham advances two additional claims arising from the

cemetery statement, and more specifically from Sheriff Hewett’s

actual killer suggestion. Basham contends, first, that his

convictions must be reversed because the prosecution committed

misconduct when it used that testimony knowing it was false,

and, second, that his lawyers were ineffective in failing to

raise the misconduct issue on direct appeal.

a.

In prosecuting a criminal trial, the Due Process Clause

obliges the government “not [to] knowingly use false evidence,

including false testimony, to obtain a tainted conviction.”

Napue v. Illinois, 360 U.S. 264, 269 (1959). Due process is

violated “regardless of whether the prosecution solicited

testimony it knew to be false or simply allowed such testimony

to pass uncorrected.” Boyd v. French, 147 F.3d 319, 329 (4th

Cir. 1998) (citing Giglio v. United States, 405 U.S. 150, 153

(1972)). Testimony by a law enforcement officer that is

knowingly false or misleading “is imputed to the prosecution.”

. . . , it could not be said that the sentence or conviction
‘resulted from a breakdown in the adversary process that
rendered the result of the proceeding unreliable,’ and the
sentence or conviction should stand.” (quoting Strickland, 466
U.S. at 687)).

33
Id. On collateral attack, a movant alleging this sort of

misconduct must demonstrate three elements: (1) that the

testimony at issue was false; (2) that the prosecution knew or

should have known of the falsity; and (3) that a reasonable

probability exists that the false testimony may have affected

the verdict. See United States v. Roane, 378 F.3d 382, 400 (4th

Cir. 2004); United States v. Kelly, 35 F.3d 929, 933 (4th Cir.

1994). If the movant shows each of those elements, relief must

be awarded. See United States v. Bagley, 473 U.S. 667, 679-80

(1985).

Basham’s prosecutorial misconduct claim relates to Sheriff

Hewett’s actual killer suggestion and the related portions of

the government’s closing arguments. Basham points to three

instances in the record that, he contends, establish the

prosecution knew or should have known that the testimony was

false. First, FBI Agent Long prepared a report on December 4,

2002, summarizing the Thanksgiving search. In that report, Long

recounted that Basham had informed investigators that “[a]fter

FULKS raped [Donovan], FULKS used a purse strap, which was

approximately 18 inches long, and strangled Donovan.” See J.A.

2698. Second, on April 22, 2003, Long appeared before a grand

jury to obtain the superseding indictment. Consistent with his

report, Long testified that Basham had told law enforcement

officers during the Thanksgiving search that Fulks had “actually

34
killed” Donovan. Id. at 403. Third, while arguing an

evidentiary issue in Fulks’s trial, and outside the presence of

the jury, Assistant United States Attorney Johnny Gasser stated,

“Brandon Basham said that Chad Fulks took the purse strap and

strangled [Donovan].” Id. at 1004.

The district court rejected Basham’s misconduct claim.

Initially, the court determined that the claim failed because it

had been procedurally defaulted. Alternatively, the court

rejected the claim on its merits. First, the court observed

that AUSA Gasser made his statement in the context of an

evidentiary argument during Fulks’s trial, outside the presence

of the jury. Fulks had sought to introduce Basham’s inculpatory

statement, “‘You know I have never even killed a deer and here I

have . . . .’” See Opinion 26, 49 (quoting J.A. 1329). Citing

the rule of completeness set forth in Federal Rule of Evidence

106, Gasser argued that Basham’s deer statement should not be

admitted in isolation, considering that “Basham had on numerous

occasions indicated that Fulks was the killer.” Id. at 49. The

court concluded that “Gasser’s reliance on the rule of

completeness during debate over an evidentiary issue does not,

by any means, require a finding that at the Fulks trial the

government adopted Basham’s self-serving statement that Fulks

was the killer.” Id. As to Agent Long, the court noted that

his report — which was consistent with his grand jury testimony

35
— “was not introduced as an exhibit at Basham’s trial and merely

memorialized Basham’s self-serving statement during the

investigation.” Id. at 50. Long’s statements, the court

determined, in no way “reveal an inconsistent position or false

testimony employed by the government.” Id. The court thus

found that the prosecution had not presented false testimony and

denied Basham’s claim.

The district court returned to this claim in denying

Basham’s motion to amend or alter judgment. With respect to

AUSA Gasser’s argument during Fulks’s trial, the court found

that the prosecution “did not vouch for the accuracy of Basham’s

statement,” and that “the government did not advance an argument

to the court or to the jury that Basham was the one who used the

strap to strangle Donovan.” See Reconsideration Order 3.

Similarly, although the prosecution presented Long’s testimony

to the grand jury, the court found that “the government did not

in any way adopt” Long’s statement that Fulks strangled Donovan

“as its theory of the case regarding who actually strangled

Donovan.” Id. Further, the court observed that Basham “offered

no evidence that Sheriff Hewett’s testimony was perjured,”

compelling the court’s determination that Basham had not

demonstrated that Hewett gave false testimony. Id. at 3-4.

Having found that Basham had “failed to satisfy the threshold

requirement to show that the testimony of which he complains was

36
false,” the court determined that “no further analysis is

required.” Id. at 4.

On appeal, Basham maintains that he has satisfied his

burden of establishing his prosecutorial misconduct claim

because, “prior to Hewett’s testimony at Basham’s trial, the

Government’s understanding from all sources was that Basham told

Hewett that Fulks wielded the strap.” See Br. of Appellant 70.

Therefore, according to Basham, the prosecution engaged in

misconduct “when it not only failed to investigate and correct

Hewett’s [actual killer suggestion], but seized upon that

testimony [in closing arguments] to bolster its case in both

guilt and penalty phases.” Id. at 72.

To succeed on his prosecutorial misconduct claim, Basham

must show that the district court’s finding that no false

testimony was presented is clearly erroneous. See Rosencrantz

v. Lafler, 568 F.3d 577, 586 (6th Cir. 2009) (applying clear

error review to district court’s finding that government

knowingly used false testimony); Pyles v. Johnson, 136 F.3d 986,

996-98 (5th Cir. 1998) (same); United States v. Boyd, 55 F.3d

239, 242 (7th Cir. 1995) (same). Our task, therefore, is to

assess whether “the entire evidence” creates “the definite and

firm conviction that a mistake [was] committed.” Easley v.

Cromartie, 532 U.S. 234, 243 (2001) (internal quotation marks

omitted). Thus, “[i]f the district court’s account of the

37
evidence is plausible in light of the record,” we may not

reverse that finding even if we “would have weighed the evidence

differently.” Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 573-74 (1985).

Basham does not suggest that Hewett committed perjury, and

he therefore must demonstrate that the record compels the

conclusion that Hewett’s actual killer suggestion “create[d] a

false impression of facts which are known not to be true.”

United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013)

(internal quotation marks omitted). Implicitly, Basham argues —

as he must — that it was Fulks who strangled Donovan. But while

Basham relies on isolated snippets of the record to establish

that point, a fuller reading clarifies the uncertainty regarding

the identity of Donovan’s killer. For example, a complete

reading of Long’s report shows that his statement that “FULKS

. . . strangled Donovan” derived from Littlejohn’s hypothetical

statements, which the government successfully moved to suppress.

See J.A. 2698. In the grand jury proceedings, Long testified

not only that Basham had blamed Fulks for actually killing

Donovan, but that Fulks had blamed Basham. Id. at 403, 408.

Similarly, AUSA Gasser’s statements during the evidentiary

dispute in Fulks’s trial were not made for the truth of the

matter. Gasser was simply arguing that Basham made both

inculpatory and exculpatory statements during the Thanksgiving

38
search, and Fulks should not be permitted to admit only the

favorable statements into evidence.

Basham suggests that Hewett’s actual killer suggestion was

false because at Fulks’s trial, the prosecution took the

position that Fulks — not Basham — had strangled Donovan. In

addressing Fulks’s § 2255 motion, we considered a similar

argument. See Fulks, 683 F.3d at 523-25. Fulks contended that

the prosecutors had violated his due process rights by pursuing

mutually inconsistent theories against Basham and Fulks, and

referenced many of the same statements that Basham now

highlights. We rejected Fulks’s claim because, “[v]iewed in the

context of the entirety of both proceedings, the government’s

core theory was that Fulks and Basham were equally culpable in

Donovan’s murder and similarly deserving of the death penalty,

regardless of which one physically ended her life.” Id. at 524.

Our reasoning in Fulks applies to Basham’s claim here. The

government’s consistent position has remained that Basham and

Fulks shared responsibility for Donovan’s death.

In all, Basham has not shown that the district court

clearly erred in finding that the prosecution did not present

false testimony at his trial. That finding is plausible based

on the entire record, and therefore must be affirmed. As the

Supreme Court has recognized, “[t]he trial judge’s major role is

the determination of fact, and with experience in fulfilling

39
that role comes expertise.” Anderson, 470 U.S. at 574. As

such, Basham cannot satisfy the first element of his

prosecutorial misconduct claim, and we affirm the court’s

ruling. 8

b.

Basham presents a separate ineffective assistance claim

that is based on his lawyers’ failure to raise the misconduct

claim on direct appeal. The district court denied that claim in

conjunction with its determination that Basham had not shown

sufficient cause to excuse his procedural default. We affirm

the court’s ruling on this ineffective assistance claim, in that

the underlying misconduct claim is plainly without merit. See

Cooks v. Ward, 165 F.3d 1283, 1296-97 (10th Cir. 1998)

(concluding that appellate counsel “cannot be said to have been

ineffective for failing to raise [claim] on direct appeal” where

claim determined on collateral attack to lack merit); see also

United States v. McHan, 386 F.3d 620, 623 (4th Cir. 2004)

(observing that “we are, of course, entitled to affirm on any

ground appearing in the record, including theories not relied

8
Because we agree with the district court’s ruling that
Basham cannot satisfy the first element of his prosecutorial
misconduct claim, we need not decide whether Basham might
establish the remaining elements of that claim, or address the
court’s alternative determination that the prosecutorial
misconduct claim was procedurally defaulted.

40
upon or rejected by the district court” (alterations and

internal quotation marks omitted)).

B.

Basham also maintains that he was tried and convicted while

being legally incompetent, and that his lawyers were

constitutionally ineffective by failing to raise the competency

issue to the district court during trial. His arguments focus

on two specific days — September 20 and October 26, 2004.

1.

The Due Process Clause of the Fifth Amendment prohibits the

federal government from trying and convicting a mentally

incompetent defendant. See Pate v. Robinson, 383 U.S. 375, 384-

86 (1966). The test for determining competency in a federal

court is whether the defendant “has sufficient present ability

to consult with his lawyer with a reasonable degree of rational

understanding — and whether he has a rational as well as a

factual understanding of the proceedings against him.” Dusky v.

United States, 362 U.S. 402, 402 (1960) (per curiam). A movant

can pursue either substantive or procedural competency-related

claims on collateral attack. In a substantive competency claim,

the movant asserts that he was, in fact, tried and convicted

while mentally incompetent. In a procedural claim, on the other

hand, the movant contends that the trial court failed to

properly ensure that the accused was competent to stand trial,

41
as required by 18 U.S.C. § 4241. See Beck v. Angelone, 261 F.3d

377, 387-88 (4th Cir. 2001). In pursuing a substantive

competency claim, such as Basham raises in his § 2255 motion,

the movant is presumed to have been competent during his trial.

See Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000). In

that situation, the movant bears the burden of proving, by a

preponderance of the evidence, that he was incompetent. See

United States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005). 9

In its Opinion, the district court found that Basham was

legally competent throughout his trial, including during the

specific challenged incidents on September 20 and October 26,

2004. As explained below, the court’s findings are not clearly

erroneous, and its denial of Basham’s competency-based claims

must be affirmed. 10

9
In contrast to a substantive competency claim, the movant
pursuing a procedural claim is presumed to have been incompetent
during the trial proceedings, and the government bears the
burden of showing competency. See Beck, 261 F.3d at 387-88.
10
In the § 2255 proceedings in the district court, the
government maintained that Basham’s substantive competency claim
was procedurally barred because it was not raised on direct
appeal. The court disagreed, determining that substantive
competency claims are not subject to procedural default. See
Opinion 92. The courts of appeal are divided on that issue.
Compare Hodges v. Colson, 727 F.3d 517, 540 (6th Cir. 2013)
(holding that substantive competency claims are subject to
procedural default rules), and LaFlamme v. Hubbard, 225 F.3d 663
(9th Cir. 2000) (unpublished per curiam decision) (same), with
Sena v. N.M. State Prison, 109 F.3d 652, 654 (10th Cir. 1997)
(concluding that substantive competency claims are exempt from
(Continued)
42
 a.

Basham first maintains that he was incompetent during an

incident that occurred on Monday, September 20, 2004, while the

trial was in its guilt phase. Following the lunch break that

afternoon, before the jury returned to the courtroom, the

district court informed Basham that he could not use tobacco,

referred to here as “dip,” during the trial proceedings because

the court was informed that Basham had previously thrown bodily

fluids at deputy U.S. Marshals. Basham then requested to return

downstairs to his holding cell, saying “I don’t feel good.” See

J.A. 1159. Of note, Basham had made previous requests not to

attend trial, which the court had declined. The court similarly

denied Basham’s request of September 20, ruled that the trial

would proceed, and instructed Basham to sit down. Basham

refused to take his seat, however, and became agitated. Soon,

“a tussle ensued in the courtroom between [Basham] and the

Marshals,” which lasted approximately eight minutes. Id. at

procedural default rules), Medina v. Singletary, 59 F.3d 1095,
1107 (11th Cir. 1995) (same), and Zapata v. Estelle, 588 F.2d
1017, 1021 (5th Cir. 1979) (same). We weighed in on this issue
in Smith v. Moore, 137 F.3d 808, 819 (4th Cir. 1998), concluding
that “a claim of incompetency to stand trial asserted for the
first time in a federal habeas petition is subject to procedural
default.” Thus, the district court erred by failing to apply
the procedural default rule to Basham’s substantive competency
claim. We will nevertheless presume that Basham has not
defaulted that claim.

43
1161. Six deputies sought to subdue Basham, but eight were

ultimately required. Basham and the deputies maintained a

dialogue during the tussle, with Basham cursing the officers,

suggesting that one of them had lied in telling the court that

he had thrown bodily fluids. Basham then told the court, prior

to being escorted from the courtroom, “Judge, if I was going to

spit, as mad as I am now, I would be spitting now. They just

made that up.” Id. at 1164.

Basham was then removed to his holding cell, and his

lawyers requested a delay in the trial proceedings so that a

psychiatrist could assess his competency. The district court

granted that request, and Basham was evaluated that afternoon by

forensic psychiatrist Donna Schwartz-Watts. Later that day, Dr.

Watts testified that “[i]t is my opinion right now that because

of his mental defect that [Basham] can’t assist his attorneys.”

J.A. 1173. Dr. Watts stated that Basham’s “mental state

fluctuates,” and opined that his competency would similarly

fluctuate. Id. The court then adjourned the trial for the

balance of that day.

Basham asserts in his § 2255 motion that he was not

competent to stand trial during his scuffle with the deputy

Marshals. Although the events of September 20, 2004, occurred

outside the jury’s presence, the video and audio of the tussle

44
were admitted into evidence during the trial’s penalty phase on

behalf of the prosecution to show future dangerousness.

The district court denied Basham’s competency claim as to

September 20, 2004, finding that he had not satisfied his

burden, by a preponderance of the evidence, of showing that he

was incompetent during the courtroom scuffle. In so ruling, the

court recognized that certain evidence supported Basham’s

argument that he had been incompetent. For example, immediately

following the scuffle, defense attorney Harris questioned

Basham’s competence and observed that he “[l]ooked like someone

who didn’t have the ability to control the simple function of

sitting down in a seat.” See J.A. 1168. Similarly, Dr. Watts

opined that, based on her examination of Basham following the

scuffle, he was not competent. See id. at 1173.

On the other hand, the district court deemed Dr. Watts’s

testimony unclear “as to whether she believed Basham was

incompetent at the time of the altercation or whether she

believed that he got worked up from the altercation and was

incompetent as a result.” See Opinion 93 n.37. The prosecutors

also offered evidence that Basham had advised a deputy shortly

before the incident that he would be “‘coming back down’” to his

holding cell from the courtroom, possibly indicating “that

Basham may have planned to act out in court.” Id. at 95

(quoting J.A. 1177). Additionally, the court related that

45
Basham made statements during the scuffle, prior to being taken

from the courtroom, showing that he “apparently had the presence

of mind to make a last-ditch argument as to why he should have

been allowed [dip], even as he was being escorted out of the

courtroom.” Id. Assessing all of the evidence, the court found

that Basham was not incompetent during the September 20 scuffle,

and thus his “constitutional rights were not violated when the

government later showed both videotape and audiotape of the

altercation to the jury.” Id.

Basham maintains on appeal that the district court’s ruling

was clearly erroneous because the court misconstrued Basham’s

statements prior to and during the September 20 scuffle, and

because the court should have accorded greater weight to the

opinions of Dr. Watts and lawyer Harris. We disagree, as the

record amply supports the court’s findings. See Anderson, 470

U.S. at 574 (“Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly

erroneous.”). Basham’s statement prior to the scuffle that he

would soon be returning to his holding cell supports a finding

that he intended to act up in the courtroom, in that the court

had previously denied Basham’s requests not to attend his trial.

In light of that history, it is reasonable to infer that Basham

would have known that he would not be permitted to return to his

holding cell absent exigent circumstances. Basham’s statements

46
to the court during the scuffle also support the court’s

competency finding, because they show that Basham’s thinking was

goal-oriented and motivated. His behavior might have been

bizarre, volatile, or irrational, but that does not necessarily

render a defendant incompetent. See Robinson, 404 F.3d at 858;

Burket, 208 F.3d at 192; see also United States v. Lebron, 76

F.3d 29, 32 (1st Cir. 1996) (“[I]rrational and outrageous

behavior in the courtroom . . . may be uncontrolled,

manipulative, or even theatrical. It is not determinative of

competency.”).

Moreover, the evidence upon which Basham relies does not

mandate a finding that he was incompetent during the September

20 scuffle. For example, Dr. Watts’s testimony that Basham was

incompetent when she examined him after the scuffle did not have

to be accepted — even if unimpeached. See Maggio v. Fulford,

462 U.S. 111, 117-18 (1983). Indeed, Watts’s opinion was

limited to Basham’s competency when she met with him following

the scuffle. Although Basham suggests that it “defies reason”

that he might have been competent during the scuffle and then

incompetent a short while later, see Reply Br. 8, Watts

testified that Basham’s mental state and competence

“fluctuate[d],” see J.A. 1173. Similarly, Harris’s testimony

does not mandate a finding that Basham was incompetent. Indeed,

Swerling testified to the contrary at the § 2255 hearing,

47
stating that Basham was not incompetent during the scuffle. See

id. at 4288-89.

In sum, the district court did not clearly err in finding

that Basham was competent during the September 20 scuffle. As a

result, Basham’s rights were not violated when the video and

audio recordings of the scuffle were shown to the jury during

the penalty phase.

b.

Next, Basham asserts that he was also incompetent on

Tuesday, October 26, 2004, during the trial’s penalty phase.

That morning, before the jury was brought into the courtroom,

Harris informed the district court that Basham “is in a very

agitated state this morning,” because he had not received one of

his medications due to an error at the detention center where he

was housed overnight. See J.A. 1919. The court then granted

Basham’s request to delay the trial until the afternoon, so that

he could receive the missed dose of medication and allow for the

medication to take effect. When the court reconvened that

afternoon, however, Harris expressed concern that Basham “is not

going to be able to sit in the courtroom and pay attention to

the testimony, remain silent. And I am concerned that . . .

this jury will not look favorably upon the way he is appearing

to me to be acting this afternoon.” Id. at 1927. The

prosecution took the position that the trial should proceed,

48
arguing that the defense lawyers had not contacted Dr. Watts to

evaluate Basham that morning, and contending that, “if it is a

medical problem,” she “should be here to testify about it.” Id.

at 1928. The following exchange then occurred:

THE COURT: Mr. Harris, I have tried to bend over
backwards to do everything possible to keep [Basham]
on an even keel and a good frame of mind, and
especially so that he won’t show out in front of the
jury. But the jury is really worn out. They have
sent signals indirectly to me. They really want to
see this case move along. I think there is a danger
to be balanced against what you say. These continued
delays are going to be held against [Basham], I think.
I think the jury will figure out that it is [Basham]
that is causing these delays. So, I think I have got
to weigh in the balance of that aspect of it, versus
the danger of going forward with him appearing to be a
little bit disheveled over there.

MR. HARRIS: Judge, I agree with all of those
things. Those are dangers that we had weighed. And I
will point out that as I am addressing the court right
now, the record should reflect that my client is
discussing over my shoulder, loud enough that I can
hear, and certainly loud enough for the jury could
[sic] hear, having discussions with Mr. Swerling about
the fact that he will be good.

Id. at 1928-29. Despite Harris’s concerns, the trial

proceedings went forward that day. Later that afternoon,

Basham’s counsel stated to the court that Basham was “slurring

his words” and appeared to be “groggy and just out of it.” Id.

at 1936-37.

In his § 2255 motion, Basham claims that he was incompetent

during the trial proceedings on the afternoon of October 26,

2004. The district court rejected that contention, finding a

49
lack of evidence supporting Basham’s assertion that he was

incompetent. The court pointed out that Basham’s lawyers had

expressed concern about Basham’s appearance, but offered no

evidence going to competency. The record showed that Basham

appeared disheveled and sleepy, but those behaviors were

consistent with his conduct throughout the trial. See Opinion

96. The court further observed: “If there had been any

indication that he was incompetent, the court would have sought

the testimony of a doctor on Basham’s competency, as this court

did on other occasions.” Id.

We are satisfied that the district court’s finding that

Basham was competent during the proceedings on the afternoon of

October 26 is not clearly erroneous. In arguing that the record

compels a finding that he was incompetent, Basham relies on

evidence that he was groggy and slurring his words. Those

factors, however, do not necessarily render a defendant

incompetent to stand trial. See Woods v. McBride, 430 F.3d 813,

819 (7th Cir. 2005) (“[T]here is a big difference between the

sort of temporary incompetence stemming from [medication]-

induced drowsiness during voir dire and the sort that would

render [the accused] incapable of standing trial altogether.”).

The finding that Basham was competent is further supported by

the court’s observations of Basham — both that day and

throughout the trial. The record demonstrates that the court

50
was sensitive to Basham’s mental state throughout the trial

proceedings, and made sustained efforts to ensure that his fair

trial rights were protected. For example, during the morning of

October 26, 2004, the court commented on the importance of

ensuring that Basham receive his prescribed medication so that

he could participate in his defense, anticipating that “if the

defendant receives the death penalty, . . . there will be a 2255

action” challenging his competency. See J.A. 7537. Given the

court’s commendable motivation to ensure Basham’s competency,

its decision to proceed with trial on the afternoon of October

26 supports a finding that Basham was competent. See United

States v. Moussaoui, 591 F.3d 263, 294 (4th Cir. 2010) (noting

that trial court’s interactions and experience with defendant

over several years of proceedings was “compelling” factor

supporting conclusion that defendant was competent). The

court’s finding that Basham was competent during the afternoon

of October 26 is thus well supported by the record. The court’s

denial of Basham’s substantive competency claim must therefore

be affirmed.

2.

Basham also argues that his defense lawyers were

constitutionally ineffective with respect to his September 20

and October 26, 2004 instances of alleged incompetency. More

specifically, with respect to the September 20 scuffle, Basham

51
contends that his lawyers acted deficiently — not on that day —

but when they failed to object on competency grounds to the

admission of the video and audio footage during the penalty

phase. As to the events of October 26, Basham maintains that

his lawyers were constitutionally ineffective by failing to

contact Dr. Watts and request that she examine Basham’s

competency before the trial proceedings could be resumed.

The foregoing contentions against the defense attorneys

lack merit because Basham cannot satisfy Strickland’s prejudice

requirement, which requires that he show “counsel’s errors were

so serious as to deprive [him] of a fair trial, a trial whose

result is reliable.” Strickland, 466 U.S. at 687. Put simply,

Basham was competent during the September 20 and October 24

incidents, foreclosing any suggestion that his trial was

rendered unfair by his lawyers’ decisions during those

incidents. See Walton v. Angelone, 321 F.3d 442, 462 (4th Cir.

2003) (ruling that, under Strickland, accused was not prejudiced

by counsel’s failure to raise competency issue where record

showed defendant had been competent); Beck v. Angelone, 261 F.3d

377, 393 (4th Cir. 2001) (same).

C.

Basham next claims that his defense lawyers were

constitutionally ineffective with regard to the evidence

presented during the trial’s guilt phase about the crimes

52
committed against Samantha Burns (the “Burns evidence”). 11 The

prosecution notified the defense during a pretrial hearing held

on August 4, 2004, of its intention to use the Burns evidence

during the guilt phase. The prosecution’s position was that the

Burns evidence was intrinsic to the crimes on trial, in that

Basham’s and Fulks’s crime spree constituted a single criminal

episode. Basham’s lawyers — Swerling and Harris — raised no

objections to the admissibility of the Burns evidence during the

pretrial hearings, though Swerling preserved the right to later

object.

The Basham defense, however, did not file a motion in

limine with respect to the Burns evidence as it was presented

during the guilt phase. Swerling and Harris also declined the

district court’s offer to give the jury a cautionary instruction

under Federal Rule of Evidence 404(b) with respect to that

testimony. At the charge conference in the guilt phase, the

court again inquired whether the jury should receive an

instruction limiting the purposes for which evidence of other

acts — such as the Burns evidence — could be considered.

11
Basham pleaded guilty in 2005 in the Southern District of
West Virginia to the offense of carjacking resulting in the
death of Samantha Burns, and aiding or abetting that offense,
and was sentenced to life imprisonment. See United States v.
Basham, No. 3:03-00138-02 (S.D. W. Va. July 25, 2005), ECF Nos.
105, 109.

53
Swerling objected to such an instruction, and alternatively

requested that the court’s proposed instruction be modified to

permit the jury to consider the evidence of other acts to either

prove “or disprove” pertinent facts. See S.A. 24. 12 The court

overruled that objection, but incorporated the modification

proposed by Swerling. The Burns evidence was not presented to

the jury during the sentencing phase.

On direct appeal, Basham argued that the prosecution had

impermissibly used the Burns evidence in its closing argument in

the guilt phase to show propensity, contravening Rule 404(b).

We found no plain error, concluding that the government had

“tied [the Burns] evidence entirely to a discussion of Basham’s

intent,” and therefore did not run afoul of Rule 404(b). See

Basham, 561 F.3d at 329-30.

Basham took a different tack on the Burns evidence in his

§ 2255 motion, maintaining that Swerling and Harris were

constitutionally ineffective by not attempting to limit the

scope and extent thereof. The district court rejected that

claim. First, the court recognized that the record is “unclear

as to whether [the Burns evidence] was admitted as being

intrinsic to the crimes charged, or was admitted for one of the

12
Our citation to “S.A. __” refers to the contents of the
Supplemental Appendix filed by the government in this appeal.

54
not-for-character purposes allowed under Rule 404(b).” See

Opinion 123 n.52. The court then relied on our decision

rejecting Basham’s direct appeal as foreclosing any challenge

that the Burns evidence was admissible to show intent. Id. at

124. Additionally, given that “Basham’s primary, if not sole,

defense in this case was that at the time he and Fulks kidnapped

Alive Donovan, he (Basham) did not have the requisite intent,”

the Burns evidence “was relevant to show intent.” Id. The

court deemed the Burns evidence as probative to showing that

Burns had not voluntarily disappeared. Nonetheless, the court

found that one piece of the Burns evidence constituted

impermissible victim impact testimony. Id. at 128-29.

Specifically, Burns’s mother testified that Burns would never be

able to move into the family’s new home. The court then

reasoned, however, that any error with respect to that statement

was harmless beyond a reasonable doubt. Id. at 129.

In response to Basham’s motion to alter or amend judgment,

the district court clarified that Basham’s claim with respect to

the Burns evidence failed on both prongs of Strickland. First,

the court determined that Basham’s lawyers did not perform

deficiently because their decisions on how to handle the Burns

evidence were strategic. Predicated on the testimony of

Swerling and Harris at the § 2255 hearing, the court found that

they had both “concluded that the jury would probably find

55
Basham guilty, thereby necessitating a penalty phase.” See

Reconsideration Order 6. Counsel therefore adopted “the

recognized practice” of front-loading the emotionally charged

Burns evidence into the guilt phase, so that it would not be

“fresh in the minds of the jury as they deliberated on Basham’s

sentence.” Id. at 6-7. Second, the court reasoned that the

deficiencies alleged did not prejudice Basham because the Burns

evidence would have been admitted even if his lawyers had

mounted the challenges he now maintains were required. Id. at

5-6. To that end, the court noted that “any objection to the

admissibility of [the Burns evidence] would have been

overruled.” Id. at 6.

We agree that Basham’s claim fails Strickland scrutiny

because he has not shown that his defense lawyers performed

deficiently. Basham urges that competent counsel would have

pursued a number of avenues to exclude or limit the Burns

evidence, such as arguing that the evidence was not intrinsic,

was unfairly prejudicial, or was needlessly cumulative. To

succeed on this ineffective assistance claim, of course, Basham

“must overcome the presumption that, under the circumstances,”

his lawyers’ handling of the Burns evidence “‘might be

considered sound trial strategy.’” See Strickland, 466 U.S. at

689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

56
 Swerling and Harris each testified during the § 2255

hearing that, as they prepared for trial, they believed Basham

would be convicted of the charged offenses. Their overarching

goal was to save Basham’s life and avoid a death sentence. In

line with that goal, as Swerling explained, the defense chose to

front-load certain evidence into the trial’s guilt phase. The

lawyers purposely “let a lot of evidence come in in the guilt or

innocence phase” in order to “desensitize” the jury “to what we

knew was going to be coming in the penalty phase of the trial.”

See J.A. 4410; see also Humphries v. Ozmint, 397 F.3d 206, 234

(4th Cir. 2005) (“[I]t is well established that failure to

object to inadmissible or objectionable material for tactical

reasons can constitute objectively reasonable trial strategy

under Strickland.”).

To rebut Swerling’s testimony about trial strategy, Basham

points out that Swerling made no mention of a front-loading

strategy at the § 2255 hearing until he returned from a lunch

break. Even then, Basham notes, Swerling testified that he

“probably” employed that strategy. See Br. of Appellant 59

(quoting J.A. 4340). The district court credited Swerling’s

explanation, however, and the credibility determination warrants

our deference. See United States v. Abu Ali, 528 F.3d 210, 232

(4th Cir. 2008) (“We particularly defer to a district court’s

credibility determinations, for it is the role of the district

57
court to observe witnesses and weigh their credibility.”

(internal quotation marks omitted)).

Basham’s position that his lawyers acted unreasonably by

not challenging the Burns evidence under Rule 403 overlooks the

probative value of that testimony. See Fed. R. Evid. 403 (“The

court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”). Basham characterizes the probative

value of the Burns evidence as “marginal,” see Br. of Appellant

63, an assertion that is entirely inaccurate. During the guilt

phase, Basham conceded his culpability to the offenses charged,

except for the carjacking offense. On that charge, Basham

disputed whether he had possessed the requisite “intent to cause

death or serious bodily harm” when he and Fulks abducted

Donovan. See 18 U.S.C. § 2119. To prove that intent element,

the prosecution introduced the Burns evidence to show that Burns

had neither voluntarily left home nor disappeared. Basham

emphasizes that he had admitted Burns was dead in his opening

argument, and further suggests that the prosecution could have

used other evidence — such as testimony from the law enforcement

officers who interviewed Burns’s family — to introduce the same

information in a less emotional way. The prosecution, however,

58
is entitled to fashion its own case and present a continuing,

logical story to satisfy its ultimate burden. See Old Chief v.

United States, 519 U.S. 172, 189 (1997) (“[T]he accepted rule

that the prosecution is entitled to prove its case free from any

defendant’s option to stipulate the evidence away rests on good

sense. A syllogism is not a story, and a naked proposition in a

courtroom may be no match for the robust evidence that would be

used to prove it.”). Therefore, it is unlikely that a Rule 403

challenge would have been successful — particularly given the

district court’s statement that any such objection would have

been overruled.

Basham’s focus on the heartbreaking and emotional nature of

the Burns evidence lends substantial credence to his lawyers’

strategy. The government had provided notice that the crimes

against Samantha Burns would be presented as an aggravating

factor justifying a death sentence. Swerling and Harris thus

understood that, if the Burns evidence did not come in during

the guilt phase, the prosecution would use it during the penalty

phase. Although the Rules of Evidence do not apply in the

latter stage, an evidentiary restriction similar to Rule 403 is

provided by statute: “information may be excluded if its

probative value is outweighed by the danger of creating unfair

prejudice, confusing the issues, or misleading the jury.” 18

U.S.C. § 3593(c). The probative value of the Burns evidence

59
would assuredly be high in the penalty phase, where the crimes

against Burns were to be squarely at issue. Faced with the

proposition that the Burns evidence would certainly be admitted

at some point, Basham’s lawyers cannot be faulted for ripping

off the proverbial Band-Aid. See Lundgren v. Mitchell, 440 F.3d

754, 774 (6th Cir. 2006) (“[E]xperienced trial counsel learn

that objections to each potentially objectionable event could

actually act to their party’s detriment. Learned counsel . . .

use objections in a tactical manner.”).

As the Supreme Court has explained, “[t]here are countless

ways to provide effective assistance in any given case. Even

the best criminal defense attorneys would not defend a

particular client in the same way.” Strickland, 466 U.S. at

689. The tactical decisions made by Swerling and Harris with

respect to the Burns evidence were logical and strategic. In

the context of a capital case, those decisions could not be

characterized as being outside of the wide range of professional

norms, and thus were not constitutionally deficient. See

Florida v. Nixon, 543 U.S. 175, 191 (2004) (“Attorneys

representing capital defendants face daunting challenges in

developing trial strategies, not least because the defendant’s

guilt is often clear. . . . In such cases, avoiding execution

may be the best and only realistic result possible. Counsel

therefore may reasonably decide to focus on the trial’s penalty

60
phase, at which time counsel’s mission is to persuade the trier

that his client’s life should be spared.” (alterations and

internal quotation marks omitted)). In sum, we are satisfied

that Swerling and Harris did not render constitutionally

ineffective assistance when they decided to allow the Burns

evidence to be admitted without objection during the guilt phase

of Basham’s trial. 13

D.

Finally, Basham contends that he was denied the effective

assistance of counsel because Swerling failed to deliver

Basham’s complete file to the lawyers who represented Basham in

his direct appeal. Basham noticed his direct appeal on February

17, 2005, and Swerling and Harris were appointed as his

appellate lawyers the following week, on February 24, 2005.

Thereafter, Swerling and Harris each were permitted to withdraw,

on September 13, 2005, and August 14, 2007, respectively, and

were replaced by lawyers from Jenner & Block, LLP. Timothy

Sullivan was designated lead appellate counsel, although co-

13
Although we need only decide that Basham’s claim fails at
Strickland’s deficiency prong, that claim would similarly fail
at the prejudice prong. The district court gave the jury a
cautionary instruction during the charge in the guilt phase,
limiting the purposes for which the jury could consider the
Burns evidence. Moreover, the court emphasized in its
Reconsideration Order that “any objection to the admissibility
of [the Burns evidence] would have been overruled.” See
Reconsideration Order 6.

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counsel Melissa Meister worked extensively on Basham’s appeal

and coordinated a team of associates.

Basham’s appellate lawyers from Jenner & Block began

requesting records from Swerling in January 2008. Sullivan

requested, by letter of January 14, 2008, that Swerling “either

provide me with a complete ‘master set’ [of Basham’s files,

pleadings, and records] or, alternatively, provide access to the

‘master set’ so it can be inspected and copied.” See J.A. 7065.

Also on January 14, 2008, the district court ordered “the clerk

of court to provide [Basham’s appellate lawyers] access to all

documents which are reflected in the docket as sealed or

otherwise restricted.” Id. at 7066. On February 12, 2008, our

briefing order was amended, extending the deadline for Basham’s

opening brief by sixty days, from February 29 to April 29, 2008.

Meister made several requests during February and March 2008

that Swerling send Basham’s file to Jenner & Block in

Washington, D.C. Swerling, however, insisted on retaining

physical possession of the file. Meister then travelled to

Swerling’s office in South Carolina on April 3, 2008, spent the

afternoon reviewing the file, and had copies made of about two

boxes of documents. On April 23, 2008, the deadline for

Basham’s opening brief was again extended, this time to May 13,

2008.

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 The district court rejected Basham’s claim that Swerling’s

refusal to surrender possession of the file constituted

constitutionally ineffective assistance, determining that the

claim failed at both prongs of Strickland. First, as to

deficient performance, the court found that Basham’s appellate

lawyers had reasonable access to his trial files. See Opinion

192-93. Although Swerling insisted on retaining the physical

file, the court found that “when appellate counsel wanted access

[to the file], they were given it, and Swerling did not deny

them access to any document requested.” Id. at 192. The court

further noted that “Swerling assisted appellate counsel

throughout the month of May 2008 in preparing and filing the

opening appeal brief.” Id. Because Swerling had provided the

appeals team with reasonable access to Basham’s file, the court

determined that Swerling did not perform deficiently. Id. at

193. Similarly, although Basham’s appellate lawyers’ “task

would have been easier had they had the entire file in their

possession,” the court reasoned that those lawyers did not

perform deficiently because they “could obtain many documents

from the court’s docket, had access to the entire physical file,

and were allowed to copy what they wished therefrom.” Id.

Second, and in the alternative, the district court ruled

that, even if Basham’s lawyers had performed deficiently, his

claim failed under Strickland’s prejudice prong. See Opinion

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193-94. The court emphasized that Basham had not identified any

particular argument that appellate counsel failed to raise

because Swerling retained the physical file. And, although

Basham contended that his lawyers might have raised some of the

ineffective assistance claims on direct appeal that he raised in

his § 2255 motion, the court explained that “appellate counsel

were not ineffective in failing to raise the issues Basham

identifies.” Id. at 193. The court further relied on Meister’s

testimony that she received sufficient access to Basham’s file

and that “there were no claims appellate counsel could not have

raised because of Swerling’s behavior.” Id. at 193-94. Thus,

the court concluded that Basham could not have been prejudiced

by any deficiency relating to his file.

On appeal, Basham reiterates his argument that “[i]n

denying appellate counsel unfettered access” to the “thousands

of trial-related documents in his possession,” Swerling had

“compromised Basham’s appeal to an unknowable extent.” See Br.

of Appellant 74. To show that Swerling performed deficiently,

Basham relies on legal authority requiring a lawyer to deliver a

client’s file to the client upon the termination of

representation. See id. at 80-81 (citing Restatement (Third) of

the Law Governing Lawyers § 46(3) (2000) (requiring that “a

lawyer must deliver to [his] client or former client, at an

appropriate time and in any event promptly after the

64
representation ends, such originals and copies of other

documents possessed by the lawyer relating to the representation

as the client or former client reasonably needs”); S.C. Rules of

Prof’l Conduct 1.16(d) (“Upon termination of representation, a

lawyer shall take steps to the extent reasonably practicable to

protect a client’s interests, such as . . . surrendering papers

and property to which the client is entitled . . . .”)). Basham

further disputes the court’s finding that appellate counsel had

reasonable access to the trial file, maintaining that “Meister’s

single day with the file” cannot constitute reasonable access

“in light of the nature” of this capital case. Id. at 85.

We are satisfied to affirm the district court’s ruling that

Basham cannot demonstrate prejudice. Basham’s prejudice

argument relies on the “numerous claims of ineffective

assistance of appellate counsel,” as well as the competency

claims that he raised in his § 2255 motion. See Br. of

Appellant 86. That contention, of course, is entirely undercut

by the fact that Basham has not advanced a meritorious claim in

his § 2255 motion.

Finally, the record demonstrates that Basham’s appellate

lawyers made deliberate and considered decisions in selecting

which claims to pursue. Meister confirmed at the § 2255 hearing

that the appellate team strategized on what issues to appeal in

order to “present the best brief possible” with the “most

65
likelihood” of affording Basham relief. See J.A. 3827-28. As a

result, Basham cannot show a reasonable probability that the

result of the proceedings would have been different, “sufficient

to undermine confidence in the outcome” of his direct appeal.

See Strickland, 466 U.S. at 694. Therefore, we also affirm the

ruling of the district court on this ineffective assistance

claim. 14

IV.

Pursuant to the foregoing, we affirm the judgment of the

district court.

AFFIRMED

14
Because we resolve this ineffective assistance claim
under Strickland’s prejudice prong, it is unnecessary to decide
whether Swerling’s failure to deliver Basham’s file to his
appellate lawyers constituted deficient performance.

66