United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 12, 2005
__________________________ Charles R. Fulbruge III
Clerk
No. 04-30645
__________________________
ANTONIO BOSLEY,
Petitioner – Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent – Appellee.
___________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
___________________________________________________
Before WIENER, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:
Petitioner–Appellant Antonio Bosley appeals the denial of his
habeas corpus petition brought under 28 U.S.C. § 2254. We affirm.
I. FACTS AND PROCEEDINGS
Bosley was indicted by a Louisiana grand jury on a charge of
aggravated rape of his minor stepdaughter, Tabitha Dotray. He was
convicted in state court in 1995 and sentenced to life
imprisonment; and he has exhausted all his state court remedies.
In May 1999, Bosley filed for habeas relief in federal
district court, challenging the validity of his indictment.
Following an evidentiary hearing, a magistrate judge recommended
that Bosley’s conviction be reversed, his indictment quashed, and
a writ of habeas corpus issued on the basis of racial
discrimination in the selection of the grand jury foreperson. The
district court adopted the report and recommendation, but we
reversed that court on appeal, holding that Bosley had procedurally
defaulted his claim by failing to file a pre-trial motion to quash
his indictment.1
On remand, the district court again referred the matter to the
magistrate judge for a determination whether Bosley could show
cause and prejudice, or actual innocence, so as to overcome the
procedural bar. The magistrate judge recommended denial of
Bosley’s habeas petition and dismissal with prejudice because he
could not establish either cause or actual innocence. Bosley
objected to the report and recommendation and filed a motion to
supplement the record to include the affidavits of Tacoma Bosley
and Zakeetricess Bosley; he also sought an evidentiary hearing.
The district court granted the motion to expand the record and also
granted the motion to hold an evidentiary hearing but only on the
limited issue of actual innocence, yet again referring the matter
to the magistrate judge. We briefly summarize the testimony
adduced at this hearing.
Tacoma Bosley
Tacoma, Bosley’s 21-year old niece, testified that although
she knew the victim, Tabitha, as a small child, they were never
1
Bosley v. Cain, 51 Fed. Appx. 483 (5th Cir. 2002).
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close. According to Tacoma, she was at the Members Club, a night
club in Monroe, Louisiana, in February 2003, when she ran into her
cousin, Tonya Holmes, and Tabitha. Tacoma described an altercation
that occurred in the Club’s bathroom while Tabitha was in one of
the stalls. Tacoma told Tonya that she did not like Tabitha
because of what she had done to Bosley, and asked Tonya why she was
friends with Tabitha. Overhearing the conversation, Tabitha
purportedly blurted out from the stall that she was sorry and that
her “mamma made her say that about Uncle Tony had raped her.”
Tacoma later phrased what Tabitha said slightly differently: “Well,
I ain’t got nothing against y’all. I didn’t mean to say that. My
mamma made me say that.”
On cross-examination, Tacoma acknowledged that she did not
personally fill out the affidavit; rather, Bosley’s attorney
appeared at her house with the affidavit, proffered it to her, and
she signed it. Tacoma said that she had never spoken with the
attorney before, surmising that Katy Banks, Tacoma’s grandmother
and Bosley’s mother, had told the attorney about Tacoma’s
information. On redirect, Tacoma stated that she had signed the
affidavit because its contents were true. It was elicited at the
hearing that Tacoma was not then employed or in school, and had
recently been convicted of theft.
Zakeetricess “Kee Kee” Bosley
Kee Kee, 15, is another of Bosley’s nieces. She too testified
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she had known Tabitha as a child. Kee Kee described an incident at
the apartment of her friend, Carvette, that occurred two years
before the hearing. Carvette lived in the same apartment complex
as Tabitha at the time, and Tabitha came to Carvette’s apartment
when Kee Kee was present to use the phone to call the police about
a fight with her boyfriend. When Tabitha finished her call, Kee
Kee asked her why she had caused Bosley to be put in jail, to which
Tabitha responded that she did not know why and that “her mamma
made her do it.” Kee Kee testified that, until she revealed this
to Bosley’s counsel, she had never told anyone what Tabitha had
told her. Kee Kee stated that she offered the information
voluntarily after hearing the conversation between Tacoma and
Bosley’s counsel.
Kendra Bosley
Kendra, 16, yet another of Bosley’s nieces, is Kee Kee’s older
sister and Tacoma’s cousin. Kendra testified that two and a half
years earlier, she was in WalMart with her older sister, that she
separated from her sister and had gone to the clothing section
where she encountered Tabitha. Kendra said to Tabitha, “I’m not
trying to be messing or nothing. I just want to know why you lied
on my uncle, why they spreading these rumors about he messing with
her.” She also asked Tabitha why she did not just tell the truth.
Tabitha responded that she was scared and “she don’t know what
they’ll do if she tell the truth.” Kendra also testified she had
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heard rumors in the community that Tabitha had lied, that her
mother had put her up to it. The magistrate judge asked Kendra
whether she had ever asked Tabitha if she had lied about Bosley, to
which Kendra responded in the negative. It is not altogether clear
from the transcript, but it appears that Kendra first volunteered
this information to Bosley’s attorney in the courtroom on the day
of the hearing.
Tabitha Dotray
Tabitha, 20 years old and a certified nurse’s assistant,
testified that her mother never told her to lie or give false
testimony. She admitted that the incident at Members Club
occurred, but denied that she had discussed Bosley at that time.
Tabitha said that Tacoma tried to “start something with her” in the
bathroom, and had accused her of lying about Bosley. Tabitha
denied that she had ever admitted to lying about what Bosley had
done to her. Tabitha also acknowledged that she had gone to
Carvette’s residence to use the phone and that Kee Kee was present,
but denied having any conversation about Bosley with Kee Kee.
Tabitha also denied encountering Kendra at WalMart.
Tabitha testified further that she was employed at a nursing
home and that she did not have any convictions. Bosley’s counsel
objected, stating that shoplifting charges were pending against
Tabitha. She denied that any charges were pending against her when
questioned by the court. The court requested that Tabitha look at
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Bosley and state that her testimony was truthful, and Tabitha
complied. She also stated that she was not acting out of fear of
what might happen to her or her mother should she change her former
testimony.
Jacqueline Dotray
Jacqueline, Tabitha’s mother, denied counseling Tabitha to lie
about the rape.
Tonya Holmes
Tonya, 21, is a friend of Tabitha’s and a first cousin of
Bosley. Tonya testified that when she entered the bathroom at
Members Club in February 2003, she heard a lot of commotion; that
Tacoma and two other girls were in the bathroom yelling. She
stated that one of the girls was saying “she got my uncle locked
up” and Tacoma was saying that she was going to “whup” Tabitha.
Tonya also testified that she did not hear Tabitha say that she had
lied or that her mother had put her up to it. Tonya denied telling
Irma Parker that Tabitha had told her (Tonya) that she wanted to
come clean and admit that she had lied at Bosley’s trial. On
questioning by the court, Tonya stated she was not aware of rumors
in the community that Tabitha had lied at Bosley’s trial.
Irma Parker
Irma, 33 years old and a certified nurse assistant, is
Bosley’s sister. She testified about an event that had occurred in
her home two years earlier. While Tonya was working on Irma’s
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hair, Tonya told her that Tabitha had confessed that her mother had
“put her up to it.” Tonya then supposedly told Irma that Tabitha
wanted to come over to Irma’s house and confess; however, Tabitha
never went to Irma’s house. Although Irma stated that she had not
had any further conversations with Tonya about Tabitha, she later
testified, during direct examination, about a second incident that
occurred on her uncle’s porch, when Tonya had again told her and
others there that Tabitha had said her “momma put her up to it.”
At this point in the hearing, it appears from the transcript that
Ms. Parker became upset and angry and had to be calmed down. She
then accused Tabitha’s mother of sleeping with the assistant
district attorney who had prosecuted Bosley.
On cross examination, Irma testified that the first incident
with Tonya happened in 1998 or 1999, after which her mother
contacted Bosley’s lawyer, Ms. Hudsmith; that the incident on her
uncle’s porch occurred in 1999 or 2000, but that she could not
recall who else was present on the porch with her. Irma had been
convicted of forgery in 1993 or 1994.
Based on the evidentiary hearing, the magistrate judge issued
a third Report and Recommendation, concluding that Bosley could not
meet the actual innocence standard. The district court entered a
judgment adverse to Bosley and consistent with the magistrate
judge’s recommendation, but subsequently withdrew that judgment to
consider newly introduced evidence of Tabitha’s criminal history.
The new information revealed that Tabitha had recently been
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prosecuted on shoplifting charges. The State introduced the
criminal records of Tacoma, Kee Kee, and Kendra, each of whom had
convictions. The magistrate judge issued a fourth Report and
Recommendation, again concluding that Bosley had failed to
establish actual innocence.2
The district court adopted this report and recommendation and
again entered judgment against Bosley, but granted his application
for issuance of a certificate of appealability. This appeal
followed.
II. ANALYSIS
The only issue before us is whether Bosley was able to meet
the actual-innocence standard set forth in Schlup v. Delo.3 In an
appeal from the denial of habeas relief, we review a district
court’s findings of fact for clear error and its legal
determinations de novo.4
We previously held that Bosley’s habeas challenge to the
2
An additional evidentiary hearing was held, but there was
no transcript of the hearing provided on appeal. From what we
can glean from the available documentation, the additional
hearing concerned the allegation by Irma Parker that Jacqueline
Dotray had been sleeping with the prosecutor at Bosley’s trial.
Testimony was given by Irma and her mother Katy Banks. In a
supplemental report and recommendation, the magistrate judge
indicated that he did not find the testimony credible, and again
recommended finding against Bosley.
3
513 U.S. 298 (1995).
4
Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001).
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validity of his indictment is procedurally barred.5 “Where a
defendant has procedurally defaulted a claim by failing to raise it
on direct review, the claim may be raised in habeas only if the
defendant can first demonstrate either ‘cause’ and actual
‘prejudice,’ . . . or that he is ‘actually innocent.’”6 Bosley has
not appealed the district court’s determination that he does not
meet the cause and prejudice standard. This leaves actual
innocence as the sole issue of this appeal.
To establish actual innocence under Schlup, Bosley had to
demonstrate that, “in light of all the evidence,” “it is more
likely than not that no reasonable juror would have convicted
him.”7 District courts are directed not to substitute their own
judgments as to whether there is a reasonable doubt; the standard
requires the district court to “make a probabilistic determination
about what reasonable, properly instructed jurors would do.”8
Because our legal system has no means of defining innocence
independently of the finding of reasonable doubt, “the analysis
must incorporate the understanding that proof beyond a reasonable
doubt marks the legal boundary between guilt and innocence.”9 To
5
Bosley v. Cain, 51 Fed. Appx. 483 (5th Cir. 2002).
6
Bousley v. United States, 523 U.S. 614, 622 (1998)
(citations omitted).
7
Schlup, 513 U.S. at 327-28.
8
Id. at 329.
9
Id. at 328.
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be credible, an actual innocence claim requires Bosley to “support
his allegations of constitutional error with new reliable evidence
—— whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence —— that was not
presented at trial.”10 A district court, in making its assessment
of a petitioner’s showing, is not bound by the rules of evidence
that govern a trial: “The habeas court must make its determination
concerning the petitioner’s innocence ‘in light of all the
evidence, including that alleged to have been illegally admitted .
. . and evidence tenably claimed to have been wrongly excluded or
to have become available only after the trial.’”11
The evidence at Bosley’s state trial was summarized by the
magistrate judge in his third Report and Recommendation:
The only real evidence of rape at trial was the testimony
of the alleged victim, Tabitha Dotray, petitioner’s
stepdaughter, who was 13 years old at the time of the
trial. She testified at trial that when she was 10 and
11 years old, petitioner put his penis in her vagina and
otherwise touched her in the “wrong places.” She
testified that petitioner threatened to kill her if she
told anyone.
The only other meaningful evidence at the trial was the
testimony of a medical doctor who had examined Tabitha
and it was clear from his testimony that Tabitha had
engaged at some point in full sexual intercourse. In
addition there was testimony from a clinical
psychologist, who testified that Tabitha showed clinical
symptoms of post-traumatic stress disorder which was
10
Id. at 324.
11
Id. at 328. The district court “must assess the
probative force of the newly presented evidence in connection
with the evidence of guilt adduced at trial.” Id. at 332.
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[sic] consistent with the trauma of being raped.
Importantly, the testimony showed that Tabitha made no
complaints against Bosley prior to his moving into the
family home in April 1993, even though she testified at
trial that he had begun touching her . . . during that
period of time. The Bosleys married in August of 1993.
No complaints were made against Bosley during the
marriage . . . . The testimony showed that Bosley lived
continuously with Mrs. Bosley [Jacqueline Dotray] and the
children, including Tabitha, until May 1994 when he left
the family home [for another woman]. Thereafter, Bosley
would occasionally return for brief periods of time, but
by November 1994, when Tabitha was 12 years old, Bosley
left for the last time.
It was not until February 1995 that Tabitha told her
mother that petitioner had “bothered” her and she told
her then only in response to being questioned by her
mother regarding whether he had ever bothered her. The
evidence also shows that when the mother, Jacqueline
Dotray, had asked Tabitha on a previous occasion in
November 1994 whether he had ever bothered her she had
told her mother he had not.
The magistrate judge then proceeded to evaluate the new
testimony from the evidentiary hearing. He first noted that
Bosley’s four witnesses (Tacoma, Kee Kee, Kendra and Irma) were all
adamant and confident in their testimony. He also observed that
Tabitha was unwavering in her denials of those witnesses’
testimony. The magistrate judge found it significant that the four
witnesses for Bosley were his relatives, that three of them related
conversations that had occurred two or more years earlier, and that
none had ever come forward with the information until the hearing.
Nevertheless, the magistrate judge found that the new evidence
proved that two of the reported encounters with Tabitha did occur
—— the one in the bathroom of the Members Club and the one at
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Carvette’s apartment —— even though the substance of the encounters
was in substantial dispute. He also found Kendra’s testimony more
credible than that of Bosley’s other witnesses. The magistrate
judge noted that Tabitha was gainfully employed and had never been
convicted of a crime, in contrast to Tacoma who was unemployed and
had been convicted of theft, and in contrast to Irma, who had been
convicted of forgery.
In light of the new testimony, the magistrate judge stated
that “the result could have been a change in the outcome of the
trial,” but that under the Schlup standard, it could not be said
that it was more likely than not that this evidence would have
changed the jury’s verdict.
After subsequently receiving the criminal records of Tabitha,
Tacoma, Kee Kee, Kendra, and Irma, the magistrate judge issued a
fourth Report and Recommendation. Although Tabitha had lied at the
hearing about not having a criminal record, the magistrate judge
could not conclude that her lying about that under oath made her
any less believable than the “new witnesses.” Conversely, however,
he could not conclude that the new witnesses were less believable
than Tabitha. Although he remained convinced that very little
evidence supported the jury’s verdict to convict Bosley, the
magistrate judge could not conclude that it was more likely than
not that no reasonable juror would have found Bosley guilty beyond
a reasonable doubt if the juror had heard the new evidence.
Bosley attacks the magistrate judge’s conclusions on the
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ground that he improperly applied a sufficiency of the evidence
test instead of the less stringent test stated in Schlup. The
Supreme Court in Schlup contrasted the test it adopted with the
test for sufficiency of the evidence stated in Jackson v.
Virginia:12
The Jackson standard, which focuses on whether any
rational juror could have convicted, looks to whether
there is sufficient evidence which, if credited, could
support the conviction. The Jackson standard thus
differs in at least two important ways from the Carrier
standard [adopted in Schlup]. First, under Jackson, the
assessment of the credibility of witnesses is generally
beyond the scope of review. In contrast, under the
gateway standard we describe today, the newly presented
evidence may indeed call into question the credibility of
the witnesses presented at trial. In such a case, the
habeas court may have to make some credibility
assessments. Second, and more fundamentally, the focus
of the inquiry is different under Jackson than under
Carrier. Under Jackson, the use of the word “could”
focuses the inquiry on the power of the trier of fact to
reach its conclusion. Under Carrier, the use of the word
“would” focuses the inquiry on the likely behavior of the
trier of fact.
Indeed, our adoption of the phrase “more likely than not”
reflects this distinction. Under Jackson, the question
whether the trier of fact has power to make a finding of
guilt requires a binary response: Either the trier of
fact has power as a matter of law or it does not. Under
Carrier, in contrast, the habeas court must consider what
reasonable triers of fact are likely to do. Under this
probabilistic inquiry, it makes sense to have a
probabilistic standard such as “more likely than not.”
Thus, though under Jackson the mere existence of
sufficient evidence to convict would be determinative of
petitioner’s claim, that is not true under Carrier.13
Bosley’s contention that the magistrate judge applied the more
12
443 U.S. 307 (1979).
13
Schlup, 513 U.S. at 330.
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exacting Jackson standard is incorrect. The magistrate judge
concluded that, even though in light of the new evidence, a juror
could find Bosley not guilty, the magistrate judge could not
conclude that it was more likely than not that no reasonable juror
would find Bosley guilty.
Several points from Schlup guide us in concluding that the
district court correctly held that Bosley had failed to meet the
actual-innocence standard. First, Bosley bears the burden of
establishing that it is more likely than not that no reasonable
juror would have convicted him in light of the new evidence.14
Second, there is no presumption of innocence at a habeas proceeding
—— Bosley “comes before the habeas court with a strong —— and in
the vast majority of the cases conclusive —— presumption of
guilt.”15 Third, the Schlup standard “does not merely require a
showing that a reasonable doubt exists in the light of the new
evidence, but rather that no reasonable juror would have found the
defendant guilty.”16 Finally, we are not required to test the new
evidence by a standard appropriate for deciding a motion for
summary judgment. “Instead, the court may consider how the timing
of the submission and the likely credibility of the affiants bear
14
Id. at 327.
15
Id. at 326 n.42. “[E]xperience has taught us that a
substantial claim that constitutional error has caused the
conviction of an innocent person is extremely rare.” Id. at 324.
16
Id. at 329.
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on the probable reliability of that evidence.”17
At best, Bosley’s new evidence shows that a reasonable doubt
could have been found to exist; it fails, however, to satisfy his
burden of showing that no reasonable juror would have found him
guilty. When we view all the evidence —— both the new evidence and
the evidence offered at trial —— we are left with a classic
swearing match. Bosley has not adduced any reliable new evidence,
such as “exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence.”18 In reviewing the
testimony before him, the magistrate judge found the testimony to
be in equipoise, i.e., he found all of the witnesses equally
credible, or, more accurately, equally lacking in credibility.
Bosley therefore failed to establish that it is more likely than
not that no reasonable juror would choose to believe Tabitha’s
account over those accounts offered by Tacoma, Kee Kee, Kendra and
Irma. As a result, we cannot conclude that it is more likely than
not that no reasonable juror would have convicted Bosley.
III. CONCLUSION
We affirm the judgment of the district court that rejects
Bosley’s claim of actual innocence and denies habeas relief.
AFFIRMED.
17
Id. at 332.
18
Id. at 324.
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