Boss v. Ludwick (943 F. Supp. 2d 917, 2013)

MEMORANDUM OPINION AND ORDER REGARDING THE PARTIES’ OBJECTIONS TO A MAGISTRATE JUDGE’S RECOMMENDATION FOR DISPOSITION ON THE MERITS

MARK W. BENNETT, District Judge.

TABLE OF CONTENTS

I. INTRODUCTION........................................................922

A. Factual Background.................................................922

1. The murder and disposal of the body...............................922

2. Disclosure of the location of the body..............................923

B. Procedural Background..............................................924

1. State proceedings................................................924

a. Conviction and direct appeal..................................924

b. Post-conviction relief proceedings.............................924

i. The district court’s decision.............................924

ii. The appellate court’s decision...........................928

2. Federal Proceedings .............................................930

a. Boss’s 2254 Petition..........................................930

b. Proceedings on the merits ....................................931

c. Objections to the recommended disposition.....................934

II. LEGAL ANALYSIS......................................................934

A. Review Of A Report And Recommendation.............................934

1. The applicable standards.........................................934

2. Be novo review..................................................935

3. “Clear error” review .............................................935

B. The Nature Of Boss’s Constitutional Claims...........................936

1. Boss’s pertinent objections........................................936

2. The underlying constitutional claims..............................936

a. The claims as pleaded and briefed.............................936

b. Judge Strand’s interpretations................................937

3. Analysis of Boss’s objections to the nature of his constitutional claims........................................................937

a. Boss’s Objection 1............................................937

b. Boss’s Objection 5............................................938

C. The Nature Of Boss’s Federal Habeas Claims..........................939

1. Federal habeas review of a state conviction........................939

a. “Exhausted” and “adjudicated” claims........................939

b. The “adjudicated on the merits” requirement...................940

c. The 2254(d)(1) standards......................................942

i. The “contrary to” clause................................943

ii. The “unreasonable application” clause ..................943

d. The 2254(d)(2) standard ......................................943

e. The effect of deficiencies in the state court decision.............944

f. De novo review of issues not reached by the state court..........944

2. Boss’s federal habeas claims......................................945

D. Boss’s Objections To The Disposition Of His Claims....................946

1. “Clearly established federal law” for “ineffective assistance” claims........................................................946

a. Strickland’s “deficientperformance”prong.....................947

b. Strickland’s “prejudice prong”................................948

2. The rationale for the state court’s decision.........................950

a. “Deficient performance”......................................950

i. Boss’s Objection 3 as to “performance”...................950

ii. Boss’s Objection 4......................................952

b. “Prejudice”.................................................958

i. Boss’s Objection 2 and Objection 3 as to “prejudice”.....958

ii. Analysis...............................................958

E. The Respondent’s Objection To The Finding Of “Prejudice”.............959

III. CONCLUSION ..........................................................959

In this habeas action pursuant to 28 U.S.C. § 2254, the petitioner challenges his state conviction for the first-degree murder of his foster son. The petitioner contends that his trial counsel provided ineffective assistance by inadequately advising him about disclosing the location of the murdered child’s body, then disclosing the location of the body — buried in the basement of the petitioner’s house in a hole cut in the concrete slab, refilled with concrete, and covered with a carpet — during a bond review hearing. At least three previous searches of the petitioner’s house had not revealed the location of the child’s body. A magistrate judge recommended that the petitioner’s § 2254 petition be denied, because the petitioner had failed to prove that his trial counsel’s performance was deficient, although the magistrate judge concluded that the petitioner had proved that prejudice resulted from disclosure of the location of the body. The respondent has objected to the magistrate judge’s conclusion that the petitioner has shown prejudice from his trial counsel’s disclosure of the location of the body. The petitioner has objected to the magistrate judge’s recommendation to deny his § 2254 petition, arguing that this court should find that he has proved both deficient performance of his trial counsel and resulting prejudice. These objections have triggered my de novo review of parts of the report and recommendation.

I. INTRODUCTION

A. Factual Background

As Magistrate Judge Leonard T. Strand noted in his Report and Recommendation, absent rebuttal by clear and convincing evidence, I must presume that any factual determinations made by the Iowa courts were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586 F.3d 624, 630 (8th Cir.2009) (a federal court must deem factual findings by the state court to be presumptively correct, subject to disturbance only if proven incorrect by clear and convincing evidence). Therefore, because there are no objections to the findings of fact by the Iowa courts concerning his conviction, I will adopt those findings.

1. The murder and disposal of the body

On petitioner Donald L. Boss’s direct appeal of his conviction, the Iowa Court of Appeals summarized the facts leading to his conviction, as follows:

Donald and Lisa Boss adopted Timothy in Michigan before moving to Rem-sen, Iowa. Timothy was a special needs child, and the Bosses received subsidies from the State of Michigan for his care.

On January 2, 2002, the Plymouth County Sheriffs Department received a request from authorities in the State of Michigan to check on Timothy’s welfare. Deputies Bartolozzi and TeBrink went to the Boss residence where Lisa Boss told them Timothy was living in Kentucky with her sister. Lisa Boss’s sister revealed Timothy was not with her and she had not seen him in a year and a half.

Sheriffs deputies returned to the Boss home that night and found Lisa and the children were gone. Donald Boss was at the residence and agreed to speak with the deputies. Boss informed them Timothy had caused a great deal of trouble in the family and his wife had decided to return to Michigan with Timothy. At the end of the interview, Boss stated, “Guess I bought a year and a half and it’s over. My life’s over now.” Boss agreed to return to the sheriffs office with the deputies.

On the trip to the sheriffs office, Boss made several incriminating statements. He admitted the version of events he had given at his home was not the truth. He said Timothy had fallen and hit his head, but the fall had not killed him. He said Timothy’s death was not accidental. Boss admitted to beating Timothy and stated he thought he may have given Timothy an overdose of Doxil, a drug used for the treatment of Attention Deficit Disorder. Boss was later charged with murder.

On February 25, 2002, a hearing was held on Boss’s request for a reduction in bond. Boss’s counsel presented to the State’s attorneys a typewritten statement signed by Donald Boss. It said Timothy’s body was under the floor in the basement of the Boss family home and it granted the State permission to take whatever steps were necessary to retrieve the body. State authorities broke through the concrete flooring and discovered Timothy’s decomposed body wrapped in a blanket. Because there was very little soft tissue on the body, no specific cause of death could be determined. There were, however, signs of prior injuries to the bones of the arms and teeth. A small bone in Timothy’s left hand had been broken.

Timothy’s brothers, Claxton and Roman, testified at Donald Boss’s murder trial. They stated Timothy was disciplined for attempting to escape a locked room through a hole he had punched in the wall. Timothy was then tied to an orange folding chair with plastic ties. A plastic tie was also placed around Timothy’s neck and attached to a shelf. Timothy was then beaten with a wooden paddle or board. Timothy was then left tied to the chair. When Donald Boss cut Timothy from the chair hours later, Timothy slumped to the floor. Attempts to revive Timothy failed. Timothy was then taken upstairs and placed in a bathtub of cold water.

The evidence also revealed Donald Boss rented a cement saw, cut a hole in the basement floor, and buried Timothy. He then poured a concrete slab and covered it with carpet. Boss told the members of the family he had taken Timothy back to Michigan. He filed a report with the State of Michigan to continue to receive subsidies for his adoption.

State v. Boss, 796 N.W.2d 458, 2004 WL 137627, *1-2* (Iowa Ct.App. Jan. 28, 2004) (slip op.).

2. Disclosure of the location of the body

Neither of the parties has objected to Magistrate Judge Leonard T. Strand’s recitation in his Report and Recommendation (docket no. 63) of the factual background to the disclosure of the location of the murdered child’s body during Boss’s pretrial bond hearing. Therefore, I will repeat here Judge Strand’s recitation of that background:

The factual background arises from a bond review hearing conducted on February 25, 2002. Boss was represented by Michael Williams, an assistant public defender. Transcript of Bond Hearing (Bond Tr.) 2. At the hearing, Boss’ mother and father testified about their ability to pay his bond. Bond Tr. 2-6. Boss testified about his current living situation and his employment history. The hearing then took a drastic turn:

Williams: Do you have a pretty steady employment history?

Boss: I’ve never been without a job.

Williams: Did you sign this document directing the authorities to the location of the body of Timothy Boss?

Boss: Yes, I did.

Williams: Thank you. That’s all I have.

Bond Tr. 8. After taking a moment, Charles Thoman, assistant attorney general, proceeded with cross-examination.

Thoman: Mr. Boss, I’ve just been handed a statement from your lawyer that says, in the middle of the floor of the basement room at 602 Fulton Street, Remsen, Iowa, with the door that leads outside, that’s where the body of Timothy Boss is located. Is that what this statement says?

Boss: Yes, it is.

Thoman: And this is your signature on it dated 2-25-02?

Boss: Yes, it is.

Thoman: Did you put him under the floor in that location?

Bond Tr. 8-9. Williams objected on grounds that the question was beyond the scope of direct examination. Bond Tr. 9. The judge then suggested that Boss could decide not to answer based on his right against self-incrimination.

Boss ultimately invoked his Fifth Amendment right after his attorney advised him to do so. Bond Tr. 9-10. Thoman then raised the issues of whether Boss waived that right by testifying and whether the court would consider his invocation of the Fifth Amendment in deciding whether to reduce his bond. Bond Tr. 11. The judge stated: “The defendant’s decision to invoke his Fifth Amendment right is a factor the court is going to consider in determining whether or not the bond should be reduced or modified.” Id. Williams responded by stating: “Your Honor, I will take exception to the court’s ruling. The Fifth Amendment is to protect the guilty as well as the innocent.” Id.

Thoman then asked. Boss if he intended to invoke his Fifth Amendment right to any and all questions he would ask. Bond Tr. 12. Boss responded that he would answer questions that would not incriminate him. Thoman then asked Boss if he killed Timothy Boss. Williams objected but Boss answered “No, I didn’t.” Id. Thoman asked: “Did you hide his body in the middle of the floor in the basement room at 602 Fulton Street, Remsen, Iowa[?]” Id. Boss responded by invoking the Fifth Amendment. Bond Tr. 13. Thoman ultimately moved to continue the hearing to allow briefing of the Fifth Amendment issue. Williams did not object and the court granted the motion. Bond Tr. 13-14.

Report and Recommendation (docket no. 63), 4-5.

B. Procedural Background 1. State proceedings a. Conviction and direct appeal

On December 12, 2002, Boss was convicted by a jury, in the Iowa District Court for Plymouth County, of the first-degree murder of his son, Timothy, in violation of Iowa Code § 707.2. On December 16, 2002, he was sentenced to life imprisonment without possibility of parole. He appealed. On January 28, 2004, the Iowa Court of Appeals affirmed Boss’s conviction, but preserved the issue of trial counsel’s claimed ineffective assistance regarding disclosure of the location of Timothy’s body for post-conviction review to allow for further development of the record. See Boss, 796 N.W.2d 458, 2004 WL 137627 at *3. Boss sought further review of his direct appeal by the Iowa Supreme Court, but that request was denied on April 23, 2004, and his conviction became final on April 28, 2004.

b. Post-conviction relief proceedings

i. The district court’s decision

On March 11, 2005, Boss filed an application for post-conviction relief in the Iowa District Court for Plymouth County. After an evidentiary hearing at which both Boss and his lead trial counsel, Mike Williams, testified, Iowa District Judge Gary Wenell denied Boss’s application in a Ruling On Applicant’s Application For Post-Conviction Relief (Posfi-Conviction Relief Ruling), signed on August 27, 2008, and filed on August 28, 2008. See Respondent’s Appendix (docket no. 51-1), 12-35. In the pertinent part of his Findings Of Fact, Judge Wenell found the following:

Williams was placed in charge of Boss’ case. Williams had experience with murder cases in the past and had worked both as defense counsel and as a prosecutor. Williams had previously asked the county attorney’s office whether the disclosure of Timothy’s body would yield any kind of reciprocation in terms of plea bargains or other deals. However, the county attorney had not yet offered any deal and Williams states he believed no deal was imminent based on the prosecution’s reaction to these offers. According to Boss, Williams was very concerned about “untruthful” things being said by Lisa Boss [Boss’s wife, who was also charged with crimes related to the murder, but represented by separate counsel] that were ending up in the media. Williams testified he was concerned that Lisa Boss could not be controlled and that a disclosure of the body might deter her from making more statements and possibly implicate her in the crime.

On February 25, 2002, a bond reduction hearing was held for Boss. At this time, a letter signed by Boss disclosing the location of the body was handed to prosecutors by Williams. Upon receiving the note, prosecutors contacted law enforcement who conducted a fourth search whereupon Timothy’s body was located. In addition, further evidence was found including evidence that Boss had leased the cement saw. This evidence was introduced against Boss at trial.

Post-Conviction Relief Ruling at 4 (Respondent’s Appendix at 15) (footnote omitted). Judge Wenell also noted, “Boss testified at hearing that he believed the evidence [of the location of the body] might have been used to reduce his bond.” Id. at 4 n. 2 (Respondent’s Appendix at 15).

In the pertinent part of his Conclusions Of Law, Judge Wenell first summarized Boss’s argument on the pertinent ineffective assistance claims, as follows:

The main contention of Donald Boss deals with the disclosure of the location of Timothy’s body by a signed letter at his reduction in bond hearing. It is undisputed that Boss’ legal defense team advised him that disclosing the location of the body via a map and signed letter was the correct action to take. The body was subsequently] recovered, tested and used in the State’s case against him. Boss contends this disclosure hurt his case more than any other error alleged against his trial counsel. He contended at hearing that disclosing the body effectively handed the State a key piece of evidence that eliminated several possible defenses, and that the action had no real strategic value as he believes the body provided nothing that aided his case.

Post-Conviction Relief Ruling at 17-18 (Respondent’s Appendix at 28-29).

After this summary of Boss’s arguments, Judge Wenell considered the “prejudice” prong of Boss’s claim of ineffective assistance of counsel, as follows:

The disclosure of the dead body by a criminal defendant accused of murder without receiving any form of cooperation from the prosecuting attorneys is an unusual step. Williams acknowledges that this strategy was “outside of the box” and Jones acknowledged on deposition he was told by a supervisor that such a move was a “gutsy strategy” and that the supervisor “wished them luck.” The Court is convinced that the disclosure of the body was an action that many other attorneys would not take. However, the question is whether this “gutsy” disclosure resulted in ineffective assistance of counsel under the two prong test. Despite the State’s assertions at the hearing, it seems difficult to imagine a trial without the body. While the State argues that the body itself did not provide much evidence, there is no telling how much the discovery of the body impacted every facet of the trial, from various implications arising from Boss’ burial of the child; evidence concerning his actions following the death of Timothy Boss; and even the impact of the discovery of the body on other witnesses. In addition, Boss is correct in stating that a disclosure of the body resulted in the foreclosure of some defenses that could have been used at trial. Also, the closing argument at trial refers to evidence produced or aided by the discovery of the body on numerous occasions. Unlike most of Boss’ other arguments, it is clear the lack [sic: disclosure?] of a body may have resulted in significant prejudice at trial. However it also clear that the test for ineffective assistance of counsel is a two-prong test. Prejudice is the second factor to be weighed and it only needs to be addressed if counsel’s conduct essentially resulted in the failure of an essential duty by failing to act as a reasonable attorney would. To discover whether Boss’ defense team was truly ineffective, the Court must review the overall trial strategy as explained to the Court.

PosNConvietion Relief Ruling at 18-19 (Respondent’s Appendix at 29-30) (emphasis added).

Turning to the “deficient performance” prong of an ineffective assistance of counsel claim, Judge Wenell explained, “According to Williams, his actions -were a legitimate trial strategy.” Id. at 19 (Respondent’s Appendix at 30). Judge Wenell then explained, in more detail than I will provide here, the “strategic” reasons for Williams’s actions, as the following:

• Williams believed that “disclosure of the body would be useful in demonstrating Boss’s cooperation to a jury”;

• Williams believed that disclosure of the body “could be used to shift the blame for the death to Lisa Boss,” because it would allow location of “cigarette butts which could have been used to tie Lisa Boss to the crime scene and the burial,” even though no cigarette butts were ultimately found during the recovery of the body, where Williams’s strategy “from the outset ... was to blame Lisa”;

• Williams was afraid Lisa would cooperate “and receive whatever benefits arose from disclosure of the body”;

• Williams was concerned that Lisa “was uncontrollable and giving false statements to officers, and that these potentially damaging false statements were part of the press coverage”;

• Williams was “eoncern[ed] that Lisa Boss’s legal counsel would seek a deal”;

• Williams believed that “evidence from the body that was negative to their legal strategy would have deteriorated over time [but] that positive evidence supporting his theory of accidental overdose may have been preserved”;

• Williams believed “that a disclosure of the body would help Boss’ standing in the community and with the press,” because “it would make him appear to be cooperating with the investigation,” and he “believed that the public would not necessarily believe that simply because Boss buried Timothy that Boss had killed Timothy”; and

• Williams believed “the body would have been discovered by investigators at some point.”

PosNConviction Relief Ruling at 19-21 (Respondent’s Appendix at 30-32).

Judge Wenell did not buy all of these rationales, but he nevertheless concluded that Boss’s trial counsel had a legitimate trial strategy:

The Court is not convinced that all of these rationales by themselves would have supported a disclosure of the body. It is hard to say that the body would have been “inevitably” discovered when all previous searches had not yielded any evidence of Boss’ conduct in burying Timothy beneath the basement floor. Boss’ contention that he thought part of the reason for disclosure was [a] possibility of lowering of [his] bond during the bond review hearing also does not seem very likely considering the circumstances. Also, the Court is not convinced that any positive publicity would occur due to disclosure of the body. However, not all of the legal team’s rationales need to have been logical and legitimate tactics. The question is whether any or all of the rationales would result in a competent attorney finding disclosure of the body was a part of a legitimate trial strategy. The Court believes it can be viewed as a legitimate trial strategy.

Post-Conviction Relief Ruling at 21 (Respondent’s Appendix at 32).

Judge Wenell then rejected Boss’s argument that he had an agreement with Lisa that he would take the blame for Timothy’s disappearance, so that she would never disclose the location of Timothy’s body. Judge Wenell found “problems with the alleged rock-solid nature of this agreement,” in light of concerns about Lisa’s comments to authorities and others and Lisa’s representation by separate counsel who had not been persuaded to cooperate in a joint defense. Id. at 21-22 (Respondent’s Appendix at 32-33). Judge Wenell noted,

Boss gave his consent to Williams for disclosure of the body though he now thinks such consent was unwise. He states he communicated to his counsel that he believed Lisa would never disclose the location of the body, but knew that one of the reasons for Williams’ proposed action was to get Lisa to “quit talking” and that this tactic worked “for a while.” Hearing Transcript P. 91-92). Boss also indicates that Lisa was making statements that were entirely untrue and had nothing to do with the crime, indicating he was also not happy with the statements she was making and that he was not entirely in control of that situation. The Court is simply not convinced that [B]oss or Williams knew for certain that Lisa Boss would not damage their case or attempt to negotiate a deal for herself. It appears there was some justified concerns on the part of the defense team that she might have cooperated despite the alleged agreement.

Post-Conviction Relief Ruling at 22 (Respondent’s Appendix at 33).

Judge Wenell concluded his analysis of Boss’s ineffective assistance of counsel claim, as follows:

What the defense team has presented to the Court is an overall strategy focused on blaming or at least raising significant questions about the involvement of Lisa Boss in Timothy’s death. It appears that evidence they hoped would support that theory would have been located when the body was discovered. This evidence included the cigarette butts; evidence that Timothy died as a result of an overdose; and the general implication that Boss was cooperating by providing the body. In addition, they were trying to “freeze” Lisa Boss’ damaging statements, a tactic that even Boss stated was effective for a bit. The fact these theories were not successful in securing an acquittal for Boss does not necessarily mean they were ineffective. The fact that other lawyers may have decided not to reveal such a piece of evidence does not mean trial counsel was acting incompetently. Trial counsel is only ineffective when their conduct is so egregious that they failed an essential duty. The Court does not believe this is such a case. The legal defense team had a strategy, though admittedly a novel one, to disclose the body to help with their overall strategy of placing the blame on parties or events other than Boss. The Court, after hearing the defense team’s rationale for their actions believes they had a legitimate strategy in mind, though it also believes such a strategy may have been misguided. A trial strategy that is reasonable, though imperfect and ultimately unsuccessful is not ineffective assistance of counsel. State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App.1999). “Improvident trial strategy or miscalculated tactics do not necessarily constitute ineffective assistance of counsel.” Wemark v. State, 602 N.W.2d 810, 814 (quoting State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981)).

The Court realizes this piece of evidence could have significantly changed the trial at numerous stages, but prejudice only becomes a factor when the legal strategy is so misguided that it cannot be truly be [sic] called a legitimate legal strategy. The Court believes that under a preponderance of the evidence standard, Williams and Jones have shown enough evidence that they made a tactical decision in support of a legal strategy that could have been aided by the disclosure of the body. The fact that this legal strategy may have backfired does not render their assistance ineffective.

Post-Conviction Relief Ruling at 22-23 (Respondent’s Appendix at 33-34) (emphasis added). Judge Wenell then denied Boss’s application for post-conviction relief.

ii. The appellate court’s decision

Boss appealed the denial of his application for post-conviction relief, but the Iowa Court of Appeals affirmed on August 11, 2010. See Boss v. State, 789 N.W.2d 165, 2010 WL 3155198 (Iowa Ct.App.2010) (slip op.). More specifically, the Iowa Court of Appeals provided the following succinct analysis of Boss’s ineffective assistance of counsel claim concerning disclosure of the location of the body:

This issue was preserved for postconviction proceedings in the direct appeal because the record was inadequate to address it. Both Boss and trial counsel testified in the postconviction proceedings. Trial counsel’s strategy was succinctly stated, “Blame Lisa” (Boss’s wife).

The court observed the disclosure “may have resulted in significant prejudice at trial, ” but resolved the claim by finding the attorneys “have shown enough evidence that they made a tactical decision in support of a legal strategy that could have been aided by the disclosure of the body. ” The court reasoned:

What the defense team has presented to the court is an overall strategy focused on blaming or at least raising significant questions about the involvement of Lisa Boss in Timothy’s death. It appears that evidence they hoped would support that theory would have been located where the body was discovered. This evidence included [Lisa’s] cigarette butts; evidence that Timothy died as a result of an overdose [Lisa administered all drugs]; and the general implication that Boss was cooperating by providing the body. In addition, they were trying to “freeze” Lisa Boss’s damaging statements, a tactic that even Boss stated was effective for a bit. The fact these theories were not successful in securing an acquittal for Boss does not necessarily mean they were ineffective. The fact other lawyers may have decided not to reveal such a piece of evidence does not mean trial counsel was acting incompetently. Trial counsel is only ineffective when their conduct is so egregious that they failed an essential duty. The court does not believe this is such a case. The legal defense team had a strategy, though admittedly a novel one, to disclose the body to help with their overall strategy of placing the blame on parties or events other than Boss. The court, after hearing the defense team’s rationale for their actions believes they had a legitimate strategy in mind, though it also believes such a strategy may have been misguided. A trial strategy that is reasonable, though imperfect and ultimately unsuccessful is not ineffective assistance of counsel.

The test for ineffective assistance of counsel focuses on whether counsel’s performance was reasonably effective. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The defendant must prove counsel’s performance fell below an objective standard of reasonableness so that counsel failed to fulfill the adversarial role the Sixth Amendment envisions. Id., 104 S.Ct. at 2064, 80 L.Ed.2d at 693. A strong presumption exists that counsel’s performance fell within the wide range of reasonable professional assistance. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma [v. State], 626 N.W.2d [134,] 145 [ (Iowa 2001) ]. We presume the attorney performed competently, and the applicant must present “an affirmative factual basis establishing inadequate representation.” State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). “Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel.” Ledezma, 626 N.W.2d at 143.

Boss asserts, “There is no rational explanation, strategic or tactical, for the disclosure of the burial site of Timothy during [the bond review] proceeding and in this manner.” We, like the postconviction court, disagree. It is clear from the record that defense counsel was concerned that Lisa would reveal the location of the body. Counsel also was concerned about the media coverage of the case and Lisa’s statements in the media. We conclude there was a rational explanation for disclosing the location of the body as quickly as possible to “beat [Lisa] to the punch.” While the ultimate effect of revealing the location of Timothy’s body may have been prejudicial to Boss’s defense, we agree with the postconviction court that defense counsel had a “legitimate strategy in mind” that was based on extensive experience, considered deliberation, discussion with the defendant, and the unfolding circumstances as the case proceeded. This is not a failure in an essential duty. Boss has not overcome the strong presumption that his counsel’s performance fell within the unde range of reasonable professional assistance. See Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 693-94.

Boss further asserts the disclosure “raises serious questions concerning disclosure of privileged communications.” The record shows that defense counsel had Boss disclose the location of the body only with his informed consent. There was discussion about the disclosure but there was no disclosure until the final agreement by Boss. Boss acknowledged considerable discussion and acknowledged eventually being convinced. He conceded consenting to the disclosure based on the advice of counsel, even though he now claims to have doubted the rationale. Boss’s citation to Wemark v. State, 602 N.W.2d 810 (Iowa 1999), is inapposite. In Wemark, counsel’s tactical decisions were based on a faulty premise that disclosure was required under the Iowa Code of Professional Responsibility in effect at the time. See Wemark, 602 N.W.2d at 816-17 (discussing the relevant ethical and legal obligations and counsel’s mistake). “Wemark was informed by his defense counsel that the location of the knife must be disclosed, and tactics were developed as a means to deal with the disclosure.” Id. at 817. In the ease before us, however, counsel correctly understood the relevant law and ethical rules. Disclosure was a voluntary, informed, considered, tactical action. We conclude the disclosure of the location of the body was not ineffective assistance. See Ledezma, 626 N.W.2d at 145 (disposing of an ineffective-assistance claim upon lack of proof of either prong).

Boss, 789 N.W.2d 165, 2010 WL 3155198 at *2-*3 (emphasis added).

The Iowa Supreme Court denied further review on October 21, 2010, and procedendo on the denial of post-conviction relief issued on November 8, 2010.

2. Federal Proceedings

a. Boss’s § 2254 Petition

On November 15, 2010, Boss commenced this federal action for habeas relief by filing a pro se Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (§ 2254 Petition) (docket nos. 1 and 9) in the United States District Court for the Southern District of Iowa. However, on January 20, 2011, this action was transferred to this district, which includes the county where Boss was convicted. See Order Transferring Case (docket no. 4).

Boss originally asserted five grounds for § 2254 relief. Ground One alleged that counsel provided ineffective assistance by disclosing the location of the victim’s body during a bond review hearing. Ground Two alleged that counsel provided ineffective assistance by failing to investigate inconsistencies in the statements of Boss’s children (specifically, Boss’s son, Claxton) and by failing to secure or investigate a tape recording of Boss’s statement to Officer Bartolozzi, purportedly made while Officer Bartolozzi was transporting Boss to the station. Ground Three alleged that counsel provided ineffective assistance by failing to object to numerous uses by the prosecution in its closing argument of the word “liar” to describe Boss. Ground Four alleged prosecutorial misconduct when the prosecutor waved a fist up against pictures of the skeleton of the victim, used the word “liar” multiple times, and substituted his opinions for facts, prejudicing Boss’s ability to receive a fair trial. Ground Five alleged a constitutional violation arising from the Iowa Supreme Court’s subsequent redefinition of the felony murder rule, in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), in such a way that it would not have supported a conviction in Boss’s case.

In an Initial Review Order (docket no. 8), then-Chief United States Magistrate Judge Paul A. Zoss directed the respondent to file an answer to Boss’s § 2254 Petition and directed the Clerk of Court to appoint an attorney to represent Boss in this matter. The respondent filed his Answer (docket no. 15) on May 2, 2011, asserting, inter alia, that Grounds Two and Five of Boss’s § 2254 Petition were procedurally defaulted. Judge Zoss then set a briefing schedule on the merits of Boss’s claims by Order (docket no. 16), filed on May 3, 2011.

Boss did not file a brief on the merits. Instead, on December 15, 2011, Boss filed, through counsel, a Motion To Stay Proceedings Pending Exhaustion Of State Proceedings (Motion To Stay) (docket no. 29). In his Motion To Stay, Boss acknowledged that Grounds Two and Five of his Petition were not exhausted, but argued that this action should be stayed to allow him to attempt to exhaust those claims in state court, while maintaining the timeliness of his other claims for federal relief. The respondent filed a Resistance (docket no. 30), arguing that a stay was inappropriate. On January 20, 2012, Judge Zoss heard oral arguments on Boss’s Motion To Stay. On February 28, 2012, Judge Zoss filed a Report and Recommendation (docket no. 35) recommending that Boss’s Motion To Stay be denied, that Grounds Two and Five be dismissed with prejudice, and that, if I accepted the Report and Recommendation, Boss should be ordered to brief the merits of the remaining grounds for relief within 30 days. On March 21, 2012, after an extension of time to do so, Boss filed his Objections To Report And Recommendation (docket no. 40). In a Memorandum Opinion And Order (docket no. 41), filed May 1, 2012, I denied Boss’s Motion To Stay (docket no. 29); dismissed Ground Two of his § 2254 Petition, with prejudice, as procedurally defaulted; dismissed Ground Five of his § 2254 Petition, with prejudice, as without merit; and granted Boss to and including May 31, 2012, to file a brief on the merits of Grounds One, Three, and Four of his § 2254 Petition. See Boss v. Ludwick, 863 F.Supp.2d 845 (N.D.Iowa 2012).

b. Proceedings on the merits

After an extension of time to do so, Boss filed his Merits Brief (docket no. 44) on June 15, 2012. In his Merits Brief, Boss explained that he was proceeding only on Ground One of his Petition, concerning ineffective assistance of counsel relating to the disclosure of the body, because he believed that Grounds Three and Four did not present claims cognizable in habeas proceedings. After an extension of time to do so, the respondent filed his Merits Brief (docket no. 51) on September 5, 2012, to which he attached an Appendix (docket no. 51-1), consisting of the decision of the Iowa Court of Appeals on Boss’s direct appeal; the decision of the Iowa District Court on Boss’s post-conviction relief application; and the decision of the Iowa Court of Appeals on Boss’s appeal of the denial of his post-conviction relief application. Boss filed a Pro Se Response To Respondent’s Merits Brief (docket no. 55) on September 18, 2012, and his counsel a Reply Brief (docket no. 60), to which counsel attached another copy of Boss’s Pro Se Response To Respondent’s Merits Brief (docket no. 60-1).

On February 19, 2013, Magistrate Judge Leonard T. Strand, who has succeeded Judge Zoss, filed a Report And Recommendation On Petition For Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 (docket no. 63). In his Report And Recommendation, Judge Strand first provided factual and procedural background from the decision of the Iowa Court of Appeals on direct appeal and concerning Boss’s bond review proceedings, at which his trial counsel disclosed the location of the body, as I have also set out in full above. Judge Strand understood Boss to allege ineffective assistance of counsel “based on his attorney’s advice to disclose the location of the body and allegedly-inadequate consultation by his attorney prior to Boss giving consent.” Id. at 5-6. Judge Strand also explained, in a footnote,

In his briefing, Boss is also critical of his trial counsel for (a) stating during the bond hearing that “the Fifth Amendment is to protect the guilty as well as the innocent” and (b) failing to advance the “blame Lisa” theory during that hearing. Boss did not raise these as separate grounds for relief, instead briefing only Ground One, entitled “Ineffective Counsel Based Upon Trial Counsel’s Recommendation To Disclose Location Of Body During A Bond Hearing.” Doc. No. 44-1 at 3, 34-35. In any event, I find that these other alleged errors are not so “egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair” or “so prejudicial as to amount to a denial of due process.” Garcia v. Mathes, 474 F.3d 1014, 1017 (8th Cir.2007). As such, I will not address them separately.

Report and Recommendation at 6 n. 1. Judge Strand then stated the standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Id. at 1-8.

In the part of his Discussion concerning the merits of Boss’s claim, Judge Strand stated, “Both state courts either found, or at least assumed, that Boss established the prejudice element, instead denying Boss’ petition on the issue of deficient performance.” Id. at 9 (footnote omitted). He noted that, because Boss asserted that the Iowa courts had applied the wrong legal standard to the question of “prejudice,” proof by a preponderance of the evidence, rather than proof of a reasonable probability of a different result, Boss argued that he was entitled to de novo review of the “prejudice” prong of his claim. Id. Judge Strand concluded, “Whether the state courts found prejudice or I review the issue de novo, Boss has satisfied this element.” Id. (footnote omitted). Although Judge Strand did not explain the basis for his conclusion that Boss had established the “prejudice” prong of his claim, he explained that Boss’s “habeas petition turns on whether the Iowa Court of Appeals unreasonably applied Strickland in finding there was no deficient performance.” Id. at 10.

Turning to the “deficient performance” prong, Judge Strand noted that Boss had made three arguments: (1) that the Iowa District Court created an impermissible “affirmative defense” in finding that the State had proved that the decision to disclose the body was tactical; (2) that the Iowa Court of Appeals unreasonably applied Strickland in concluding that his trial counsel’s advice to disclose the body was not deficient performance; and (3) that the Iowa Court of Appeals unreasonably applied Strickland by focusing on Boss’s consent to the disclosure, without adequately considering whether his trial counsel’s advice concerning the disclosure was adequate. Id. Judge Strand addressed these arguments in turn.

More specifically, Judge Strand rejected Boss’s “creation of an affirmative defense” argument for the following reasons:

Neither [Iowa] court created an “affirmative defense” in finding that the attorneys made a tactical decision and their performance constituted legitimate legal strategy. Although the district court decision could have been better phrased, the court essentially concluded that Boss was not able to rebut the presumption or the evidence that his counsels’ performance was within the wide range of reasonable professional assistance. Nothing in the state court opinions suggests the courts found that Boss had actually proved deficient performance, but then relied on an “affirmative defense” of legal strategy to conclude there was no ineffective assistance of counsel. The courts found that there was no deficient performance because there was evidence that the attorneys made a tactical decision which constituted legitimate legal strategy. This is more clearly stated in the Iowa Court of Appeals’ decision. Neither court created an “affirmative defense” or unreasonably applied Strickland in the manner Boss suggests.

Report and Recommendation at 12.

As to Boss’s argument about the adequacy of trial counsel’s advice to disclose the location of the body, Judge Strand explained,

As summarized above, both state courts concluded that there was a legitimate strategy behind counsel’s decision to have Boss consent to disclose the location of the body. I find that the Iowa Court of Appeals did not unreasonably apply Strickland in reaching this conclusion. At the evidentiary hearing on Boss’ PCR action, Boss testified that initially his attorney, Williams, did not want to know the location of the body. PCR Tr. 83. Boss said Williams asked about the location of the body because he thought it could help Boss’ case. Boss said Williams convinced him that it was in his best interest to disclose the location of the body and Boss followed Williams’ instructions. Id.

Report and Recommendation at 14-15. Judge Strand then detailed the parts of the record that he believed showed that Boss understood trial counsel’s reasons for disclosing the body and that Boss had agreed to the disclosure, as well as those parts of the record showing the reasons that his trial counsel gave for the disclosure. Id. at 15-17. Judge Strand then concluded,

I find the state courts did not unreasonably apply Strickland in concluding that Boss’ attorney had a legitimate strategy in mind when he advised Boss to disclose the location of the body. Boss acknowledged part of that strategy as wanting to dissuade Lisa Boss from communicating with the media. Boss also admitted that Williams had convinced him that disclosing the location of the body was in his best interest. Boss’ and Williams’ testimony provided a sufficient foundation for the state courts to reasonably conclude that Williams’ representation did not fall below an objective standard of reasonableness under Strickland.

Report and Recommendation at 17.

Finally, as to Boss’s argument that his trial counsel did not adequately consult with him prior to obtaining his consent to the disclosure of the location of the body, Judge Strand observed,

The only evidence Boss offers to demonstrate there was not informed consent is the bond hearing transcript. He argues the seemingly-chaotic nature of that hearing demonstrates there was not adequate consultation. Boss points out that he had to be advised to invoke the Fifth Amendment while he was on the witness stand and was instructed to do so by Williams only after the presiding judge suggested it. Bond Tr. 9.

Report and Recommendation at 20. Judge Strand then rejected this argument, as follows:

I find that Boss has not rebutted the presumption given to the state court findings which concluded Boss provided informed consent to the disclosure after considerable discussion with his attorney. As the Iowa Court of Appeals recognized, Boss stated that his attorney “convinced” him that disclosure was in his best interest, indicating that Boss knew of the risks and weighed the options with the help of his attorney. The chaotic nature of the bond review hearing can be explained by many other factors unrelated to whether Williams adequately consulted with Boss on the issue of whether to disclose the location of the body. This was likely unexpected evidence to everyone but Boss and Williams. Also, the issue of whether Williams adequately prepared Boss for cross-examination and explained his Fifth Amendment right is entirely different than whether Williams adequately discussed the pros and cons of disclosing the body with Boss before he provided consent. Because Boss has not presented clear and convincing evidence to suggest Williams did not adequately consult with him prior to his decision to disclose the body, the state courts’ findings on these facts are presumed correct.

The state courts did not unreasonably apply Strickland in deciding Williams’ representation did not fall below an objective standard of reasonableness. The state courts made factual findings that Boss acknowledged considerable discussion and acknowledged that he was eventually convinced by his attorney to disclose the location of the body. Boss has not provided clear and convincing evidence to rebut this or otherwise show his attorney did not adequately consult with him. I find that the Iowa Court of Appeals did not unreasonably apply Strickland in deciding Boss had provided informed consent to disclose the location of the body.

Report and Recommendation 20-21.

Judge Strand then recommended that Boss’s § 2254 Petition be denied. Id. at 21-22.

c. Objections to the recommended disposition

On March 4, 2013, the respondent filed his Objections To Report and Recommendation On Habeas Corpus Petition (docket no. 64). The respondent explains that he “does not object to the conclusion that the state courts did not unreasonably apply Strickland in ruling there was no deficient performance by trial counsel,” but “does object to the findings regarding Strickland prejudice.” Respondent’s Objections at 2.

On March 11, 2013, Boss filed his Objections To February 19, 2013, Report and Recommendation (docket no. 66). Boss resisted the respondent’s objection on the finding of prejudice, because he believed that all five judges (the three Iowa Court of Appeals judges who considered the post-conviction relief appeal, the Iowa district court judge who denied the post-conviction relief application, and Judge Strand) “correctly found prejudice.” Boss’s Objections at 1, ¶ 2. Boss also submitted five objections to the Report and Recommendation itself: (1) that Judge Strand improperly concluded, in footnote 1 on page 6 of the Report And Recommendation, that two illustrations of ineffective assistance of counsel concerning disclosure of the body during the bond hearing were separate claims; (2) that Judge Strand failed to find that the Iowa Court of Appeals and the Iowa District Court applied the wrong standard of proof on the “prejudice” prong under Strickland; (3) that Judge Strand failed to apply de novo review to the “deficient performance” and “prejudice” prongs of the analysis of ineffective assistance of counsel; (4) that Judge Strand erred in failing to find that the Iowa courts’ determination that there was no “deficient performance” was both “contrary to” and an “unreasonable application” of clearly established federal law; and (5) that Judge Strand failed to understand that the “informed consent” and “disclosure of the body” issues were one and the same.

II. LEGAL ANALYSIS

A. Review Of A Report And Recommendation

1. The applicable standards

The applicable statute provides for de novo review by the district judge of a magistrate judge’s report and recommendation, when objections are made, as follows:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1) (2006); see Fed. R.CivP. 72(b) (stating identical requirements); N.D. Ia. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge but not articulating any standards to review the magistrate judge’s report and recommendation). The United States Supreme Court has explained that the statutory standard does not preclude review by the district court in other circumstances, however:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.

Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Thus, the specific standard of review may depend upon whether or not a party has objected to portions of the report and recommendation. I will explain what triggers each specific standard of review in a little more detail.

2. De novo review

If a party files an objection to a magistrate judge’s report and recommendation, the district court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1) (emphasis added). In most cases, to trigger de novo review, “objections must be timely and specific.” Thompson v. Nix, 897 F.2d 356, 358 (8th Cir.1990). However, the Eighth Circuit Court of Appeals has been willing to “liberally construe[ ]” otherwise general pro se objections to require a de novo review of all “alleged errors,” see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir.1995), and has also been willing to conclude that general objections require “full de novo review” if the record is concise, Belk, 15 F.3d at 815 (“Therefore, even had petitioner’s objections lacked specificity, a de novo review would still have been appropriate given such a concise record.”).

When objections have been made, and the magistrate judge’s report is based upon an evidentiary hearing, “ ‘the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing.’ ” United States v. Azure, 539 F.3d 904, 910 (8th Cir.2008) (quoting Jones v. Pillow, 47 F.3d 251, 252 (8th Cir.1995), in turn quoting Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir.1989)). Judge Strand did not hold an evidentiary hearing on Boss’s § 2254 Petition or hear oral arguments on the merits of Boss’s claims. Instead, he considered only the parties’ written submissions, and I have done the same.

A district court may also review de novo any issue in a magistrate judge’s report and recommendation at any time. Thomas, 474 U.S. at 154, 106 S.Ct. 466. This discretion to conduct de novo review of any issue at any time makes sense, because the Eighth Circuit Court of Appeals has “emphasized the necessity ... of retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate.” Belk v. Purkett, 15 F.3d 803, 815 (8th Cir.1994).

3. “Clear error” review

In the absence of an objection, the district court is not required “to give any more consideration to the magistrate’s report than the court considers appropriate.” Thomas, 474 U.S. at 150, 106 S.Ct. 466; see also Peretz v. United States, 501 U.S. 923, 939, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (stating that § 636(b)(1) “provide[s] for de novo review only when a party-objected to the magistrate’s findings or recommendations” (emphasis added)); United States v. Ewing, 632 F.3d 412, 415 (8th Cir.2011) (“By failing to file objections, Ewing waived his right to de novo review [of a magistrate judge’s report and recommendation on a suppression motion] by the district court.”). Indeed, Thomas suggests that no review at all is required. Id. (“We are therefore not persuaded that [§ 636(b)(1) ] requires some lesser review by the district court when no objections are filed.”).

Nevertheless, the Eighth Circuit Court of Appeals has indicated that a district court should review the portions of a magistrate judge’s report and recommendation to which no objections have been made under a “clearly erroneous” standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.1996) (noting that, when no objections are filed and the time for filing objections has expired, “[the district court judge] would only have to review the findings of the magistrate judge for clear error”); Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir.1990) (noting that the advisory committee’s note to Fed.R.CivP. 72(b) indicates “when no timely objection is filed the court need only satisfy itself that there is no clear error on the face of the record”). Review for clear error, even when no objection has been made, is also consistent with “retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate.” Belk, 15 F.3d at 815.

Although the Eighth Circuit Court of Appeals has not explained precisely what “clear error” review means in this context, in other contexts, the Supreme Court has stated that the “foremost” principle under this standard of review “is that ‘[a] finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

I will review Judge Strand’s Report And Recommendation with these standards in mind.

B. The Nature Of Boss’s Constitutional Claims

1. Boss’s pertinent objections

Boss’s Objection 1 and Objection 5 challenge Judge Strand’s characterization of some of his allegations as separate claims of ineffective assistance of counsel. These objections require de novo consideration of whether Boss has asserted only one claim of ineffective assistance of counsel or more than one such claim. See 28 U.S.C. § 636(b)(1) (stating that, if a party files an objection to a magistrate judge’s report and recommendation, the district court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made ” (emphasis added)); Thomas, 474 U.S. at 154, 106 S.Ct. 466 (“Any party that desires plenary consideration by the Article III judge of any issue need only ask.”).

2. The underlying constitutional claims

a. The claims as pleaded and briefed

In his pro se § 2254 Petition (docket no. 9), Boss identified Ground One for relief as “Ineffective Assistance of Counsel: The appellant was denied the effective assistance of counsel by counsel’s disclosure, during a bond review hearing, of the location of the body of the deceased.” Pro Se § 2254 Petition at 7. Boss then alleged the following supporting facts:

My attorney insisted I disclose the location of the deceased so he could have a decent burial, puls [sic] he wanted to “beat” my wife “to the punch”. This is no trial strategy. In my P.C.R. hearing he said it was to show my wife was there and to prove it there would be cigarette butts buried with her DNA on them. My attorney knew nothing of the cigarette butts, the first person I told was a jailor and this was three days after they unearthed the deceased. If this was his trial strategy my attorney would have had them looking for the cigarette butts not the jailor!

Pro Se § 2254 Petition at 7. In his Merits Brief (docket no. 44-1), prepared with the assistance of counsel, however, Boss characterized this underlying constitutional claim for relief somewhat differently. He described his claim as “ineffective counsel based upon trial counsel’s recommendation to disclose [the] location of [the] body during a bond hearing.” Petitioner’s Merit’s Brief at 3. Thus, the thrust of Boss’s constitutional claim in his pro se pleading was counsel’s disclosure of the location of the body, but the thrust of his constitutional claim in his Merits Brief was counsel’s recommendation to disclose the location of the body.

b. Judge Strand’s interpretations

Judge Strand understood Boss’s underlying constitutional claim to allege ineffective assistance of counsel in two respects: (1) “based on his attorney’s advice to disclose the location of the body,” and (2) “allegedly-inadequate consultation by his attorney prior to Boss giving consent.” Report And Recommendation at 5-6. Judge Strand’s further analysis of these two aspects of ineffective assistance of counsel indicates that he understood the first aspect to relate to whether the disclosure itself was deficient performance, focusing on whether there was a reasonable trial strategy behind the disclosure, see id. at 15-17, while he understood the second aspect to relate to the adequacy of trial counsel’s counseling of Boss concerning the disclosure, focusing on the adequacy of trial counsel’s consultation with Boss to obtain Boss’s informed consent to the disclosure, see id. at 18-21. Thus, Judge Strand’s identification of these two aspects of Boss’s underlying constitutional claim is consistent with Boss’s pro se pleading and his counsel’s Merits Briefing, respectively. Although Judge Strand expressed “some doubt” that a claim of “inadequate consultation” about disclosure of the location of the body “before consent” had been preserved, see id. at 18 n. 5, he nevertheless proceeded with his analysis of the merits of what he understood to be a claim of ineffective assistance of counsel concerning consultation with Boss about disclosure of the location of the body, separate from a claim of ineffective assistance of counsel concerning the actual disclosure of the location of the body, see id. at 18-21. Judge Strand also treated as separate — and meritless — claims in Boss’s Merits Brief that his trial counsel was ineffective for stating during the bond hearing that “‘the Fifth Amendment is to protect the guilty as well as the innocent’ ” an