Citations
- 109 F. Supp. 3d 753
Full opinion text
ORDER DENYING PETITION FOR RELIEF UNDER 28 U.S.C. § 2255
JOSEPH F. ANDERSON, JR., District Judge.
INTRODUCTION
A South Carolina federal jury sentenced Brandon Basham to death for the 2002 carjacking and kidnapping resulting in the death of Alice Donovan. After an unsuccessful appeal to the United States Court of Appeals for the Fourth Circuit, United States v. Basham, 561 F.3d 302 (4th Cir.2009), and the United States Supreme Court, Basham v. United States, 560 U.S. 938, 130 S.Ct. 3353, 176 L.Ed.2d 1245 (2010), Basham returns to this court with a petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his federal death sentence.
Contending that his trial counsel were constitutionally ineffective in a variety of ways and that other violations of his constitutional rights render his death sentence infirm, Basham asserts thirty-two claims in his § 2255 petition, as amended. Because the court finds no merit to any of the grounds of error asserted, the petition is denied.
PROCEDURAL HISTORY OF THE UNDERLYING CRIMINAL CASE
Facts Relating to the Criminal Acts
The Fourth Circuit Court of Appeals set out at length the facts surrounding the abduction, rape, and murder of Alice Donovan in Basham’s direct appeal of this case. The court hereby incorporates the following facts in this order:
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 cell-mate. 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 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. 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 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.
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 Green-ville, Kentucky. When Basham 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 Ash-land 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 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.
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. To date, Donovan’s remains have not been identified.
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, ‘Tes, Sir. We killed them.” Jay was surprised by the use of the term “them,” because he had only heard about the Donovan killing.
Basham, 561 F.3d at 309-14 (citations omitted).
The Criminal Indictment and Notice to Seek the Death Penalty
Fulks and Basham were indicted in the District of South Carolina on December 17, 2002. The Grand Jury returned a Superseding Indictment on April 23, 2003, charging Fulks and Basham with eight separate offenses and setting forth special findings supporting the imposition of the Death Penalty on the first two Counts: (1) carjacking resulting in Alice Donovan’s death, 18 U.S.C. § 2119; and (2) kidnapping resulting in Alice Donovan’s death, 18 U.S.C. § 3571.
The notice of intent to seek the death penalty was filed on September 13, 2003, pursuant to 18 U.S.C. § 3593(a) and the Federal Death Penalty Act (FDPA).
Appointment of Defense Counsel
Pursuant to the FDPA, a Magistrate Judge of this court initially appointed two attorneys to represent Basham: Cameron B. Littlejohn and William H. Monckton.
Literally from the hour they were appointed to represent Basham, Littlejohn and Monckton were called upon to become deeply involved in the case, because Basham had already given statements, after being Mirandized and under the advice of counsel, to law enforcement officials after being apprehended in Kentucky, essentially admitting to his participation in the carjacking and kidnapping of Alice Donovan. Additionally, Basham had agreed to assist authorities in South Carolina in searching for Donovan, acting on the slim hope that she might still be alive or, at the very least, that her remains could be located. The location of Donovan’s remains could conceivably have helped Basham avoid the death penalty.
To this end, arrangements were made to have Basham transported to Horry County, South Carolina, early in the morning of Thanksgiving Day, November 28, 2002. Basham, accompanied by Littlejohn and Monckton, and at least six law enforcement officers, including an investigator from the Federal Bureau of Investigation, traveled the back roads of Brunswick County, North Carolina, in a vain effort to locate the place where Basham and Fulks had left Alice Donovan. Approximately twenty local volunteers joined the effort. During the search and in the presence of his attorneys, Basham made several inculpatory statements. Specifically, at one juncture, Basham stated, “You know I have never even killed a deer and here I have.... ” Basham never finished the sentence because Littlejohn, who was seated beside Basham in the police van, put his hand on Basham’s knee and indicated that he should stop talking.
At another point, while still in the van and in the presence of his attorneys, Basham, with the express permission of his attorneys, made reference to a strap that was used to strangle .Alice Donovan. Later during the search for the purse strap, Basham apparently walked off with Sheriff Ronald Hewett (who, at that time, was the Sheriff of Brunswick County, North Carolina) and two additional law enforcement officers. During that sojourn, Basham made a statement to Hewett about the purse strap that had been used to strangle Donovan. This statement, as well as other statements about the purse strap, is the subject of much debate in this case and forms the basis for several of the claims asserted in this § 2255 proceeding. The statement will be discussed in more detail as the claims are analyzed by the court, but at this point it should suffice to say that Basham demonstrated to Sheriff Hewett how Alice Donovan “was strangled” and then Basham demonstrated to Sheriff Hewett how he (Basham) threw the strap into the woods.
The search for Donovan, which began at sunrise and lasted until the early part of the afternoon, was eventually called off. Donovan’s remains were not located until 2010 — after the trial and direct appeals of both'Basham and Fulks.
During the preliminary stages of the criminal case, the government filed a motion with the court suggesting that the court conduct an investigation as to whether Littlejohn and Monckton should continue to represent Basham, because Little-john made certain statements during the search, albeit on a “hypothetical” basis, which might cause Littlejohn to become a witness in the case or otherwise have a conflict of interest that would prevent his effective representation of Basham.
This court also appointed two respected ethics experts as the court’s expert witnesses on the disqualification issue: University of South Carolina Law School Dean Robert M. Wilcox and criminal defense attorney John F. Hardaway. Littlejohn and Monckton thereupon retained two more legal ethics experts (Professor John P. Freeman and attorney Morgan Martin) to represent them in the case, and then persuaded the court to appoint yet another attorney (Michael O’Connell) as an expert on death penalty litigation issues.
In an unprecedented move for this court, the court thus convened a-hearing with seven lawyers (Littlejohn, Monckton, Hardaway, Wilcox, Freeman, Martin, and O’Connell) on the question of whether Littlejohn and Monckton should continue their representation in the case. At the conclusion of the hearing, the court determined that it would disqualify Littlejohn and Monckton and appoint new counsel. The reasons for the disqualification are set out in this court’s order dated April 9, 2003. See ECF No. 69.
The court then appointed Columbia, South Carolina attorneys Jack B. Swerling and Gregory P. Harris to represent Basham and directed that Littlejohn and Monckton cooperate in turning over their files and otherwise assisting in the transition to new counsel.
Jack Swerling is widely regarded as one of the preeminent criminal defense lawyers in South Carolina. Admitted to the South Carolina Bar in 1973, he has participated in hundreds of criminal trials in the federal and state courts of South Carolina, including, by his estimate, 150 to 200 homicide cases, four of which involved the death penalty. He stated that, at any given time, he usually found himself working on three to four murder cases. His peers have elected him to membership in the American College of Trial Lawyers, the American Academy of Appellate Lawyers, the American Board of Criminal Lawyers, and the International Academy of Trial Lawyers. He has written several books on criminal practice, and the South Carolina Supreme Court has called upon him to provide leadership in a number of bar-related areas, including service as a member of the Chief Justice’s Commission on the Profession of Law, the Bar Board of Commissioners on Grievance and Discipline, and the Board of Bar Examiners. He has served as an adjunct professor at the University of South Carolina School of Law and also at the University of South Carolina School of Medicine, Department of Neuropsychiatry. Since 1990, he has served as coordinator and moderator of the South Carolina Bar’s Bridge the Gap program for young lawyers entering the profession.
Gregory Harris, an attorney who at the time shared office space with Swerling, also enjoys a reputation as an excellent criminal defense attorney. After completing law school in 1986, he served as a law clerk for a state trial judge and then began his career in the courtroom as an assistant solicitor (prosecuting attorney) in the state court system. He moved from there to the U.S. Attorneys’ Office where he served as a federal prosecutor for several years, rising to the position of deputy chief of the criminal division. After nearly five years as a federal prosecutor, he left the United States Attorneys’ Office to open his own practice, specializing in criminal defense. Like Swerling, Harris has tried numerous cases in the federal and state courts of South Carolina.
During this court’s twenty-six years on the trial court bench, the court has had numerous opportunities to observe both Swerling and Harris in a variety of criminal case settings. Suffice it to say that in selecting Swerling and Harris to assume responsibility of representing a capital murder defendant, the court endeavored to obtain the best possible legal representation in South Carolina for the defendant.
The Jackson v. Denno Hearing
In late February 2004, the court held a three-day hearing on the motion by both Basham and Fulks to suppress certain statements made by them. Following the hearing, the court entered two orders: one denying the suppression motion with respect to most of Basham’s statements (ECF No. 335), and another granting the motion to suppress the hypothetical statement made by Littlejohn (ECF No. 691 at 4-5).
Severance of the Trial
Both defendants filed motions for separate trials, and following a hearing, the court ultimately determined that it was necessary to sever the trial of Basham and Fulks. (ECF No. 292). Fulks’s trial was scheduled first, with jury selection commencing on May 10, 2004. Fulks elected to plead guilty to all charges of the superseding indictment and proceed directly to the penalty phase of the death penalty component of the case. Following a trial that lasted five weeks, the jury imposed the death penalty on both Counts 1 and 2 against Fulks. The court entered a sentence of 744 months imprisonment on the remaining six counts.
Basham’s case was scheduled to be tried in the Fall of the same year as Fulks’s case. Unlike Fulks, Basham did not plead guilty to any of the counts of the superseding indictment and so the court conducted both a guilt phase and a penalty phase trial. Jury selection began on August 30, 2004, and lasted nine days. Following a three-week trial, the jury convicted Basham on all counts. During the trial, Swerling conceded that Basham was guilty of Count 2, and, in regard to Count 1, indicated that the jury “probably” would be going to a penalty phase on that count as well. After the jury found Basham guilty on all counts, the court conducted the penalty phase, which consumed an additional four weeks. Following deliberations in the penalty phase, the jury imposed the death penalty on both Counts 1 and 2 against Basham. The court imposed a sentence of 744 months imprisonment on the remaining six counts.
Direct Appeal of Basham’s Conviction
Basham thereafter appealed to the United States Court of Appeals for the Fourth Circuit, raising six issues. Although Jack Swerling was appointed appellate counsel, the Fourth Circuit granted his motion to withdraw and appointed Timothy J. Sullivan in his place. Attorney Melissa Meister of the firm of Jenner & Block was also added as appellate counsel. These attorneys were assisted by eight additional attorneys from the Jenner & Block firm, each of whom contributed to the preparation of the appellate brief. Basham thus had ten appellate attorneys working on his behalf for the appeal.
On March 30, 2009, the Fourth Circuit issued its decision rejecting all grounds for appeal and affirming the sentence of death on both Counts 1 and 2. Basham, 561 F.3d 302. Basham then petitioned the United States Supreme Court for a writ of certiorari. The Supreme Court denied the petition on June 1, 2010. Basham v. United States, 560 U.S. 938, 130 S.Ct. 3353, 176 L.Ed.2d 1245 (2010).
Appointment of Counsel for the § 2255 Petition
On September 19, 2009, the court appointed Assistant Federal Public Defender Jon M. Sands of the Arizona Federal Public Defender’s Capital Litigation Unit, and Charlotte, North Carolina attorney Julia Mimms to represent Basham on his yet-to-be-filed § 2255 petition. The court noted that the appointment would take effect if and when the petition for a writ of certiorari was denied in the Supreme Court. As noted above, the Supreme Court denied the petition for a writ on June 1, 2010. Id.
Section 2255 provides federal prisoners with the statutory vehicle for collaterally challenging the lawfulness of their convictions. That section states in relevant part as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
As a general rule, relief under § 2255. is limited to errors which were jurisdictional, rose to the level of a constitutional violation, resulted in a “complete miscarriage of justice,” or led to proceedings which were “inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (citing Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).
Basham’s § 2255 Petition
Basham’s § 2255 petition was filed on June 1, 2011, just before the one-year statutory deadline established by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, 28 U.S.C. § 2255(f). All of the thirty-two claims filed in the initial petition as. supplemented by the pleading filed on March 2, 2012, ECF No. 1465, are timely under the one-year statute of limitations.
Shortly before the § 2255 petition was filed, Basham filed a pro se “Waiver of any and all proceedings pursuant to 28 U.S.C. § 2255.” The court held a status conference on June 29, 2011 and appointed a forensic psychiatrist, Dr. George Parker of Indianapolis, Indiana, to evaluate the defendant regarding his motion to withdraw his appeal and proceed with execution.
Dr. Parker visited with Basham on two occasions and rendered a written report that Basham was competent to make a decision to drop his appeals. Before the court could conduct a hearing on the pro se motion, Basham’s § 2255 counsel lodged a number of procedural objections. Basham ultimately proved to be equivocal on the question of whether he wished to drop his appeal. At one point, Basham suggested that he would drop the appeal and proceed to execution if the court would intervene and allow his family to visit with him and direct the Bureau of Prisons to administer certain medications- to him. Ultimately, this court entered an order in which it deemed Basham to have withdrawn his request to drop his appeal and the issue did not’arise again.
The Interlocutory Appeal on Production of Attorney Records
In an order dated April 4, 2012, this court granted the government’s motion for access to all of the case-related files of trial counsel Swerling and Harris as well as to interview former counsel. ECF No. 1496. Basham opposed the ruling, and requested an immediate stay of that order so that he could take an interlocutory appeal of this court’s action. By order dated April 10, 2012, this court allowed a limited stay of its April 4, 2012 order, with the stay to expire on June 11, 2012. EOF No. 1504.
The Fourth Circuit dismissed the interlocutory appeal, and its mandate was entered on May 30, 2012. Counsel for Basham and the government then interviewed both Swerling and Harris and reviewed all of their files.
Necessity for an Evidentiary Hearing
“If [a § 2255] motion is not dismissed, the judge must review the answer, any transcripts and records of prior proceedings, and any materials submitted ... to determine whether an evidentiary hearing is warranted.” Rule 8, Rules Governing Section 2255 Proceedings for the United States District Courts.
“Section 2255 of Title 28 U.S.C. provides that unless the record conclusively shows that the prisoner is entitled to no relief, the district court should conduct an evidentiary hearing and state its findings and conclusions.” United States v. Young, 644 F.2d 1008, 1013 (4th Cir.1981). “A hearing is required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to resolve the issue.” United States v. Coon, 205 Fed.Appx. 972, 973 (4th Cir.2006) (citing United States v. Witherspoon, 231 F.3d 923, 925-27 (4th Cir.2000)). Finding that some issues presented in the § 2255 petition contained a few disputes as to material facts, this court held an evidentiary hearing on the matter.
The § 2255 Evidentiary Hearing
After the noted procedural delays, the court commenced the § 2255 evidentiary hearing on October 9, 2012. Arrangements were made to allow Basham to participate in the hearing via satellite from his place of incarceration, the Federal Correctional Institution in Terre Haute, Indiana. Basham was able to view the witnesses, the court, and the attorneys in real-time video conference, and was also provided a private telephone line through which he could conduct confidential communications with his counsel as the evidentiary hearing progressed. An attorney associated with Basham’s § 2255 counsel was also present in the room with Basham for consultation and to ensure communication with counsel in the courtroom.
Unfortunately, as the court adjourned for the lunch break on the first day of the evidentiary hearing, Basham became involved in a scuffle with the security officers attending to him and it was reported to the court that Basham had injured two officers and bit a third officer. The court then adjourned the hearing for the rest of the day, and commissioned Dr. Parker to examine Basham for purposes of determining whether he was competent to proceed with the evidentiary hearing.
The following day, after examining Basham in person at Terre Haute, Dr. Parker rendered an opinion that Basham was competent to go forward with the hearing. The court and attorneys for both the government and the defendant all questioned Dr. Parker.
Basham then offered the testimony of Dr. Thomas Hyde, a behavioral neurologist who had theretofore been unavailable to testify as to competency, but whose availability was arranged after it was determined that Dr. Parker would testify on the competency issue. After hearing from both experts, as well as counsel, on the competency issue, the court found Basham competent to proceed with the hearing, and later memorialized its findings in an order dated November 11, 2012. ECF No. 1550.
Later that same day, Basham left the hearing room where he was incarcerated in Terre Haute, indicating his desire not to further participate in the proceedings. On the third day, he reappeared for a brief portion of the testimony, but then left the satellite hearing room and did not return.
After the competency issue was resolved, the court proceeded to hear testimony from five witnesses over a six-day period ending on Thursday, October 18, 2012. The parties and the court had previously agreed to adjourn the hearing at the conclusion of this testimony and resume the hearing on December 3, 2012, to hear from three additional witnesses who, for various reasons, were not available to testify in the first segment of the evidentiary hearing.
When the hearing resumed on December 3, 2012, the court heard two days of testimony from the additional witnesses. The court then heard argument from counsel. Upon the conclusion of the evidentiary hearing, the court took the matter under advisement. This order serves to announce the court’s ruling on all thirty-two claims for relief.
As noted above, the court determined that an evidentiary hearing was necessary because factual disputes were present in at least some of the thirty-two claims for relief asserted by Basham.
Although the court heard from eight witnesses, the testimony of those witnesses, for the most part, did not involve disputed factual matters. There were few factual issues presented amongst the thirty-two claims raised by Basham in his § 2255 petition. In large measure, the issues raised by Basham’s petition involve conclusions of law.
Because of the predominance of legal questions in this case, the court has determined that it would serve no useful purpose, and would more likely be counterproductive, for this court to set out its factual findings separate and apart from its conclusions of law. A more practical means for the court to comply with the mandates of 28 U.S.C. § 2255 is for the court to proceed through the claims asserted by Basham in the order in which they are raised in the petition. Where a factual issue is squarely presented by one of Basham’s claims, the court will resolve that factual dispute with a factual finding embedded within the discussion of the claim at issue. All other aspects of this court’s order constitute this court’s conclusions of law.
§ 2255 CLAIMS
Standard of Review for Ineffective Assistance of Counsel Claims
The Supreme Court has held that to establish ineffective assistance a petitioner must show both that his attorney’s performance was objectively deficient and that such deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the Supreme Court stated:
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or ... sentence has two components. - First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or ... sentence resulted from a breakdown in the adversary process that renders the result unreliable.
Id. It is axiomatic that if the claim or claims that counsel failed to raise are devoid of legal merit, a defendant suffers no prejudice and cannot establish a claim of ineffective assistance of counsel. Id. In a case where a defendant enters a plea of guilty, the defendant in order to obtain § 2255 relief must show that (1) his or her counsel’s representation fell below an objective standard of reasonableness demanded of attorneys in criminal cases; and (2) there is a reasonable probability that, but for counsel’s errors, he or she would have proceeded to trial instead of pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
The defendant bears the burden of proof as to both prongs of the Strickland standard. First, the defendant must show that counsel’s representation “fell below an objective standard of reasonableness” as measured by “prevailing professional norms.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Courts should be deferential in this inquiry, and have “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. The defendant must therefore overcome the presumption that the representation “might be considered sound trial strategy.” Id. (citation and internal quotation marks omitted).
Second, the defendant must demonstrate that counsel’s inadequate performance prejudiced him. Id. at 687, 104 S.Ct. 2052. Thus, the defendant must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability, in turn, is defined as “a probability sufficient to undermine confidence in the outcome.”- Id. Additionally, courts may bypass the performance prong and proceed directly to the prejudice prong when it is easier to dispose of the case for lack of prejudice. Id. at 697, 104 S.Ct. 2052.
CLAIMS 1,11,12 & 18: ISSUES ARISING OUT OF BASHAM’S STATEMENT TO SHERIFF HEWETT ABOUT “THE STRAP”
Introduction
These claims are all interrelated, and the court will therefore discuss them together. Claim 1 alleges that Basham was denied effective assistance of counsel when his then-lawyers (Littlejohn and Monckton) permitted him to speak with Sheriff Ronald Hewett during the November 28, 2002 search for Donovan’s body outside their presence. During this conversation, Basham.intimated to Sheriff Hewett about how Donovan was killed with the strap of a Liz Claiborne purse.
Claim 11 contends that the government engaged in misconduct when it failed to correct Sheriff Hewett’s testimony about the strap that the government knew to be false in violation of the government’s obligations under Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
Claim 12 faults Basham’s appellate attorneys for failing to raise on appeal the issue of the government’s alleged misconduct regarding Sheriff Hewett’s testimony on the strap.
Claim 18 challenges Basham’s trial counsel in terms of their cross-examination of Hewett and suggests that their cross-examination elicited damaging testimony from Hewett that had not been brought out on direct.
Claim 23, which also relates to the strap testimony, is discussed later in this order. That claim contends that Basham’s due process rights were violated because the government presented a theory of the case that was inconsistent with the theory it presented at Fulks’s trial, specifically in regard to which defendant used the strap to strangle Donovan.
The events leading up to, and the testimony concerning, Basham’s statement to Hewett regarding the strap are discussed briefly in the introductory section of this order, but they merit more extended development here.
After the seventeen-day crime spree, Basham was arrested in Kentucky. There, he was provided with state-appointed counsel, and he was allowed to make statements to law enforcement regarding his involvement with Donovan’s abduction and murder in South Carolina. As noted above, Basham, through counsel, had also informed investigators of his participation in the Samantha Burns murder. By this time, law enforcement authorities had also obtained a mirandized statement from Basham that he and Fulks abducted Donovan in the Walmart parking lot on November 14, 2002 and used her car as an escape vehicle. See Tr. 2/24/04, ECF No. 698 at 51-52, 57, 52, 80-81; Govt. Trial Brief, ECF No. 751 at 12-16. In other words, a strong case against Basham was beginning to coalesce even before the search for Donovan began and before Basham made the disputed statements to Sheriff Hewett.
Because it was possible that Donovan might still be alive, the FBI eventually transported Basham to South Carolina on Wednesday, November 27, 2002 and allowed him to participate in the following day’s search for Donovan. A federal magistrate judge appointed Basham death penalty-qualified counsel, Littlejohn and Monckton. As indicated previously in this order, as soon as they were appointed, Littlejohn and Monckton were called into action, and they quickly concluded that because of the overwhelming evidence that had already been gathered against their client, the best way to avoid the death penalty was to allow Basham to help find Donovan, in the outside hope that she was still alive or, failing at that, to help find her remains so that her family could have some degree of closure.
From the outset, Assistant United States Attorney (AUSA) Rose Mary Par-ham made it clear to defense counsel that because of the strength of the government’s case, any efforts by Basham to help with the search would have to be made with no promise of anything in return by the government. That is to say, there was no concession that the government would not seek the death penalty in return for Basham’s assistance, nor was there any other type of reward suggested to Basham or his counsel. Faced with the stark reality that their client had essentially admitted his involvement in the abduction, rape, and murder .of two women, Littlejohn and Monckton agreed to allow Basham to participate in the Thanksgiving Day search, hoping that Basham’s cooperation with the government would yield some advantage to their client.
Early in the morning of Thanksgiving Day on November 28, 2002, Basham, Littlejohn, and Monckton joined at least six law enforcement officers and twenty volunteers in a search that centered around the Bee Tree Farms area of Brunswick County, North Carolina. On several occasions during the search, Basham, either speaking directly to law enforcement inside of the police van in which he was a passenger, or speaking through Littlejohn, his attorney, provided information regarding the search, which included a reference to the fact that Donovan was strangled with a Liz Claiborne purse strap and that locating the strap would enable the searchers to know they were at the right place.
At some point during the search, the van stopped and the participants got out to survey the area and attempt to locate the purse strap. During this stop, Basham walked away from Littlejohn and walked along with Sheriff Hewett. Although the two were never out of Littlejohn’s sight, they apparently walked far enough away such that Littlejohn could not hear what was being said. According to Hewett’s testimony at Basham’s trial, while they were away from Littlejohn and Monckton, Basham became emotional and tears welled up in his eyes. Basham then demonstrated to Hewett how Alice Donovan had been strangled and how Basham had thrown the strap away in the woods.
Sometime during the early afternoon, law enforcement officers confronted Little-john and told him- that they believed that Basham was not being truthful and that the search was to be called off. Littlejohn asked for an opportunity to discuss the issue with his client and returned to the officers with what he termed a “hypothetical” statement providing more detail about the murder of Donovan. It was this hypothetical statement that caused the court to disqualify Littlejohn and Monckton from further representation. At the time, it appeared to the court that the hypothetical statement might be admissible at trial against Basham. Ultimately, even though the court disqualified Littlejohn and Monckton, the court did not allow Little-john’s hypothetical statement into evidence at Basham’s trial. ECF No. 691 at 4N5.
One final statement Basham made during the search bears mention. At some point during the van ride, a deer ran in front of the vehicle and Basham spontaneously stated, with no prompting from law enforcement or Littlejohn, “You know I have never even killed a deer and here I have....” At that point, Littlejohn put his hand on Basham’s knee and cautioned him to stop speaking.
Sheriff Hewett’s testimony regarding Basham’s statement about the strap is the primary focus of Claims 1, 11, 12, 18, and 23. Sheriff Hewett discussed the strap on four different occasions: on direct and on cross-examination at the Jackson v. Denno hearing, and on direct and cross-examination at Basham’s trial.
Hewett’s Testimony at the Jackson v. Denno Hearing
Hewett testified at the Jackson v. Denno hearing and, on direct examination, gave the following narrative of the interaction between himself and Basham at the wood line of the cemetery when the strap was discussed:
A. I believe, we walked back down to the cemetery. Brandon Basham, he was shackled at his hands, belly chained around the waist, and shackled at his feet. He walked down to the cemetery, he got tears in his eyes and tears rolled down his cheek. He showed me the length of the strap—
Q. How did he do that?
A. May I demonstrate?
Q. Certainly.
A. Like this. Because he couldn’t pull his hands very — very far apart, he was shackled. He showed me the length of the strap. Says that he believed it to be a Liz Claiborne strap, and that he had thrown it in the woods. He then demonstrated the manner in which he threw it in the woods.
Q. Would you stand up and do that for the court so the record is complete as well? .
A. Yes, sir, I will. We were standing at the corner of the cemetery, Brandon Basham is chained. I said, “Branden, how did you do that?” And he said, “Like that. And I threw it over there.”
Tr. 2/25/04, ECF No. 330 at 66-67.
On cross-examination at the Jackson v. Denno hearing, in response to questioning from defense counsel, Hewett returned to the subject of the strap:
Q. I’m talking about the actual details of what actually happened.
A. Yes, sir, he also did. “At the cemetery Basham told me personally, We pulled right in there and cut to the left behind the fence.’ ”
Q. Okay.
A. “Basham described the Liz Claiborne 16 to 20-inch strap.”
Q. Okay.
A. “And indicated by this motion that it was used to strangle Alice Donovan.”
Q. Okay. It wasn’t said, it wasn’t verbalized, it was just used in—
A. Yes, sir.
Q. Okay. And that is in your report?
A. Yes, sir____
Id. at 77-78.
Hewett’s Testimony at Basham’s Trial
Fulks’s trial occurred first, and during that trial, Fulks’s attorneys attempted to have the court admit Basham’s “deer statement” because it would have suggested to the Fulks jury that Basham had essentially admitted being Alice Donovan’s killer. In arguing against admitting the deer statement, AUSA Johnny Gasser pointed out the unfairness of admitting Basham’s allegedly inculpatory deer statement without admitting all of the rest of his statements implicating Fulks with the murder. In doing so, Gasser pointed out that Basham had told law enforcement authorities that, notwithstanding the deer statement, Fulks had strangled Donovan with the purse strap. Notably, all of this discussion occurred outside the presence of the Fulks jury.
The court ultimately agreed with the government and sustained the government’s objection to the admission of Basham’s statement regarding the deer. It struck the court in Fulks’s trial as unfair to admit one statement by Basham (the deer statement, which arguably admitted complicity in killing Donovan), while disallowing Basham’s several other statements to law enforcement officers indicating just the opposite, to wit: that Fulks had been the killer. Significantly, Hewett was not subpoenaed as a witness at Fulks’s trial.
Four months later at Basham’s trial, however, Hewett did testify. Hewett provided details regarding the organization of the search team after he received a call from FBI Agent Jeff Long who had been relaying information from both Basham and Richard Hughes, Basham’s attorney in Kentucky. Hewett confirmed AUSA Par-ham’s testimony that the government made no promises to Basham in return for Basham’s cooperation in the search.
Hewett also testified as to several substantive matters that Basham discussed during the search. For example, at one point Basham and Littlejohn huddled together and whispered to each other. Following this conversation, Littlejohn indicated his agreement for Basham to make a statement to the officers. Following this conference, Basham told the officers, “You need to be looking for a strap. It is about this long.” Basham then added, “It has ‘Liz Claiborne’ on the strap.” Tr. 9/27/04, ECF No. 330 at 27-28. Additionally, Hewett testified that Basham said, “Back at the cemetery. You need to go back to the cemetery and look for that strap.” Id. He testified that Basham spread his shackled hands apart approximately sixteen to twenty inches to describe how long the strap was. When the group arrived back at the cemetery at the Bee Tree Farms area, Basham told the group to stop and indicated that in his opinion, they were at the right place. While at the cemetery, Basham stated, again in the presence of his attorney, that after dragging Donovan’s body out of the car, he and Fulks pulled her into the woods and covered the body with leaves. Id. at 32.
Hewett then testified, on direct, regarding the now-hotly disputed subject of Basham’s demonstration of how the strap was either used or thrown away following the murder. Because Hewett’s precise testimony is critical to the issues under review, the court sets forth the testimony verbatim. Hewett’s testimony in response to direct examination from AUSA Johnny Gasser was as follows:
Q. And what did he describe to you on Thanksgiving Day, the location that you have just described to the jury, tell this jury what Brandon Basham described to you as to what happened to Alice Donovan.
A. May I?
Q. You can demonstrate, if he demonstrated.
A. Brandon Basham had his hands like this once again. I have explained to you how he was shackled. He took his hands together and did this (Indicating), “Then I threw it over there. Check in those trees right over there.” Which, if you will look at how I am facing you, I am facing the semicircle. So, we walked to the area right here at the corner, and that is where he did this and did that. He couldn’t throw very far because he was shackled. That is when he said, “Check over there.” At that time, Sergeant Parker and Sergeant Sarvis, those were the two individuals that were with me, they began to look again, but that area had already been searched, and the strap was not to be found.
Id. at 39-40 (emphasis added).
Also on direct, Hewett testified as to the deer statement made by Basham in the van while the search was being conducted.
Defense attorney Greg Harris cross-examined Sheriff Hewett. Armed with the notes Sheriff Hewett had made regarding the search, together with statements Sheriff Hewett made to FBI agents who interviewed him, Harris knew that there was nothing in the notes indicating that Basham was referring to himself as the person who actually strangled Donovan when Basham demonstrated with the strap. Because the testimony of Hewett regarding Basham’s demonstration of how the strap was thrown could be somewhat damaging, Harris apparently attempted to confirm what the notes indicated. The colloquy went as follows:
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 Crock-er’s notes say that he did that; isn’t that true?
A. That is true because he didn’t say. He showed.
Id. at 53-54 (emphasis added).
During summation, AUSA Gasser sought to highlight Hewett’s testimony regarding the strap as follows:
Sheriff Hewett says he [Basham] didn’t say “I killed Alice Donovan.” Sheriff Hewett said to you in this courtroom in front of you, the jury, “No, he demonstrated it.”
Ladies and Gentlemen, I wanted to finish with that because how would you go back in your jury room after listening to Sheriff Hewett and after seeing Sheriff Hewett demonstrate how Brandon Basham demonstrated how Alice Donovan was strangled, how do you listen to Clifford Jay when Brandon Basham told you jurors ... we killed them and find him not guilty of carjacking, resulting in death? And find him not guilty of kidnapping, resulting in death? I have been up here for two hours, and the government submits those two witnesses and that limited testimony, alone, seals the deal.
Tr. 9/29/04, ECF No. 330 at 81-82.
As can be seen from the above, Sheriff Hewett’s testimony was consistently ambiguous. Hewett was clear, using the active voice, to say that Basham showed how he (Basham) threw the strap away. Hewett’s testimony regarding the motion used to strangle Donovan was much less clear, usually involving the passive voice. Moreover, on two of the four occasions that he was asked about the strap, Hewett actually initiated the idea of demonstrating (rather than describing) to the attorney who was examining him.
In summary, Hewett addressed the interaction with Basham regarding the strap on four occasions. The first time, direct examination at the Jackson v. Denno hearing, Hewett referenced only Basham’s motion made to show how the strap was thrown away. On cross-examination at that same hearing, Hewett included a cryptic reference to the motion that “was used to strangle Alice Donovan.” On direct at trial, Hewett’s reference was ambiguous (“he took his hands together and did this [indicating] ‘then I threw it over there.’ ”). Finally, on cross-examination at trial, when Harris tried to pin Hewett down on the fact that his notes did not reflect that Basham referred to himself as the cause of Donovan’s death when Basham demonstrated the strangling motion, Hewett seemed to interject the most damaging of his four statements. He suggested that although Basham did not say that he used a strangling motion to kill Donovan, “he demonstrated though.” At the § 2255 evidentiary hearing, neither side was able to provide a specific reason why both the government and the defendant shied away from the opportunity to ask Hewett to be more specific.
It thus appears that Basham used his hands to demonstrate two motions to Hewett: (1) a motion describing the strangling; and (2) a motion describing the tossing of the strap into the woods. The tossing motion is not in dispute in these claims; both sides apparently agree that Basham was indicating that it was he who did the tossing of the strap. Moreover, it was essentially cumulative to the statement made earlier in the van with Littlejohn’s advance approval, that locating a Liz Claiborne strap would h