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11-3-2012-06-26.Pdf PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 11-3 CHADRICK EVAN FULKS, Defendant-Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Joseph F. Anderson, Jr., District Judge. (4:02-cr-00992-JFA-1; 4:08-cv-70072-JFA) Argued: March 20, 2012 Decided: June 26, 2012 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by published opinion. Judge King wrote the opin- ion, in which Judge Wilkinson and Judge Agee joined. COUNSEL ARGUED: Billy Horatio Nolas, Amy Gershenfeld Donnella, FEDERAL COMMUNITY DEFENDER OFFICE, Philadel- phia, Pennsylvania, for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washing- ton, D.C., for Appellee. ON BRIEF: William N. Nettles, 2 UNITED STATES v. FULKS United States Attorney, Robert F. Daley, Jr., Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina; Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, Scott N. Schools, Associate Dep- uty Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. OPINION KING, Circuit Judge: Having pleaded guilty in the District of South Carolina to all eight counts of a superseding indictment, Chadrick Evan Fulks was, on the recommendation of a jury, sentenced to the death penalty. The capital sentence was imposed on Fulks’s convictions of Counts One and Two of the superseding indict- ment, respectively, carjacking resulting in death, in contraven- tion of 18 U.S.C. § 2119(3), and kidnapping resulting in death, as proscribed by 18 U.S.C. § 1201. The federal charges in South Carolina related to the abduction and murder of Alice Donovan on November 14, 2002, in the course of a multistate crime spree engineered by Fulks and his cohort, Brandon Basham, following their escape from a Kentucky jail. Three days prior to Donovan being carjacked, kidnapped, and killed, Samantha Burns suffered the same fate in West Virginia at the hands of Fulks and Basham. The district court sentenced Fulks on December 20, 2004, and, on appeal, we affirmed his sentence in all respects. See United States v. Fulks, 454 F.3d 410 (4th Cir. 2006).1 The Supreme Court, on June 25, 2007, denied Fulks’s petition for certiorari. On June 23, 2008, in accordance with 28 U.S.C. 1Our prior opinion on direct appeal detailed the grim events culminating in the demise of the two women, and, except as necessary to provide con- text for the proceeding now before us, we will not repeat them here. UNITED STATES v. FULKS 3 § 2255, Fulks filed a motion in the district court seeking to vacate his conviction and sentence, and thereupon to be tried anew.2 The motion, as amended, encompassed thirty-three discrete claims for relief, with respect to which the court con- ducted an evidentiary hearing beginning on February 22, 2010, and concluding on March 1, 2010. See 28 U.S.C. § 2255(b). Upon due consideration, the district court issued an exhaus- tive memorandum opinion and order rejecting each proffered claim. See United States v. Fulks, No. 4:02-cr-00992 (D.S.C. Aug. 20, 2010) (the "Opinion").3 The court nonetheless granted a certificate of appealability as to Claims 1 through 29 and Claim 33.4 From that order and a subsequent one entered on January 13, 2011, denying his motion to alter or amend the judgment, see Fed. R. Civ. P. 59(e), Fulks timely filed a notice of appeal on March 2, 2011, maintaining that the dis- 2A federal prisoner may move to "vacate, set aside or correct" a sen- tence that is, inter alia, "not authorized by law or otherwise open to collat- eral attack," or to request appropriate relief if "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment [of conviction] vulnerable to collateral attack." 28 U.S.C. § 2255(a), (b). In the typical proceeding, of which Fulks’s is one, the motion is required to be made within one year of "the date on which the judgment of conviction becomes final." § 2255(f)(1). Having been filed two days prior to the first anniversary of the date on which the Supreme Court declined review of his direct appeal, Fulks’s § 2255 motion was timely. 3The unpublished Opinion is found at J.A. 100123-297 (Citations herein to "J.A. ___" refer to the contents of the Joint Appendix filed by the par- ties to this appeal.) 4See 28 U.S.C. § 2253(c)(1)(B), -(c)(2) (confining § 2255 appeals to issues certified by federal justice or judge as presenting "a substantial showing of the denial of a constitutional right"). The August 20, 2010 "Order Denying Petition for Relief Under 28 U.S.C. § 2255" replaced the court’s August 3, 2010 order, which was vacated pending filing of the official transcript memorializing the evidentiary hearing. On August 25, 2010, the district court entered a one-page clarifying order with respect to its ruling on the certificate of appealability. 4 UNITED STATES v. FULKS trict court erred in denying him relief on seven of his claims. We possess appellate jurisdiction over the judgment against Fulks pursuant to 28 U.S.C. §§ 1291, 2253(a), and 2255(d). For the reasons that follow, we reject his assignments of error and affirm. I. Six of Fulks’s seven live claims allege that his lawyers at the sentencing proceeding and on direct appeal were constitu- tionally ineffective. At the outset, Claim 7 criticizes counsel’s decision to have Fulks give an inculpatory statement to the FBI, with no prior stipulation of use or negotiated plea agree- ment in place. Fulks subsequently entered a guilty plea, like- wise without reservation, and he contends, through Claim 28, that the tactic unreasonably ceded valuable rights with no commensurate benefit. Though it was hoped that his plea would indicate that Fulks had accepted responsibility for his actions, he argues that counsel should have deemed such hope forlorn, unlikely to carry any weight with the sentencing jury. That jury, according to Fulks, was unconstitutionally pre- disposed to recommend death. The jury’s predisposition, the argument goes, was the result of counsel botching the voir dire (Claim 15), neglecting to discover and follow up on a juror’s failure to answer an important part of her question- naire (Claim 16), and choosing to seat three venirepersons the defense perceived hostile to Fulks, rather than exercising peremptory challenges (Claim 17). Insofar as the jurors were willing to keep an open mind and consider evidence in mitigation of the death penalty, Claim 5 asserts that they were impermissibly hindered in that task by one of the district court’s instructions on that topic. Though counsel objected to the given instruction and preserved the putative error for potential review, Fulks maintains that not pursuing the issue on direct appeal constituted ineffective assistance. UNITED STATES v. FULKS 5 Finally, in Claim 19, Fulks mounts a due process challenge against the government’s use of statements uttered by Basham to the Brunswick County, South Carolina, Sheriff. Basham made the statements while assisting the Sheriff and others in locating Donovan’s remains, and the government referred to them in both Fulks’s and Basham’s proceedings. Fulks accuses the government of conducting itself in a fundamen- tally unfair fashion by portraying the statements in different and inherently inconsistent ways, depending on which defen- dant was under jury scrutiny. II. We address each of the above contentions in turn, review- ing de novo the district court’s conclusions of law underlying its denial of Fulks’s § 2255 motion. See United States v. Stitt, 552 F.3d 345, 350 (4th Cir. 2008). The court’s findings of fact derived from the evidence adduced at its hearing are reviewed for clear error. Id. III. A. The Sixth Amendment to the Constitution secures to all criminal defendants "the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984) (citation omitted). A prisoner seeking collateral relief from his conviction or sentence under Strickland "must demonstrate both that counsel’s performance was deficient, and that the defense was thereby prejudiced." Tice v. Johnson, 647 F.3d 87, 102 (4th Cir. 2011). In view of the latitude customarily afforded criminal defense lawyers in formulating strategy, deficient performance will not be adjudged unless, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assis- tance." Strickland, 466 U.S. at 690. We are thereby con- 6 UNITED STATES v. FULKS strained to "indulge a strong presumption" that counsel performed reasonably. Id. at 689. In the event that the presumption of reasonable perfor- mance is successfully rebutted, relief remains unavailable "if the error had no effect on the judgment." Strickland, 466 U.S. at 691. The defendant must therefore demonstrate "a reason- able probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A rea- sonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The analysis "requires the court deciding the ineffectiveness claim to ‘consider the totality of the evidence before the judge or jury.’" Elmore v. Ozmint, 661 F.3d 783, 858 (4th Cir. 2011) (quoting Strickland at 695). In evaluating the evidence, however, "[w]e are not bound . to view the facts in the light most favorable to the prosecution," Tice, 647 F.3d at 111, and the requisite preju- dice may be established short of showing that adequate per- formance "would have resulted ultimately in the defendant’s acquittal," id.
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