Bolden v. United States

• Decision Date: 21 March 2016
• Docket Number: No. 4:10-CV-2288 (CEJ),4:10-CV-2288 (CEJ)
• Parties: Robert Bolden, Sr., Movant, United States of America, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

171 F.Supp.3d 891

Robert Bolden, Sr., Movant,

United States of America, Respondent.

No. 4:10-CV-2288 (CEJ)

United States District Court, E.D. Missouri, Eastern Division.

Signed March 21, 2016

Anne L. Saunders, Kelly D. Miller, Federal Public Defender, Harrisburg, PA, Jennifer A. Merrigan, Penn's Landing, Philadelphia, PA, for Movant.

Allison H. Behrens, Dean J. Sauer, Michael A. Reilly, Steven E. Holtshouser, Thomas S. Rea, Office of U.S. Attorney, St. Louis, MO, for Respondent.

CAPITAL CASE

MEMORANDUM

CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE

This matter is before the court upon the revised amended motion of Robert Bolden, Sr., to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. The United States has filed its opposition to the motion, and the issues are fully briefed.

I. Background

In the afternoon of October 7, 2002, Bolden, Dominick Price and Corteze Edwards attempted to rob a Bank of America branch in St. Louis, Missouri. Bolden had concocted a plan for the robbery which he discussed with Price earlier that day. According to the plan, Bolden would use a handgun to disarm the bank's security guard and then he and Price would hold the guard hostage, get the money, and drive away in Bolden's car. At some point during the day Bolden recruited Edwards to assist in the robbery.

Bolden, Price, and Edwards drove to a parking lot near the bank and got out of the car. Although Bolden had purchased a nylon stocking cap to conceal his identity, he did not wear a mask. When the security guard, Nathan Ley, came outside, Bolden approached, with Price and Edwards following 15 to 20 feet behind him. Bolden stopped a few feet away from Mr. Ley and the two men exchanged words. Bolden then pointed his handgun at Mr. Ley. A brief struggle ensued after Mr. Ley reached for the gun, but Bolden was able to fire it, shooting Mr. Ley in the jaw. As Mr. Ley fell, Bolden stepped backward and fired another shot, this time into Mr. Ley's head. Mr. Ley died from the second gunshot.

Bolden, Price, and Edwards fled from the scene. However, several bystanders witnessed the incident and were able to provide a description of Bolden and his vehicle to the police. Also, the police gathered DNA evidence from clothing found at and near the scene that they linked to Bolden and his accomplices. Bolden was arrested that evening.

In a superseding indictment, Bolden was charged with conspiring to commit the armed robbery of Bank of America by force and violence, in violation of 18 U.S.C. §§ 2113(a) and (f), and in so doing, killing Mr. Ley (Count I); attempting to rob Bank of America, and in doing so, killing Mr. Ley, in violation of 18 U.S.C. §§ 2113 (a) and (e) and 2 (Count II); using and carrying a firearm during and in relation to the attempted bank robbery charged in Count II, in violation of 18 U.S.C. §§ 924(c)(1), (j)(1) and 2, and in doing so committing murder as defined in 18 U.S.C. § 1111 (Count III); and being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count IV). On May 23, 2006, after a month-long trial, a jury found Bolden guilty of all four charges and sentenced him to death on Counts II and III. The judgment was affirmed on appeal. United States v. Bolden, 545 F.3d 609 (8th Cir.2008), cert. denied , 558 U.S. 1077, 130 S.Ct. 796, 175 L.Ed.2d 561 (2009).

II. Procedural Default

The government correctly points out that many of the claims Bolden asserts in the instant motion are procedurally defaulted, as they could have been raised on direct appeal but were not. Bolden counters that he is not barred from asserting these claims because the failure to present them on appeal was the result of ineffective assistance of counsel.

A motion to vacate is not a substitute for a direct appeal. SeeBoyer v. United States, 988 F.2d 56, 57 (8th Cir.1993) ; Reid v. United States, 976 F.2d 446, 447 (8th Cir.1992), cert. denied , 507 U.S. 945, 113 S.Ct. 1351, 122 L.Ed.2d 732 (1993) [citing United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ]. Absent a showing of cause and prejudice, a movant cannot assert a claim in a § 2255 proceeding that could have been asserted on appeal. Id. In order to show cause, the movant must establish that “some objective factor external to the defense” impeded his ability to present his claim on appeal. McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) [quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ]. Ineffective assistance of counsel or a showing of actual innocence may constitute cause sufficient to exempt a movant from the procedural bar. Id. at 494, 111 S.Ct. 1454.

III. Ineffective Assistance of Counsel

Bolden claims that he was denied effective assistance of counsel at trial and on appeal. He asserts ineffective assistance both as an independent claim and as cause for his procedural default. To prevail on an ineffective assistance claim, a movant must show that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). With respect to the first Strickland prong, there exists a strong presumption that counsel's conduct falls within the wide range of professionally reasonable assistance. Id. at 689, 104 S.Ct. 2052. In Strickland, the Court described the standard for determining an ineffective assistance claim:

[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Strickland, 466 U.S. at 690, 104 S.Ct. 2052.

To establish the “prejudice” prong, the movant must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. The failure to show prejudice is dispositive, and a court need not address the reasonableness of counsel's performance in the absence of prejudice. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir.1996).

IV. Grounds for Relief

Ground 1: Failure to Give Notice of Vienna Convention Rights and Provide Consular Notification

Bolden was born in Canada and lived there until he was one year old. He was then brought to the United States and lived here continuously thereafter. Correspondence and other documents from the U.S. Immigration and Naturalization Service establish that Bolden, his attorneys, and the government were aware of Bolden's Canadian citizenship before trial. [Doc. # 113-4, pp. 15-100 and # 113-5, pp. 1-55]. However, the government did not give Bolden notice of any rights he had under the Vienna Convention, nor did it notify the Canadian Consulate of the criminal proceedings against Bolden. Bolden claims that these omissions resulted in the denial of his constitutional rights. Bolden could have presented this claim on direct appeal, but he failed to do so. Therefore, the claim is procedurally barred unless cause and prejudice are shown. For the reasons discussed below, even if Bolden could establish cause for the default, he cannot establish that he was prejudiced.

The Vienna Convention is an international treaty of which the United States and Canada are among the member countries. The Convention stipulates consular protocol between member nations. Article 36 of the Vienna Convention on Consular Relations and Optional Protocol on Disputes applies to communication between the consular officers of a country (the “sending State”) and its nationals in a country (the “receiving State”) where a consular post of the sending State has been established. The Article provides, in relevant part:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded b the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.

While the Supreme Court has not directly addressed whether the Convention confers individually enforceable rights, the Court has held that a treaty is not binding domestic law unless Congress has enacted statutes...