Bosley v. Cain
| Decision Date | 12 May 2005 |
| Docket Number | No. 04-30645.,04-30645. |
| Citation | 409 F.3d 657 |
| Parties | Antonio BOSLEY, Petitioner-Appellant, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rebecca L. Hudsmith, Fed. Pub. Def. (argued), Lafayette, LA, for Bosley.
George Daniel Ross (argued), Monroe, LA, for Cain.
Appeal from the United States District Court for the Western District of Louisiana.
Before WIENER, BARKSDALE and DENNIS, Circuit Judges.
Petitioner-Appellant Antonio Bosley appeals the denial of his habeas corpus petition brought under 28 U.S.C. § 2254. We affirm.
Bosley was indicted by a Louisiana grand jury on a charge of aggravated rape of his minor stepdaughter, Tabitha Dotray. He was convicted in state court in 1995 and sentenced to life imprisonment; and he has exhausted all his state court remedies.
In May 1999, Bosley filed for habeas relief in federal district court, challenging the validity of his indictment. Following an evidentiary hearing, a magistrate judge recommended that Bosley's conviction be reversed, his indictment quashed, and a writ of habeas corpus issued on the basis of racial discrimination in the selection of the grand jury foreperson. The district court adopted the report and recommendation, but we reversed that court on appeal, holding that Bosley had procedurally defaulted his claim by failing to file a pre-trial motion to quash his indictment.1
On remand, the district court again referred the matter to the magistrate judge for a determination whether Bosley could show cause and prejudice, or actual innocence, so as to overcome the procedural bar. The magistrate judge recommended denial of Bosley's habeas petition and dismissal with prejudice because he could not establish either cause or actual innocence. Bosley objected to the report and recommendation and filed a motion to supplement the record to include the affidavits of Tacoma Bosley and Zakeetricess Bosley; he also sought an evidentiary hearing. The district court granted the motion to expand the record and also granted the motion to hold an evidentiary hearing but only on the limited issue of actual innocence, yet again referring the matter to the magistrate judge. We briefly summarize the testimony adduced at this hearing.
Tacoma, Bosley's 21-year old niece, testified that although she knew the victim, Tabitha, as a small child, they were never close. According to Tacoma, she was at the Members Club, a night club in Monroe, Louisiana, in February 2003, when she ran into her cousin, Tonya Holmes, and Tabitha. Tacoma described an altercation that occurred in the Club's bathroom while Tabitha was in one of the stalls. Tacoma told Tonya that she did not like Tabitha because of what she had done to Bosley, and asked Tonya why she was friends with Tabitha. Overhearing the conversation, Tabitha purportedly blurted out from the stall that she was sorry and that her "mamma made her say that about Uncle Tony had raped her." Tacoma later phrased what Tabitha said slightly differently:
On cross-examination, Tacoma acknowledged that she did not personally fill out the affidavit; rather, Bosley's attorney appeared at her house with the affidavit, proffered it to her, and she signed it. Tacoma said that she had never spoken with the attorney before, surmising that Katy Banks, Tacoma's grandmother and Bosley's mother, had told the attorney about Tacoma's information. On redirect, Tacoma stated that she had signed the affidavit because its contents were true. It was elicited at the hearing that Tacoma was not then employed or in school, and had recently been convicted of theft.
Kee Kee, 15, is another of Bosley's nieces. She too testified she had known Tabitha as a child. Kee Kee described an incident at the apartment of her friend, Carvette, that occurred two years before the hearing. Carvette lived in the same apartment complex as Tabitha at the time, and Tabitha came to Carvette's apartment when Kee Kee was present to use the phone to call the police about a fight with her boyfriend. When Tabitha finished her call, Kee Kee asked her why she had caused Bosley to be put in jail, to which Tabitha responded that she did not know why and that "her mamma made her do it." Kee Kee testified that, until she revealed this to Bosley's counsel, she had never told anyone what Tabitha had told her. Kee Kee stated that she offered the information voluntarily after hearing the conversation between Tacoma and Bosley's counsel.
Kendra, 16, yet another of Bosley's nieces, is Kee Kee's older sister and Tacoma's cousin. Kendra testified that two and a half years earlier, she was in WalMart with her older sister, that she separated from her sister and had gone to the clothing section where she encountered Tabitha. Kendra said to Tabitha, She also asked Tabitha why she did not just tell the truth. Tabitha responded that she was scared and "she don't know what they'll do if she tell the truth." Kendra also testified she had heard rumors in the community that Tabitha had lied, that her mother had put her up to it. The magistrate judge asked Kendra whether she had ever asked Tabitha if she had lied about Bosley, to which Kendra responded in the negative. It is not altogether clear from the transcript, but it appears that Kendra first volunteered this information to Bosley's attorney in the courtroom on the day of the hearing.
Tabitha, 20 years old and a certified nurse's assistant, testified that her mother never told her to lie or give false testimony. She admitted that the incident at Members Club occurred, but denied that she had discussed Bosley at that time. Tabitha said that Tacoma tried to "start something with her" in the bathroom, and had accused her of lying about Bosley. Tabitha denied that she had ever admitted to lying about what Bosley had done to her. Tabitha also acknowledged that she had gone to Carvette's residence to use the phone and that Kee Kee was present, but denied having any conversation about Bosley with Kee Kee. Tabitha also denied encountering Kendra at WalMart.
Tabitha testified further that she was employed at a nursing home and that she did not have any convictions. Bosley's counsel objected, stating that shoplifting charges were pending against Tabitha. She denied that any charges were pending against her when questioned by the court. The court requested that Tabitha look at Bosley and state that her testimony was truthful, and Tabitha complied. She also stated that she was not acting out of fear of what might happen to her or her mother should she change her former testimony.
Jacqueline, Tabitha's mother, denied counseling Tabitha to lie about the rape.
Tonya, 21, is a friend of Tabitha's and a first cousin of Bosley. Tonya testified that when she entered the bathroom at Members Club in February 2003, she heard a lot of commotion; that Tacoma and two other girls were in the bathroom yelling. She stated that one of the girls was saying "she got my uncle locked up" and Tacoma was saying that she was going to "whup" Tabitha. Tonya also testified that she did not hear Tabitha say that she had lied or that her mother had put her up to it. Tonya denied telling Irma Parker that Tabitha had told her (Tonya) that she wanted to come clean and admit that she had lied at Bosley's trial. On questioning by the court, Tonya stated she was not aware of rumors in the community that Tabitha had lied at Bosley's trial.
Irma, 33 years old and a certified nurse assistant, is Bosley's sister. She testified about an event that had occurred in her home two years earlier. While Tonya was working on Irma's hair, Tonya told her that Tabitha had confessed that her mother had "put her up to it." Tonya then supposedly told Irma that Tabitha wanted to come over to Irma's house and confess; however, Tabitha never went to Irma's house. Although Irma stated that she had not had any further conversations with Tonya about Tabitha, she later testified, during direct examination, about a second incident that occurred on her uncle's porch, when Tonya had again told her and others there that Tabitha had said her "momma put her up to it." At this point in the hearing, it appears from the transcript that Ms. Parker became upset and angry and had to be calmed down. She then accused Tabitha's mother of sleeping with the assistant district attorney who had prosecuted Bosley.
On cross examination, Irma testified that the first incident with Tonya happened in 1998 or 1999, after which her mother contacted Bosley's lawyer, Ms. Hudsmith; that the incident on her uncle's porch occurred in 1999 or 2000, but that she could not recall who else was present on the porch with her. Irma had been convicted of forgery in 1993 or 1994.
Based on the evidentiary hearing, the magistrate judge issued a third Report and Recommendation, concluding that Bosley could not meet the actual innocence standard. The district court entered a judgment adverse to Bosley and consistent with the magistrate judge's recommendation, but subsequently withdrew that judgment to consider newly introduced evidence of Tabitha's criminal history. The new information revealed that Tabitha had recently been prosecuted on shoplifting charges. The State introduced the criminal records of Tacoma, Kee Kee, and Kendra, each of whom had convictions. The magistrate judge issued a fourth Report and Recommendation, again concluding that Bosley had failed to establish actual innocence.2
The district court adopted this report and recommendation and again entered judgment...
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