United States v. Brandon Basham, 789 F.3d 358

Background

In Nov. 2002 Basham and Fulks conducted a multistate crime spree; Basham was tried in D.S.C., convicted on eight counts (including carjacking and kidnapping resulting in death) and sentenced to death. Appellate convictions and sentences were affirmed in 2009.
After direct review, Basham filed a 28 U.S.C. § 2255 motion claiming, inter alia, multiple instances of ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and that he was tried while incompetent. The district court held an evidentiary hearing and denied relief; Basham appealed.
Central contested evidence: (1) Basham’s ‘‘cemetery statement’’ and a demonstrative strangulation showing to Sheriff Hewett during a Thanksgiving search (admitted at trial), and prosecutor references suggesting Basham ‘‘demonstrated’’ he strangled Donovan; (2) other-acts evidence concerning Samantha Burns introduced in the guilt phase; (3) video/audio of a September 20 courtroom scuffle and October 26 appearance (competency issues); (4) alleged withholding of trial file by appointed trial counsel from appellate counsel.
The district court found (a) counsel’s alleged failures did not satisfy Strickland prejudice because the record against Basham was overwhelming and Hewett’s contested testimony was cumulative or non-dispositive; (b) no clear showing the prosecution knowingly used false testimony; (c) Basham was competent at the relevant times; (d) defense counsel’s handling of Burns evidence was strategic; and (e) appellate counsel had adequate access to the file and no prejudice resulted.
The Fourth Circuit affirmed, applying Strickland prejudice analysis, deference to factual findings, and emphasizing the prosecution’s theory that Basham and Fulks acted jointly (aiding-and-abetting), making the identity of the actual strangler legally immaterial to guilt or penalty.

Issues

Issue	Basham's Argument	Government's Argument	Held
1. Ineffective assistance for allowing cemetery statement/strangulation demo to occur and for failing to suppress it	Counsel were deficient in permitting out-of-presence contact and failing to litigate Edwards/Jackson interrogation issues; exclusion would likely have avoided death sentence	Even without Hewett’s demonstration/testimony, overwhelming evidence of aiding-and-abetting and other inculpatory admissions/maps/etc. means no reasonable probability of different outcome	Denied — no Strickland prejudice; contested testimony cumulative and would not have changed jury’s balancing
2. Prosecutorial misconduct: use of allegedly false testimony (Hewett’s ‘‘actual killer’’ suggestion)	Government knew record showed Basham blamed Fulks; letting Hewett’s implication stand and arguing it at closings was misconduct that may have affected verdict	Hewett’s testimony wasn’t proven false; other investigative materials reflect mixed statements; government’s consistent theory held both equally culpable	Denied — district court’s finding that no false testimony was used was not clearly erroneous
3. Competency to stand trial (Sept. 20 scuffle; Oct. 26 grogginess) — substantive and counsel ineffectiveness for not pursuing competency	Basham was incompetent at those times; counsel should have secured evaluations/objections; admission of scuffle tapes and continuing trial prejudiced defense	Record and court observations show goal‑oriented behavior, planning, and fluctuating mental state; no showing of incompetence at those moments	Denied — district court’s factual findings not clearly erroneous; no Strickland prejudice
4. Ineffective assistance for handling Burns other-acts evidence	Counsel unreasonably failed to exclude/limit Burns evidence in guilt phase, causing unfair prejudice at sentencing	Counsel reasonably front‑loaded emotional evidence as strategy to desensitize jury and avoid having it fresh at penalty; evidence was highly probative of intent	Denied — tactical choice was reasonable; any objection likely overruled; no prejudice shown
5. Appellate counsel impairment due to trial counsel withholding client file	Trial counsel unreasonably retained physical file and impeded appellate review, possibly causing missed issues	Appellate team had timely, sufficient access; strategic choices governed issue selection; no specific omitted meritorious claim shown	Denied — no prejudice; appellate counsel had access and made considered strategic choices

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (Ineffective assistance two‑prong standard)
Jackson v. Denno, 378 U.S. 368 (Voluntariness hearing required for confessions)
Edwards v. Arizona, 451 U.S. 477 (Post‑Miranda interrogation limitations)
Napue v. Illinois, 360 U.S. 264 (Prosecution may not use false testimony)
Giglio v. United States, 405 U.S. 150 (Impeachment evidence and prosecution’s duty re witnesses)
Harrington v. Richter, 562 U.S. 86 (Deference and strong presumption in Strickland review)
Wiggins v. Smith, 539 U.S. 510 (Reweighing aggravating vs. mitigating evidence in Strickland prejudice for death sentences)
Dusky v. United States, 362 U.S. 402 (Competency standard)
Pate v. Robinson, 383 U.S. 375 (Due process bars trying incompetent defendants)
United States v. Basham, 561 F.3d 302 (4th Cir. 2009) (Direct‑appeal opinion affirming convictions/sentences)
United States v. Fulks, 683 F.3d 512 (4th Cir. 2012) (Related § 2255/appeal discussion of joint‑culpability theory)