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The Honorable Karen E. Schreier, United States District Judge for the District

of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3104

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Toby Bolzer, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

United States of America, *

* [UNPUBLISHED]

Appellee. *

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Submitted: March 13, 2006

Filed: June 14, 2006

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Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.

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PER CURIAM.

A jury convicted Toby Bolzer of second degree murder, see 18 U.S.C. §§ 1111,

1153, and the use of a firearm during the commission of a crime of violence, see

18 U.S.C. § 924(c)(1)(A)(iii). After unsuccessfully appealing his conviction, see

United States v. Bolzer, 367 F.3d 1032 (8th Cir. 2004), Mr. Bolzer filed a motion

under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, which the district

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 denied. The district court granted Mr. Bolzer a certificate of appealability with
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respect to whether he received "ineffective assistance of counsel as to the failure of

the indictment to give [him] notice of the charges." We take this to mean that

Mr. Bolzer may appeal the ineffective-assistance claims that he raised in the district

court.

Mr. Bolzer lived with Holly Quinn and Santana Standing Bear. Ms. Quinn and

Ms. Standing Bear were involved in a romantic relationship, and Ms. Quinn rebuffed

Mr. Bolzer's advances. Mr. Bolzer then became abusive and hostile toward

Ms. Standing Bear. Ms. Standing Bear, who had psychological difficulties, locked

herself in a bedroom with a handgun and threatened to kill herself; when she did not

come out, Mr. Bolzer shot mace under the door, entered the room, grabbed the gun

and shot Ms. Standing Bear. He was indicted for second-degree murder and a related

firearms charge.

Although Mr. Bolzer includes in his brief some new grounds for claiming

ineffective assistance of counsel, we confine our attention to the claims that he

effectively raised below: that his lawyer was ineffective because he did not object to

the murder charge in the indictment as unconstitutionally confusing and because he

did not act to dispel any confusion of the jury about the murder charge.

We review a district court's denial of ineffective-assistance claims de novo, but

review the underlying predicate facts for clear error. Anderson v. United States,

393 F.3d 749, 753 (8th Cir. 2005), cert. denied, 126 S. Ct. 221 (2005). To prevail on

his ineffective-assistance-of-counsel claims, Mr. Bolzer must show that his attorney

did not provide him with professionally competent assistance and that had his attorney

done so, there is a reasonable probability that the trial would have had a different

result. Strickland v. Washington, 466 U.S. 668, 687-89 (1984).

The indictment in this case specifically stated that it was charging Mr. Bolzer

with second-degree murder. The indictment further recited that "Bolzer, an Indian,
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did unlawfully and with malice aforethought, kill Santana Standing Bear, by shooting

her with a firearm in violation of 18 U.S.C. §§ 1111 and 1153." Section 1111 defines

murder as "the unlawful killing of a human being with malice aforethought." It

defines some murders, including "willful, deliberate, malicious, and premeditated"

killings, as first-degree murder; all other murders are classified as second-degree

murder. 18 U.S.C. § 1111(a).

Mr. Bolzer asserts that his attorney failed him by not objecting to the indictment

as unconstitutionally confusing because the murder charge included the term "malice

aforethought." We have previously held, however, that an indictment that alleged that

the defendant unlawfully took a human life "with malice aforethought" made out a

sufficient charge of second-degree murder under § 1111. United States v. Lame,

716 F.2d 515, 517-18 (8th Cir. 1983). Therefore, counsel's failure to object to the

indictment could not have fallen below an objective standard of reasonableness.

Mr. Bolzer also contends that this his attorney failed to dispel any confusion on

the part of the jury as to the nature of the murder charge. The jury instructions

provided at his trial, however, clearly and correctly defined the elements of seconddegree murder. A failure to object to such instructions thus could not have constituted

ineffective assistance of counsel.

We affirm the district court's judgment. 

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