United States Court of Appeals

Fifth Circuit



## FILED

May 12, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 04-30645

__________________________

ANTONIO BOSLEY,

Petitioner – Appellant,

versus

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent – Appellee.

___________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

___________________________________________________

Before WIENER, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:

Petitioner–Appellant Antonio Bosley appeals the denial of his

habeas corpus petition brought under 28 U.S.C. § 2254. We affirm.

I. FACTS AND PROCEEDINGS

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, and1 Bosley v. Cain , 51 Fed. Appx. 483 (5th Cir. 2002).

-2- a writ of habeas corpus issued on the basis of racial

discrimination in the selection of the grand jury foreperson. The

district co urt 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 dismis sal 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 e videntiary 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

Tacoma, Bosley’s 21-year old niece, tes tified that although

she knew the vic tim, Tabitha, as a small child, they were never-3-

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 Ta bitha. 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: “Well,

I ain’t got nothing against y’all. I didn’t mean to say that. My

mamma made me say that.”

On cross-examination, Tacoma acknowledged that she did not

personally fill out the affidavit; ra ther, 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 sc hool, and had

recently been convicted of theft.

Zakeetricess “Kee Kee” Bosley

Kee Kee, 15, is another of Bosley’s nieces. She too testified-4-

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

T abitha 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 conver s ation between Tacoma and

Bosley’s counsel.

Kendra Bosley

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, “I’m not

trying to be messing or nothing. I just want to know why you lied

on my uncle, why they spreading these rumors about he messing with

her.” 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-5-

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 Dotray

Tabitha, 20 years old and a certified nurse’s assistant,

testified tha t 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 h ad 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 den ied 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 c harges 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-6-

Bosley and state that her tes timony 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 Dotray

Jacqueline, Tabitha’s mother, denied counseling Tabitha to lie

about the rape.

Tonya Holmes

Tonya, 21, is a f riend 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 bathroomyelling. She

sta ted that one of the girls was saying “she got my uncle locked

up” and Tacom a 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 (Tony a) 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 Parker

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-7-

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 he r “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 Tabith a’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 been2 An additional evidentiary hearing was held, but there was

no transcript of the hearing provided on appeal. From what we

can glean from the available documentation, the additional

hearing concerned the allegation by Irma Parker that Jacqueline

Dotray had been sleeping with the prosecutor at Bosley’s trial.

Testimony was given by Irma and her mother Katy Banks. In a

supplemental report and recommendation, the magistrate judge

indicated that he did not find the testimony credible, and again

recommended finding against Bosley.

3 513 U.S. 298 (1995).

4 Jeffers v. Chandler , 253 F.3d 827, 830 (5th Cir. 2001).

-8- prosecuted on shoplifting charges. The State introduced the

criminal records of Tacoma, Kee Kee, and Kendra, each of whom had

c onvictions. 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 against Bosley, but granted his application

f or issuance of a certificate of appealability. This appeal

followed.

II. ANALYSIS

The only issue before us is whether Bosley was able to meet

the actual-innocence standard set forth in Schlup v. Delo

. 3 In an

appeal from the denial of habeas relief, we review a district

court’s findings of fact for clear error and its legal

determinations de novo

. 4

We previously held that Bosley’s habeas challenge to the5 Bosley v. Cain , 51 Fed. Appx. 483 (5th Cir. 2002).

6 Bousley v. United States , 523 U.S. 614, 622 (1998)

(citations omitted).

7 Schlup , 513 U.S. at 327-28.

8 Id. at 329.

9 Id. at 328.

-9- validity of his indictment is procedurally barred. 5 “Where a

defendant has procedurally defaulted a claim by failing to raise it

on direct review, the claim may be raised in habeas only if the

defendant can first demonstrate either ‘cause ’ and actual

‘prejudice,’

. . . or that he is ‘actually innocent.’” 6 Bosley has

not appealed the district court’s determination that he does not

meet the cause and prejudice standard. This leaves actual

innocence as the sole issue of this appeal.

To es tablish actual innocence under S chlup

, Bosley had to

demonstrate that, “in light of all the evidence,” “it is more

likely than not that no reasonable juror would have convicted

him.” 7 District courts are directed not to substitute their own

judgments as to whether there is a reasonable doubt; the standard

requires the district court to “make a probabilistic determination

about what reasonable, properly instructed jurors would do.” 8

Because our legal system has no means of defining innocence

inde pendently of the finding of reasonable doubt, “the analysis

must incorporate the understanding that proof beyond a reasonable

doubt marks the legal boundary between guilt and innocence.” 9 To10 Id. at 324.

11 Id. at 328. The district court “must assess the

probative force of the newly presented evidence in connection

with the evidence of guilt adduced at trial.” Id. at 332.

-10- be credible, an actual innocence claim requires Bosley to “support

his allegations of constitutional error with new reliable evidence

—— whether it be exculpatory scientific evidence, trustwor t hy

eyewitness accounts, or critical physical evidence

—— that was not

presented at trial.” 10 A district court, in making its assessment

of a petitioner’s showing, is not bound by the rules of evidence

that govern a trial: “The habeas court must make its determination

concerning the petitioner’s innocence ‘in light of all the

evidence, including that alleged to have been illegally admitted

.

. . and evidence tenably claimed to have been wrongly excluded or

to have become available only after the trial.’” 11

The evi dence at Bosley’s state trial was summarized by the

magistrate judge in his third Report and Recommendation:

The only real evidence of rape at trial was the testimony

of the alleged victim, Tabitha Dotray, petitioner’s

stepdaughter, who was 13 years old at the time of the

trial. She testified at trial that when she was 10 and

11 years old, petitioner put his penis in her vagina and

otherwise touched her in the “w rong places.” She

testified that petitioner threatened to kill her if she

told anyone.

The only other meaningful evidence at the trial was the

testimony of a medical doctor who had examined Tabitha

and it was clear from his testimony that Tabitha had

e ngaged at some point in full sexual intercours e. In

addition there was testimony from a clinical

psychologist, who testified that Tabitha showed clinical

symptoms of post-traumatic stress disorder which was-11-

[sic] consistent with the trauma of being raped.

Importantly, the testimony showed that Tabi tha made no

complaints against Bosley prio r to his moving into the

family home in April 1993, even though she testified at

trial that he had begun touc hing her . . . during that

period of time. The Bosleys married in August of 1993.

No complaints were made against B osley during the

marriage

. . . . The testimony showed that Bosley lived

continuously with Mrs. Bosley [Jacqueline Dotray] and the

children, including Tabitha, until May 1994 when he left

the family home [for another woman]. Thereafter, Bosley

would occasionally return for brief periods of time, but

by November 1994, when Tabitha was 12 years old, Bosley

left for the last time.

It was not until February 1995 that Tabitha told her

mother that peti tioner had “bothered” her and she told

her then only in response to being questioned by her

mother regarding whether he had ever bothered her. The

evidence also shows that when the mother, Jacqueline

Dotray, had asked Tabitha on a previous occasion in

November 19 94 whether he had ever bothered her she had

told her mother he had not.

The magistrate judge then proceeded to evaluate the new

testimony from the evidentiary hearing. He first noted that

Bosley’s four witnesses (Tacoma, Kee Kee, Kendra and Irma) were all

adamant and confident in their testimony. He also observed that

Tabitha was unwavering in her denials of those witnesses’

testimony. The magistrate judge found it significant that the four

witnesses for Bosley were his relatives, that three of them related

conversations that had occurred two or more years earlier, and that

none had ever come forward with the information until the hearing.

Neve rtheless, the magistrate judge found that the new evidence

proved that two of the reported encounters with Tabitha did occur

—— the one in the b athroom of the Members Club and the one at-12-

Carvette’s apartment

—— even though the substance of the encounters

was in substantial dispute. He also found Kendra’s testimony more

credible than that of Bosley’s o ther witnesses. The magistrate

judge noted that Tabitha was gainfully employed and had never been

convicted of a crime, in contrast to Tacoma who was unemployed and

had been convicted of theft, and in contrast to Irma, who had been

convicted of forgery.

In light of the new testimony, the magistrate j udge stated

that “the result could have been a change in the outcome of the

trial,” but that under the S chlup standard, it could not be said

that it was more likely t han not that this evidence would have

changed the jury’s verdict.

After subsequently receiving the criminal records of Tabitha,

Tacoma, Kee Kee, Kendra, and Irma, the magistrate judge issued a

fourth Report and Recommendation. Although Tabitha had lied at the

hearing about not having a criminal record, the magis trate judge

could not conclude that her lyi ng about that under oath made her

any less believable than the “new witnesses.” Conversely, however,

he could not conclude that the new witnesses were less believable

than Tabitha. Although he remained convinced that very little

evidence supported the jury’s verdict to convict Bosley, the

magistrate judge could not conclude that it was more likely than

not that no reasonable juror would have found Bosley guilty beyond

a reasonable doubt if the juror had heard the new evidence.

Bosley attacks the magistrate judge’s conclusio n s on the12 443 U.S. 307 (1979).

13 Schlup , 513 U.S. at 330.

-13- ground th at he improperly applied a sufficiency of the evidence

t est instead of the less stringent test stated in S chlup

. The

Supreme Court in Schlup contrasted the test it adopted with the

test for sufficiency of the evidence stated i n Jackson v.

Virginia : 12

The Jackson standar d, which focuses on whether any

rational juror could have convicted, looks to w hether

there is sufficient e vidence which, if credited, could

support the conviction. The Jackson standard thus

differs in at least two important ways from the Carrier

standard [adopted in Schlup ]. First, under J ackson

, the

assessment of the credibility of witnesses is generally

beyond the scope of review. In contrast, under the

gateway standard we describe today, the newly presented

evidence may indeed call into question the credibility of

the witnesses presented at trial. In such a case, the

habeas court may have to make some credibility

assessments. Second, and more fundamentally, the focus

of the inquiry is different unde r J ackson than under

Carrier

. Under J ackson

, the use of the word “could”

focuses the inquiry on the power of the trier of fact to

reach its conclusion. Under Carrier, the use of the word

“would” focuses the inquiry on the likely behavior of the

trier of fact.

Indeed, our adoption of the phrase “more likely than not”

reflects this distinction. Under Jackson , the question

whether the trier of fact has power to make a finding of

guilt requires a binary response: Either the tr ier of

fact has power as a matter of law or it does not. Under

Carrier

, in contrast, the habeas court must consider what

reasonable triers of fact are likely to do. Under this

probabilistic inquiry, i t makes sense to have a

probabilistic standard such as “more likely than not.”

Thus, though under Jackson the mere existence of

sufficient evidence to convict would be determinative of

petitioner’s claim, that is not true under Carrier

. 13

Bosl ey’s contention that the magistrate judge applied the more14 Id. at 327.

15 Id. at 326 n.42. “[E]xperience has taught us that a

substantial claim that constitutional error has caused the

conviction of an innocent person is extremely rare.” Id. at 324.

16 Id. at 329.

-14- exacting Jackson standard is incorrect. The magistrate judge

concluded that, even though in light of the new evidence, a juror

could find Bosley not guilty, the magistrate judge could not

conclude that it was more likely than not that no reasonable juror

would find Bosley guilty.

Several p oints from S chlup guide us in concluding that the

district court correctly held that Bosley had failed to meet the

actual-innocence standard. First, Bosley bears the burden of

establishing that it is more likely than not that no reasonable

juror would have convicted him in light of the new evidence. 1 4

Second, there is no presumption of innocence at a habeas proceeding

—— Bosley “co mes before the habeas court with a strong —— and in

the vast majority of the cases conclusive

—— presumption of

guilt.” 15 Third, the S chlup stan dard “does not merely require a

showing that a reasonable doubt exists in the light of the new

evidence, but rather that no reasonable juror would have found the

defendant guilty.” 16 Finally, we are not required to test the new

evidence by a standard appropriate for de ciding a motion for

summary judgment. “Instead, the court may consider how the timing

of the submission and the likely credibility of the affiants bear17 Id. at 332.

18 Id. at 324.

-15- on the probable reliability of that evidence.” 17

At best, Bosley’s new evidence shows that a reasonable doubt

could have been found to exist; it fails, however, to satisfy his

burden of showing that no reasonable juror would have found him

guilty. When we view all the evidence —— both the new evidence and

the evidence offered at trial

—— we are left wit h a classic

swearing match. Bosley has not adduced any r eliable new evidence,

such as “exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence.” 18 In reviewing the

testimony before him, the magistrate judge found the testimony to

be in equipoise, i.e., he found all of the witnesses equally

credibl e, or, more accurately, equally lacking in credibility.

Bosley therefore failed to establish that it is more likely than

not that no reasonable juror would choose to believe Tabitha’s

account over those accounts offered by Tacoma, Kee Kee, Kendra and

Irma. As a result, we cannot conclude that it is more likely than

not that no reasonable juror would have convicted Bosley.

III. CONCLUSION

We affirm the judgment of the district court that rejects

Bosley’s claim of actual innocence and denies habeas relief.

AFFIRMED.