UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30789

IVRIN BOLDEN, JR.,

Petitioner-Appellant,

versus

WARDEN, WEST TENNESSEE HIGH SECURITY FACILITY,

Respondent-Appellee.

Appeal from the United States District Court

For the Western District of Louisiana

October 27, 1999

Before POLITZ, JOLLY, and DUHÉ, Circuit Judges.

POLITZ, Circuit Judge:

Ivrin Bolden, Jr., cu rrently a prisoner at West Tennessee High Security

Facility, appeals the district court’s denial of his 28 U.S.C. § 2254 petition which

relates to a Louisiana state conviction. For the reasons assigned, we affirm.

BACKGROUND

Bolden was tried in Louisiana state court in 1988 for the murder of Brenda

Spicer. He testified at trial and denied killing or having had physical contact with

her. The jury acquitted. Bolden later confessed to killing Spicer and was charged1 State v. Bolden , 639 So. 2d 721 (La. 1994).

2 State v. Bolden , 680 So. 2d 6 (La. App. 1996).

2 with perjury for his testimony at the murder trial.

Because a detailed factual background of this high-profile case is provided

in the opinions of the Louisiana Supreme Court 1 and the Louisiana Third Circuit

Court of Appeals, 2 we need only summarize the facts relevant to this appeal. On

March 6, 1987 the body of Brenda Spicer, a former basketball player at Northeast

L ouisiana University, was found in a trash dumpster on campus in Monro e

,

Louisiana. The coroner stated that the victim had been killed by strangulation at

approximately 7:00 p.m. the previous evening. The coroner found sperm in the

victim’s rectum and vagina, and saliva on the victim’s breasts.

Bolden was tried for Spicer’s murder. The State sought to demonstrate that

Bolden murdered Spicer because he was jealous of her close relationship with his

girlfriend, Joel Tillis. The State’s case was largely circumstantial; no eyewitnesses

testified that Bolden had physical contact with or murdered Spicer. The State’s

theory of the case was that Bolden took Spicer to a storage locker unit on March

5, 1987, murdered her, and then went to a campus basketball game. At half-time

Bolden allegedly went back to the storage locker and moved Spicer’s body to the

dumpster. To bolster this theory, the State presented evidence that Spicer met

Bolden at approximately 5:45 p.m., that Bolden attended the basketball game and

was taking pictures on the floor to establish an alibi, and that Bolden was seen

running away from the basketball arena at half-time. Physical tests performed on3 On April 23, 1991, Bolden gave a statement to New Jersey police in part as follows:

Q. What were the circumstances surrounding the death of Ms. Spicer?

A. I went, um, I asked her come to like, we had a storage unit, and I asked

her to com

e there with me and then I was trying to talk to her, you

know, I had b een asking her and asking her to, you know, try to give

3 the seminal fluid and saliva indicated a type A secretor, a category in which Bolden

and 80% of the population belong.

At trial, Bolden testified on his own behalf as follows:

Q. Did you meet Brenda Spicer at that sto rage locker on March

5th?

A. No, I did not at any time that day.

Q. The only time you saw Brenda Spicer is when she gave you that

camera and the $5.00?

A. I saw her earlier in the dorm and the last time I saw her was at

the intersection when she had given me the camera.

Q. Did you have any kind of physical struggle or contact with

Brenda Spicer that day?

A. No, I didn’t, didn’t have any contact with her at all physically.

Q. Did you have an y kind of sexual intercourse with Brenda

Spicer?

A. Never did.

Q. You never have?

A. No, I haven’t.

Q. Did you kill Brenda Spicer on March 5th?

A. No, I did not.

The jury acquitted Bolden of Spicer’s murder.

Bolden and Tillis later moved to Tennessee. In 1989, Tillis disappeared and

her body was found in Arkansas. Bolden, although a suspect in her murder, was

never arrested and eventually moved to New Jersey and began to live with Jennifer

Spurlock. In 1991, Bolden filed a complaint against Spurlock with local police in

New Jersey. During the investigation of this complaint, Bolden admitted to killing

Joel Tillis and Brenda Spicer. 3 Bolden pled guilty in Tennessee to involuntaryme some ti me with Joel and she just, you know, she just kept saying

that she was going to be with Joel no matter what, and so I just, I got

mad with her and I strangled her.

Q. And where did this take place at, the storage area?

A. Yeah.

Q. And where was the storage area located?

A. Not far from the college campus in Monroe, Louisiana.

Q. And after you strangled her, what did you do?

A. Took her body back to the campus and put it in the dumpster and went back to the game or I went back to the dorm or something.

4 Bolden , 639 So. 2d at 725 (citations omitted).

4 manslaughter in the death of Tillis and received a ten-year sentence.

Bolden was charged in Louisiana with perjury in connection with his

testimony in Spicer’s murder trial. Prior to the perjury trial, Bolden moved to

dismiss the charges as violati ng the collateral estoppel component of the double

jeopardy clause of the fifth amendment, a motion which the state trial court denied.

The Louisiana Supreme Court affirmed the trial court ’ s ruling and remanded the

case for further proceedings. The court found that the perjury prosecution was not

barred by the murder trial because the jury could have found that reasonable doubt

was present in the first trial. Specifically, the court noted that this was not a

situation in which the jury was presented with two conflicting versions of the facts

and was forced to determine the veracity of one over the other, as would have been

the case if there ha d been eyewitness testimony contradicting defendant’s

statements. 4

Additionally, assuming arguendo that the j ury necessarily determined

Bolden’s credibility in the murder trial, the Louisiana Supreme Court enunciated

a rule of law, relying primarily on the dicta of other courts, and held that when the5 I d. at 726 (citing Ashe v. Swenson

, 397 U.S. 436 (1970), other citations omitted). In

footnote five of its opinion, the Louisiana Supreme Court noted that under state law Bolden’s

unsworn state ment to police may, by itself, be insufficient to convict him of perjury and

stated that at trial the State would have to produce corroborating evidence to demonstrate that

his New Jersey confession was truthful. Id. at 726 n.5.

6 New Jersey officers Captain Robert Scara, Captain Michael King, and Sergeant Cook

testified that Bolden was read and waived his rights, and that Bolden was not threatened or coerced into making his statement.

5 State produces new evidence that the defendant lied under oath at the first trial,

collateral estoppel does not bar a subsequent perjury prosecution. The court found

that this rule would bolster the policy considerations behind collateral estoppel,

noting that

[o]n the one hand, there is a concern that allowin g an acquittal to

insulate the defendant from perju ry will give a defendant “an

uncontrollable license to testify falsely,” with a resulting detriment to

the reliability of evidence. On the other hand, there is an apprehension

that allowing a prosecution for perjury will give the state a “second

shot” at defendant for the same wrong, or allow an overzealous

prosecutor to use the perjury trial to retry issues already determined in

defendant’s favor. The concern that the state should not be given a

second chance based on the same evidence was central to the Court’s

holding in Ashe

. 5

At the perjury trial, the jury listened to a tape recording of Bolden’s

confession, as well as to witnesses who testified about the confession, 6 and heard

from three additional witnesses: (1) Dr. George McCo r mick, the coroner who

performed the autopsy on Spicer, testified that she died of manual strangulation;

(2) Rudeen Crawford, the owner of a gas station across from the storage warehouse

where the murder was allegedly committed, testified that he saw a black man and

white woman talking outside of the storage unit shortly before 6:00 p.m. on March

5, 1987; (3) Jim Gregory, a sergeant with the Monroe Police Department, testified7 State v. Bolden , 680 So. 2d 6 (La. App. 1996).

8 State v. Bolden , 683 So. 2d 286 (La. 1996).

6 that Spicer’s body was found in a trash dumpster on the Northeast Louisiana

University campus, and stated that he obtained blood and hair samples from the

storage unit floor. These three witnesses had testified at the Spicer murder trial.

The jury found Bolden guilty of perjury and he recei ved the maximum

sentence, ten years imprison ment at hard labor, to run consecutively with the

Tennessee sentence. The Louisiana appellate court affirmed his conviction 7 and

the state Supreme Court denied review. 8

On No vember 20, 1997, Bolden filed a § 2254 habeas corpus petition in

federal district court asserting six grounds for relief, including a claim t hat the

perjury trial violated the collateral estoppel component of the double jeopardy

clause. The magistrate judge recommended, and the district court agreed, that the

petition should be denied. Specifically, the district court found, without

mentioning the standard of revie w under the Antiterrorism and Effective Death

Penalty Act (AEDPA), that Bolden’s double jeopardy rights were not violated

bec ause the jury could have found that the State failed to prove beyond a

reasonable doubt that Bolden murdered Spicer w ithout deciding whether his

testimony was credible and without deciding whether Bolden in fact killed Spicer.

The district court granted a certificate of appealability on the only issue

currently before the court, the double jeopardy claim.

ANALYSIS9 See Lindh v. Murphy , 521 U.S. 320 (1997).

10 Drinkard v. Johnson , 97 F.3d 751, 767-68 (5th Cir. 1996).

11 Id.

12 Id. at 769 (emphasis in original).

7 Because Bolden’s § 2254 petiti on was filed on November 20, 1997, the

AEDPA applies to this action. 9 As amended by the AEDPA, 28 U.S.C. § 2254(d)

pertinently provides that:

(d) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an

unreasonable app l ication of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d).

Pure questions of law are reviewed under the “contrary to” standard, while

pure questions of fact are reviewed under the “unreasonable determination of the

facts” standard. 10 Bolden, however, raises mixed questions of law and fact which

are reviewed under the “unreasonable application” standard. 11 An

application of law to facts is u nreasonable only when it can be said

that reasonable jurists considering the question would be of one view

that the state court ruling was incorrect. In other words, we can grant

habeas relief only if a state court decision is so clearly incorrect that

it would not be debatable among reasonable jurists. 121 3 M ata v. Johnson

, 99 F.3d 1261, 1267 (5th Cir. 1996), vacated in part on reh’g

, 105

F.3d 209 (5th Cir. 1997).

14 J ohnson v. Puckett

, 176 F.3d 809 (5th Cir. 1999), reh’g and reh’g en banc denied

, 184 F.3d 820 (5 th Cir. 1999). We note with concern that neither party nor the district court

cited Drinkard or the standard of review under the AEDPA. We emphasize that under the

AEDPA’s deferential review scheme, it is essential for arguments and decisions to give due

focus to the appropriate standard of review.

15 Ashe v. Swenson , 397 U.S. 436, 443 (1970).

8 This standard of review is akin to the “clearly erroneous” standard. 13 Prior to the

enactment of the AEDPA, however, pure questions of law and mixed questions of

law and fact were reviewed de novo

. 14

I

Central to the instant cas e, in A she v. Swenson the Supreme Court opined

that the double jeopardy clause of the fifth amendment incorporates the collateral

estoppel doctrine, which provides that “when an issue of ultimate fact has once

been determined by a valid and final judgment, that issue cannot again be litigated

between the same parties in any future lawsuit.” 1 5 In determining whether

collateral estoppel bars subsequent criminal prosecutions, we engage in a two-step

analysis. Initially, we must decide which facts necessarily were decided in the first

proceeding. Then we must consider whether the facts necessarily decided in the

first trial constitute essential elements of the offense in the se cond trial. In

criminal cases, collateral estoppel

is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where

a previous judgment of acquittal was based upon a general verdict, as

is usually the case, this approach requires a court to examine that

record of a prior procee ding, taking into account the pleadings,16 Id. at 444 (internal quotation marks omitted).

9 evidence, charge, and other relevant matter, and conclude whether a

rational jury could have grounded its verdict upon an issue other than

that which the defendant seeks to foreclose from consideration. 16

Bolden first contends that his acquittal of Spicer’s murder necessarily

determined that his statements that he did not kill Spicer or have physical contact

with her were true, and thus would prevent a perjury conviction based upon those

statements. He points to the prosecutor’s closing argument in which she

specifically raised Bolden’s credibility to the jury and notes that the St ate’s

evidence was almost exclusively circumstantial. Bolden asserts that it ignores the

reality of t he trial to argue that the jury acquitted him, but did not believe his

statements were true.

Second, Bolden argues that his acquittal also necessarily determined that he

did not in fact murder Spicer. Accordingly, he contends that the determination of

this fact negates an essential element of the perjury charge, that he made a false

statement. Bolden asserts that to prove this element -- that his statements that he

did not kill Spicer or have physical contact with her were false -- the State would

have to relitigate the entire murder trial. Finally, Bolden contends that the newly

obtained evidence, the confession, should be irrelevant to the det ermination

whether collateral estoppel applies to this situation.

The State contends that the acquittal in the murder trial did not necessarily

mean that the jury believed Bolden’s testimony; rather, the jury simply could have

found that the State did not meet its burden of proof. The State also places great17 La. Rev. Stat. § 14:30.1.

18 La. Rev. Stat. § 14:123.

10 emphasis on Bolden’s subsequent confession, noting that it did not pursue Bolden

and did not use the murder trial as a “dry run” for the perjury charges. Finally, the

State maintains that a defendant who testifies falsely must suffer the consequences

of that action, including conviction for perjury.

II

In this AEDPA habeas proceeding, we do not undertake a de novo review of

the state court decisions. Instead, under the directives of D rinkard , we may only

grant habeas relief if the Louisiana court’s ruling that collateral estoppel did not bar

the perjury conviction was an unreasonable application of clearly established law

as determined by the United States Supreme Court. Stated simply, we may proceed

only if reasonable j urists would be of one mind that the Louisiana court’s ruling

was incorrect.

To determine the facts necessarily decided in Bolden’s fir s t trial under the

first step of the collateral estoppel analysis, we must examine the elements of the

statutes under which Bolden was charged. In Louisiana, second-degree murder is

defined as “the killing of a huma n being . . . [w]hen the offender has a specific

intent to kill or to inflict great bod ily harm.” 17 Perjury, on the other hand, is

defined as the intentional making under oath of a false oral statement in a judicial

proceeding, when the statement is material to an issue or question in controversy. 18

Both the Louisiana Supreme Court, in reviewing a pre-trial motion to quash1 9 The State does not offer the persuasive contention that, because second degree murder

requires a specific intent to kill or inflict great bodily harm, the jury could have based its

acquittal on a finding of no intent, rather than a finding that Bolden did not kill Spicer. This

proposition supports our conclusion that the truthfulness of Bolden’s statements and whether

he killed Spicer were not necessarily determined in the first trial.

11 the perjury charge, and the intermediate appellate court, on direct appeal of the

perjury conviction, found that the veracity of Bolden’s statement and the inquiry

whether Bolden murdered Spicer were not necessarily decided in the murder trial

because the jury simply could have determined that the State did not prove its case

beyond a reaso nable doubt. We cannot say that this finding is an unreasonable

application of clearly established federal law. We are keenly aware that every

criminal case raising a collateral estoppel challenge theoretically might seek to rely

on this burden of proof proposition, an action that if not c arefully applied could

undermine and eventually defeat the purposes of the collateral estoppel doctrine.

We emp hasize that in this case, after reviewing the record, evidence, and charge

as we are instructed to do by Ashe

, we are persuaded beyond peradventure that the

jury’s finding of reasonable doubt, and not the truthfulness of Bolden’s statement

or the conclusion that he did not murder Spicer, was the on ly issue n ecessarily

determined by the acquittal on the murder charge. 19

As the Louisiana Supreme Court noted, at the murder trial the State produced

no eyewitnesses, presented only i nconclusive physical evidence, and included some

evidence of motive and opportunity, countered, however, by alibi evidence of the

defendant’s attendance at the basketball game. Based upon the entire record and

surrounding circumstances, we agree with the state court’s finding that the murder2 0 Because of today’s disposition, we are not required to reach the question of the

Louisiana Supreme Court’s alternative adoption of the “new and additional evidence”

exception to later perjury prosecutions, but opt to address this issue for the sake of

completeness. In B olden

, the court decided that, even if a jury necessarily determined in the

first trial issues raised by the second prosecution, collateral estoppel would not bar a

subsequent perjury prosecution if new and additional evidence obtained after the original

trial proved beyond a reasonable doubt that the defendant lied under oath. S tate v. Bolden

, 639 So. 2d 721, 725-26 (La. 1994).

Posing a purely legal question, the adoption of this exception would be judged under

the AEDPA’s “contrary to” standard. S ee Drinkard

, 97 F.3d at 767-68. Were we to decide

this issue, we would find that this exception is not “contrary to” federal law as established

by the Supreme Court.

A primary concern of the Supreme Court in Ashe was the prosecut ion’s use of the

first trial as a “dry run” for the second prosecution. A she

, 397 U.S. at 447. When new and

additional evidence of perjury is obtained in good faith, as was done in this case, the “dry

run” concern is not present. Furthermore, as the Louisiana Supreme Court noted, this rule

balances the concern that the prosecution will get a “second shot” at the defendant with the

concern that the defendant will have an “uncontrollable license” to testify falsely at the first

trial, without fear of repercussions. B olden

, 639 So. 2d at 726. Further, this rule is bolstered

by the Supreme Court’s holding that criminal defendants do not have a constitutional right

to testify falsely. See Nix v. Whiteside , 475 U.S. 157 (1986).

12 trial jury very li kely could have based its verdict on issues other than those

presented in the perjury trial. At the very minimum, reasonable jurists would not

be of one mind that this ruling was incorrect. 20 Further, under the second step of

the collateral estoppel analysis, the fact necessarily decided in the murder trial was

not an essential element of the perjury trial.

We conclude that the state court decision finding that collateral estoppel did

not bar Bo lden’s perjury prosecution was not an unreasonable application of federal

law. Accordingly, the district court’s denial of § 2254 relief was not in error.

The judgment appealed is AFFIRMED.