                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-7813


MATTHEW BRIAN BOSEMAN, a/k/a Brian Boseman,

                Petitioner - Appellee,

           v.

RICHARD E. BAZZLE, Warden, Perry Correctional Institution,

                Respondent - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.   David C. Norton, Chief District
Judge. (0:07-cv-01344-DCN)


Argued:   December 3, 2009                 Decided:   February 9, 2010


Before WILKINSON, SHEDD, and AGEE, Circuit Judges.


Reversed and remanded by unpublished opinion. Judge Agee wrote
the opinion, in which Judge Wilkinson and Judge Shedd joined.


ARGUED: William Edgar Salter, III, OFFICE OF THE ATTORNEY
GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for
Appellant. Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL
OF LAW, Charlottesville, Virginia, for Appellee.      ON BRIEF:
Henry D. McMaster, Attorney General, John W. McIntosh, Chief
Deputy Attorney General, Donald J. Zelenka, Assistant Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina for Appellant.   Christopher
Norfleet, Third Year Law Student, Jamila Willis, Third Year Law
Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
AGEE, Circuit Judge:

       Matthew Brian Boseman is a state inmate in the custody of

the South Carolina Department of Corrections, serving a life

sentence for murder and armed robbery.                He filed this 28 U.S.C.

§ 2254 petition for a writ of habeas corpus in the District of

South Carolina against Richard E. Bazzle, Warden of the Perry

Correctional      Institute     (“the   Warden”).          The    district      court

conditionally      granted    Boseman’s      habeas   petition,       holding    that

the    state     post-conviction    relief         court   (“the      PCR    court”)

unreasonably applied the Supreme Court’s decision in Strickland

v. Washington, 466 U.S. 668 (1984), and unreasonably interpreted

the facts surrounding counsel’s failure to present evidence of

an    alibi.     The   Warden   appeals      the   issuance      of   the   writ   to

Boseman.       For the reasons that follow, we reverse and remand the

judgment of the district court.



                                        I.

       The district court detailed the salient facts supporting

Boseman’s conviction:

       Petitioner was indicted during the February 1996 term
       of the Court of General Sessions on charges of murder
       and armed robbery. Petitioner’s first trial began on
       November 20, 1996, but ended in a mistrial due to
       juror misconduct.  Petitioner’s second trial began on
       April 7, 1997, during which he was represented by
       attorneys Douglas Strickler and Cynthia Durham.   The
       jury found petitioner guilty on both charges, and the
       trial judge imposed a sentence of life imprisonment

                                        3
for the murder conviction and a consecutive term of
twenty years imprisonment for the armed robbery
conviction.
     Petitioner was convicted of robbing and murdering
Oscar Griffis, a Domino’s Pizza delivery driver.     The
evidence presented in the prosecution’s case-in-chief
established an uncontroverted timeline showing that
the relevant events occurred between 9:15pm and
10:00pm on October 31, 1995.    Domino’s Pizza received
a telephone call between 9:15pm and 9:17pm, requesting
a delivery to a residence at 3701 Trotter Road in
Columbia, South Carolina.       The caller identified
himself as “Albert” and provided a false phone number.
Griffis made his first delivery without incident
between 9:15pm and 9:30pm.         He then apparently
proceeded to 3701 Trotter Road, where he was robbed
and shot once in the chest.         Between 9:30pm and
10:00pm, Griffis arrived at a nearby convenience store
(driving himself there) and collapsed on the floor.
The clerk and others in the store quickly called 911.
The time of Griffis’s arrival is evidenced by the
store’s video surveillance camera, which recorded
Griffis arriving at the store shortly after 9:45pm.
Brian Goff, a Columbia Police officer, said he was
dispatched to the store between 9:30pm and 10:00pm and
was the first emergency responder on the scene.      EMS
arrived at exactly 10:00pm and immediately transported
Griffis to the hospital (departing the convenience
store for the hospital at 10:04pm).        Griffis died
three days later. . . .
     The    Richland   County  Sheriff’s    Department’s
investigation revealed the call to Domino’s Pizza came
from a house owned by Jesse Shelton, who lived there
with his three sons, Jason, Terah, and fifteen-year-
old M.S.    Based on the phone records, the Sheriff’s
Department obtained and executed a search warrant on
the Shelton home. Investigators found burned remnants
of pizza boxes and checks made payable to Domino’s
Pizza   in   the   backyard.    Thereafter,   M.S.   and
petitioner (who is not related to the Sheltons but
lived nearby) were arrested and indicted on charges of
robbing and murdering Griffis.      Before petitioner’s
trial, M.S. pleaded guilty to both charges as a
juvenile   in    the  Richland  County   Family   Court,
receiving a six-year sentence with eligibility for
early release with good behavior.


                           4
     The   state’s   theory   of  the    case    was   that
petitioner planned and orchestrated the entire event
and   that   M.S.   was   something   of    an    unknowing
accomplice.   The state argued that petitioner—and not
any of the Sheltons—made the phone call from the
Shelton house to Domino’s Pizza that night and chose
to lure the driver to 3701 Trotter Road because he was
familiar with the area. According to the state, after
eating dinner at and generally hanging around the
Shelton house on the evening of the crime, petitioner
recruited M.S. to tag along on a robbery.          The two
went to the scene of the “ambush” where they crossed
paths with a group of trick-or-treaters, none of whom
actually saw petitioner but one identified petitioner
at trial based on the sound of his voice.        The state
asserted that M.S. did not know petitioner was
carrying a gun.    When Griffis arrived at the Trotter
Road address, the state argued petitioner and M.S.
robbed him, and that petitioner shot Griffis once in
the chest.      Thereafter, according to the state,
petitioner and M.S. returned to the Shelton house
where petitioner informed M.S.’s brother Terah that he
should watch the 11:00pm news.       Petitioner carried
checks and pizza boxes around the house, describing
the items to others as “loot,” and later burned his
“loot” in the Sheltons’ backyard.         The state thus
argued that petitioner purposefully set out to rob the
Domino’s Pizza driver, lured the driver to the scene
of the crime using the Sheltons’ phone, shot the
driver, bragged about his crime at the Shelton house,
and disposed of the evidence there.             The state
conceded there was no physical evidence connecting
petitioner to the crime.
     Deloris Matthews was working at the convenience
center when Griffis came in and collapsed on the
floor. As he laid on the floor, Griffis told her that
he was shot by two black individuals, who were wearing
ski masks, had big eyes, and one of them had “funny,”
“frizzed up” hair. Griffis also said the perpetrators
were   “skinnier”   or  “smaller”   than    Griffis,    who
Matthews described as a “burly” man. Griffis was six
feet tall and weighed 240 pounds.           Matthews also
testified at trial that Griffis said one of the
perpetrators was five feet, nine inches tall and the
other was about six feet tall, although those details
were noticeably absent from the statement she gave to
police only three hours after Griffis arrived at the

                            5
store.     Petitioner is six feet, one inches tall,;
Terah Shelton was five feet, ten inches tall and
weighed 235 pounds; Jason Shelton was five feet, seven
inches tall and 140 pounds; and M.S. was about five
feet, five inches tall and weighed 140 pounds.
      At trial, M.S. was the prosecution’s primary
witness against petitioner.      He testified that he and
his brothers “hung out” with petitioner (known around
the neighborhood as “Method Man”) almost every day.
According to M.S., between 5:30pm and 7:30pm on the
night of the crime, petitioner was at the Shelton
house    playing   games—and   M.S.’s   father,   his  two
brothers (Terah and Jason), and Jason’s girlfriend
were in the house as well. M.S. stayed at the Shelton
house until petitioner approached him and told M.S. he
was going out on a “lick,” which is slang for a
robbery.    M.S. recounted that petitioner had left the
house sometime after dinner and returned later, at
which time he approached M.S. about the robbery.
According to M.S., nobody else heard petitioner make
that    statement    nor   was   anyone   else   involved.
Following that conversation, he and petitioner walked
from the Shelton residence through a path in the woods
until they came to Trotter Road.        M.S. was familiar
with the path because he had used it before and knew
that the wooded area at the end of the path was dark.
Petitioner and M.S. crouched down at the end of the
path overlooking Trotter Road.
      M.S. stated that petitioner then told him they
were going to rob a pizza delivery driver.            M.S.
testified that he did not personally make the phone
call nor have any idea what petitioner had done at the
house before they left.      M.S. did not keep track of
petitioner for the entire time he was at the Shelton
house.    While they were waiting in the woods, “some
people came trick or treating” down the path.         When
members of that group asked who was in the woods,
according to M.S., petitioner “stepped out and cocked
a gun.”     That was when M.S. learned that petitioner
was carrying a firearm.        There was a conversation
between petitioner and the trick-or-treaters, but M.S.
testified he was too far away to hear what was said.
      After the trick-or-treaters moved on, Griffis
arrived at 3701 Trotter Road. When he pulled into the
driveway, M.S. and petitioner ran over to him, put a
gun to his head, shot at him (the bullet hit him in
the chest), went through his pockets, stole the checks

                            6
     and pizzas, and took off back through the woods. M.S.
     heard two gunshots, although only one bullet hit
     Griffis.     Investigators did not locate the other
     bullet.    M.S. said he was wearing his t-shirt tied
     around his face and that petitioner was wearing a ski
     mask during the robbery.
          M.S. testified the duo then returned to the
     Shelton house, but his testimony was unclear and
     inconsistent about the timing of the return.         He
     initially     indicated   that   petitioner    returned
     immediately to the Shelton house, but then stated that
     petitioner went somewhere else and returned to the
     house shortly after M.S. did.          Once M.S. and
     petitioner    reunited at   the  Shelton  house,   M.S.
     testified that they ate the pizzas and he saw
     petitioner burn the checks and pizza boxes in the
     backyard.    They also saw M.S.’s brother Terah.   M.S.
     testified that petitioner told Terah to watch the
     11:00pm news, but neither M.S. nor petitioner told
     Terah what had happened.    The three watched the news
     together and then M.S. went to bed.

Boseman v. Bazzle, 2008 U.S. Dist. LEXIS 75255, *3-*11 (C/A/ No.

0:07-CV-01344-DCN)      (D.S.C.     July   24,     2008)    (footnotes    and

citations to the record omitted).          On cross-examination, defense

counsel   questioned     the    consistency   of   M.S.’s    statements   to

police and investigators, as well as drawing attention to the

favorable terms of his plea agreement.

     Other members of the Shelton family testified in support of

portions of M.S.’s narrative and to having seen Boseman at their

house   at   various    times    the   evening   of   the   shooting.     In

addition, one of the adults chaperoning the group of trick-or-

treaters testified that they encountered two “shadowy figures”

along the path to Trotter Road, but that he could not identify

them by sight.         However, the same witness testified that he

                                       7
recognized Boseman’s voice when one of the shadowy figures spoke

to him.        One of the Sheltons’ neighbors testified that he was

present the day after the incident when Boseman “said he didn’t

shoot no pizza man but I was there.”                     Id. at *18.

        Boseman appealed his guilty verdict and sentence to the

South       Carolina    Supreme    Court,        which      affirmed   the   conviction.

Thereafter,       Boseman      filed        a       state    application     for    post-

conviction relief, asserting numerous ineffective assistance of

trial counsel claims.

        The state post-conviction relief court (“PCR court”) held

an    evidentiary        hearing       on       the    application,       during    which

Boseman’s brother, Walter Boseman (“Walter”), testified that he

and   three     of     his   college    friends         hung    out    together    at   the

Boseman home on the evening of October 31, 1995.                         Walter averred

that he and his friends and Boseman went to a convenience store

(the same store where Griffis went after being shot) to purchase

beer around 8:30 p.m.              They returned directly to the house,

where they remained until he and his friends returned to college

in Orangeburg shortly after 10:15 p.m. 1                       He also testified that

although he had tried to locate his three friends prior to the


        1
       Walter testified that although one of his college friends
returned to the convenience center later in the evening to
purchase more beer, he, two of his friends, and Boseman did not
leave the house again until he and his friends left town.



                                                8
PCR court hearing, they had lost touch after college, and he had

not been able to locate them.

      Boseman’s      sister,   Shalonda        Boseman,   testified      that   she

returned to the Boseman house between 10:00 p.m. and 10:30 p.m.,

and   went     to   her   bedroom.       She    stated    that   about    “fifteen

minutes” after she arrived home, Boseman entered her bedroom and

they chatted for a while.

      Boseman introduced into evidence a report (“the Rickborn

report”) prepared for Boseman’s trial counsel prior to the first

trial     by   private    investigator    Patti    Rickborn.       The    Rickborn

report documents her interview with Walter:

      I asked Walter how he recalled [what] times of the
      evening that he was with [Boseman].   He told me that
      he checked his watch on a regular basis that evening
      because even though he and his friends were partying
      they had to be back at S.C. State that evening.     He
      looked at his watch when the client was dropped off at
      8:30 p.m. because they were going to the store for
      more beer and he was keeping track of how much more
      time they had to drink beer.    He knows that he left
      between 10:00 p.m. – 10:30 p.m. because they were just
      going to have time to pick up some other S.C. State
      students who were at a party at Benedict College and
      get back to the S.C. State campus by 11:30 p.m. –
      12:00 a.m. (Midnight).

J.A. 792.

      Boseman’s trial counsel, Doug Strickler, also testified at

the PCR hearing. 2        He stated that in addition to the interviews

      2
       We will refer to Strickler as “trial counsel” so as to
avoid confusion with Strickland.


                                         9
conducted       by    his    private   investigator,          he   had    personally

interviewed several of the alibi witnesses, including Walter.

He considered presenting the alibi defense during the trial.                       In

addition, he filed a notice of alibi and arranged for Walter to

be present during, but sequestered from, the trial proceedings

in case he decided to call Walter as a defense witness.                        Trial

counsel further stated that he had several reservations about

presenting an alibi defense and had discussed those concerns

with       Boseman.     He    testified        there   were    three     reasons   he

ultimately decided not to present the defense: (1) he felt the

evidence did not provide a complete or “classic” alibi for the

entire period in question 3 ; (2) he was concerned because the

potential alibi witnesses were related to Boseman; and (3) under

South Carolina law, he would have forfeited the right to make

the last argument to the jury had he presented a defense. 4




       3
       When questioned about Walter and his friends’ departure
time, which the Rickborn report indicated was between 10:00 and
10:30 p.m., trial counsel averred that his notes from interviews
with the students indicated they left “at a different point in
time,” closer to 9:30 p.m.   Trial counsel could not locate his
notes of those interviews, however, and the notes were not
entered into evidence.
       4
       South Carolina’s procedural rules permit counsel of a
defendant who calls no witnesses and offers no evidence to have
the concluding argument to the jury.   See State v. Mouzon, 467
S.E.2d 122, 125 (S.C. Ct. App. 1995).



                                          10
    The PCR court denied Boseman’s petition.    It first laid out

the two-part standard for establishing ineffective assistance,

as articulated in Strickland and applied in subsequent state

cases.   It then concluded:

         [T]he   Applicant   must   prove   that   “counsel’s
    conduct so undermined the proper functioning of the
    adversarial process that the trial cannot be relied
    upon as having produced a just result.”
         The proper measure of performance is whether the
    attorney provided representation within the range of
    competence required in criminal cases. Courts presume
    that counsel rendered adequate assistance and made all
    significant decisions in the exercise of reasonable
    professional judgment.     The Applicant must overcome
    this presumption to receive relief.
         . . . .
         . . . Trial counsel articulated that he did
    prepare for this case and in fact tried it twice.
    Counsel investigated this case, interviewed potential
    witnesses, and hired an investigator. . . . Counsel
    testified that he had considered putting up the
    witnesses provided to him by the Applicant, but was
    concerned about the partial or incomplete nature of
    the alibi to which they would testify.            Counsel
    recalled that he had discussions with the Applicant
    concerning this and that this concern combined with
    the chance to argue to the jury last resulted in the
    decision not to put up these witnesses.
         . . . .
         Where trial counsel articulates a valid reason
    for employing certain trial strategy, such conduct
    should   not  be   deemed   ineffective   assistance   of
    counsel. Roseboro v. State, 317 S.C. 292, 454 S.E.2d
    312 (1995). The Applicant has not shown that counsel
    was deficient in his choice of tactics.        A defense
    counsel is not ineffective for making valid trial
    strategy decisions.    Caprood v. State, 338 S.C. 103,
    525 S.E.2d 514 (2000).




                               11
J.A. 797-99 (citations omitted).          Boseman’s petition for writ of

certiorari to the South Carolina Supreme Court was denied.                  J.A.

827-29.

      Boseman then filed a timely petition under 28 U.S.C. § 2254

for a writ of habeas corpus in the United States District Court

for   the   District   of   South   Carolina.      The    Warden   moved    for

summary judgment.      The case was referred to a magistrate judge

who entered a report recommending denying Boseman’s petition and

granting summary judgment to the Warden.

      The   district   court   rejected    the   magistrate’s      report   and

conditionally granted Boseman’s petition. 5              The district court

identified four reasons why the petition should be granted:

      First, the PCR court’s decision was “contrary to”
      Supreme Court precedent because it applied a per se
      rule of reasonableness, rather than a presumption of
      reasonableness, to decisions counsel made pursuant to
      a “sound trial strategy.” Second, the PCR court based
      its   decision   on  the   performance  prong  on   an
      unreasonable determination of the facts by finding
      that trial counsel considered (rather than failed to
      consider) but decided not to call alibi witnesses for
      the purpose of showing petitioner was not at the
      Shelton residence when the phone call to Domino’s
      Pizza was made.     The PCR court’s analysis on that
      point also involved an unreasonable application of
      Strickland.   Third, the PCR court’s decision involved
      an unreasonable application of Supreme Court precedent

      5
       Boseman alleged four grounds of ineffective assistance,
but because the district court granted the petition as to the
first ground (failure to present witnesses in support of an
alibi defense), it only addressed that issue. Accordingly, that
is the only issue before the Court on appeal.



                                     12
       to   the  facts   of  petitioner’s  case   because  it
       determined that trial counsel’s “decision” not to call
       alibi witnesses to address events that occurred during
       the time of the robbery/murder was part of a sound
       trial strategy.    Finally, the PCR court’s decision
       involved an unreasonable application of Supreme Court
       precedent to the facts of petitioner’s case because it
       determined that the failure to call any alibi
       witnesses was not prejudicial.

Boseman, 2008 U.S. Dist. LEXIS at *43-44.

       The Warden noted a timely appeal of the district court’s

judgment.     J.A. 830.         We have jurisdiction pursuant to 28 U.S.C.

§ 1291.



                                           II.

       We review de novo the district court’s decision to grant

Boseman’s § 2254 petition, applying the same standards as the

district court.            Whittlesey v. Conroy, 301 F.3d 213, 216 (4th

Cir. 2002).            Pursuant to the Antiterrorism and Effective Death

Penalty     Act    (“AEDPA”),      Pub.    L.     No.    104-132,    110    Stat.   1214

(1996), however, our review of the relevant state court decision

is very narrow.            Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir.

2008).      In cases where a state court considered and denied a

claim on its merits, a federal court may grant habeas relief

only   if    the       state   court     decision       was   “contrary     to,   or   an

unreasonable application of, clearly established Federal law, as

determined        by    the    Supreme    Court    of    the    United     States,”    or

“resulted     in       a   decision    that     was     based   on   an    unreasonable

                                            13
determination of the facts in light of the evidence presented in

the    State    court    proceedings.”            28   U.S.C.    §   2254(d)(1)      and

(d)(2).

       A state court’s decision is contrary to clearly established

federal law “if the state court arrives at a conclusion opposite

to that reached by [the Supreme] Court on a question of law or

if the state court decides a case differently than [the Supreme]

Court    has    on   a   set    of    materially       indistinguishable        facts.”

Williams v. Taylor, 529 U.S. 362, 413 (2000).                          And, a state

court’s decision involves an unreasonable application of federal

law when the state court “identifies the correct governing legal

principle from [the Supreme Court’s] decisions but unreasonably

applies that principle to the facts of [a particular] case,”

id., or “applies a precedent in a context different from the one

in which the precedent was decided and one to which extension of

the    legal    principle      of    the   precedent    is   not     reasonable      [or]

fails to apply the principle of a precedent in a context where

such failure is unreasonable.”                Robinson v. Polk, 438 F.3d 350,

355 (4th Cir. 2006) (quoting Green v. French, 143 F.3d 865, 870

(4th Cir. 1998), overruled on other grounds by Williams, 529

U.S.    362).        “The      state       court’s     application       of     clearly

established federal law must be ‘objectively unreasonable,’ for

a ‘federal habeas court may not issue the writ simply because

that    court    concludes      in     its    independent       judgment      that   the

                                             14
relevant        state-court            decision          applied      clearly           established

Federal law erroneously or incorrectly.’”                             Jackson, 523 F.3d at

277 (quoting Williams, 529 U.S. at 409, 411).

        Under § 2254(d)(2), a federal court can also grant habeas

relief     to       a    state      court     judgment         when       the     state     court’s

determination            of     the     facts       was       objectively             unreasonable.

However,      a     state     court’s       determination            of    factual       issues       is

presumed to be correct.                  § 2254(e)(1).               Therefore, a decision

adjudicated         on    the    merits       in    a    state     court        and    based     on    a

factual       determination            will        not    be     overturned            unless     the

applicant rebuts the presumption of correctness by clear and

convincing evidence.                Id.; Miller-El v. Cockrell, 537 U.S. 322,

340 (2003); Cagle v. Branker, 520 F.3d 320, 323 (4th Cir. 2008).



                                                III.

        The Warden appeals three aspects of the district court’s

opinion       and       judgment.       First,          the   Warden       contends       that    the

district court should not have granted the petition based on a

claim    of     ineffective           assistance         arising     from        trial    counsel’s

failure to call alibi witnesses for the time of the telephone

call because Boseman did not raise such a claim in the PCR

proceeding.              He   then     asserts          the    district         court     erred       in

concluding          the       PCR     court        applied       a        “per     se     rule        of

reasonableness” rather than a “presumption of reasonableness.”

                                                   15
Lastly,       the    Warden        contends       the       district         court        erred    in

concluding       the      PCR    court    unreasonably            applied       Strickland        and

made objectively unreasonable factual findings.



                                                 A.

       As an initial matter, we reject the Warden’s procedural

default argument.                The Warden asserts that because Boseman’s

state     PCR       petition       did     not        raise      a      “separate,         specific

allegation” of ineffective assistance based on trial counsel’s

failure to present witnesses for the time of the telephone call

to Domino’s, the issue was procedurally defaulted and should not

have been considered by the district court.                              (Appellee’s Br. 34-

44.)

       Although        the      Warden    raises       a    credible         point,       Boseman’s

arguments       made      in     the     state    PCR       court       were      sufficient       to

preserve the issue of calling an alibi witness at the time of

the    telephone       call.       As     noted,       Griffis         was   mortally       wounded

sometime within the approximately 45-minute period between the

telephone       call      to    Domino’s,        around         9:15    p.m.,       and    Griffis’

arrival    at       the   convenience        store         by    10:00       p.m.         Thus,   the

relevant period to which a witness could have provided Boseman

with    any     alibi     was     narrow.         Boseman’s            pro   se     PCR    petition

included the following question presented: “Was trial counsel

ineffective for failing to present witnesses in support of an

                                                 16
alibi when [an] alibi was presented to the jury?”                                      J.A. 706.

During     the    state        PCR    court           evidentiary          hearing,    Boseman’s

appellate       counsel        argued      that       witnesses       could     have    provided

Boseman with an alibi for the relevant period of time during

which the murder and robbery occurred, as it was “an ongoing

criminal enterprise.”                J.A. 726-27.          Boseman identified at that

time    the   same       individuals            he    identifies       at     present    as    the

witnesses trial counsel should have called to present an alibi

defense.         Lastly,       the    questioning          of    Walter       during     the   PCR

hearing detailed the purported alibi available for the entire

relevant      period,      including            the    time     of    the     telephone      call.

Moreover, trial counsel was questioned regarding his decision

not to call an alibi witness to testify about any part of that

period, specifically addressing an alibi for both the time of

the    telephone        call    and       the    time     of    the    murder.         Boseman’s

arguments to the PCR court thus arguably encompassed the entire

period    from    the     time       of    the       telephone       call    through    Griffis’

arrival    at     the    convenience            store,     and       the    failure     of   trial

counsel to present an alibi defense for any part of that period.

For these reasons, we hold that Boseman adequately preserved the

issue for federal review.




                                                 17
                                         B.

     The    Warden      next   contends       the    district     court     erred   in

concluding        the   PCR    court     applied       a     “per     se    rule    of

reasonableness” rather than a “presumption of reasonableness.”

In reaching that determination, the district court stated:

    In its brief discussion of Strickland’s performance
    prong, the state court stated, “A defense counsel is
    not ineffective for making valid trial strategy
    decisions.”     The PCR court equated valid trial
    strategy decisions with reasonable performance, but
    Strickland does not go so far.       Rather, Strickland
    held that decisions undertaken as part of an informed
    trial strategy are “virtually unchallengeable” in
    light of the “strong presumption” of reasonableness
    that arises in such cases.     Strickland, 466 U.S. at
    690.   “Virtually unchallengeable” is not the same as
    actually unchallengeable . . . [and] even some “valid
    trial strategies” . . . may nonetheless fall outside
    the wide range of acceptable performance. By applying
    a per se reasonableness rule, the PCR court did not
    consider the next question, although almost always
    answered against the petitioner, of whether the trial
    strategy itself was unreasonable.

Boseman, 2008 U.S. Dist. LEXIS at *44-*46 (citation omitted).

The district court thus concluded the PCR court had unreasonably

applied Strickland.        We disagree.

     Strickland sets forth the standard for establishing a Sixth

Amendment ineffective assistance of counsel claim.                          The first

part of that standard requires a showing that trial counsel’s

performance       was   deficient,     that    is,   that    it     “fell   below   an

objective standard of reasonableness.”                     466 U.S. at 688.         In

making     this    assessment,       “[j]udicial       scrutiny       of    counsel’s


                                         18
performance   must    be   highly   deferential,”   and    “a    court   must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance . . . .”

Id. at 689.      This is so because “[t]here are countless ways to

provide effective assistance in any given case [and] [e]ven the

best criminal defense attorneys would not defend a particular

client in the same way.”        Id.    Moreover, the Supreme Court has

recognized:

     Strategic choices made after thorough investigation of
     law and facts relevant to plausible options are
     virtually unchallengeable; and strategic choices made
     after less than complete investigation are reasonable
     precisely to the extent that reasonable professional
     judgments support the limitations on investigation.
     In other words, counsel has a duty to make reasonable
     investigations or to make a reasonable decision that
     makes particular investigations unnecessary.     In any
     ineffectiveness case, a particular decision not to
     investigate    must    be   directly    assessed    for
     reasonableness in all the circumstances, applying a
     heavy measure of deference to counsel’s judgments.

Id. at 690-91.

     To be sure, this language making strategic decisions by

counsel “virtually unchallengeable,” does leave room for such

decisions to still be successfully challenged.             However, we do

not agree with the district court that the PCR court applied a

per se rule of reasonableness.

     The   district   court’s   decision   is   based     on    its   specific

criticism of the PCR court’s use of the phrase “valid trial

strategy.”    The district court read that phrase as reflecting

                                      19
that the PCR court viewed trial counsel’s decision on the alibi

witnesses       only      as    being     made    after     appropriate         investigation

(i.e.,     was      “strategic”)           and    as     failing     to       assess    whether

counsel’s decision was reasonable.                       The PCR court’s opinion does

not support this conclusion.

       The PCR court’s opinion accurately set forth Strickland’s

presumption of reasonableness standard for assessing counsel’s

performance:          “The proper measure of performance is whether the

attorney provided representation within the range of competence

required       in    criminal         cases.           Courts   presume         that    counsel

rendered adequate assistance and made all significant decisions

in   the      exercise         of   reasonable         professional       judgment.         The

Applicant       must      overcome        this    presumption      to     receive      relief.”

J.A. 797-98 (citations omitted).                        This language shows that the

PCR court understood what Strickland required and that it was to

afford     only       a    presumption           of     reasonableness         to      counsel’s

conduct.

       Only     after      articulating          this     standard      and    reviewing    the

reasons trial counsel proffered for his decision not to present

an     alibi,       did    the      PCR    court        hold:   “Where        trial     counsel

articulates a valid reason for employing certain trial strategy,

such    conduct       should        not   be     deemed    ineffective         assistance    of

counsel.       The Applicant has not shown that counsel was deficient

in his choice of tactics.                  A defense counsel is not ineffective

                                                 20
for   making       valid    trial     strategy      decisions.”       J.A.     799.

(Citations omitted.)           Using the phrase “valid trial strategy”

indicates more than that the PCR court only believed that trial

counsel     made    an     informed     decision,    as    the    district   court

surmised.      Rather,      the   PCR    court’s    phraseology     includes   the

qualitative assessment that the strategy was a “valid” one.

      In context, counsel’s “valid” trial strategy was equivalent

to “reasonable” under a normal reading of those terms.                   Relevant

definitions of the word “valid” include:                  “having legal strength

or force” and “well grounded or justifiable.”                    Webster’s Third

New   International        Dictionary    2529    (2002).      These   definitions

support the conclusion that the PCR court properly undertook the

full Strickland performance prong analysis by concluding that

trial counsel’s conduct was made after appropriate investigation

(it was part of a “trial strategy”) and that it was a reasonable

choice to have made because that strategy had “legal strength or

force” and was “well grounded or justifiable.”                   In other words,

determination that the trial strategy was “valid” in this case

was equivalent and synonymous to saying it was a “reasonable”

trial strategy.”

      This conclusion is bolstered by the numerous circuit courts

of appeal that have used the term “valid” when referring to both

the fact of and the reasonableness of counsel’s conduct as part

of the Strickland performance prong analysis.                     E.g., Lewis v.

                                          21
Horn, 581 F.3d 92, 114 (3d Cir. 2009) (“A valid reason for

[counsel’s decision] not [to] present[] evidence is that it does

not exist.”); United States v. Culverhouse, 507 F.3d 888, 898

(5th Cir. 2007) (“Counsel may have had valid reasons not to

raise the objections.”); Morales v. Mitchell, 507 F.3d 916, 948

n.3 (6th Cir. 2007) (“In fact, it would have been a valid trial

strategy-not deficient performance-for Morales’s trial counsel

to decline to present Morales’s post-conviction evidence had he

known of its existence.”); Raley v. Ylst, 470 F.3d 792, 801 (9th

Cir.    2006)     (“we     hold     that    [counsel’s]      decision    was    a   valid

strategic        choice     warranting       judicial     deference.”);         Thai    v.

Mapes, 412 F.3d 970, 978-79 (8th Cir. 2005) (“[Defendant] had

the     burden     of     proving     that     his   lawyer’s      performance         was

unreasonable under prevailing professional standards, and that

his lawyer’s actions were not valid trial strategy.”); Bullock

v.     Carver,     297     F.3d     1036,    1047    (10th     Cir.     2002)    (“[T]he

defendant [has] the burden of showing that counsel’s action or

inaction was not based on a valid strategic choice.”).

       The PCR court’s use of the phrase “valid trial strategy”

simply does not transform its analysis into a per se rule of

reasonableness.           As detailed above, the whole of the PCR court’s

opinion     shows       that   it    understood      Strickland       and   applied      a

presumption of reasonableness standard when analyzing Boseman’s

ineffective assistance claim.                 Accordingly, the district court

                                             22
erred in holding the state PCR court’s analysis applied a per se

rule        of   reasonableness       and     was   therefore      contrary    to    or   an

unreasonable application of Strickland.



                                               C.

        The      Warden’s    final     argument       is   that    the    district   court

erred in holding that the PCR court’s decision denying Boseman’s

ineffective assistance claim was objectively unreasonable under

Strickland and that “petitioner has shown that the PCR court was

incorrect         by   clear    and     convincing         evidence.”         The    Warden

contends         the   PCR    court     did    reasonably         apply   Strickland      in

concluding that trial counsel’s decision not to present an alibi

defense          was   a     strategic        choice       made     after     appropriate

investigation.             Furthermore, the Warden asserts the PCR court’s

factual findings were reasonable, both as to the nature of the

alibi        defense   and     the    basis     for    counsel’s      decision      not   to

present that defense. 6              (Appellant’s Br. 50-60.)



        6
       During oral argument, the Warden also contended that the
district court’s decision misconstrues South Carolina’s law as
to what constitutes an alibi defense.   Citing Glover v. State,
458 S.E.2d 538 (S.C. 1995), the Warden asserted that presenting
evidence of where Boseman was during the time of the telephone
call does not provide Boseman with an alibi under South Carolina
law for the time of the murder and robbery.      See id. at 540
(holding that testimony placing the defendant at another
location prior to the time of the crime was not sufficient to
establish an alibi defense). Because we resolve the case in the
(Continued)
                                               23
      In Strickland, the Supreme Court set out a two-prong test

for   evaluating    ineffective     assistance      of    counsel    claims.         A

defendant must show: (1) that his counsel’s performance did not

meet “an objective standard of reasonableness,” which is based

on “prevailing professional norms,” and (2) that his counsel’s

deficient performance prejudiced the defense.                   466 U.S. at 687-

88; Rompilla v. Beard, 545 U.S. 374, 380 (2005).                        “‘Deficient

performance’   is   not    merely    below-average        performance;       rather,

the   attorney’s    actions    must    fall    below      the    wide      range    of

professionally competent performance.”                Griffin v. Warden, 970

F.2d 1355, 1357 (4th Cir. 1992).              To “eliminate the distorting

effects   of   hindsight,”    this    review     of      counsel’s      performance

seeks to “reconstruct the circumstances of counsel’s challenged

conduct” and “evaluate the conduct from counsel’s perspective at

the time” his decision was made.             Strickland, 466 U.S. at 689.

As noted previously, a Strickland review of counsel’s conduct is

made with the strong presumption of reasonableness.                  Id.

      When trial counsel’s conduct is challenged for failing to

present certain evidence, the inquiry is generally focused on

whether the investigation supporting counsel’s decision not to

present certain evidence was reasonable.                 See Wiggins v. Smith,



Warden’s favor      on    another   basis,     we     need   not    address        this
argument.



                                      24
539 U.S. 510, 521-23 (2003) (in context of limited scope of

investigation             into     potential       mitigating           evidence);         Wilson      v.

Ozmint, 352 F.3d 847, 860 (4th Cir. 2003) (same).                                       “Strickland’s

objective           reasonableness          prong         requires          counsel      to     conduct

appropriate factual and legal inquiries and to allow adequate

time     for         trial        preparation            and        development          of     defense

strategies.”              Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir.

1998).         And        “when     evaluating           decisions          not    to    investigate

further, [the court] must regard counsel’s choice with an eye

for ‘reasonableness in all the circumstances, applying a heavy

measure        of     deference        to        counsel’s          judgments.’”              Bunch    v.

Thompson,           949     F.2d     1354,         1363        (4th     Cir.      1991)        (quoting

Strickland, 466 U.S. at 691); cf. Turner v. Williams, 35 F.3d

872,     896        (4th     Cir.    1994)         (in     the       context      of     ineffective

assistance of counsel claims, the court “address[es] not what is

prudent        or        appropriate,        but     only        what       is    constitutionally

compelled.”),              overruled         on     other           grounds       by      O’Dell       v.

Netherland, 95 F.3d 1214, 1222-23 (4th Cir. 1996).

       We are also mindful of the additional measure of deference

afforded under AEDPA to a state court’s resolution of the habeas

claims of state prisoners.                         Bell v. Cone, 543 U.S. 447, 455

(2005)     (AEDPA           requires        “a     highly        deferential           standard       for

evaluating state-court rulings, which demands that state-court

decisions           be     given     the     benefit           of     the     doubt.”         (internal

                                                    25
quotation    marks     and      citation    omitted)).       Our    review     of   the

record leads us to conclude that the district court erred in

finding the PCR court unreasonably applied Strickland and was

based on an unreasonable interpretation of the facts surrounding

trial counsel’s decision.

       At the forefront of the district court’s analysis is its

conclusion that “under any reasonable view of the evidence trial

counsel     premised     their      ‘strategic’         decision     not     to     call

witnesses for the time of the robbery/murder on an ill-informed

and mistaken view of the facts of petitioner’s case.”                       J.A. 135.

In   so   holding,   the     district       court   misconstrued      the    evidence

presented during the PCR hearing and did not afford the proper

level of deference to the PCR court’s factual finding that trial

counsel’s interviews with the alibi witnesses “only established

an incomplete or partial alibi for [Boseman] and did not give

him an alibi for the actual time of the alleged incident.”                          J.A.

796.

       To support its conclusion that trial counsel’s performance

failed to meet the Strickland standard, the district court first

cited trial counsel’s reliance on “the Rickborn report, which

stated that Walter and his college friends were with [Boseman]

from 8:30pm until 10:00pm.”                J.A. 136.      Based on this factual

conclusion,    the     district      court      found     trial    counsel’s      trial

strategy    defective      as    based     on   factual    error.     However,       the

                                           26
Rickborn report does not say what the district court asserts

that it says.        The report, which summarizes Rickborn’s interview

with Walter in November 1996, states, in relevant part:

       I asked Walter how he recalled that [sic] times of the
       evening that he was with Brian.    He told me that he
       checked his watch on a regular basis that evening
       because even though he and his friends were partying
       they had to be back at S.C. State that evening.     He
       looked at his watch when the client was dropped off at
       8:30 p.m. because they were going to the store for
       more beer and he was keeping track of how much more
       time they had to drink beer. He knows that they left
       between 10:00 p.m. – 10:30 p.m. because they were just
       going to have time to pick up some other S.C. State
       students who were at a party at Benedict College and
       get back to the S.C. State campus by 11:30 p.m. –
       12:00 a.m. (midnight).

J.A. 792.      Significantly, the Rickborn report does not state

where Boseman was “dropped off” at 8:30 p.m. or what periods of

time after 8:30 p.m. that Walter was actually with Boseman, if

any.

       Boseman and the district court both assert the Rickborn

report states that Boseman was dropped off at his house around

8:30    p.m.   and    that     Walter,      his   friends,   and     Boseman     were

together from that point in time until Walter left between 10:00

and    10:30   p.m.       An      equally    fair   reading,    if    not   a    more

compelling     reading,      of    the   report’s   actual     language     is   that

Walter was with Boseman for undefined periods of the evening,

Boseman was dropped off at an undisclosed location at 8:30 p.m.,

and that Walter and his friends were either out buying beer or


                                            27
at the house until they left around 10:00 p.m.                   Where Boseman

was during that time period is simply not determinable from the

Rickborn report.        The report does not set forth the straight-

forward    complete     alibi    that   the    district      court     erroneously

credits to it.     Therefore, Boseman has failed to meet his burden

under AEDPA that there was clear and convincing evidence that

trial counsel misconstrued the nature of the potential alibi at

the time he was deciding whether to present an alibi defense.

     The    district     court     also      called     into   question      trial

counsel’s “reference to the same amorphous ‘handwritten note’

[from trial counsel’s own interviews with the potential alibi

witnesses],    which     indicated      that   the     alibi    witnesses    left

Boseman’s house at 9:30pm.” 7             J.A. 136.         The district court

dismissed the importance of this evidence because trial counsel

testified   that   he    relied   “solely”     on     the   Rickborn    report   in

     7
       The district court clearly viewed trial counsel’s notes
skeptically, subsequently referring to it as the “mysterious
‘handwritten note’” that counsel purportedly possessed from his
own interviews with the potential alibi witnesses.    J.A. 136.
However, the PCR court implicitly found counsel’s testimony
about his notes credible by finding that he conducted an
adequate investigation and that the investigation revealed the
existence of an incomplete alibi. The district court could not
overturn the state court’s credibility judgment unless Boseman
presented clear and convincing evidence that trial counsel was
not credible.   See Buckner v. Polk, 453 F.3d 195, 204 n.8 (4th
Cir. 2006). As discussed above, Boseman has not satisfied this
burden, and presented no evidence to negate trial counsel’s
recollections of his note and its contents. The district court
thus erred in rejecting the PCR court’s finding.



                                        28
deciding whether to present an alibi defense, and the district

court thought the report provided a complete alibi.                  However, as

noted above, the Rickborn report fell far short of providing a

complete alibi to Boseman.       More importantly, the assertion that

trial counsel relied “solely” on the Rickborn report in making

his   decision    mischaracterizes          trial    counsel’s      PCR   hearing

testimony.

      Trial counsel acknowledged that he would have “bas[ed] any

decision”    he   made   about   the   alibi        defense    on   the   Rickborn

report.     J.A. 736.    But trial counsel never indicated that the

Rickborn report was the only basis for this decision.                       During

the same exchange, trial counsel repeatedly referred to the fact

that in addition to the information provided in the Rickborn

report, he had conducted his own interviews with the witnesses,

and the information reported in his notes of those interviews

conflicted    with   the    information        in     the     Rickborn    report. 8

Specifically, counsel had “different times reflected” as to when

Walter and his friends departed the Boseman house.                  J.A. 736.


      8
       We also note that the Sixth Amendment does not always
compel counsel to undertake interviews and meetings with
potential witnesses where counsel is familiar with the substance
of their testimony.   E.g., Huffington, 140 F.3d at 580.   Here,
trial counsel’s knowledge of the alibi was based not only on his
private investigator’s report summarizing her interview with one
of Boseman’s potential alibi witnesses, but also his own
interviews of “at least some” of those witnesses.



                                       29
     Trial counsel unequivocally testified that both the report

and his own interviews established only a partial alibi, and

that this was one reason he decided not to present an alibi

defense.     Counsel’s testimony thus provided the PCR court with

evidence    regarding      the   nature      of   his    investigation        into    the

available     alibi     defense,       the     conclusion       that     it     was    an

incomplete    alibi,       and   counsel’s        subsequent     decision       not   to

present an incomplete alibi defense.                     For these reasons, the

district court erred in concluding that clear and convincing

evidence did not support the PCR court’s finding that only a

partial alibi defense was available.

     Having concluded that the PCR court “grounded its decision”

on” an incorrect view of the facts, the district court held that

the PCR court unreasonably applied Strickland in finding trial

counsel’s     performance        was   reasonable.          J.A.      135-37.         The

district court’s review of the reasonableness of the PCR court’s

application    of     Strickland’s      performance        prong       was    therefore

inextricably linked to its own erroneous view of the factual

conclusions     regarding        the    nature      of    the       potential     alibi

evidence.     Without reading more into the Rickborn report than

what it states, there was no basis for concluding that trial

counsel    ignored    or    should     have    known     that   a    credible     alibi

existed for either the time of the telephone call or the murder

and robbery.     Counsel does not render deficient performance for

                                          30
failing to present evidence of something that does not exist,

nor is it necessarily deficient to decide not to present every

potential        defense.           See    e.g.,        Wiggins,        539   U.S.    at        521-25

(discussing         adequate            performance            investigating              potential

evidence to present prior to making a “strategic” decision not

to present that evidence); Darden v. Wainwright, 477 U.S. 168,

186-87 (1986) (discussing reasons why counsel’s decision not to

present certain evidence that was potentially damaging was not

deficient performance); Lewis v. Horn, 581 F.3d 92, 114 (3d Cir.

2009)      (“A    valid       reason       for        [counsel’s        decision]         not    [to]

present[]        evidence          is   that     it     does      not    exist.”);        Byram     v.

Ozmint,     339     F.3d       203,       209-10       (4th    Cir.       2003)     (finding       no

ineffective         assistance             where        counsel          conducted         adequate

investigation           and    made       strategic           decision        not    to     present

evidence that could have been viewed favorably or unfavorably by

the jury).

      Here,       the    evidence          supports        trial        counsel’s     statements

during     the    PCR     hearing         that     he      investigated        and    considered

presenting an alibi defense.                   He ultimately decided not to do so

for several reasons related to specific defects in the alibi and

procedural concerns regarding the conduct of the trial.                                     Counsel

also testified that he was concerned about the incomplete nature

of   the    alibi.            In    addition,         he    was    concerned        because       the

principal alibi witness was a family member and presenting an

                                                 31
alibi defense would forfeit the right to make the last argument

to   the    jury.    Significantly,     in     making   the   decision    not    to

present the alibi defense, counsel discussed his concerns with

Boseman, a fact Boseman has not disputed. 9

      The    PCR    court   concluded        that   trial   counsel   exercised

reasonable professional judgment regarding his decision not to

present the alibi witnesses.          In light of Strickland’s analysis

of   what    constitutes    reasonable        performance     as   well   as    the

deferential review afforded such state court decisions, we do

not find error in the PCR court’s conclusion.                  Accordingly, we

also hold that the district court erred in concluding the PCR

court’s decision was contrary to or an unreasonable application

of Strickland’s performance prong. 10




      9
        A defendant’s consent to trial strategy is probative,
although not determinative, of the reasonableness of the chosen
strategy and of counsel’s performance. See Strickland, 466 U.S.
at 691.
      10
        In light of this conclusion, we need not address the
district court’s conclusion that the PCR court unreasonably
applied the prejudice prong of Strickland when considering
Boseman’s claim.     A petitioner is required to prove both
deficient performance and prejudice in order to succeed on an
ineffective assistance claim. Hunt v. Nuth, 57 F.3d 1327, 1332
(4th Cir. 1995).   Having failed to show deficient performance,
Boseman’s claim fails.



                                        32
                                  IV.

     For   the   aforementioned   reasons,   we   reverse   the   district

court’s judgment granting the writ of habeas corpus, and remand

for further proceedings consistent with this opinion.



                                                  REVERSED AND REMANDED




                                   33
