John Booth-El v.  EUGENE M. NUTH, Warden; J. JOSEPH CURRAN, JR.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JOHN BOOTH-EL,
Petitioner-Appellee,
v. No. 01-8 
EUGENE M. NUTH, Warden; J. JOSEPH
CURRAN, JR.,
Respondents-Appellants. 
 JOHN BOOTH-EL,
Petitioner-Appellant,
v. No. 01-10 
EUGENE M. NUTH, Warden; J. JOSEPH
CURRAN, JR.,
Respondents-Appellees. 
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CA-97-1252-CCB)
Argued: January 23, 2002
Decided: March 25, 2002
Before WILKINSON, Chief Judge, and WILKINS and
GREGORY, Circuit Judges.
Affirmed in part, reversed in part, and remanded with directions to
dismiss the petition by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Wilkins and Judge Gregory joined.

-- 1 of 18 --

COUNSEL
ARGUED: Annabelle Louise Lisic, Assistant Attorney General,
Criminal Appeals Division, OFFICE OF THE ATTORNEY GEN-
ERAL, Baltimore, Maryland, for Appellants. David John Walsh-
Little, Baltimore, Maryland; Michael Alan Millemann, Baltimore,
Maryland, for Appellee. ON BRIEF: J. Joseph Curran, Jr., Attorney
General of Maryland, Ann N. Bosse, Assistant Attorney General,
Criminal Appeals Division, OFFICE OF THE ATTORNEY GEN-
ERAL, Baltimore, Maryland, for Appellants.
OPINION
WILKINSON, Chief Judge:
After his third death sentence for the murder of Irvin and Rose
Bronstein was affirmed by the Maryland courts, John Booth-El filed
a federal habeas corpus petition. The district court granted in part his
petition on the ground that the removal of intoxication as a statutory
mitigating factor at his 1990 re-sentencing violated the Ex Post Facto
Clause. But the court rejected his claims concerning a potentially
coercive Allen charge, the failure to bifurcate the sentencing hearing,
and ineffective assistance of trial counsel.
The State of Maryland appeals and Booth-El cross-appeals.
Because federal law provides no grounds for granting Booth-El’s
habeas petition, we affirm in part, reverse in part, and remand with
directions to dismiss the petition.
I.
On May 20, 1983, Irvin and Rose Bronstein were found dead in
their Baltimore home. Both had been bound and gagged, and each had
been stabbed twelve times. Their residence had been ransacked and
some of their property was missing. Petitioner John Booth-El and
William "Sweetsie" Reid were charged with the murders. Booth-El’s
first trial ended in a mistrial because the prosecution had failed to turn
over certain information before trial. See Booth v. State, 481 A.2d
2 BOOTH-EL v. NUTH

-- 2 of 18 --

505, 505-06 (Md. 1984) ("Booth I"). In the second trial, Booth-El was
convicted of first degree murder, robbery, and conspiracy. He was
sentenced to death for the murder of Mr. Bronstein.1
Booth-El appealed the sentence, and the Maryland Court of
Appeals affirmed. Booth v. State, 507 A.2d 1098, 1103 (Md. 1986)
("Booth II"). The Supreme Court reversed, however, holding that the
introduction of victim impact statements at a capital sentencing pro-
ceeding violated the Eighth Amendment. Booth v. Maryland, 482
U.S. 496, 509 (1987), overruled by Payne v. Tennessee, 501 U.S. 808
(1991). A new sentencing proceeding was held, and Booth-El was
again sentenced to death. But the Maryland Court of Appeals vacated
the sentence because the trial judge had refused to admit evidence
relating to parole eligibility. Booth v. State, 558 A.2d 1205 (Md.
1989) ("Booth III").
A third sentencing hearing was held in the summer of 1990, and
Booth-El was once again sentenced to death. The Maryland Court of
Appeals affirmed the sentence on direct appeal. Booth v. State, 608
A.2d 162 (Md. 1992) ("Booth IV"). He was then denied post-
conviction relief. The Maryland Court of Appeals affirmed the denial,
except with respect to an alleged Brady violation. See Brady v. Mary-
land, 373 U.S. 83 (1963). The court remanded for consideration of the
claim. Booth v. State, 696 A.2d 440 (Md. 1997). After an evidentiary
hearing, the post-conviction court denied relief. Booth-El was denied
leave to appeal. Booth v. State, 708 A.2d 681 (Md. 1998).
In March 1997, Booth-El filed a petition for habeas corpus in the
United States District Court for the District of Maryland, raising
twenty-four claims. He asserted, inter alia, that the 1983 change to
the Maryland death penalty statute, which removed intoxication from
the list of statutory mitigating factors, violated the Ex Post Facto
Clause of Article I, § 10 of the Constitution. Further, he argued that
the trial judge erred in giving an Allen-type charge to the sentencing
jury after it indicated that it was split on whether he was a first degree
1The prosecution argued that Booth-El killed Mr. Bronstein and Reid
killed Mrs. Bronstein. Its theory was based largely on the fact that there
were two knives at the crime scene and the Bronsteins’ wounds were dif-
ferent.
3 BOOTH-EL v. NUTH

-- 3 of 18 --

principal. See Allen v. United States, 164 U.S. 492 (1896). Moreover,
he claimed that he was denied due process when the trial judge
refused to bifurcate the 1990 sentencing proceedings. In his view, the
jury should have first determined whether he was a first degree princi-
pal before any evidence regarding aggravating and mitigating factors
was presented. Finally, he alleged ineffective assistance of counsel
during his 1984 guilt/innocence trial.
The district court granted in part Booth-El’s petition for writ of
habeas corpus based on his ex post facto claim. It further concluded
that his other claims either were procedurally defaulted or did not pro-
vide a basis for relief. See Booth-El v. Nuth, 140 F. Supp. 2d 495, 500
(D. Md. 2001).
The State appeals, and Booth-El cross-appeals the rejection of his
claims regarding the Allen charge, the failure to bifurcate the sentenc-
ing hearing, and ineffective assistance of counsel.
II.
We review de novo the district court’s decision to grant or deny
habeas relief to a state prisoner. Spicer v. Roxbury Corr. Inst., 194
F.3d 547, 555 (4th Cir. 1999). In addition, because the state court
adjudicated the merits of Booth-El’s ex post facto claim, our review
of its decision is "limited by the deferential standard . . . set forth in
[28 U.S.C.] § 2254(d), as interpreted by the Supreme Court in Wil-
liams v. Taylor, 529 U.S. 362 . . . (2000)." Bell v. Jarvis, 236 F.3d
149, 157 (4th Cir. 2000) (en banc), cert. denied, Bell v. Beck, 122 S.
Ct. 74 (2001).2 Thus, federal habeas relief may not be granted unless
the state court’s decision "was contrary to, or involved an unreason-
able application of, clearly established Federal law, as determined by
the Supreme Court of the United States." § 2254(d)(1).
Clearly established federal law "refers to the holdings, as opposed
to the dicta, of th[e] Court’s decisions as of the time of the relevant
2Because Booth-El filed his habeas petition after the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we
apply § 2254(d)(1) as amended by AEDPA. Penry v. Johnson, 121 S. Ct.
1910, 1918 (2001).
4 BOOTH-EL v. NUTH

-- 4 of 18 --

state-court decision." Williams, 529 U.S. at 412. Further, a state-court
decision is contrary to the Court’s clearly established precedent if the
state court "applies a rule that contradicts the governing law set forth
in [the Court’s] cases," or "confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and nevertheless
arrives at a result different from [its] precedent." Id. at 405, 406.
Finally, a state-court decision involves an unreasonable application
of the Court’s precedent if the court "correctly identifies the govern-
ing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case," id. at 407-08, or "was unreasonable in refusing to
extend the governing legal principle to a context in which the princi-
ple should have controlled." Ramdass v. Angelone, 530 U.S. 156, 166
(2000) (opinion of Kennedy, J.). The Court has stressed that
[i]n § 2254(d)(1), Congress specifically used the word "un-
reasonable," and not a term like "erroneous" or "incorrect."
Under § 2254(d)(1)’s "unreasonable application" clause,
then, a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment
that the relevant state-court decision applied clearly estab-
lished federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.
Williams, 529 U.S. at 411. See also Bell, 236 F.3d at 160; Vick v. Wil-
liams, 233 F.3d 213, 216 (4th Cir. 2000), cert. denied, 121 S. Ct. 2596
(2001).
III.
A.
At the time the Bronsteins were murdered, Maryland’s death pen-
alty statute listed several mitigating circumstances, including intoxi-
cation. Md. Ann. Code art. 27, § 413(g)(4) (1957). Effective July 1,
1983, intoxication was removed from that section. Both before and
after the 1983 change, the statute contained a catch-all provision
which allowed the jury to consider "[a]ny other facts which the jury
or the court specifically sets forth in writing that it finds as mitigating
5 BOOTH-EL v. NUTH

-- 5 of 18 --

circumstances in the case." § 413(g)(8) (1957, 2001). The Maryland
Court of Appeals described the effect of the change:
[Previously] the burden was on the murderer to prove by a
preponderance of the evidence diminished capacity as a
result of intoxication. If the jury found that fact, then the
statute determined that [it] was mitigating and that it was to
be considered in weighing whether the aggravating circum-
stance outweighed intoxication and any other mitigating cir-
cumstances. After the change, the murderer has the burden
of proving by a preponderance of the evidence both the fact
of diminished capacity due to intoxication and that [it] is a
mitigating circumstance.
Booth IV, 608 A.2d at 175 (citations omitted).
During the 1990 sentencing proceedings, Booth-El asked that the
verdict form contain the pre-amendment language, but his request was
denied. On direct appeal, he argued that the refusal to include that lan-
guage on the verdict sheet violated the Ex Post Facto Clause because
it required him to prove by a preponderance of the evidence that
intoxication was a mitigating circumstance.
The Maryland Court of Appeals found no constitutional violation
because the change did not fit into one of the "three" categories of ex
post facto laws identified in Collins v. Youngblood, 497 U.S. 37
(1990). Booth IV, 608 A.2d at 175. These categories include: (1) pun-
ishing as a crime an act previously committed, which was innocent
when done; (2) making the punishment for a crime more burdensome
after its commission; and (3) depriving one charged with a crime of
any defense available at the time the act was committed. Collins, 497
U.S. at 42 (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)).
The state court further held that the change was merely procedural.
Booth IV, 608 A.2d at 175.
The district court disagreed. It found that "[t]he change in the stat-
ute that was applied to Booth-El, which effectively lowered the prose-
cution’s burden of proof by increasing the burden placed on the
defendant, falls within the fourth ex post facto category." Booth-El,
140 F. Supp. 2d at 514. This category encompasses "[e]very law that
6 BOOTH-EL v. NUTH

-- 6 of 18 --

alters the legal rules of evidence, and receives less, or different testi-
mony, than the law required at the time of the commission of the
offence, in order to convict the offender." Calder v. Bull, 3 U.S. (3
Dall.) 386, 390 (1798). The district court noted that the "continuing
vitality" of this category was recently affirmed in Carmell v. Texas,
529 U.S. 513 (2000). Booth-El, 140 F. Supp. 2d at 513. It then held
that the state court’s "conclusion that the statutory amendment in
Booth-El’s case did not fit into any of the ex post facto categories vio-
late[d] Supreme Court precedent and therefore [wa]s contrary to
clearly established federal law," as well as "constitute[d] an unreason-
able application of clearly established federal law." Id. at 514, 517.
B.
We underscored above the now-familiar standard of review in
habeas cases because it severely restrains the authority of the federal
courts, and because, as John Hart Ely once noted in a different con-
text, "[f]amiliarity breeds inattention." John Hart Ely, Democracy and
Distrust: A Theory of Judicial Review 18 (1980). In looking afresh at
the district court’s grant of the writ, the question before us is not
whether the state court misconstrued or unreasonably applied present
Supreme Court precedent when it failed to consider the fourth cate-
gory of Ex Post Facto Clause violations. Rather, the issue is whether
that category was "clearly established" at the time of the state court
decision. It clearly was not.3
To begin with, the Supreme Court’s clarification in Carmel that the
fourth category continues to exist, see 529 U.S. at 521-25, 537-39, is
not germane to this inquiry. In Carmel, the Court held that an amend-
ment to a Texas statute removing the requirement that a victim’s testi-
mony be corroborated in certain sexual offense cases fell within the
fourth category of Ex Post Facto Clause violations. Id. at 530-31.
Nevertheless, Carmel came down almost eight years after the decision
of the Maryland Court of Appeals in the case at bar. Carmel thus does
not meet the requirement that the guiding precedent of the Court be
3If the fourth category was not clearly established, then the state court
could not have acted contrary to or unreasonably applied clearly estab-
lished federal law by discounting it.
7 BOOTH-EL v. NUTH

-- 7 of 18 --

"as of the time of the relevant state-court decision." Williams, 529
U.S. at 412.
In addition, as far back as Beazell, the Supreme Court identified the
types of Ex Post Facto Clause violations without so much as mention-
ing Calder’s fourth category. 269 U.S. at 169-70. The Court offered
this explanation for the exclusion:
Expressions are to be found in earlier judicial opinions to
the effect that the constitutional limitation may be trans-
gressed by alterations in the rules of evidence or procedure.
See Calder v. Bull . . . . But it is now well settled that statu-
tory changes in the mode of trial or the rules of evidence,
which do not deprive the accused of a defense and which
operate only in a limited and unsubstantial manner to his
disadvantage, are not prohibited.
Beazell, 269 U.S. at 170.
Even more significantly, the Supreme Court in Collins appeared to
validate Beazell’s omission of the fourth category in holding that a
Texas statute allowing an appellate court to reform an improper ver-
dict rather than order a new trial did not violate the Ex Post Facto
Clause. 497 U.S. at 39. The Court first reproduced Beazell’s "confi-
dent[ ] summar[y]" of the three-fold meaning of the Clause. Id. at 42.
Then, after noting that "[t]he Beazell definition omits the reference by
Justice Chase in Calder . . . to alterations in the ‘legal rules of evi-
dence,’" the Court explained that "cases subsequent to Calder make
clear" that "this language was not intended to prohibit the application
of new evidentiary rules in trials for crimes committed before the
changes." Id. at 43 n.3. Further, the Court stated without qualification
that "[t]he Beazell formulation is faithful to our best knowledge of the
original understanding of the Ex Post Facto Clause: Legislatures may
not retroactively alter the definition of crimes or increase the punish-
ment for criminal acts." Id. at 43. Indeed, Collins ends by reiterating
that the Constitution contemplates only three types of Ex Post Facto
Clause violations:
The Texas statute allowing reformation of improper verdicts
does not punish as a crime an act previously committed,
8 BOOTH-EL v. NUTH

-- 8 of 18 --

which was innocent when done; nor make more burdensome
the punishment for a crime, after its commission; nor
deprive one charged with crime of any defense available
according to law at the time when the act was committed.
Its application to respondent therefore is not prohibited by
the Ex Post Facto Clause of Art. I, § 10.
Id. at 52. See also Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504-
505 (1995) (identifying the types of ex post facto laws without men-
tioning the fourth category).
This textual evidence accounts for Justice Ginsburg’s observation
in Carmel that if one considers "the context of the full text of the Col-
lins opinion," then "a strong case can be made that Collins pared the
number of Calder categories down to three, eliminating altogether the
fourth category." 529 U.S. at 567 (Ginsburg, J., dissenting). And the
Chief Justice, who wrote the opinion in Collins, joined Justice Gins-
burg’s dissent in Carmel. Indeed, even the Carmel majority acknowl-
edged that "Collins is rather cryptic" on the status of the fourth
category. Id. at 538.4
Thus, all of the Justices in Carmel agreed that Collins did not offer
clear guidance on the present viability of the fourth category. Further,
it made eminent sense for the Maryland Court of Appeals to rely on
Collins, for it had been decided only two years earlier. In view of
these critical facts, we are compelled to conclude that the district
court erred in holding that the state court acted contrary to or unrea-
sonably applied clearly established federal law. When the state court
rendered its decision, there was nothing clearly established about the
fourth category. It was therefore not unreasonable for the state court
to discount it.
4None of this is to suggest that Beazell and Collins unambiguously did
away with the fourth category. See Carmel, 529 U.S. at 537-38 (discuss-
ing contrary textual evidence). Rather, the dispositive point is that those
decisions rendered that category far from clearly established at the time
of the state court decision.
9 BOOTH-EL v. NUTH

-- 9 of 18 --

C.
The district court erred for another reason. After stating that
"‘[p]rocedural’ changes, even those which disadvantage a defendant,
do not fall into any of the four Calder categories and therefore do not
violate the Ex Post Facto Clause," the court went on to hold that the
change in § 413(g)(4) was not procedural:
It does not alter the type of evidence that is admissible dur-
ing the sentencing proceeding, nor does it merely change the
procedure for determining mitigating circumstances. Rather,
it imposes on the defendant an additional burden, i.e., he
must now show not only that intoxication substantially
impaired his ability to appreciate the criminality of his con-
duct or conform his conduct to the requirements of law, but
also that this constitutes a mitigating circumstance. The
amendment thus imposes an impermissible change in the
amount or degree of proof.
Booth-El, 140 F. Supp. 2d at 514-15 (footnote omitted).
But "[t]he Constitution deals with substance, not shadows." Cum-
mings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867). The amendment
did not change the elements of the crime of first-degree murder dur-
ing the commission of a robbery. Nor did it alter the fact that this
crime was punishable by death in Maryland, a fact of which pre-
existing state law gave Booth-El clear notice. The amendment also
did not remove intoxication as a possible mitigating circumstance in
death penalty proceedings. Indeed, it did not remove any mitigating
factors from the jury’s consideration.
Further, after the amendment the defendant continued to have the
burden of producing evidence of intoxication and of persuading as
many jurors as possible to find as a fact that he was intoxicated. The
district court failed to make a critical distinction between the concepts
of consideration and weight. As the state court of appeals explained,
"[b]oth before and after the 1983 amendment, the amount of weight
to be given to intoxication as a mitigating circumstance turned on the
judgment of each individual juror." Booth IV, 608 A.2d at 175. So,
for example:
10 BOOTH-EL v. NUTH

-- 10 of 18 --

a juror who finds that the defendant was intoxicated and
who is instructed that intoxication is to be considered as a
mitigating circumstance but who personally believes that
intoxication does not excuse responsibility for one’s con-
duct, will give very little weight in the balancing process to
intoxication when honoring a statutory declaration that it is
a mitigating circumstance.
Id. at 175 n.10. The amendment merely altered the procedure for
determining whether the fact of intoxication, if found, is mitigating.
And it did so only modestly. This was a "change[ ] in the procedures
by which a criminal case is adjudicated, as opposed to [a] change[ ]
in the substantive law of crimes." Collins, 497 U.S. at 45.
Indeed, this procedural change is far less disadvantageous to defen-
dants such as Booth-El than several others which have been found not
to violate the Ex Post Facto Clause. See, e.g., Collins, 497 U.S. 37;
Dobbert v. Florida, 432 U.S. 282 (1977); Evans v. Thompson, 881
F.2d 117 (4th Cir. 1989); United States v. Mest, 789 F.2d 1069 (4th
Cir. 1986). For example, in Dobbert ten of twelve jurors in a capital
case recommended life imprisonment. The trial judge overruled the
jury and imposed the death penalty. Under the law in effect at the
time of the murders, the jury’s recommendation was binding on the
trial judge. But the law was changed, rendering the jury’s view advi-
sory at the time of the trial. 432 U.S. at 287-91. The Supreme Court
found no Ex Post Facto Clause violation because "[t]he new statute
simply altered the methods employed in determining whether the
death penalty was to be imposed; there was no change in the quantum
of punishment attached to the crime." Id. at 293-94.
The district court in the case at bar attempted to distinguish Dob-
bert, observing that
the change in the law could just as easily have benefitted the
defendant as the government. The jury could have imposed
death and been overruled by a judge who felt that life
imprisonment was more appropriate. . . . The ameliorative
quality of the law in Dobbert is absent from the change in
Maryland’s law.
11 BOOTH-EL v. NUTH

-- 11 of 18 --

Booth-El, 140 F. Supp. 2d at 516-17. But the defendant in Dobbert
would probably not be very impressed by this distinction. After all,
the change in Florida law was the very antithesis of ameliorative as
applied to him. Without exaggeration, the effect on Booth-El of the
amendment at issue here fades into insignificance when compared
with the retrospective imposition of the death penalty in Dobbert.
In no important way does Booth-El find himself in a disadvantaged
position in the wake of amended § 413(g)(4). We thus fail to see how
this procedural change "affect[s] matters of substance," Beazell, 269
U.S. at 171, by depriving defendant of "the substantial protections
with which the existing law surrounds the person accused of crime,"
Duncan v. Missouri, 152 U.S. 377, 382-83 (1894), or by arbitrarily
infringing "substantial personal rights." Malloy v. South Carolina,
237 U.S. 180, 183 (1915). See also Collins, 497 U.S. at 45. We there-
fore must reverse the district court’s grant of a writ of habeas corpus
on this claim.
IV.
Booth-El next contends that the sentencing judge erred in giving an
impermissibly coercive instruction, see Allen, 164 U.S. 492, after the
jury indicated that it was split on whether Booth-El was a first degree
principal. Instead of giving the instruction, Booth-El claims the judge
should have dismissed the jury and imposed a sentence of life in
prison. See Md. Ann. Code art. 27, § 413(k)(2).
There is no doubt that "[a]ny criminal defendant, and especially
any capital defendant, being tried by a jury is entitled to the uncoer-
ced verdict of that body." Lowenfield v. Phelps, 484 U.S. 231, 241
(1988). Yet, the Supreme Court in Allen specifically approved the use
of supplemental jury instructions. 164 U.S. at 501-02. An Allen
charge is given by a court when the jury has reached an impasse in
its deliberations and is unable to reach a consensus. Id.; United States
v. Burgos, 55 F.3d 933, 935-36 (4th Cir. 1995). The decision to give
such a charge is within the discretion of the trial or sentencing court.
Burgos, 55 F.3d at 935.
In this case, the sentencing jury began deliberations at 3:00 p.m. on
August 15, 1990. At 7:10 p.m., the jury was sent home for the night.
12 BOOTH-EL v. NUTH

-- 12 of 18 --

Deliberations resumed at 9:17 a.m. the next morning. At approxi-
mately 2:25 p.m., the jury sent a note to the judge which said, "We
are split on Question 1, Section 1. We are unable to come to an agree-
ment on that statement."5 Under Maryland law, a hung jury in a capi-
tal sentencing proceeding would result in imposition of a sentence of
life imprisonment. See Md. Ann. Code art. 27, § 413(k)(2). Upon
learning of the question from the jury, Booth-El requested that the
jury be discharged and a sentence of life imprisonment be imposed.
The judge denied Booth-El’s request and, instead, delivered an Allen
charge in which he re-instructed the jury on the law and advised them
to continue deliberations in an attempt to reach agreement.6 The jury
5Question 1, Section 1 read as follows:
Based upon the evidence, we unanimously find that each of the
following statements marked "proven" has been proven
BEYOND A REASONABLE DOUBT and that each of those
statements marked "not proven" has not been proven BEYOND
A REASONABLE DOUBT.
1. The defendant was a principal in the first degree to the mur-
der.
6The sentencing court’s supplemental charge to the jury was as fol-
lows:
I am going to reread to you the charge on the law so that you
are clear as to what your responsibilities are in that area.
The law requires that in order for you to conclude beyond a
reasonable doubt that the State has proven that Mr. Booth was
a first degree principle in the murder of Mr. Bronstein, all of you
must agree within a reasonable time, and your verdict must be
unanimous.
If any of you cannot conclude that the State has proven
beyond a reasonable doubt that Mr. Booth is a principal in the
murder of Mr. Bronstein, then you must mark "not proven" in the
form and enter the words "life imprisonment" in Section 6.
In arriving at your decision, you must consult with one
another and deliberate with a view to reaching an agreement, if
you can do so without violence to your individual judgment.
Each of you must decide the case for yourself, but you must
do so only after an impartial consideration of the evidence with
13 BOOTH-EL v. NUTH

-- 13 of 18 --

resumed deliberations at 2:45 p.m. The jury requested to be excused
at 5:50 p.m. At that time, Booth-El again asked that the jury be dis-
charged and a life sentence imposed. The judge denied the request
and excused the jury. At 9:00 a.m. the next morning, after Booth-El
renewed his request that the jury be discharged and it was again
denied, deliberations resumed. The jury announced it had reached a
verdict at 2:25 p.m. After listening to seven days of evidence, the jury
returned a sentence of death after slightly less than eighteen hours of
deliberations over three days.
In an attempt to argue that the jury was "coerced" into giving him
a death sentence, Booth-El suggests that this court should speculate
about what may have been going on in the minds of the jurors when
they heard the Allen charge. For example, Booth-El contends that
jurors in the minority might have believed that the judge thought they
were "confused" and "irresponsible," and that the charge was a judi-
cial suggestion to accept the majority’s position. However, in review-
ing the propriety of an Allen charge, the issue is not what the jurors
might have been thinking. Rather, it is whether the instruction given
by the trial court "in its context and under all the circumstances" was
coercive. Lowenfield, 484 U.S. at 237 (internal quotations omitted).
The Maryland Court of Appeals declined to hold that an Allen
charge was coercive simply because it was used in a capital sentenc-
ing proceeding. Booth IV, 608 A.2d at 170. It then examined the sen-
tencing judge’s instruction in light of Lowenfield and found that the
"ultimate paragraph" of the instruction in this case was substantially
the same as the one found not to be coercive in Lowenfield. Id. at 169.
Both the charge in this case and the one in Lowenfield instructed each
juror to "decide the case for yourself" and to deliberate with the
objective of reaching an agreement "if you can do so without violence
to [your] individual judgment." Lowenfield, 484 U.S. at 235; Booth
your fellow jurors. During your deliberations, do not hesitate to
re-examine your own views. You should change your opinion if
convinced you are wrong, but do not surrender your honest
belief as the weight or effect of the evidence only because of
opinions of your fellow jurors, or for the mere purpose of reach-
ing a verdict.
14 BOOTH-EL v. NUTH

-- 14 of 18 --

IV, 608 A.2d at 166. These instructions were designed to encourage
further deliberations, not to coerce jurors in the minority to change
their vote. The Court of Appeals specifically noted that the charge
given was not directed at the minority. Booth IV, 608 A.2d at 170.
And the court held that "[n]or, considering the evidence and the seri-
ousness of the matter to Booth and to the community, did the court
abuse its discretion in repeating the Allen-type instruction." Id. at 170.
Additionally, as the district court noted, "the traditional indicia of
coercion are not present in this case." Booth-El, 140 F. Supp. 2d at
524; see Tucker v. Catoe, 221 F.3d 600, 611 (4th Cir. 2000). The jury
deliberated for "slightly less than eighteen hours over three days."
Booth-El, 140 F. Supp. 2d at 524. In light of the gravity of the issue
before the jury and the seven days of evidence presented, the total
amount of time spent deliberating did not indicate coercion. Id.; see
Tucker, 221 F.3d at 611. When the Allen charge was given, the jury
had deliberated for approximately nine hours over two days. It was
not unreasonable after nine hours for the sentencing judge to send the
jury back for further deliberations. At the time, the judge "did not
know the numerical division of the jury." Booth-El, 140 F. Supp. 2d
at 524. Finally, the sentencing judge "did not advise the jury that a
unanimous verdict was required." Id. Rather, the judge instructed the
jury that, "while a finding that Booth-El was a first degree principal
must be unanimous, if ‘any’ juror did not agree with that conclusion,
the jury ‘must mark not proven on the form and enter the words life
imprisonment.’" Id. There is simply no evidence that the Allen charge
coerced the jury into imposing a sentence of death.
It was not, therefore, an abuse of discretion for the sentencing court
to issue the Allen charge in this case. The district court correctly
determined that the Maryland Court of Appeals’ decision did not rep-
resent a contravention of or an unreasonable application of clearly
established federal law. 28 U.S.C. § 2254(d)(1); see also Williams,
529 U.S. at 405-12.
V.
Booth-El also argues that he was denied due process when the
judge refused to bifurcate the 1990 sentencing proceeding, so that the
jury would determine whether he was a first degree principal before
15 BOOTH-EL v. NUTH

-- 15 of 18 --

any evidence regarding aggravating and mitigating factors was
presented. In Maryland, a defendant must be a principal in the first
degree to be eligible for the death penalty, except in murder for hire
cases. Md. Ann. Code art. 27, § 413(e)(1). The sentencing judge or
jury determines whether the defendant was a principal in the first
degree. Booth-El, 140 F. Supp. 2d at 508.
As the Maryland Court of Appeals noted, Booth-El had been found
guilty of murder in the first degree before the sentencing phase even
began. Booth IV, 608 A.2d at 171. Under Maryland law, there is no
error in considering principalship, along with the aggravators and mit-
igators, in a single sentencing proceeding. Id. at 170-71. States are
free to select, within constitutional limits, what procedure to use in
death penalty proceedings. The fact that other states have made a dif-
ferent choice than Maryland is of no consequence. Therefore, the
Maryland Court of Appeals’ decision rejecting this claim was not
"contrary to, or an unreasonable application of clearly established
Federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(1); see also Williams, 529 U.S. at 405-
12.7
VI.
Finally, Booth-El claims that he received constitutionally ineffec-
tive assistance of counsel during the guilt phase of his 1984 trial. See
Strickland v. Washington, 466 U.S. 668 (1984). Booth-El contends
7Booth-El further asserts that, when considered along with the sentenc-
ing court’s refusal to bifurcate his sentencing hearing, the court’s refusal
to allow him to testify without being subject to cross examination on
details of the crimes effectively denied him the right to present sworn
testimony on non-principalship mitigating factors. As the district court
correctly noted, the Supreme Court has not addressed the issue of
whether a capital defendant has a constitutional right to testify in a sen-
tencing proceeding without being cross-examined. Yet, both the Mary-
land Courts of Appeals and this circuit have rejected Booth-El’s
argument. See Booth IV, 608 A.2d at 172-73; United States v. Barnette,
211 F.3d 803, 820 (4th Cir. 2000). Thus, the Maryland Court of Appeals’
decision was not an unreasonable application of clearly established fed-
eral law.
16 BOOTH-EL v. NUTH

-- 16 of 18 --

that his lawyers failed to investigate and present readily available evi-
dence tending to disprove that Booth-El killed Mr. Bronstein, and also
failed to object to one of the three venire panels from which the trial
jurors were selected. Neither of these claims provides a basis for
habeas relief.
The standard of review is a deferential one. We "indulge a strong
presumption that counsel’s conduct falls within the wide range of rea-
sonable professional assistance." Strickland, 466 U.S. at 689. To suc-
ceed on his claim, Booth-El must show that (1) "counsel’s
representation fell below an objective standard of reasonableness,"
and (2) "there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 688, 694. Booth-El has failed to
meet this standard.
A.
First, Booth-El claims that his lawyers were ineffective because
they failed to investigate and present certain forensic evidence relat-
ing to the presence of two knives at the scene. Essentially, it appears
that Booth-El contends defense counsel should have presented evi-
dence that one knife found at the scene could have been used to kill
both of the Bronsteins and that this evidence could have raised doubt
in the juror’s minds regarding the prosecution’s theory that Booth-El
killed Mr. Bronstein and Reid killed Mrs. Bronstein. However, during
the 1990 re-sentencing proceedings, Booth-El presented a forensic
expert who testified that the second knife at the scene had not been
used to kill either of the Bronsteins. Nevertheless, the sentencing jury
concluded that Booth-El was a principal in the first degree in Mr.
Bronstein’s murder. Since the sentencing jury had the benefit of the
forensic expert and still concluded beyond a reasonable doubt that
Booth-El was a principal in the first degree, the state post-conviction
court found that Booth-El had failed to meet the second prong of the
Strickland test. And the district court properly held the decision that
the outcome of the trial would not have been changed was not an
unreasonable application of the second prong of Strickland. Booth-El,
140 F. Supp. 2d at 531.
17 BOOTH-EL v. NUTH

-- 17 of 18 --

B.
Second, Booth-El argues that one of the three panels from which
jurors were selected for the guilt phase of his 1984 trial was tainted.
He contends that counsel was ineffective for failing to object to that
panel. His evidence consists of, inter alia, voir dire statements of cer-
tain panel members that they had overheard conversations in the jury
room about the case and that they were afraid. Yet, as the state post-
conviction court noted, one of Booth-El’s lawyers testified at the
post-conviction hearing that he found the jury to be "highly desir-
able." Indeed, counsel specifically declined to object to the entire jury
array at trial, and each of the jurors impaneled answered under oath
that he or she could be impartial. And the post-conviction court noted
that none of the members of the second panel identified as potential
problems actually served on the final jury.
Once again, Booth-El’s claim of prejudice is purely speculative.
Defense counsel made a tactical decision to preserve the jury that had
already been selected. There is no evidence that counsel’s actions
were unreasonable or resulted in actual prejudice, as required by
Strickland. Thus, the district court properly concluded that the post-
conviction court’s conclusions were a reasonable application of
clearly established federal law. See Ross v. Oklahoma, 487 U.S. 81,
88 (1988); Murphy v. Florida, 421 U.S. 794 (1975).
VII.
Booth-El’s case has become perhaps a textbook example of a pro-
tracted capital proceeding. Throughout that proceeding, the Maryland
courts have not only been attentive to his rights, but have bent over
backwards to protect them. Perforce there has been no contravention
or unreasonable application of clearly established federal law. For the
foregoing reasons, the judgment of the district court is affirmed in
part, reversed in part, and remanded with directions to dismiss the
petition.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED
18 BOOTH-EL v. NUTH

-- 18 of 18 --