Bahtuoh v. Smith

• Decision Date: 28 April 2017
• Docket Number: No. 16-2279,16-2279
• Citation: 855 F.3d 868
• Parties: Christopher Dineaa BAHTUOH, Petitioner–Appellant v. Michelle SMITH, Warden, Respondent–Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

855 F.3d 868

Christopher Dineaa BAHTUOH, Petitioner–Appellant

v.Michelle SMITH, Warden, Respondent–Appellee

No. 16-2279

United States Court of Appeals, Eighth Circuit.

Submitted: March 10, 2017

Filed: April 28, 2017

Counsel who presented argument on behalf of the appellant and appeared on the brief was Frederick J. Goetz, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Elizabeth Roosevelt Johnston, of Minneapolis, MN.

Before LOKEN, MURPHY, and BENTON, Circuit Judges.

MURPHY, Circuit Judge.

Christopher Bahtuoh participated in a drive by shooting and was convicted in state court of first degree felony murder. After unsuccessfully seeking state postconviction relief, he brought this federal habeas action under 28 U.S.C. § 2254. He claims that his defense counsel provided ineffective assistance by advising him not to testify after counsel had promised the jury that he would. The district court¹ denied habeas relief, and Bahtuoh appealed. We affirm.

I.

In April 2009 Christopher Bahtuoh was driving in a Minneapolis neighborhood with Lamont McGee, a member of the I-9 gang. Although Bahtuoh was not a member of the gang, he had associated with I-9 members for years. During their ride Bahtuoh saw Kyle Parker, a member of the rival Taliban gang, standing with a few friends. Bahtuoh knew Parker from school and turned his car around to speak with him. When Parker spotted the car approaching, he told his friends that it was only Fat Chris, a nobody. Bahtuoh stopped his car by Parker, and McGee pulled out a gun and fired into Parker's chest. The shots killed Parker, and Bahtuoh sped away. Bahtuoh then dropped off McGee and went into hiding himself.

Approximately six weeks later, Bahtuoh surrendered to the police with the assistance of his lawyer. He initially denied that he or his car had been at the scene of the murder, but in a later interview admitted Parker had been shot from his car. After the state filed its complaint against him, Bahtuoh explained to the grand jury that on the night in question he had been hanging out with a group of friends when shots were fired from a car driving by. The group fled to nearby cars, and Bahtuoh got into his along with McGee. Shortly after the two drove away, Bahtuoh saw Parker flagging him down. Then he turned his car around, stopped next to Parker and asked "what's up?" According to Bahtuoh, he "didn't see [McGee's] gun until it was ... already standing out the window," right before McGee shot Parker. The grand jury indicted Bahtuoh on multiple counts of first and second degree murder.

The case was tried to a jury. Before trial Bahtuoh and his attorney decided that he should testify on his own behalf, and defense counsel told the jury during opening statements that Bahtuoh would waive his right to remain silent and testify. Defense counsel predicted that Bahtuoh would explain how he and Parker were acquaintances from college, that he was not very familiar with McGee, and why he had believed that McGee was not armed. After going over Bahtuoh's testimony with the jury, defense counsel asked the jurors "to keep an open mind" until Bahtuoh took the stand and explained what had actually happened on the day of the killing.

The night before the state rested its case, defense counsel nevertheless decided to change strategy. The state had already introduced most of the evidence that defense counsel had planned for by having Bahtuoh's grand jury testimony read into the record. Defense counsel also believed at this point that the state's evidence was weak and that it had failed to prove its case. Counsel advised Bahtuoh not to testify, and Bahtuoh took the advice. The defense therefore rested immediately after the state, without introducing any evidence of its own.

During closing arguments, defense counsel addressed his change in strategy, explaining that it was his fault that Bahtuoh had not testified and that he had decided not to put Bahtuoh on the stand because "the government didn't prove their case and his truthful story came across in his grand jury testimony." Defense counsel's prediction about the strength of the government's case proved only partially correct, however. The jury acquitted Bahtuoh of first degree premeditated murder, but convicted him of first degree felony murder, where the underlying felony was a drive by shooting, and second degree murder, both for the benefit of a gang.

Bahtuoh appealed and also sought state postconviction relief on the basis of ineffective assistance of counsel and other claims.

The state court denied Bahtuoh postconviction relief. In a consolidated appeal, the Minnesota Supreme Court affirmed Bahtuoh's conviction and the denial of postconviction relief. State v. Bahtuoh , 840 N.W.2d 804 (Minn. 2013). As to Bahtuoh's ineffective assistance of counsel claim, the court concluded that defense counsel's advice to Bahtuoh not to testify, despite counsel's previous statements to the jury, was not constitutionally deficient. Id. at 816–18. Bahtuoh then sought habeas relief in federal court under 28 U.S.C. § 2254 on multiple grounds, including ineffective assistance of counsel. United States Magistrate Judge Jeffrey J. Keyes issued a Report and Recommendation, advising the district court to deny Bahtuoh habeas relief. The district court adopted the Report and Recommendation and issued a certificate of appealability on Bahtuoh's ineffective assistance of counsel claim.

II.

Bahtuoh argues that the district erred by concluding that he was not entitled to habeas relief on the basis of ineffective assistance of counsel. "We review legal issues presented in a habeas petition de novo" and the district court's "underlying factual findings for clear error." Nunley v. Bowersox , 784 F.3d 468, 471 (8th Cir. 2015) (internal quotation marks omitted).

When, as here, a claim presented in a 28 U.S.C. § 2254 habeas petition has been adjudicated by the state court, "habeas relief is permissible under the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’) only if the state court's determination ... ‘was contrary to, or involved an unreasonable application of, clearly established Federal law ... [or] was based on an unreasonable determination of the facts.’ " Williams v. Roper , 695 F.3d 825, 830 (8th Cir. 2012) (citation omitted) (quoting 28 U.S.C. § 2254(d) ). Although Bahtuoh concedes that the Minnesota Supreme Court properly recited the governing federal law for ineffective assistance of counsel claims, he argues that the court's decision was based on an unreasonable application of that law and an unreasonable determination of the facts. Each argument will be addressed in turn.

A.

The Supreme Court explained the standard governing ineffective assistance of counsel claims in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance of counsel, a petitioner must show both that (1) his counsel's performance was deficient, or that it "fell below an objective standard of reasonableness," and also that (2) "the deficient performance prejudiced the defense." Id. at 687–88, 104 S.Ct. 2052. Bahtuoh argues that the Minnesota Supreme Court unreasonably applied Strickland 's deficiency prong by concluding that it was not objectively unreasonable for defense counsel to advise Bahtuoh not to testify after having promised the jury that he would.

A federal court may grant relief under 28 U.S.C. § 2254(d)'s "unreasonable application" clause if a state court has unreasonably applied the governing legal principle to the facts of the case. Williams v. Taylor , 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The state court's decision must be "more than incorrect or erroneous"—it "must be objectively unreasonable." Lockyer v. Andrade , 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). A decision is not objectively unreasonable if "fairminded jurists could disagree" as to its correctness. Harrington v. Richter , 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado , 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) ).

Establishing objective unreasonableness is particularly difficult with ineffective assistance of counsel claims. Strickland provides a deferential standard to review such claims by having courts "apply a ‘strong presumption’ that counsel's representation was within the ‘wide range’ of reasonable professional assistance." Harrington , 562 U.S. at 104, 131 S.Ct. 770 (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ). Because this standard based on reasonable professional assistance is broad and general, courts have "more leeway [under 28 U.S.C. § 2254(d) ] ... in reaching outcomes in case-by-case determinations." Id. at 101, 131 S.Ct. 770 (quoting Yarborough , 541 U.S. at 664, 124 S.Ct. 2140 ). Our review of the Minnesota Supreme Court's application of Strickland 's deficiency element to Bahtuoh's appeal "is thus doubly deferential," requiring a "highly deferential look at counsel's performance through the deferential lens of § 2254(d)." Cullen v. Pinholster , 563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (internal citation and quotation marks omitted).

Given this doubly deferential review, we cannot say that the Minnesota Supreme Court unreasonably applied Strickland here. We have previously recognized that "failing to present witnesses promised in an opening is not always an error of a constitutional dimension." Williams v. Bowersox , 340 F.3d 667, 671–72 (8th Cir. 2003). In Williams , defense counsel changed strategy after the state had called most of the anticipated defense witnesses and counsel believed he had "beat the state's case through his cross-examination of the state's witnesses." Id. at 669 (internal quotation marks omitted). In similar fashion, the Minnesota Supreme Court determined here that defense counsel's change in strategy was reasonable in part because he had weighed the...