United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-2553

___________________________

Roger Lemaster

lllllllllllllllllllllPlaintiff - Appellant

v.

Wendy Kelley, Director, Arkansas Department of Correction

lllllllllllllllllllllDefendant - Appellee

____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Pine Bluff

____________

Submitted: September 28, 2018

Filed: November 8, 2018

[Unpublished]

____________

Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.

____________

PER CURIAM.
Roger Lemaster claims in his federal habeas petition that trial counsel was

ineffective for allegedly dissuading him from testifying in his own defense. The

district court concluded that he was not entitled to any relief, and we affirm.

1

I.

The state of Arkansas charged Lemaster with the rape of his minor

stepdaughter. Lemaster’s defense at trial was that she had fabricated the allegations,

largely due to the encouragement of her mother, with whom he had a fractured

relationship. Lemaster’s attorney aggressively cross-examined the victim at trial,

which revealed problems with her testimony and inconsistencies in her account. 

Defense counsel focused on the victim’s credibility in closing argument.

Despite this focus, Lemaster did not testify. He now alleges that he expressed

a desire to do so, but counsel talked him out of it by allegedly telling him that “there

was‘no reason’” for it and that “the ‘case was won’ without his testimony.” Lemaster

did not protest when the defense rested without calling him as a witness. Despite

counsel’s confidence, the jury found Lemaster guilty.

After his conviction became final,Lemaster filed a state postconviction petition

in which he alleged, among other things, that counsel had rendered constitutionally

ineffective assistance by advising himnot to testify. The state trial court denied relief

without granting him an evidentiary hearing, and as relevant here, the Arkansas

Supreme Court affirmed. Lemaster v. State, 2013 Ark. 449, at 3–6 (per curiam). The

bottom-line conclusion of the Arkansas Supreme Court was that Lemaster had failed

to establish “that counsel’s decision to advise him not to testify was other than a

tactical decision within the realm of counsel’s professional judgment.” Id. at 6.

The Honorable Billy Roy Wilson, United States DistrictJudge for the Eastern 1

District of Arkansas.

-2-
Lemaster then petitioned for federal habeasrelief. The district court denied his

ineffective-assistance-of-counsel claim, again without an evidentiary hearing. But

it granted him a certificate of appealability on the claim, which we now review de

novo. See O’Rourke v. Endell, 153 F.3d 560, 578 (8th Cir. 1998). 

II.

Lemaster’s claim fails from the start. By statute, a federal court may not grant

habeas relief on “any claim that was adjudicated on the merits in State court

proceedings unlessthe adjudication,” asrelevant here, “resulted in a decision that was

contrary to, or involved 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). We must, in other words, defer to “[a] state court’s determination that 2

a claim lacks merit . . . so long as fairminded jurists could disagree on the correctness

of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(internal quotation marks and citation omitted).

Lemaster is not entitled to federal habeasrelief because the Arkansas Supreme

Court’s decision was neither contrary to nor an unreasonable application of clearly

established federal law. To prevail on his ineffective-assistance-of-counsel claim,

Lemaster had to show that “counsel’s performance was deficient,” Strickland v.

Washington, 466 U.S. 668, 687 (1984), which the Arkansas Supreme Court

concluded that he did not do, Lemaster, 2013 Ark. 449, at 6.

A federal court may also grant a petition for a writ of habeas corpusif the state

2

court’s decision was “based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 18 U.S.C. § 2254(d)(2). The

state court’s decision did not rest on a factual determination, much less an

unreasonable one.

-3-
Proving deficiency is no easy task, because attorneys who have prepared for

trial are entitled to a “strong presumption” that the challenged action was “sound trial

strategy.” Strickland, 466 U.S. at 689 (citation omitted); accord Francis v. Miller,

557 F.3d 894, 901 (8th Cir. 2009) (explaining the “general presumption” that

attorneys who have prepared for trial have “engaged in sound trial strategy”). For

example, provided that counsel has adequately investigated the “law and facts

relevant to plausible options,” a decision not “to call [a] witness[] . . . is presumed to

be reasonable trial strategy.” White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005)

(quoting Strickland, 466 U.S. at 690). 

All the Arkansas Supreme Court did when it denied Lemaster’s

ineffective-assistance-of-counsel claim was apply the presumption from Strickland

and conclude that Lemaster had not overcome it. It did not, as the district court

thought, “announce[] a per se rule that counsel cannot be deficient for advising a

defendant not to testify aslong as counsel informs the defendant of his right to testify

on his own behalf.” After all, saying that Lemaster “fail[ed] to meet his burden of

proof” or “show” that trial counsel’s decision was anything “other than a tactical

decision,” Lemaster, 2013 Ark. 449, at 5–6, is context-specific, not categorical.

The Arkansas Supreme Court’s decision also reasonably applied the

presumption. Among other things, Lemaster did not allege that counsel had

conducted a deficient investigation, relied on bad information, orintentionallymisled

him or coerced him into giving up his right to testify. In fact, Lemaster did not even

“state what his testimony would have been.” Id. at 4. Instead, he simply made

conclusory assertions that trial counsel, in hindsight, should have made a different

strategic calculation. Given these threadbare allegations, the Arkansas Supreme

Court was entitled to conclude that Lemaster had failed to overcome the presumption

of competence and “meet his burden of proof” to show deficiency. Id. at 5.

-4-
That the Arkansas Supreme Court reasonably rejected Lemaster’s claim also

establishes that the district court did not abuse its discretion when it declined to hold

an evidentiary hearing. See Wright v. Bowersox, 720 F.3d 979, 987 (8th Cir. 2013)

(explaining the standard of review). A district court is not required to hold an

evidentiary hearing if the record “precludes habeasrelief.” Schriro v. Landrigan, 550

U.S. 465, 474 (2007). Lemaster’s claim fails under 28 U.S.C. § 2254(d)(1),

regardless of any facts that might emerge at an evidentiary hearing.

III.

We affirm the judgment of the district court.

______________________________

-5-