IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-10524

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

MICHAEL JOHN MULLINS,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

December 16, 2002

Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Federal prisoner Michael John Mullins claims that he was

denied the effective assistance of counsel when his trial counsel

prevented him from testifying in spite of his repeated requests to

do so. The district court granted his petition, and the government

appeals. We reverse.

I.

Mullins was involved in a drug deal in which undercover

officers tr aded a television for drugs at a residence Mullins2

shared with his girlfriend. At the conclusion of their

investigation, police officers executed an evidentiary search

warrant to recover the television from Mullins’s residence. During

a protective sweep of the apartment, the officers discovered a

shotgun in a bedroom closet. They disarmed it and left it in the

bedroom. Mullins was not arrested during the execution of the

warrant and remained on the front porch along with a friend.

Approximately a half hour later, Mullins spoke to Officer South on

the porch. Exactly what was said is in dispute. The officer

testified that Mullins told him that he had purchased the shotgun

on the street, and did not want it if it was stolen. The officer

had Mullins retrieve the gun, and gave Mullins a receipt which

Mullins signed stating that he had bought the gun on th e street.

Mullins’s present explanation is that he told the officer that the

gun was not his, that his girlfriend had bought it on the street,

that it may be stolen, and that he did not want it around; that he

could not read the receipt because he did not have his glasses and

would not have signed it had he known that it stated he admitted

ownership of the gun.

Mullins was indicted by a federal grand jury on the charge of

felon in possession of a shotgun under 18 U.S.C. § 922(g)(1).

During the execution of an arrest warrant at Mullins’s new

residence, Mullins’s girlfriend consented to a search of the

residence. Officers found two handguns in a nightstand next to the

bed Mullins and his girlfriend shared, and drug paraphernalia in a3

closet in the bedroom. In a superseding indictment, Mullins was

indicted on a second count of felon in possession of a firearm for

the two handguns.

Mullins was represented by counsel at a jury trial. He was

found guilty on Count 1, involving the shotgun, but the jury could

not reach a unanimous verdict on Count 2, involving the handguns.

Mullins was sentenced to imprisonment for 235 months, followed by

five years superv ised release, based on his prior convictions.

Count 2 was dismissed on government motion.

On appeal, Mullins argued that the trial court gave an

erroneous jury instruction on reasonable doubt and used an invalid

prior conviction to enhance his sentence. This court affirmed his

conviction and sentence.

More than four years after his trial, Mullins filed a petition

under 28 U.S.C. § 2255 asserting that his counsel prevented him

from testifying at his trial over his expressed desir e to do so.

The district court summarily dismissed Mullins’s motion as

untimely. In April 2000, this court granted Mullins’s request for

a COA “on the issue whether the district court erred in determining

that Mullins’s claim that counsel was ineffective in preventing him

from testifying was procedurally barred” and remanded to the

district court for further proceedings.

The magistrate judge held an evidentiary hearing. After

hearing testimony from Mullins and his trial counsel, the

magistrate judge concluded that Mullins’s petit ion was not time-1 Sayre v. Anders on , 238 F.3d 631, 634 (5th Cir. 2001) (citing R ock v.

Arkansas , 483 U.S. 44 (1987)).

2 Emery v. Johnson , 139 F.3d 191, 198 (5th Cir. 1997).

3 Id.

4 Sayre

, 238 F.3d at 634 (quoting Un ited States v. Brown , 217 F.3d 247,

258-59 (5th Cir. 2000), vacated and remanded on other grounds sub nom. Randle v.

United States , 531 U.S. 1136 (2001).

4 barred, and recommended that his petition based on a claim of

ineffective assistance of coun sel be granted. Over the

government’s timely objections, the district court accepted the

magistrate judge’s findings and recommendations and entered

judgment granting Mullins’s § 2255 petition. The government timely

appeals.

II.

A criminal defendant’s right to testify is well established. 1

Only the defendant may waive this right, not his counsel, 2 and it must

be knowing and voluntary. 3 We distinguish between interference with

that right by defense counsel, and interference by the court or

prosecutor.

In Sayre v. Anderson

, we held that where the defendant

contends that his counsel interfered with his right to testify, the

“appropriate vehicle for such claims is a claim of ineffective

assistance of counsel.” 4 If there is a claim that the court or

prosecutor has interfered with the right to testify there is a5 See id

. at n.2; see also Brown , 217 F.3d at 258-59 (acknowledging a

substantive right to testify where the court’s conduct was challenged, and

performing a Strickland analysis where only defense counsel’s conduct was at

issue); United States v. Willis

, 273 F.3d 592, 598 (5th Cir. 2001) (recognizing

both a substantive right to testify claim where the defendant asserted that the

trial court had erred in not s ua sponte questioning him about whether he was

voluntarily waiving his right to testify and an ineffective assistance of counsel

claim where the defendant alleged that his counsel fail ed to allow him to

testify).

6 Sayre

, 238 F.3d at 634 (citing Strickland v. Washington

, 466 U.S. 668,

687-94 (1984)).

7 Id. at 634-35 (citing C rane v. Johnson

, 178 F.3d 309, 312 (5th Cir.

1999)).

8 Brown , 217 F.3d at 259 (citing Strickland, 466 U.S. at 687).

5 different standard. 5 Mullins asserts that his counsel interfered

with his right to testify, and the district court applied the

Strickland standard.

Strickland requires that a defendant show both that: (1) trial

counsel’s performance was deficient and (2) that the deficient

performance prejudiced the defense. 6 Ineffective assistance of

counsel is a mixed question of law and fact, an d we review the

district court’s grant of habeas relief de novo

, whi le crediting

the d istrict court’s express or implied findings of discrete

historic fact that are not clearly erroneous. 7

III.

To satisfy the first element of Strickland

, the defendant must

show that “counsel's performance fell below an objective standard

of reasonableness.” 8 In determining whether counsel’s performance

was d eficient, we must be highly deferential to counsel’s trial9 Sayre , 238 F.3d at 635.

10 See, e.g., Id. (stating that the defendant must overcome a strong

presumption that counsel’s decision not to place the defendant on the stand was

sound trial strategy); Robison v. Johnson

, 151 F.3d 256, 26 2 (5th Cir. 1998)

(finding that counsel’s recommendation that the defendant not testify was

reasonable trial strategy); Hollenbeck v. Estelle , 672 F.2d 451, 454 (5th Cir.

1982) (stating that the decision not to put the defendant on the stand was trial

strategy).

11 Robison

, 151 F.3d at 261 (q uoting United States v. Garcia , 762 F.2d

1222, 1226 (5th Cir. 1985)).

12 See Willis

, 273 F.3d at 594 n.2; Sayre

, 238 F.3d at 634; Brown

, 217 F.3d

at 259; Robison

, 151 F.3d at 261; Emery

, 139 F.3d at 198-99; Garcia

, 762 F.2d at

1226; Hollenbeck

, 672 F.2d at 453; Mays v. Estelle

, 610 F.2d 296 (5th Cir. 1980).

13 Se e Brown , 217 F.3d at 259; R obison

, 151 F.3d at 262; Emery

, 139 F.3d

at 199; Hollenbeck

, 672 F.2d at 453 (noting that the court informed the defendant

that he had the right to testify and that no one could prevent him from

testifying, and that the defendant understood, although later characterizing

counsel’s not calling the defend a nt to the stand “restraining” defendant’s

testimony).

6 strategy. 9 In the past, we examined counsel’s decision on whether

a defendant will testify as part of counsel’s trial strategy. 10 In

examining that strategy, we keep in mind that “the decision whether

to put a Defendant on the stand is a 'judgment call' which should

not easily be condemned with the benefit of hindsight.” 11

At the same time it cannot be permissible trial strategy,

regardless of i ts merits otherwise, for counsel to override the

ultimate decision of a defendant to testify contrary to his advice.

We have decided several cases where the defendant alleged that his

counsel in some way prevented him from test ifying. 1 2 In those

cases, we have often foun d that the record did not support the

defendant’s c laim, concluding that the defendant agreed with his

counsel’s sound trial strategy that he not testify. 1 3 In other14 See Willis

, 273 F.3d at 598-99; Sayre

, 238 F.3d at 635; Garcia

, 762 F.2d

at 1226; Mays , 610 F.2d at 297.

15 Emery , 139 F.3d at 198.

16 See Brown v. Artuz

, 124 F.3d 73, 78 (2nd Cir. 1997) (holding that the

decision whether to testify belongs to the defendant, and citing cases reaching

the same conclusion from the 3rd, 4th, 7th, 8th, 9th, 11th and D.C. Circuits).

17 742 F.2d 1070, 1076 (7th Cir. 1984).

7 cases, we determined that the decision that the defendant not

testify was sound trial s trategy without directly addressing

whether the lawyer made the decision over the objection of his

client, or if the client made the decision. 1 4 These cases

implicitly, and we think correctly, conclude that when the record

is simply that the defendant knew of his right to testify and

wanted to do so but counsel was opposed, defendant acquiesced in

his lawyer’s advice, and therefore the only inquiry is whether that

advice was sound trial strategy. That is not this record.

IV.

The decision of whether to testify belongs to t he defendant

and his lawyer cannot waive it over his objection. 15 Other circuits

have reached the same conclusion. 16 As the Seventh Circuit stated

in United States v. Curtis :

When a defendant asserts that he desires to exercise his

constitutional right to testify truthfully, counsel's

duty is to inform the defendant why he believes this

course will be unwise or dangerous. If a defendant

insists on testifying, however irrational that insistence

might be from a tactical viewpoint, counsel must accede.

We hold that a defendant's personal constitutional right

to testify truthfully in his own behalf may not be waived

by counsel as a matter of trial strategy. 1718 953 F.2d 1525, 1534 (11th Cir. 1992) (citations omitted); see also Brown

v. Artuz , 124 F.3d 73, 80 (2nd Cir. 1997) (quoting Teague favorably).

19 34 F.3d 310 (5th Cir. 1994) vacated en banc

, 53 F.3d 94 (5th Cir. 1995).

8 The Eleventh Circuit reached the same conclusion in United States

v. Teague :

[I]f defense counsel refused to accept th e defendant's

decision to testify and would not call him to the stand,

counsel would have acted unethically to prevent the

defendant from exercising his fundamental constitutional

right to testify....Under such circumstances, defense

counsel has not acted " 'within the range of competence

demanded of attorneys in criminal cases,' " and the

defendant clearly has not received reasonably effective

assistance of counsel. 18

To hold otherwise is to ignore the fact that the defendant’s right

to testify is secured by the Constitution and only he can waive it.

It cannot be reasonable trial strategy for an attorney to not honor

his client’s decision to exercise his constitutional right to

testify, not because the advice not to take the stand is unsound,

but because counsel must in the end accede if the client will not

abide by the advice.

Relying on Hollenbeck

, Garcia, Jordan v. Hargett, 19 Robison and

Sayre

, the government argues that when a defendant is aware of his

right to testify and remains silent before the trial court, this

court will not find his counsel’s refusal to allow him to testify

to be ineffective. Stated another way, the government asserts that

we have found that a defendant waives his right to testify by not

speaking out during the trial if his counsel will not allow him to

make the final decision.20 See Robison , 151 F.3d at 262; Hollenbeck , 672 F.2d at 453.

21 See Sayre , 238 F.3d at 635; Garcia , 762 F.2d at 1226.

22 Jordan , 53 F.3d at 95.

9 We disagree with this reading of our decisions. H ol lenbeck

and Robison found that the defendant acquiesced in his counsel’s

advice that he not testify. 2 0 G arcia and Sayre did not reco r d

whether defense counsel left the ultimate decision to the client,

or whether the client acquiesced in his counsel’s advice. 21 And in

Jordan

, the en banc court state d that it “need not decide the

questions of constitutional law discussed in the panel opinion.” 22

Mullins testified at the habeas hearing that he knew that he

had a constitutional right to testify. Nothing in the record

indicates that he made his desire to testify known to anyone but

his lawyer. If our record here had no more we could conclude that

Mullins had accepted the advice of counsel. There was more.

Mullins’s trial counsel testified that she did not leave the

decision to Mullins. She explained that while he had initially

agreed with her advice, he changed his mind during the trial. The

district court found that both Mu llins and his trial counsel

“testified credibly at the evidentiary hearing that he expressed a

desire to testify [to his counsel] numerous times during trial and

that counsel alone chose to prevent his testimony.” We are

compelled to conclude that this finding is not clearly erroneous.

That is, the record is not silent on the outcome of the discussion10

between lawyer and client. In this circumstance we cannot infer

from Mullins’s silence before the trial court that he acquiesced in

the advice not to testify.

We resist the suggestion that we ought to insist that a

defendant directly address the court at the pain of waiver to

assert his right to testify when hi s counsel will not abide his

decision. Such a requirement is not without appeal, offering a way

of avoiding after-trial swearing cont ests. However, the natural

location for any burden to enlist the aid of the court is upon

counsel, and that is no new burden. Careful defense counsel

routinely advise the trial judge out of the jury’s presence that

the defendant will or will not testify, contrary to their advice.

Even without its initiation by counsel, careful trial judges will

similarly i nquire if the defendant understands his right to

testify. We think both these trial practices are better calculated

to protect a defendant’s right to testify. Declining to place upon

the defendant the responsibility to address the court directly is

consistent with the reality that routine instructions to defendants

regarding the protocols of the court often include the admonition

that they are to address the court only when asked to do so. We

agree with the Second Circuit’s observation that “[a]t trial,

defendants generally must speak only through counsel, and, absent23 Chang v. United States

, 250 F.3d 79, 84 (2nd Cir. 2001) (acknowledging

a split among the circuits on this issue, but finding no waiver).

24 In reaching its conclusion, the district court relied in large part on

the testimony of Mullins’s counsel that in retrospect and with more experience,

she would have acted di fferently. This kind of hindsight analysis is not

permitted in determining whether trial strategy was sound. S e e Kitchens v.

Johnson , 190 F.3d 698, 701 (5th Cir. 1999).

11 something in the record suggesting a knowing waiver, silence alone

cannot support an inference of such a waiver.” 23

The district court found that there was credible evidence that

Mullins’s counsel did not honor his decision to testify. While

such a claim made for the first time four years after the trial is

more than suspect, Mullins’s counsel’s testimony at the evidentiary

hearing supports his claim. As we have detailed, she testified

that he repeatedly requested to testify, and that she “prevented”

him from doing so against his wishes. Bound by this finding, we

must conclude that Mullins’s counsel was deficient in pre venting

him from testifying when he repeatedly told her he wanted to do so.

The district court also found that Mullins’s trial counsel’s

advice to not take the stand was not based on sound trial strategy.

After examining the record, we cannot agree. It is clear from the

record that defense counsel made a strategic decision that Mullins

ought not testify in order to keep from the jury evid ence of his

past convictions for drug related crimes and bad check writing.

This trade off was supported by the circumstance that counsel was

able to put much of Mullins’s account before the jury by other

witnesses. 2425 Sayre , 238 F.3d at 634 (citing Strickland , 466 U.S. at 687-94).

26 Strickland , 466 U.S. at 687, 694-95.

12 In spite of the soundness of the adopted trial strategy that

Mullins should not testify, it cannot be considered within the

scope of sound trial strategy to not leave the ultimate decision to

the client, although as we will see, its very soundness cuts

against Mullins’s claim of prejudice. We conclude that Mullins has

met the first requirement of the Strickland test.

V.

The second prong of the Strickland test asks whether counsel’s

deficient performance prejudiced the defense. 25 It requires “...

a rea sonable probability that, absent the errors, the factfinder

would have had a reasonable doubt respecting guilt” and that the

errors were “so serious as to deprive the defend ant of a fair

trial, a trial whose result is reliable.” 26 This standard has not

been met.

At the evidentiary hearing, Mullins testified that he wanted

to take the stand to dispute the officer’s testimony that Mullins

admitted the gun was his and to explain why he signed the receipt

that stated he had purchased the gun off the street. Mullins says

that he wanted to test ify that he told the officer that his

girlfriend bought the gun, and that he could not read the receipt

which he signed because he was not wearing his glasses.13

R ather than put Mullins’s criminal record before the jury,

counsel offered the testimony of seve ral other witnesses to

challenge the police officer’s testimony and support Mullins’s

story. His girlfriend testified that the gun was hers, and that

she had received it from a friend as co llateral for a loan. The

girlfriend’s friend also testified to that effect. Another woman

present during the exchange between Mullins and the officer

testified that she never heard Mullins make the statement alleged

by the officer. His girlfriend testified that she did not recall

seeing the incriminating statement on Mullins’s copy of the receipt

for the gun. This testimony presented much of Mullins’s story to

the jury without his testimony.

The difficulty is that a denial by Mullins from the stand

would come at a high price. It would juxtapose a police officer

whose account is supported by Mullins’s sign ed statement with a

felon with a large incentive to lie. If Mullins took the stand his

extensive criminal record and drug use would have come into

evidence. The likelihood that the jury would credit the felon over

the police officer whose testimony is supported by the defendant’s

signed statement does not meet the reasonable probability of a

different outcome test. We can say only that his testimony might

have persuaded, but not that there is a reasonable probability that

it would have done so. In service of finality, the second prong of27 Id. at 687.

14

Strickland raises high the bar to relief, and here it has not been

cleared.

We must conclude that Mullins wa s not prejudiced by his

counsel’s d eficient performance. While it was defective

performance for Mullins’s counsel to not accede t o Mullins’s

decision to testify, counsel’s errors were not “so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable.” 27

VI.

Because Mullins has failed to show that he was prejudiced by

his counsel’s failure to leave to him the final decision of whether

he ought to testify, he has failed to demo nstrate that he was

denied the effective assistance of counsel. We therefore REVERSE

the district court’s grant of Mullins’s § 2255 motion.