United States Court of Appeals

For the Eighth Circuit

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No. 16-2279

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Christopher Dineaa Bahtuoh

lllllllllllllllllllllPetitioner - Appellant

v.

Michelle Smith, Warden

lllllllllllllllllllllRespondent - Appellee

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: March 10, 2017

 Filed: April 28, 2017

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Before LOKEN, MURPHY, and BENTON, Circuit Judges.

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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 court

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denied habeas relief, and Bahtuoh appealed. We affirm.

I.

InApril 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 friendsthat 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.

1The Honorable David S. Doty, United States District Judge for the District of

Minnesota. 

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The case wastried 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.

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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.

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A.

The Supreme Court explained the standard governing ineffective assistance of

counsel claims in Strickland v. Washington, 466 U.S. 668 (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. 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 (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 (2003). A decision

is not objectively unreasonable if "fairminded jurists could disagree" as to its

correctness. Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (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 (quoting Strickland, 466 U.S. at 689). 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-bycase determinations." Id. at 101 (quoting Yarborough, 541 U.S. at 664). Our review

of the Minnesota Supreme Court's application of Strickland's deficiency element to

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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 (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 risks of the defendant not testifying "in light of new

information—the strength of the State's case—that he [had] not know[n] at the

beginning of trial." Bahtuoh, 840 N.W. 2d at 817.

We have not yet had reason to apply Williamsto a case in which the promised,

but missing, witness was the defendant. Other courts have differed on whether it is

reasonable to advise a defendant not to testify after having promised the testimony

in opening statements. Compare Ouber v. Guarino, 293 F.3d 19, 27–32 (1st Cir.

2002) (concluding defense counsel's advice was constitutionally deficient), and

Williams v. Woodford, 859 F. Supp. 2d 1154, 1162–65 (E.D. Cal. 2012) (same),

with Yancey v. Hall, 237 F. Supp. 2d 128, 133–35 (D. Mass. 2002) (concluding

defense counsel's advice was not constitutionally deficient), and Francis v. State, 183

S.W.3d 288, 301–05 (Mo. Ct. App. 2006) (same). "This diversity of opinion alone"

suggests that the Minnesota Supreme Court did not unreasonably apply Strickland in

respect to Bahtuoh's case. See Williams, 340 F.3d at 672. 

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Furthermore, even courts that have concluded that defense counsel provided

ineffective assistance by advising a defendant not to testify after having promised

otherwise have suggested that there may be instances in which such a change in

strategy could be reasonable. In Ouber v. Guarino, a case relied on by Bahtuoh, the

court observed that "unexpected developments sometimes may warrant changes in

previously announced trial strategies." 293 F.3d at 29. That court nevertheless

concluded that there had been no such unexpected developments during the

petitioner's trial (a third attempt following two mistrials due to hung juries). Id.

Another court similarly granted habeas relief after concluding that defense counsel's

"failure to present the promised testimony [could not] be chalked up to unforeseeable

events." Madrigal v. Yates, 662 F. Supp. 2d 1162, 1184 (C.D. Cal. 2009).

As the Minnesota Supreme Court observed, defense counsel's change in

strategy in this case was based on unexpected developments. Through both cross

examination of the government's witnesses and the reading of Bahtuoh's grand jury

testimony, the government's case in chief had provided defense counsel with an

opportunity to expose the jury to most of the evidence he had promised during

opening statements, namely, thatBahtuoh had a preexisting positive relationship with

Parker and was unaware that McGee had a gun in his car. Defense counsel also

believed that the state had failed to prove its case (a belief that proved partially

correct). 

Given that the Minnesota Supreme Court considered these trial developments

in order to assess the reasonableness of defense counsel's change in strategy,2 we

2The Minnesota SupremeCourtseemed to suggest that because defense counsel's

decision was "strategic" it must have been reasonable, see Bahtuoh, 840 N.W.2d at 818

n.3, which would have been contrary to Strickland's command that although strategic

decision are "virtually unchallengeable," they are not completely unchallengeable, see

Strickland, 466 U.S. at 690–91. On reviewing the Minnesota Supreme Court's decision

as a whole, however, it is clear that the court did actually analyze the reasonableness of

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decline to conclude that the court's application of Strickland was objectively

unreasonable. We therefore defer to the Minnesota Supreme Court's application of

the deficiency element in Strickland's test under 28 U.S.C. § 2254(d), and need not

determine whether that deficiency prejudiced Bahtuoh.

B.

Bahtuoh also argues that the Minnesota Supreme Court's decision was based

on an unreasonable determination of the facts. Specifically, he argues that the

Minnesota Supreme Court unreasonably determined (1) that the weaknesses in the

state's case were unforeseen to defense counsel and (2) that defense counsel weighed

the risks of Bahtuoh not testifying when he advised him not to take the stand. A state

court decision is based on an unreasonable determination of the facts only if the

"court's presumptively correct factual findings do not enjoy support in the record."

Evenstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). Here, there isrecord support

for the state court's factual findings. 

First, there isrecord supportfor its conclusion that the extent ofthe weaknesses

in the state's case was unforeseen to defense counsel. During cross examination of

a state witness, for example, defense counsel was able to establish that Parker had

signaled toward Bahtuoh, consistent with Bahtuoh's grand jury testimony. This

testimony suggested that Parker had no reason to fear Bahtuoh, and that the two were

acquaintances. Defense counsel also told the jury that he no longer had to put

Bahtuoh on the stand after the prosecution introduced Bahtuoh's grand jury

testimony, "which he gave under oath . . . [and] exonerate[d] him." Finally, Bahtuoh

testified at the postconviction hearing that defense counsel told Bahtuoh that he had

decided to change strategy and not have him testify because "the State did not prove

defense counsel'sstrategic decision to adviseBahtuoh not to testify. The court therefore

did not impermissibly treat that decision as unreviewable.

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their case and [Bahtuoh] won." Counsel'sstatementsto the jury and Bahtuoh support

the Minnesota Supreme Court's determination that the weaknesses in the state's case

had been unforeseen by him. Defense counsel's prediction about the strength of the

state's case proved to be partially correct since the jury acquitted Bahtuoh of the most

serious charged offense (first degree premeditated murder).

There is also record support for the Minnesota Supreme Court's determination

that defense counsel weighed the risks if Bahtuoh were not to testify. During the

colloquy in which Bahtuoh informed the court of his decision, defense counsel stated

that he and Bahtuoh had discussed a defendant's right to testify on "several occasions"

and the "pros and cons" of waiving that right. Bahtuoh did not indicate that defense

counsel'srepresentation wasinaccurate;rather, he affirmativelyagreedwith counsel's

characterization of their prior conversations. Further, Bahtuoh failed to develop a

record before the state court that would compel a contrary factual finding, as shown

in part by his decision not to call defense counsel as a witness to explain his decision

during the postconviction evidentiary hearing. The Minnesota Supreme Court's

determination that counsel did weigh the risks ofBahtuoh not testifying wastherefore

not based on an unreasonable determination of the facts and is entitled to deference

under 28 U.S.C. § 2254(d).

III.

For these reasons, we affirm the district court's denial of Bahtuoh's 28 U.S.C.

§ 2254 habeas petition.

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