1

Pursuant to Fed. R. App. P. 43(c)(2), Chris Koster is automatically substituted

for his predecessor, Jeremiah W. Nixon.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-1492

___________

Reva Francis, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

Jennifer Miller; Chris Koster,1 *

Attorney General, *

*

Appellees. *

___________

Submitted: December 9, 2008

Filed: March 6, 2009

___________

Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.

___________

ARNOLD, Circuit Judge.

Reva Francis was convicted in a Missouri state court of second degree murder

and armed criminal action in the shooting death of her husband, Tony Francis. The

Missouri Court of Appeals affirmed her conviction but remanded the case to the trial

court for a ruling on Ms. Francis's motion for a reduction of sentence based on her

claim that she suffered from what is called battered spouse syndrome. See State v.

Francis, 60 S.W.3d 662 (Mo. Ct. App. 2001) (Francis I). When the trial court on
2

The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.

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remand imposed the same sentence, Ms. Francis moved for post-conviction relief,

claiming ineffective assistance of counsel, see Mo. S. Ct. R. 29.15. The state trial

court denied the motion and that decision was upheld on appeal, see Francis v. State,

183 S.W.3d 288 (Mo. Ct. App. 2005) (Francis II). Ms. Francis then applied for a writ

of habeas corpus in federal district court.2

 See 28 U.S.C. § 2254. The district court

denied the application but granted Ms. Francis a certificate of appealability on her

ineffective-assistance claims, which she raises in this appeal. We affirm.

I.

On the afternoon of the day that the shooting occurred, Ms. Francis's eighteenyear-old daughter, Roxanne Cummings, and Roxanne's boyfriend, Shane Ross, were

in Ms. Cummings's bedroom when they heard "something hit the wall" and then a

sound like a firecracker "pop." After the first "pop," Ms. Cummings heard her

stepfather, Mr. Francis, yell and she heard another "pop" a short time later. When Ms.

Cummings and Mr. Ross went to the kitchen, they saw Mr. Francis slumped over a

chair. Because Ms. Francis and her daughter were "freaking out," Mr. Ross went

outside and called 911. Francis I, 60 S.W.3d at 665 (internal quotation marks

omitted).

When Officer Tony Yates arrived at the house where these events happened,

he saw Ms. Francis standing in the kitchen. "She appeared distraught, was shaking,

and was standing about two and half to three feet from the body of Tony Francis,

which was slumped over a chair. There was a small pool of blood around the victim's

head," but none appeared to be on Ms. Francis. Ms. Francis told the officer that "it

was an accident [that] she accidentally shot her husband" with the "32-caliber

semi-automatic handgun lying next to her purse." Id.
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There was a hole in Ms. Francis's purse and testing showed that the gun had

been fired while the muzzle was in contact with the side of the purse. Ms. Francis told

Officer Yates that the gun was in her purse when it went off "through a struggle."

After Officer Dan Loney arrived at the scene, Ms. Francis waived her Miranda rights

and told him that she and her husband had been arguing, "that there was a struggle

over her purse and there was a gun inside of her purse and that the gun went off." She

said that they were sitting at the kitchen table when the first shot was fired, that

Mr. Francis "attempted to get her purse from her and that the weapon was in the purse

and it went off accidentally." Officer Loney twice asked Ms. Francis whether she had

intentionally shot her husband and "[b]oth times she stated she did not." Id. at 665-66.

Evidence introduced at trial showed that the handgun had a heavy "trigger pull"

of fifteen pounds and had to be "cycled" after inserting the magazine for a round to

be fired, and a state witness testified that a "loosely held automatic pistol is unlikely

to fire a second time and is likely to jam." The state also offered evidence that the

weapon "had two safety mechanisms: a magazine safety, which prevented the trigger

from being pulled if the magazine was removed[,] and a button on the left side of the

handgun that had to be turned to the 'off' position before the gun would fire." Id. at

666-67.

Ms. Francis was taken into custody and interrogated that evening for

approximately six hours. After waiving her rights a second time, she made a written

statement:

I came home around four p.m. Sunday night. We're s[i]tting ... at

the dining room table going over bills and [our] checkbook.... He called

the secretary to go over bills and I explained to him that I didn't like the

gun in the house and I was taking it to Anita's or Lanna's house. He got

mad and tried to get the gun out of my purse and my hand was in there,

too. Then, the gun went off. I stand up with the gun in my left hand and

with the purse in my right hand. Tony fell over the table and onto the
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chair. The gun went off one more time in my hand. I dropped the gun

and my purse and fell to the ground. I yelled at Shane to call the police.

Id. at 666 (alteration in original).

At trial, an officer described Ms. Francis's response when the police asked her

to show how the second shot had been fired: She said that "Tony fell over the chair.

She had the gun in this hand, her hand on the right of the purse. She said, leave me

the f[______] alone, pointed the gun down and then did this motion [demonstrating]

with her hand, indicating the gun went off another time." The officer added that when

Ms. Francis demonstrated how the gun discharged the second time, it appeared that

"when [she] extended her arm out, she made a grasping motion with her hand, as if to

fire the gun again." Id.

"The autopsy revealed that Mr. Francis suffered gunshot wounds to the back of

the head, left shoulder and chest, caused by two bullets." A bullet entered his chest

and moved slightly downward from left to right, front to back, penetrating his left

lung, heart, and then the right lung before lodging under the skin. "A separate bullet

entered the back of the head, exited, and ended up in Mr. Francis' right shoulder. The

cause of death was listed as 'multiple gunshot wounds.' " Id.

On appeal, Ms. Francis contends that she received ineffective assistance of

counsel at her trial. She had three trial attorneys: She first hired Randell Wood, who

acted as her chief trial attorney; Brian Gepford and Willard Bunch, who had

significantly more criminal trial experience than Mr. Wood, were hired before trial to

assist in the defense.

II.

Ms. Francis claims that trial counsel was ineffective in failing to investigate

whether she suffered from battered spouse syndrome (BSS) by promptly obtaining an

opinion from a psychiatrist, Dr. William Logan, and in failing to have Dr. Logan
3

Ms. Francis also contends that trial counsel should have used Dr. Logan's

testimony for other purposes, such as showing diminished capacity, but we do not

address those claims because she failed to raise them in state court and has provided

no excuse for her procedural default. See Interiano v. Dormire, 471 F.3d 854, 856

(8th Cir. 2006). 

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testify that she suffered from BSS and post-traumatic stress disorder in support of a

claim of self-defense.3

 BSS is "a type of post-traumatic stress disorder" that exhibits

a "collection of symptoms including a highly fearful state, isolation, withdrawal, and

a heightened sensitivity to situations that precede violence or an increase in violence"

and occurs as a result of being subjected to physical abuse by one's spouse or domestic

partner. State v. Edwards, 60 S.W.3d 602, 613 (Mo. Ct. App. 2001). The pertinent

Missouri statute provides that "[e]vidence that the actor was suffering from the

battered spouse syndrome shall be admissible upon the issue of whether the actor

lawfully acted in self-defense." Mo. Rev. Stat. § 563.033.1 The state court ruled in

limine that Ms. Francis could not simultaneously pursue defenses of accident and selfdefense. (The trial court ruled that counsel could not argue that Ms. Francis

performed the same act both accidentally and in self-defense, but the court did not

forbid counsel from presenting what we later refer to as a hybrid defense, i.e., that she

fired one shot accidentally and the other in self-defense.)

A.

Ms. Francis maintains that counsel should have investigated her mental state by

retaining Dr. Logan for an opinion before deciding on trial strategy, a claim that the

state contends we may not review because the state court rejected it on state

procedural grounds. Federal courts may not grant a petition for habeas corpus if a

state court has denied the asserted claim "pursuant to an independent and adequate

state procedural rule ... unless the prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental miscarriage of justice."
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Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Lee v. Kemna, 534 U.S.

362, 375-76 (2002). 

The Missouri Court of Appeals refused to address the merits of Ms. Francis's

failure-to-investigate claim because she did not include it in her post-conviction

motion filed under Mo. S. Ct. R. 29.15. Francis II, 183 S.W.3d at 297-98.

Ms. Francis's motion asserted that counsel was ineffective for failing to call Dr. Logan

as a witness regarding his diagnosis of battered spouse syndrome but did not mention

a failure to investigate. We do not believe, as Ms. Francis maintains, that the state

court's opinion merely "not[ed] a possible procedural defect." The court specifically

found that her motion did "not assert that trial counsel was ineffective for failing to

investigate" a battered spouse defense, observed that "claims which were not

presented to the motion court cannot be raised for the first time on appeal," and

concluded that "Ms. Francis cannot now claim that her trial counsel was ineffective

for failing to investigate whether Dr. Logan's testimony would have supported a

battered spouse defense." Id. (emphasis in original) (internal quotation marks and

citation omitted).

Ms. Francis has asserted neither cause nor prejudice and does not maintain that

a miscarriage of justice occurred. Because the state court relied on an independent

state procedural rule, the only remaining question is whether the state's procedural bar

was "adequate" to preclude our review. "Ordinarily, violation of firmly established

and regularly followed state rules ... will be adequate to foreclose review of a federal

[habeas] claim," Lee, 534 U.S. at 376 (internal quotation marks and citation omitted),

and we will not "consider whether the state court properly applied its default rule to

the claim; federal courts do not sit to correct a state court's application of its ordinarily

adequate procedural rules, except in unusual circumstances." Clemons v. Luebbers,

381 F.3d 744, 750 (8th Cir. 2004) (emphasis and internal citation omitted), cert.

denied, 546 U.S. 828 (2005).
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Ms. Francis maintains that the rule relied upon by the Missouri Court of

Appeals was not "firmly established and regularly followed." She relies, in part, on

Guinan v. State, 726 S.W.2d 754, 756-57 (Mo. Ct. App. 1986), cert. denied, 484 U.S.

873 (1987), where the court addressed a post-conviction claim even though it was

omitted from the motion. In that case, the court treated the motion as having been

amended by consent because evidence regarding the claim had been admitted without

objection at the motion hearing. Ms. Francis asserts that evidence regarding her

failure-to-investigate claim was likewise admitted without objection during the motion

hearing.

But the motion in Guinan was filed under Missouri's previous post-conviction

rule, Mo. S. Ct. R. 27.26 (repealed 1988), which was repealed long before Ms. Francis

filed her Rule 29.15 motion in December, 2000. Unlike the former rule, Rule 29.15

requires a movant to include in a post-conviction motion "every claim known to the

movant," as well as a declaration stating that the movant has listed all known claims

and understands that "the movant waives any claim for relief known to the movant

that is not listed in the motion." Mo. S. Ct. R. 29.15(d). In her motion, as required,

Ms. Francis specifically waived any unlisted claims known to her. (She does not say

that she was then unaware of the claim in question, nor do we see any reason that she

would have been.)

In Rohwer v. State, 791 S.W.2d 741, 743-44 (Mo. Ct. App. 1990), the Missouri

Court of Appeals noted that the previous rule lacked the waiver provision and

explained that Rule 29.15 was designed "to prevent delay, end the use of successive

motions, and to discourage 'sandbagging' by the movant." See also Day v. State,

770 S.W.2d 692, 693 (Mo. 1989). Not surprisingly, given the language of the rule,

Missouri courts have repeatedly rejected the argument that Ms. Francis relies on by

holding that a Rule 29.15 motion cannot be amended to conform to evidence later

presented at the motion hearing. See State v. Jacobs, 861 S.W.2d 621, 626 (Mo. Ct.

App. 1993); State v. Perry, 820 S.W.2d 570, 575 (Mo. Ct. App.1991); Rohwer,
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791 S.W.2d at 743-44; see also Kelly v. State, 784 S.W.2d 270, 273 (Mo. Ct. App.

1989).

We have previously described Rule 29.15 as providing "substantive,

well-established procedures that [movants] are required to follow in order to have

[their] claims considered post-trial." Brown v. Luebbers, 344 F.3d 770, 775 (8th Cir.

2003), adopted in relevant part and vacated in part, 371 F.3d 458, 460 (8th Cir. 2004)

(en banc), cert. denied, 543 U.S. 1189 (2005). There is no avoiding a conclusion that

the Missouri Court of Appeals relied on a "firmly established and regularly followed"

state procedural rule to reject Ms. Francis's claim.

Ms. Francis argues, in the alternative, that even if the rule relied upon was

firmly established and regularly followed, we should nonetheless review her claim

because hers is an "exceptional" case where the state court "exorbitantly" applied its

rules without furthering any identifiable state interest, see Lee, 534 U.S. at 376.

Although generally a state court's reliance on firmly established and regularly

followed rules is adequate to preclude federal review, the Supreme Court explained

in Lee that "exceptional cases [exist] in which exorbitant application of a generally

sound rule renders the state ground inadequate to stop consideration of the federal

question" in a habeas proceeding. Id. We do not believe, however, that Ms. Francis's

case is an exceptional one.

In Lee, the Court reviewed a federal claim despite the habeas petitioner's failure

to comply with a state rule that required continuance motions to be in writing. Id. at

366-67. The defendant had moved orally for a continuance when, on the last day of

trial, his subpoenaed alibi witnesses from out of state, who "were sequestered in the

courthouse" at the start of trial that day, disappeared suddenly and without

explanation. Id. at 365-66. The state judge denied the motion, indicating that the

requested continuance would interfere with other matters. Id. at 365-66, 369-70.

The state appellate court raised the written-motion requirement for the first time on
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appeal and refused to address the defendant's due process claim. Id. at 372-73, 380.

The Supreme Court held that the rule upon which the state court relied, even if "firmly

established and regularly followed," was inadequate to preclude federal review under

the particular circumstances. The Court provided several reasons for its conclusion,

but it relied heavily on the time constraints of trial and the unexpected nature of the

circumstances presented. Id. at 381-86. Of course, no such conditions were present

in Ms. Francis's case. She filed a Rule 29.15 motion pro se and later retained counsel

who filed an amended motion; they simply failed to include the failure-to-investigate

claim. Although a case may of course be exceptional without presenting the same

circumstances as Lee, we discern nothing exorbitant in the state court's application of

Rule 29.15 in this case.

In sum, the Missouri Court of Appeals relied on an independent and adequate

state procedural bar in rejecting Ms. Francis's claim that counsel was ineffective by

failing to retain Dr. Logan to investigate battered spouse syndrome as a defense. We

are thus precluded from addressing that claim. See Coleman, 501 U.S. at 750.

B.

Ms. Francis contends that the state court should have determined that counsel

was ineffective in failing to present Dr. Logan's testimony that Ms. Francis suffered

from battered spouse syndrome in support of a claim of self-defense. In Missouri,

expert testimony that a defendant suffered from BSS is admissible to "aid the jury in

determining whether a defendant's fear and claim of self-defense are reasonable."

Edwards, 60 S.W.3d at 613; see Mo. Rev. Stat. § 563.033. Such evidence may show

that a defendant had a reasonable belief that deadly force was required to protect her

from serious harm at the hands of the victim. State v. Pisciotta, 968 S.W.2d 185, 189

(Mo. Ct. App. 1998).

Ms. Francis argues first that counsel should have presented Dr. Logan's

testimony in support of a so-called hybrid defense by contending that the gun first
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discharged accidentally during a struggle, but relying on testimony regarding BSS to

show that she fired the second shot in self-defense. But the Missouri Court of Appeals

held that Ms. Francis could not pursue the hybrid-defense claim because, like the

failure-to-investigate claim, it was omitted from her Rule 29.15 motion. See

Francis II, 183 S.W.3d at 298. As we have already explained, the procedural rule that

the state court relied on to reject this claim was firmly established and regularly

followed. Nor has she presented an "exceptional case[] in which exorbitant

application of a generally sound rule renders the state ground inadequate." Lee,

534 U.S. at 376. She had adequate time to present the claim and was not prevented

from doing so; her Rule 29.15 motion makes no reference to such a defense and does

not even mention that two shots were fired. We note, moreover, that she did not

present evidence in support of the hybrid claim at the hearing on her Rule 29.15

motion. We therefore cannot address the claim.

The Missouri Court of Appeals addressed the merits of the motion court's

holding that counsel's "failure to present Dr. Logan's testimony on battered spouse

syndrome did not constitute ineffective assistance of counsel." Francis II, 183 S.W.3d

at 298 (emphasis omitted). The court correctly recognized that to prevail Ms. Francis

had to show that counsel's performance fell below an " 'objective standard of

reasonableness' " and that prejudice resulted. Id. at 297-98 (quoting Strickland v.

Washington, 466 U.S. 668, 688 (1984). Mr. Wood testified at the post-conviction

hearing that the decision to present an accident defense was one of trial strategy, and

the state court correctly noted that trial strategy decisions, if reasonable at the time,

cannot support an ineffective-assistance claim "even if, in hindsight, better choices

could have been made." Francis II., 183 S.W.3d at 298; see Bell v. Cone, 535 U.S.

685, 698 (2002). 

Because the state court applied the correct law, we may grant habeas relief only

if the court applied that law "to the facts of [Ms. Francis's] case in an objectively

unreasonable manner," see Bell, 535 U.S. at 699, or if its decision "was based on an
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unreasonable determination of the facts in light of the evidence presented in the State

court proceeding." 28 U.S.C. § 2254(d)(1), (d)(2).

The state appellate court reasoned that to succeed on an ineffective-assistance

claim based on the failure to call a witness (here, Dr. Logan) Ms. Francis had to show,

inter alia, that counsel's decision "involved something other than reasonable trial

strategy" and that the witness's testimony "would have provided the defendant with

a viable defense." Francis II at 298 (internal quotation marks and citation omitted).

The court concluded that trial counsel's decision to proceed with a defense of accident

rather than presenting Dr. Logan's testimony regarding battered spouse syndrome to

support a claim of self-defense was reasonable trial strategy. Id. at 298-99.

Although we have already concluded that Ms. Francis did not preserve a freestanding failure-to-investigate claim, we cannot evaluate counsel's choice of a defense

without addressing the adequacy of counsel's investigation beforehand. "[S]trategic

choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation." Strickland, 466 U.S.

at 690-91. In other words, the strength of the general presumption that counsel

engaged in sound trial strategy "turns on the adequacy of counsel's investigation."

White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005) (relying on Strickland, 466 U.S. at

690-91).

Perhaps recognizing this principle, the state court, while rejecting Ms. Francis's

failure-to-investigate claim on procedural grounds, nevertheless commented on the

adequacy of counsel's investigation. The court suggested the possibility that she did

not include the claim in her motion because "the evidence demonstrates that

Ms. Francis' trial counsel investigated the possibility of a battered spouse defense":
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Mr. Wood testified that he investigated the possibility of a battered

spouse defense, obtaining police and medical records and interviewing

and endorsing witnesses. Mr. Wood believed he could obtain expert

testimony supporting such a defense prior to trial and that the evidence

was sufficient that he could obtain a jury instruction for a battered spouse

defense. Mr. Wood ultimately decided not to pursue such a defense after

comparing the relative merits of an accident defense and a battered

spouse defense. Thus, Mr. Wood's decision to pursue a defense of

accident was not made out of ignorance of the existence of a battered

spouse defense, but was based on an assessment of which defense would

produce the best result.

Francis II, 183 S.W.3d at 297-98.

The state court thus found that Mr. Wood, when deciding what defense to

pursue, assumed that an opinion similar to the one eventually obtained from Dr. Logan

would be available and could be presented at trial. Mr. Wood's testimony supports

this finding, and we do not believe it is "an unreasonable determination of the facts

in light of the evidence," 28 U.S.C. § 2254(d)(1). This case therefore differs from one

in which a decision is made when counsel is completely unaware of vital information.

And even if counsel's better course would have been to consult an expert before

choosing a defense, we cannot say that the state court unreasonably applied Supreme

Court precedent by concluding that counsel remained within the "wide range of

professionally competent assistance" without doing so. See Strickland, 466 U.S. at

690.

Of course, the fact that the investigation was adequate does not necessarily

mean that counsel's decision to pursue a defense of accident was not ineffective

assistance. As the state appellate court noted, under Missouri law battered spouse

syndrome "augments a claim of self-defense," rather than being in itself a defense to

murder, and a claim of self-defense requires an intentional act. The court further

observed that both before and shortly after Ms. Francis's arrest, she told the police that
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both shots were accidental, and the defense of accident requires an unintentional act.

Francis II, 183 S.W.3d at 299-300. Thus, according to the court, "because of the trial

court's pre-trial ruling, had trial counsel pursued a battered spouse defense,

Ms. Francis would have been forced to either repudiate her statements that the

shooting was an accident and somehow explain her repeated statements to the

contrary, or offer evidence that, while Ms. Francis believed the shooting was

accidental, the shooting was actually intentional." Id. at 300. We believe that the state

court did not unreasonably determine that "[e]ither tactic could have substantially

undermined Ms. Francis' credibility, weakening her defense." Id.

The state court's analysis of this issue was extensive and tightly reasoned. We

cannot conclude that the state court unreasonably applied Strickland by determining

that counsel's decision to pursue an accident defense was reasonable because it was

a "deliberate and informed choice to pursue one defense over another [as] a matter of

trial strategy." Francis II, 183 S.W.3d at 301. For this reason, we reject Ms. Francis's

contention.

III.

Ms. Francis also maintains that counsel unreasonably failed to offer her

testimony at trial after having told the jury that she would testify. Mr. Wood gave an

opening statement in which he told the jury that Ms. Francis would testify. Mr. Wood

further told jurors that Ms. Francis would say that her husband had abused her, that

she intended to remove the gun from the house because of arguments that they were

having, and that when Mr. Francis tried to take the gun out of her purse, she

accidentally shot him.

At the post-conviction hearing, Mr. Wood explained that unexpected events

during the trial convinced him that Ms. Francis should not testify after all. Counsel

testified that pretrial depositions revealed that the state had many witnesses, some of

whom were expected to testify that Ms. Francis had said that she wanted Mr. Francis
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dead and "had threatened Tony or wanted to kill him." This testimony would of

course tend to support a finding of deliberation, an element of the charged crime of

first degree murder, see Mo. Rev. Stat. §§ 565.020.1, 565.002(3); Francis II,

183 S.W.3d at 304, and, according to Mr. Wood, if the state put on evidence of Ms.

Francis "wanting to kill Tony," she "needed to testify." But the state rested its case

after presenting only a fraction of the witnesses that it had listed and without offering

any of this potentially damaging testimony. Mr. Wood testified that this turn of events

surprised him and that he was at first unsure of how to proceed.

After court was adjourned for the day, counsel, Ms. Francis, and her family

discussed the matter of whether she should testify. Mr. Wood advised her not to

testify to prevent the state from presenting damaging rebuttal testimony about the

statements that she had made before the shooting. Ms. Francis decided to take

Mr. Wood's advice, and when she was questioned at length in open court the next day,

she told the trial judge that she understood the circumstances and that the decision not

to testify was hers. She specifically said that she knew that the jury might have a

negative reaction to her not testifying after her lawyer had said that she would. Ms.

Francis claims on appeal that counsel's promises to the jury, combined with counsel

advising her not to testify, amounted to ineffective assistance of counsel. 

Because the Missouri Court of Appeals denied this claim on the merits, our

review is governed by the standards in 28 U.S.C. § 2254(d). Ms. Francis primarily

maintains that the state court based its determination that counsel pursued a reasonable

trial strategy "on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding," 28 U.S.C. § 2254(d)(2). She also challenges

the state court's application of the law to those facts, and we therefore consider

whether the state court's decision was based on an unreasonable application of

Supreme Court precedent. See 28 U.S.C. § 2254(d)(1)
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The state court found that the state had witnesses who would testify that they

had heard Ms. Francis say that she "wanted to kill her husband." Francis II,

183 S.W.3d at 304. Ms. Francis in her brief describes this finding as the state court's

"most egregious error" because she "never once said she intended to kill her husband

or perpetrate a physical act of violence on him." According to Ms. Francis, the

witnesses would have testified instead that she had said that she wished Mr. Francis

was dead, which she argues would have been significantly less harmful to her case.

(Unfortunately, the depositions of the relevant witnesses are not part of the record.)

Regardless of the degree of harm that such testimony would have caused, we believe

that the state's finding was amply supported. 

At the post-conviction hearing, as we have noted, Mr. Wood testified that he

expected the state to offer "all this evidence that she had threatened Tony or wanted

to kill him," and he later reiterated that counsel anticipated the state putting on

evidence "about her wanting to kill Tony or whatever." We note, moreover, that

Ms. Francis herself answered affirmatively when asked at the hearing whether she

knew that if she testified, the state would have offered evidence that she "had in the

past threatened to or wanted to or planned to kill" Mr. Francis. Given this evidence,

we do not see how the state court's finding could have been an unreasonable

determination of the facts.

We also reject Ms. Francis's contention that the state court "failed to recognize

uncontradicted evidence that Mr. Wood was not surprised by the prospect of

damaging rebuttal testimony." In fact, the evidence was not uncontradicted. As we

have already said, Mr. Wood specifically testified at the post-conviction hearing that

when the state rested, thereby leaving damaging witness testimony for rebuttal, he

"was surprised" and he also said that all three of Ms. Francis's attorneys "likely fell

out of our chair." Ms. Francis asserts that the state appellate court mistakenly believed

that the motion court had found Mr. Wood's testimony credible. But the motion court,

after quoting Mr. Wood's testimony that "together, all the lawyers and Reva" made the
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"tough decision" that she would not testify, found that her three lawyers "willingly

altered their initial trial strategy ... in light of the State's case-in-chief and the threat

of a damaging rebuttal case," a finding consistent only with Mr. Wood's version of the

events. Also without merit is Ms. Francis's contention that the evidence compelled

a finding that Mr. Wood decided that Ms. Francis should not testify because he "lost

his nerve," as one of her other attorneys believed: Nothing required the state court to

disbelieve Mr. Wood's explanation of why he advised her not to testify. See 28 U.S.C.

§ 2254(d)(2).

We agree with Ms. Francis that prejudice may well result when counsel

promises a jury that the defendant will testify and then she does not take the stand.

But that does not mean that the state court unreasonably applied the law when it

rejected Ms. Francis's ineffective-assistance claim. The state court carefully

considered the unique circumstances of the case, found that counsel was presented

with an unexpected and difficult decision regarding strategy, and held that counsel

reasonably decided to advise Ms. Francis not to testify (though it would have probably

also been reasonable to advise her to do so). She did not testify. The state did not

present rebuttal witnesses regarding her intent, and the jury did not convict her of first

degree murder. "Rather, the jury found Ms. Francis guilty of second degree murder

and recommended a sentence of twenty-three years in prison. Ms. Francis' conviction

of second degree murder, as opposed to first degree murder, may be largely

attributable to the fact that the jury never heard evidence that Ms. Francis wanted to

kill her husband prior to the day of the shooting." Francis II, 183 S.W.3d at 305.

We conclude therefore that the state court's rejection of Ms. Francis's claim was

not "contrary to" and did not involve "an unreasonable application of clearly

established Federal law, as determined by the Supreme Court," and was not based on

an unreasonable determination of the facts in light of the evidence. 28 U.S.C.

§ 2254(d).
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IV.

We affirm the judgment of the district court.

______________________________