                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 14-3482
                          ___________________________

                                   Ricky Earl White

                         lllllllllllllllllllll Plaintiff - Appellant

                                             v.

                                     Wendy Kelley

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                           Submitted: December 15, 2015
                               Filed: June 1, 2016
                                  ____________

Before MURPHY, BENTON, and KELLY, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       Ricky E. White appeals the denial of his habeas corpus petition. White claims
that his counsel’s last-minute change of trial strategy and failure to allow him to
testify violated his constitutional right to effective assistance of counsel. This court
granted a certificate of appealability under 28 U.S.C. § 2253 and now affirms.
                                          I.

        On February 2, 2008, Penze Wine was shot and killed in a recording studio’s
parking lot. His friend, Carlos Pace—a passenger in Wine’s car at the time of the
shooting—testified that Wine, backing up, struck White’s Cadillac. Pace and Wine
examined the Cadillac, and, seeing no damage, offered to pay for damages anyway.
Pace testified White and Wine did not have an argument, but the next “thing I know
I heard a shot and saw Mr. Wine on the ground.” Pace identified White as the
shooter. He also testified that he, Wine, and White were the only persons there and
that after the shooting White said nothing and drove away. Another friend of Wine’s
testified he was with Wine that night with two others, and none of them had a
weapon. After this friend entered the studio, he heard a “bam,” looked outside, and
saw Wine on the ground. White then got into the Cadillac and drove away.

       A witness across the street, Latonya Miller, testified she witnessed the
shooting. She heard a “loud conversation.” She saw a white Cadillac and two men:
one facing away, the other facing her and holding up his hands. Miller then saw
“fire” and one man fall. The other man got into the Cadillac and drove away. Miller
recognized the Cadillac as White’s and identified him as the man she saw in the
parking lot. Another woman who knew White testified that he doesn’t leave the
house without a gun and had a .380 pistol around the time of the shooting. A single
.380 bullet killed Wine. No gun was recovered.

      The jury convicted White of first degree murder. On direct appeal, White
argued that the state circuit court abused its discretion in admitting testimony about
his possession of a .380-caliber pistol. The Arkansas Supreme Court affirmed. See
White v. State, 326 S.W.3d 421, 422 (Ark. 2009).

     White timely petitioned for post-conviction relief under Rule 37 of the
Arkansas Rules of Criminal Procedure. White alleged that counsel improperly failed

                                         -2-
to raise the defense of justification, failed to properly prepare for trial, failed to
competently prosecute a defense, and failed to allow him to testify in his own defense.
According to White, he shot Wine in self defense: “Mr. Wine produced a gun and I
grabbed him and we went to tussling and the gun went off and he got shot.” Before
trial, White told this to his attorney, Sharon Kiel. Kiel testified at the post-conviction
hearing that she knew White wanted to testify and to pursue a justification defense.
However, on the morning of trial, Kiel—without consulting White—decided to
abandon justification and instead pursue a strategy to cast reasonable doubt on
White’s identity as the killer. This change of strategy prevented White from
testifying. Kiel testified that preventing him from testifying was her decision alone.
After the hearing, the state circuit court found that White should have been allowed
to testify in his own defense but that his testimony would not have changed the trial’s
outcome.

       A divided Arkansas Supreme Court affirmed the denial of post-conviction
relief. White v. State, 426 S.W.3d 911, 915 (Ark. 2013). Applying Strickland, it
found that White was wrongfully denied his right to testify and to pursue a
justification defense. Id. at 912-13, discussing Strickland v. Washington, 466 U.S.
668 (1984). Yet, the court concluded that “had the defense of justification been
pursued, and had White testified, there is no reasonable probability that the fact-
finder would have reached a different outcome.” Id. at 913.

      White petitioned for habeas relief under 28 U.S.C. § 2254. Adopting the
magistrate judge’s recommendation,1 the district court2 dismissed the petition with
prejudice and denied a certificate of appealability under 28 U.S.C. § 2253. White v.


      1
       The Honorable Joe J. Volpe, United States Magistrate Judge for the Eastern
District of Arkansas.
      2
       The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.

                                           -3-
Hobbs, 2014 WL 4955665, *1 (E.D. Ark. Oct. 2, 2014). This court granted a
certificate of appealability on whether White can show prejudice under Strickland
from counsel’s last-minute change of trial strategy and failure to allow him to testify.3

                                           II.

         This court reviews the district court’s findings of fact for clear error and its
conclusions of law de novo. Randolph v. Kemna, 276 F.3d 401, 403 (8th Cir. 2002).
“In the interests of finality and federalism, federal habeas courts are constrained by
the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) to exercise
only a limited and deferential review of underlying state court decisions.” Sera v.
Norris, 400 F.3d 538, 542 (8th Cir. 2005). This court affirms the Arkansas courts’
denial of White’s claims “unless their treatment of those claims ‘resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court,’ . . . or was ‘based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.’” See Buchheit v. Norris, 459 F.3d 849, 852 (8th Cir. 2006),
quoting 28 U.S.C. § 2254(d)(1), (2). “A federal habeas court may issue the writ
under the ‘contrary to’ clause if the state court applies a rule different from the
governing law set forth in [Supreme Court] cases, or if it decides a case differently
than we have done on a set of materially indistinguishable facts.” Bell v. Cone, 535
U.S. 685, 694 (2002). “The court may grant relief under the ‘unreasonable
application’ clause if the state court correctly identifies the governing legal principle
. . . but unreasonably applies it to the facts of the particular case.” Id. A court “may
not grant relief simply because it concludes in its independent judgment that the

      3
       White does not argue that the error in this case was structural, see Neder v.
United States, 527 U.S. 1, 8 (1999), which would require a different approach to
prejudice than that applied by the Arkansas courts in this case, and that issue is not
before us. See, e.g., Becht v. United States, 403 F.3d 541, 546 (8th Cir. 2005);
Shelton v. Mapes, No. 15-1015, 2016 WL 1391764, at *6 (8th Cir. Apr. 8, 2016).

                                          -4-
relevant state-court decision applied clearly established federal law erroneously or
incorrectly,” rather the application “must also be unreasonable.” Williams v. Taylor,
529 U.S. 362, 411 (2000). This court is bound by the facts as found by the state
courts, absent clear and convincing evidence those findings were incorrect.
Buchheit, 459 F.3d at 852, citing § 2254(e)(1).

       The Arkansas Supreme Court applied the clearly established federal law:
Strickland v. Washington and its two requirements. “First, the defendant must show
that counsel’s performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. “Second, the
defendant must show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Id. The Arkansas Supreme Court
correctly identifies these two requirements, then affirms the state circuit court’s
conclusion that White’s counsel was deficient, though not prejudicially so. White,
426 S.W.3d at 912-13.

       White asserts, on appeal, that the Arkansas courts unreasonably applied
Strickland to the facts because his attorney’s decision to change strategy (which
prevented him from testifying about justification) prejudiced the outcome of the trial.
White argues that his testimony would have explained to the jury why the shooting
was justified under Arkansas law. Indeed, the state courts found that “White was
wrongfully denied his right to testify and to pursue a justification defense.” Id. The
Arkansas Supreme Court, however, noted that “the circuit court did not find White’s
testimony credible” and “even if White had testified at trial, there was no reasonable
probability that the outcome of the trial would have been different.” Id. at 915. The
Supreme Court explained that a “review of the record reveals that counsel’s decision
to keep White from testifying was based on her concern that he would make a poor
witness, that he presented as poorly educated, and that he would have been vulnerable

                                         -5-
under cross-examination,” especially because he would likely “have been impeached
with prior felonies, including one felony for firearm possession.” Id. Because a gun
was never found, the “impeachment testimony would have bolstered the State’s case
. . . . [and] would have undercut White’s testimony that the victim was shot with his
own gun after the two ‘went to tussling and the gun went off.’” Id.

       The Arkansas Supreme Court’s application of Strickland’s second requirement
is not unreasonable. See United States v. Mullins, 315 F.3d 449, 455 (5th Cir. 2002)
(holding that counsel “was deficient in preventing [petitioner] from testifying” but
that petitioner “was not prejudiced”). Under Strickland, the “defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694. The question for this court is not whether “‘the state court’s determination’
under the Strickland standard ‘was incorrect but whether that determination was
unreasonable—a substantially higher standard.’” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009), quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007). A state
court “has even more latitude to reasonably determine that a defendant has not
satisfied that standard.” Knowles, 556 U.S. at 123. The Arkansas Supreme Court did
not unreasonably apply Strickland to the facts of White’s case.

                                     *******

      The judgment of the district court is affirmed.
                     ______________________________




                                          -6-
