                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3540
                                    ___________

Anthony Williams,                     *
                                      *
           Petitioner - Appellant,    *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Eastern District of Missouri.
Michael Bowersox, Superintendent,     *
PCC,                                  *
                                      *
           Respondent - Appellee.     *
                                 ___________

                              Submitted: April 14, 2003

                                   Filed: August 25, 2003
                                    ___________

Before LOKEN, Chief Judge, HANSEN, and BYE, Circuit Judges.
                             ___________

BYE, Circuit Judge.

       Anthony Williams appeals the district court's1 denial of his petition for a writ
of habeas corpus, filed pursuant to 28 U.S.C. § 2254. He argues the state court's
rejection of his ineffective assistance of counsel claim was an unreasonable
application of clearly established federal law. We disagree thereby affirming the
district court.


      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri, Eastern Division.
                                          I

      Williams was charged in Missouri state court by indictment on April 19, 1994,
with one count of murder in the first degree and one count of armed criminal action.
The charges stem from the shooting death of a fourteen-year-old boy. The crime
occurred in front of a building where a youth dance had been held, and where
Williams and the victim had earlier argued.

        At trial, Williams's defense counsel made an opening statement immediately
after that of the state. Defense counsel informed the jury specific witnesses would be
called to support the theory that police had misidentified Williams as the shooter.
Despite these opening remarks, defense counsel did not call the witnesses. All
witnesses mentioned by defense counsel in his opening statement were called by the
state, except Eric Palmer and Kevin Mongrum. Both men had been interviewed
before trial by defense counsel.

       The jury convicted Williams, and he was sentenced to life imprisonment
without the possibility of parole. Williams filed a pro se motion for post-conviction
relief. Thereafter, counsel was appointed and the pro se motion amended. After a
hearing, the motion was denied.

      Williams appealed the denial of his motion as well as his conviction to the
Missouri Court of Appeals. Among his arguments were several ineffective assistance
claims, including the one he now brings before this court. Specifically, Williams
questioned whether his lawyer was constitutionally deficient by failing to call
witnesses he suggested would be called in his opening statement. The Missouri Court
of Appeals consolidated the appeals, rejected all of Williams's arguments, and
affirmed both the denial of post-conviction relief and the conviction.



                                         -2-
       In doing so, the Missouri Court of Appeals first correctly noted Strickland v.
Washington, 466 U.S. 668, 687 (1984) provided the governing legal principle. State
v. Williams, No. 69294 & No. 72624, slip op. at 9 (Mo. Ct. App. filed July 28, 1998)
(unpublished memorandum opinion). It then held the Strickland standard was not
satisfied by Williams. Id. at 14. The court observed defense counsel testified he
made a decision not to call Eric Palmer and Kevin Mongrum because they were
"hard-looking," "street tough" and one of them had admitted to being in a gang with
Williams. Id. at 10. Also, the court reasoned:

      In the discussion of defendant's second point, we pointed out that in
      order to prevail on his claim of ineffective assistance of counsel,
      defendant must overcome the presumption that counsel's challenged acts
      or omission were sound trial strategy. State v. Starks, 856 S.W.2d 334,
      336 (Mo. banc 1993). The choice of witnesses and defense tactics are
      ordinarily matters of trial strategy and will not support a claim of
      ineffective assistance of counsel. State v. Henderson, 826 S.W.2d 371,
      378 (Mo. App. E.D. 1992). In this case at bar, the majority of the
      witnesses that trial counsel mentioned in his opening statement were
      called by the state. At the evidentiary hearing, trial counsel testified that
      he thought he beat the state's case through his cross-examination of the
      state's witnesses. Trial counsel also testified that at the hearing he had
      voir dired the jury about the fact that defendant did not have to call
      witnesses. Trial counsel testified that he felt it was better to make an
      opening statement which would allow the jury to hear that there were
      "witnesses out there" that could support their story, instead of standing
      mute after the state's opening statement. We find that trial counsel's
      decision not to call witnesses was part of his trial strategy. The motion
      court did not err in denying defendant's claim of ineffective assistance
      of counsel.

Id. at 13-14.

       After losing his appeal in state court, Williams sought habeas relief pursuant
to § 2254 in federal district court. The district court determined the decision of the

                                          -3-
Missouri Court of Appeals was not contrary to established federal law. It, therefore,
denied Williams's petition for a writ of habeas corpus, but it granted a certificate of
appealability. Williams now appeals.

                                           II

       Williams contends the Missouri Court of Appeals's rejection of his ineffective
assistance claim was an unreasonable application of clearly established federal law,
and the district court, therefore, erred in denying his habeas petition. We disagree.

       The determination as to whether counsel was constitutionally deficient is a
mixed question of law and fact. Flieger v. Delo, 16 F.3d 878, 886 (8th Cir. 1994).
Accordingly, the district court's resolution of claims of ineffective assistance of
counsel based on an undisputed factual record, of the sort we now have before us, is
subjected to de novo review. Miller v. Dormire, 310 F.3d 600, 602 (8th Cir. 2002)
(citing Strickland, 466 U.S. at 698).

       If a claim has been adjudicated on the merits in state court, an application for
writ of habeas corpus may be granted where the state court adjudication "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). An "unreasonable
application" of federal law occurs when a "state court correctly identifies the
governing legal principle from [the decisions of the Supreme Court] but unreasonably
applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 694 (2002)
(discussing Williams v. Taylor, 529 U.S. 362, 403-404 (2000)); see Sexton v. Kemna,
278 F.3d 808, 811 (8th Cir. 2002) (analyzing Williams). The focus of the inquiry is
"whether the state court's application of clearly established federal law is objectively
unreasonable." Bell, 535 U.S. at 694.




                                          -4-
       The district court held Strickland was reasonably applied by the Missouri Court
of Appeals. The issue before this court, therefore, is whether the district court
reached the correct legal conclusion. In other words, did the Missouri Court apply
Strickland in an "objectively unreasonable" manner.

      It bears repeating an "objectively unreasonable" manner is different from an
incorrect one. Williams, 529 U.S. at 409-410, 411 (explaining a federal habeas court
may not issue a writ under the unreasonable application clause "simply because that
court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly"); Colvin v. Taylor,
324 F.3d 583, 587 (8th Cir. 2003); Hoon v. Iowa, 313 F.3d 1058, 1061(8th Cir.
2002). Therefore, "this court, just like the district court, may not grant a writ of
habeas corpus unless the relevant state court decision is both wrong and
unreasonable." Colvin, 324 F.3d at 587.

                                           III

       Strickland established the principle that in order to prevail on an ineffective
assistance of counsel claim, a petitioner must "show that counsel's performance was
deficient . . . [and] that the deficient performance prejudiced the defense." Strickland,
466 U.S. at 687; Owens v. Dormire, 198 F.3d 679, 681 (8th Cir. 1999) (discussing
Strickland, 466 U.S. at 687). "It is past question that the rule set forth in Strickland
qualifies as 'clearly established Federal law, as determined by the Supreme Court of
the United States.'" Williams, 529 U.S. at 391. The "performance" prong of the two-
part Strickland test requires the petitioner to show "counsel's representation fell below
an objective standard of reasonableness." Strickland, 466 U.S. at 688. The
"prejudice" prong of the Strickland analysis requires a showing that "the decision
reached would reasonably likely have been different absent the errors." Id. at 696.




                                          -5-
       The Missouri Court of Appeals stated, "trial counsel's decision not to call
witnesses was part of his trial strategy," and, impliedly, concluded this trial strategy
did not fall below the "objective standard of reasonableness" required of counsel.
Strickland, 466 U.S. at 688. To determine if this conclusion amounts to an
unreasonable application of Strickland's performance prong, we must consider if
Strickland and its progeny mean: when a counselor suggests to a jury certain
witnesses will be called, those witnesses must be called.

       As a preliminary matter, Williams directs our attention to Blankenship v. State,
23 S.W.3d 848 (Mo. Ct. App. 2000). In Blankenship, a defense counsel (whose
behavior at trial was described as "fumbling, stumbling and bumbling" by the trial
judge) was deemed ineffective because in his opening statement he promised to
present an expert witness whom he had not yet interviewed, and upon doing so
decided not to call. 23 S.W.3d at 850. The Missouri Court of Appeals held
Blankenship's defense counsel was ineffective because, due to his failure to
investigate, he "really had no idea what [the expert witness's] testimony would be,
prior to trial;" yet, nonetheless, he promised the jury in his opening statement the
expert witness would be called. Id. at 851. The case before us does not involve a
failure to investigate. Therefore, Blankenship does not meaningfully guide us in this
appeal.

       Counsel has not directed our attention to, nor has independent research
revealed, either a Supreme Court or an Eighth Circuit case specifically on point, but
a number of other courts have taken a position on the subject. The decisions issued
by these courts do not, of course, make a legal principle "clearly established for the
purposes of [§] 2254(d)(1) because they do not issue from the Supreme Court,
nonetheless, they provide significant insight into what constitutes reasonableness for
a particular fact pattern." Phoenix v. Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000)
(internal citations omitted). "[T]o the extent that inferior federal courts have decided
factually similar cases, reference to those decisions is appropriate in assessing the

                                          -6-
reasonableness vel non of the state court's treatment of the contested issue . . . such
reference is particularly appropriate in ineffective assistance of counsel cases, which
are highly fact-specific." Yancey v. Hall, 237 F. Supp. 2d 128, 133. (D. Mass. 2002)
(internal quotation and citation omitted). Similarly, we have held in the habeas
corpus context, the objective reasonableness of a state court's application of Supreme
Court precedent may be established by showing other circuits having similarly
applied the precedent. Sexton, 278 F.3d at 811.

       Under circumstances somewhat similar to the present case, failing to fulfill a
promise made in an opening statement to call a witness or to present evidence has
amounted to ineffective assistance of counsel. E.g., Ouber v. Guarino, 293 F.3d 19
35-36 (1st Cir. 2002) (holding defense counsel's decision to withhold the defendant's
testimony after having emphasized its importance and having "explicitly and
repeatedly" promised the jurors that they would hear it constituted ineffective
assistance of counsel, and no reasonable trial strategy justified the decision, since no
circumstances changed from two earlier trials where the defendant did testify); Harris
v. Reed, 894 F.2d 871, 878-79 (7th Cir. 1990) ("Counsel tempted the fates when he
decided to rest on the perceived weakness of the prosecution's case. His decision not
to present [an alternative theory of the crime] through the testimony of Carter or Riles
-- a decision made without interviewing the witnesses, after preparing the jury for the
evidence through the opening, and without consultation with Harris -- was
unreasonable professional conduct."); Anderson v. Butler, 858 F.2d 16, 18 (1st Cir.
1988) (finding ineffective assistance of counsel and prejudice as a matter of law
where counsel failed to present promised expert medical testimony that defendant
acted "without feeling, without any appreciation of what was happening . . . like a
robot programmed on destruction," even though the principal defense remained
throughout the trial to establish the defendant had an impaired mental condition).
"The rationale for holding such a failure to produce promised evidence ineffective is
that when counsel primes the jury to hear a different version of the events from what
he ultimately presents, one may infer that reasonable jurors would think the witnesses

                                          -7-
to which counsel referred in his opening statement were unwilling or unable to
deliver the testimony he promised." McAleese v. Mazurkiewicz, 1 F.3d 159, 166-67
(3rd Cir. 1993).

        Despite these cases, other courts have reached the opposite result and illustrate
that failing to present witnesses promised in an opening is not always an error of a
constitutional dimension. See, e.g., United States ex rel. Schlager v. Washington, 887
F. Supp. 1019, 1026-27 (N.D. Ill. 1995), aff'd, 113 F.3d 763 (7th Cir. 1997) (holding
a strategic decision not to introduce witnesses promised in opening statement was not
ineffective assistance); Yancey v. Hall, 237 F. Supp. 2d at 135 (concluding it was not
ineffective assistance for petitioner's attorney to promise petitioner would testify and
that the evidence would show petitioner was not the person who committed the crime,
even though petitioner ultimately did not testify and his counsel rested without
adducing all of the promised evidence.); cf. Howard v. Davis, 815 F.2d 1429, 1432-
33 (11th Cir. 1987) (holding that a change of strategy in the midst of a trial did not
constitute ineffective assistance, even where defense counsel asserted an "insanity
defense initially, knowing that he might withdraw the defense at a later time."):
United States v. Friedman, Nos. 92-3916, 92-3917, 1993 U.S. App. LEXIS 25452 at
*11 (6th Cir. Sept. 30, 1993) (unpublished) (rejecting a basis of petitioner's writ of
error asserting "[i]t can be competent trial strategy to broach a defense during opening
statement and later abandon it based on trial developments."); United States v. Mittal,
98 CR 1302 (JGK), 2000 U.S. Dist. LEXIS 15665 at * 11 (S.D.N.Y. October 23,
2000) ("The fact that trial counsel did not follow the exact letter of his opening
statement does not mean that his representation fell below reasonable professional
standards. Changing course from the roadmap outlined in opening statement as the
trial progresses is not necessarily ineffective assistance.").

      Upon comparing these cases to the facts of the present case, we are left with
the impression different federal courts may resolve the question before us differently.
This diversity of opinion alone suggests the Missouri Court of Appeals did not

                                          -8-
unreasonably apply Strickland. Moreover, considering the specific facts of this case
mandates this conclusion. Williams's defense counsel interviewed the two un-called
witnesses before trial, and he knew what their testimony would be. With this likely
testimony in mind, defense counsel told the jury they would soon know it too. Once
the trial was underway, however, defense counsel reconsidered. He subsequently
gave a number of reasons for his decision. These reasons now might seem
insufficient, but we "must indulge a 'strong presumption' that counsel's conduct falls
within the wide range of reasonable professional assistance because it is all too easy
to conclude that a particular act or omission of counsel was unreasonable in the harsh
light of hindsight." Bell, 535 U.S. at 702 (quoting and discussing Strickland, 466
U.S. at 689). When we do so, we cannot say the state court's application of
Strickland's attorney-performance standard was objectively unreasonable.
Accordingly, the judgment of the district court is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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