                Case: 10-12108        Date Filed: 11/07/2012   Page: 1 of 9

                                                                              [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 10-12108
                               ________________________

                       D.C. Docket No. 4:05-cv-00308-CLS-PWG



CHARLES L. BURTON, JR.,

lllllllllllllllllllllPetitioner - Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

lllllllllllllllllllllRespondent - Appellee.

                               ________________________

                       Appeal from the United States District Court
                          for the Northern District of Alabama
                              ________________________

                                     (November 7, 2012)

Before TJOFLAT, MARCUS, and WILSON, Circuit Judges.

WILSON, Circuit Judge:

         Death row inmate Charles Burton appeals from the denial of his petition for
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a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Burton asserts that he

was denied the effective assistance of counsel at the penalty phase of his capital

murder trial when the court interfered with his counsel’s mitigation strategy and

when his counsel did not object to the interference. After reviewing the record

and considering the arguments presented in the briefs and at oral argument, we

affirm.

                                         I.

      Burton was convicted and sentenced to death for capital murder in an

Alabama state court. See Ala. Code § 13A-5-40(a)(2). The murder occurred while

Burton and five others robbed an AutoZone store. Burton was not the triggerman.

The robbery was winding down, and he had already left the store when another

member of the group shot and killed a customer. The state painted Burton as the

group ringleader, and the jury convicted him of capital murder based on the state’s

accomplice liability theory.

      The penalty-phase proceeded before the same jury. During that phase, a

disagreement arose between Burton and his lawyers over which mitigation

witnesses to call on Burton’s behalf. Burton wanted to call two of his co-

defendants (Andre Jones and Willie Brantley) to testify for him. Although they

were warned that their testimony could be used against them in their own separate

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trials, both co-defendants agreed to testify for Burton. But Burton’s lawyer

advised against using them. When the disagreement was brought to the attention

of the trial judge, Burton’s counsel explained, “neither of [the witnesses] can give

any testimony that would mitigate my client’s guilt in this case.” The court

engaged Burton in a brief colloquy:

      Court:        Okay. Mr. Burton.

      Burton:       Yes, sir.

      Court:        You have heard the recommendation of your lawyers stated in
                    open court relative to these two witnesses not being called, that
                    they don’t desire to call them, and they’ve indicated that you
                    want to call them. Is that your desire?

      Burton:       Yes, sir.

      Court:        Okay, I am going to allow you to call them.

      Burton:       It was my desire to call them earlier before this - - before the
                    sentencing phase became, you know, but they advised me that,
                    you know, that - -

      Court:        You answered my question. That’s fine.

The court then ordered Burton’s counsel to call Jones and Brantley as witnesses.

Burton expected their testimony to reinforce his alibi defense, even though that

defense was unsuccessful during the guilt phase of trial. Both men took the stand

and denied participation in the robbery, and denied knowing Burton. But Burton’s



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strategy backfired because their testimony opened the door to previously

inadmissible impeachment evidence that Burton now claims irreparably damaged

his counsel’s mitigation strategy. The state was able to admit into evidence

Jones’s post-arrest confession admitting his participation in the AutoZone robbery

with Burton and the other co-defendants. The state also used Jones’s confession

confirming the group’s initial intention to rob a bank in Sylacuaga, Alabama. The

confessions were corroborated by a bank surveillance videotape purportedly

showing Jones, Brantley, and Burton together, inside the City National Bank in

Sylacuaga, shortly before the robbery of the AutoZone. In addition, two

AutoZone customers testified and identified Jones and Brantley as members of the

group that robbed the store.

      Family members also testified with the intention of establishing mitigating

factors, but Burton claims the fire could not be put out. Burton now contends that

by allowing him to present his co-defendants’ testimony, the court impermissibly

interfered with his counsel’s mitigation strategy, and he further contends that the

impeachment evidence insulted and inflamed the jury and undermined his

credibility. Burton argues that the co-defendants’ testimony reinforced the state’s

theory that he was the ringleader of the group, and that he was ultimately

responsible for the death that occurred at the store.

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      The jury recommended a death sentence by a unanimous vote. The trial

judge found two aggravating factors: (1) Burton had been convicted of eight prior

felonies, and (2) the offense was committed during the commission of a robbery.

The judge concluded that no mitigating circumstances existed. Accepting the

jury’s recommendation, the judge sentenced Burton to death.

      Burton argued that he was denied the effective assistance of counsel in a

petition for post-conviction relief filed in accordance with Rule 32 of the Alabama

Rules of Criminal Procedure. The Alabama Court of Criminal Appeals denied the

petition, reasoning that Burton’s counsel was not ineffective because Burton had

the ultimate right to determine which witnesses to call and that “[c]ounsel was not

ineffective because [Burton] rejected their advice.” Burton v. State, CR-00-2472,

slip op. (Ala. Crim. App. Feb. 20, 2004).

                                           II.

                                           A.

      The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214, prohibits federal courts from granting habeas

relief unless the state court’s adjudication of the claim for relief “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

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States.” 28 U.S.C. § 2254(d)(1). To be “contrary to” clearly established Supreme

Court precedent, the state court’s decision must either (1) apply a rule that

contradicts the governing law set forth by the Supreme Court or (2) arrive at a

different result than the Supreme Court decision in the face of materially

indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850

(2002). There is an unreasonable application of clearly established federal law if

“the state court correctly identifies the governing legal principle from [the

Supreme Court’s] decisions but unreasonably applies it to the facts of the

particular case.” Id. We will not find an unreasonable application if “fairminded

jurists could disagree on the correctness of the state court’s decision.” Harrington

v. Richter, 562 U.S. ___, 131 S. Ct. 770, 786 (2011) (internal quotation marks

omitted).

                                          B.

      Despite Burton’s arguments on appeal, the sole issue in this case is whether

the ultimate authority to call a witness at trial belongs to counsel or the client.

Wherever the decision-making authority properly rests in this trial scenario, the

Supreme Court has not yet spoken on the issue.

      In the current matter, the state trial court determined that the decision to call

witnesses ultimately rests with the client. On direct appeal, the Alabama Court of

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Criminal Appeals agreed, concluding that while “[a]n attorney can . . . make

recommendations to a client as to how to conduct his defense . . . the ultimate

decision . . . lies with the client.” Burton v. State, 651 So. 2d 641, 656 (Ala. Crim.

App. 1993). Accordingly, the Alabama Court of Criminal Appeals found that

“[t]here was no interference with the attorney-client relationship . . . when the trial

court was honoring the [defendant]’s wishes.” Id.

      Under AEDPA, we cannot grant relief unless the state court’s adjudication

of the issue on the merits “resulted in a decision that was contrary to, or 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); see also

Harrington, 131 S. Ct. at 786-87. While the Supreme Court has said at various

times, either in holding or in dicta, that certain fundamental decisions—such as

whether to plead guilty, Brookhart v. Janis, 384 U.S. 1 (1966); waive a jury,

Taylor v. Illinois, 484 U.S. 400 (1988); waive the right to counsel, Faretta v.

California, 422 U.S. 806 (1975); testify on his or her own behalf, Jones v. Barnes,

463 U.S. 745 (1983); or take an appeal, id.—ultimately belong to the client, it has

never had occasion to address the division of decision-making authority in the trial

context of calling witnesses.

      Burton points us to Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308 (1983),

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but this case affords no assistance because it does not involve a defendant’s desire

to call witnesses at trial against the advice of counsel. In fact, it did not involve

the calling of witnesses at trial at all. Instead, Jones holds that a defendant does

not have a constitutional right to compel appointed counsel to present on appeal

every non-frivolous argument that the defendant advocates. 463 U.S. at 754, 103

S. Ct. at 3314. We do not read Jones as clearly establishing that a defendant is

deprived of his constitutional right to counsel when his lawyers are forced to

follow the defendant’s strategic directives.

      Burton also relies heavily on Blanco v. Singletary, 943 F.2d 1477 (11th Cir.

1991), as a basis for relief under AEDPA. However, Blanco is a pre-AEDPA case

from this Court. As such, it cannot set forth any “clearly established Federal law,

as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). What’s more, the panel in Blanco did not reach, at least as a matter

of holding, the question of whether the decision to call a witness belongs to the

lawyer or to the client.

      Burton has not and cannot point to any clearly established federal law from

the United States Supreme Court on the question of whether the ultimate authority

to call trial witnesses rests with counsel or the client. Consequently, AEDPA bars

relief of Burton’s claims.

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AFFIRMED.




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