                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                               Nos. 01-1537/01-1538
                                   ___________

Joseph E. Whitfield,                  *
                                      *
       Cross-Appellant/Appellee,      *
                                      * Appeals from the United States
       v.                             * District Court for the
                                      * Eastern District of Missouri.
Michael Bowersox, Superintendent,     *
Potosi Correctional Center;           *
Jeremiah Nixon, Attorney General,     *
State of Missouri,                    *
                                      *
       Appellants/Cross-Appellees.    *
                                 ___________

                              Submitted: May 13, 2002

                                   Filed: April 7, 2003
                                    ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and RILEY, Circuit Judges.
                         ___________

RILEY, Circuit Judge.

        Joseph Whitfield (Whitfield) was sentenced to death after being convicted of
first degree murder and armed criminal action. The Missouri Supreme Court affirmed
the conviction and sentence. Whitfield filed a timely petition for writ of habeas
corpus under 28 U.S.C. § 2254 (1994 ed. Supp. IV 1998). The federal district court
vacated Whitfield's death sentence, finding the state court erred in determining
Whitfield voluntarily waived his right to testify during the penalty phase of his trial.
The State of Missouri (State) appeals the ruling. Whitfield cross-appeals, challenging
the denial of the portions of his habeas petition based on (1) alleged ineffective
assistance of counsel related to the cross-examination of two witnesses and (2)
alleged trial court error in denying Whitfield’s motion for a new trial based on newly
discovered evidence. We affirm the district court’s denial of habeas corpus relief
related to Whitfield’s claims. However, we reverse the district court on the issue of
the right to testify.

I.     FACTUAL BACKGROUND
       On January 20, 1988, Ronald Chester (Chester), a paraplegic, was conducting
errands with the assistance of Maria Evans (Evans). Chester was in the vehicle's
driver's seat, with his wheelchair in the front passenger area. Chester was driving and
Evans would get out of the backseat to pick up dry cleaning and mail, to pump gas,
and to purchase money orders for Chester. After stopping briefly for a social visit,
Chester agreed to give Whitfield and his young daughter, Jody, a ride home.
Whitfield, Evans and Jody were all seated in the back. Whitfield directed Chester to
a location where Whitfield asked Chester to wait with Jody while he picked up a
package. Whitfield exited the vehicle to purchase heroin from Charles Porter
(Porter), who was in a vehicle parked nearby with Linda Scott (Scott). Porter refused
to sell to Whitfield, who did not have any money. Porter then gave a handgun to
Whitfield, who returned to Chester's vehicle. Whitfield struck both Chester and
Evans in the head with the handgun. Varney Bolden (Bolden) approached the vehicle
and told Whitfield to shoot Chester and Evans.

      Evans testified Whitfield shot Chester from inside the back of the vehicle,
while Scott testified Whitfield shot Chester from outside the vehicle. Chester died
from two gunshot wounds to the head. Additional shots were fired into the vehicle
at Evans, who suffered a gunshot wound to the hand, and who played dead. The
vehicle rolled forward, and Whitfield and Bolden removed Jody from the vehicle.



                                         -2-
       Whitfield alleges Bolden did the shooting. Bolden was acquitted of murder
charges in 1991. The .38 caliber Smith & Wesson used in the shootings was
discovered by the police in Whitfield's apartment. Whitfield admitted the gun was
his, but claimed he was "set up."

II.   PROCEDURAL BACKGROUND
      On December 2, 1989, a jury found Whitfield guilty of first degree murder, first
degree assault, and two counts of armed criminal action, and assessed punishment as
death for the murder and consecutive life sentences for the remaining convictions.
The conviction was reversed on direct appeal, due to surprise evidence and improper
conduct by the prosecutor, and the case remanded for a new trial. Missouri v.
Whitfield, 837 S.W.2d 503 (Mo. 1992) (en banc).

       On retrial, a jury found Whitfield guilty of first degree murder for the shooting
death of Chester, and armed criminal action for the injuries to Evans. Unable to agree
on the penalty, the jury deadlocked 11-1 in favor of a life sentence. On April 8, 1994,
the state trial court held a hearing on post-trial motions and sentencing. On June 23,
1994, after denying the post-trial motions, the state trial court sentenced Whitfield to
death for the murder conviction, and to life imprisonment for the armed criminal
action.1 Whitfield did not make a statement on June 23 before he was sentenced.

        Whitfield subsequently filed a motion for post-conviction relief in state court
pursuant to Missouri Supreme Court Rule 29.15. After an evidentiary hearing, the
state trial court denied the motion. The Missouri Supreme Court affirmed Whitfield’s


      1
       We decline to address whether the death sentence imposed by the state court
contravenes the holding in Ring v. Arizona, 122 S. Ct. 2428 (2002). As we
recognized in Moore v. Kinney, 320 F.3d 767, 771 n.3 (8th Cir. 2003) (en banc), the
Supreme Court has not expressly made Ring retroactive, and "[a]bsent an express
pronouncement on retroactivity from the Supreme Court, the rule from Ring is not
retroactive."

                                          -3-
conviction, sentence, and post-conviction ruling. Missouri v. Whitfield, 939 S.W.2d
361 (Mo. 1997) (en banc).

       Whitfield timely petitioned the federal district court for a writ of habeas corpus,
which was granted as it relates to Whitfield's right to testify during the penalty phase
of the trial. The federal district court vacated the death sentence. The court denied
the writ on the remaining issues, but certified three issues for appeal: (1) whether the
state court erred in determining Whitfield voluntarily waived his right to testify
during the penalty phase of his trial; (2) whether Whitfield's trial counsel rendered
ineffective assistance of counsel related to the cross-examination of two witnesses;
and (3) whether the state court erred in denying Whitfield’s motion for a new trial
based on newly discovered evidence.

III.   DISCUSSION
       A.     Standard of Review
       In an appeal on a habeas petition under § 2254, we review 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). Relief will be granted to a § 2254
petitioner only if the adjudication by the state court "resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal
law" or "resulted in a decision that was based on an unreasonable determination of
the facts." Kenley v. Bowersox, 275 F.3d 709, 711 (8th Cir. 2002) (citing 28 U.S.C.
§ 2254(d)(1)-(2)). Additionally, the state court's "factual findings carry a
presumption of correctness that will be rebutted only by clear and convincing
evidence." Id. at 711-12 (citing 28 U.S.C. § 2254(e)(1)).

       B.     Waiver of the Right to Testify
       Whitfield contends the state trial court erred when it did not secure an explicit
waiver of his right to testify during the penalty phase of the trial. The federal district
court determined the record does not support the state court's finding of waiver of the

                                           -4-
right to testify. The government appeals arguing the record supports the finding made
by the state court.

       The United States Supreme Court has explicitly recognized the constitutional
right of a criminal defendant to testify on his own behalf. Rock v. Arkansas, 483 U.S.
44, 49-53, 62 (1987) (holding a per se rule excluding hypnotically refreshed
testimony impermissibly infringed on a defendant's right to testify under the Fifth,
Sixth and Fourteenth Amendments). The defendant has the "ultimate authority" to
decide whether to testify on his own behalf. Jones v. Barnes, 463 U.S. 745, 751
(1983). However, a defendant's right to testify is nonetheless circumscribed by
procedural and evidentiary rules, when the rules are neither arbitrary nor
disproportionate to the right. Rock, 483 U.S. at 55-56.

       "We cannot presume a waiver of . . . important federal rights from a silent
record." Boykin v. Alabama, 395 U.S. 238, 243 (1969). "The question of an
effective waiver of a federal constitutional right in a proceeding is of course governed
by federal standards." Id. However, "[a] fundamental choice over which the
defendant has the ultimate decision can be knowingly and voluntarily waived if, by
his or her silence, the defendant apparently acquiesces to the waiver." United States
v. Washington, 198 F.3d 721, 724 (8th Cir. 1999).

       The trial court makes a factual determination about whether conduct exists
concerning waiver; however, whether such conduct results in a waiver is a matter of
law. See Frey v. Schuetzle, 151 F.3d 893, 898 (8th Cir. 1998). Whether counsel
advised the defendant about his right to testify and whether he accepted the
recommendation not to testify are findings of fact. Id. A voluntary and knowing
waiver of the right to testify may exist where the defendant remained silent after
counsel rested. Id. In Frey, the record evidence showed: (1) the petitioner's counsel
informed him he had the right to testify, but advised against it; (2) counsel testified
the petitioner accepted the advice; (3) the petitioner was present when the trial court

                                          -5-
stated he "may testify if he wants to," but had no obligation to do so; and (4) the
petitioner was a sophisticated businessman who remained silent when his counsel
rested the case without calling him to testify. Id.

        We have held a defendant must exercise his right to testify by affirmative
action at the appropriate time, or else a knowing and voluntary waiver of the right to
testify is deemed to have occurred. United States v. Blum, 65 F.3d 1436, 1444 (8th
Cir. 1995) (holding defendant waived her right to testify where she chose not to
testify, and then, after the close of evidence, sent a note to the court stating she had
changed her mind); United States v. Stewart, 20 F.3d 911, 917 (8th Cir. 1994)
(affirming waiver where pro se defendant did not present evidence, but stated his
desire to testify only after the trial court said it would next hear closing arguments,
the trial court did not re-open the case); El-Tabech v. Hopkins, 997 F.2d 386, 388-89
(8th Cir. 1993) (finding sufficient evidence of waiver where trial counsel testified
petitioner decided not to testify and was silent through jury instruction conference,
discussing petitioner would not be testifying, even though petitioner claimed he
raised his hand to testify during trial). "A defendant's right to testify is not
unqualified." Stewart, 20 F.3d at 917.

       "The defendant may not . . . indicate at trial his apparent acquiescence in his
counsel's advice that he not testify, and then later claim that his will to testify was
'overcome.'" United States v. Bernloehr, 833 F.2d 749, 752 (8th Cir. 1987) (finding
waiver where petitioner made no objection when his counsel rested without calling
him). In Bernloehr, petitioner's counsel informed the jury that petitioner would testify
and even called Bernloehr to testify. However, after a brief recess, counsel called a
different witness to testify. Id. at 750. Then at a side bar, counsel told the trial court
Bernloehr wanted to testify, but would "accede" to the advice of counsel not to
testify. Id.




                                           -6-
       After Whitfield's sentencing, the state trial court held a hearing as part of the
Rule 29.15 post-trial motion. Whitfield did not testify at the hearing. Whitfield's trial
attorney testified at the hearing that Whitfield had made the final decision not to
testify at his trial. She also testified she had discussed with Whitfield his right to
testify and had advised, for unspecified trial strategy reasons, that he not testify.
Whitfield contends no sound strategy reasons exist for the decision. The State argues
the record supports that it was a reasonable trial strategy to advise Whitfield not to
testify, particularly because Whitfield would have been a bad witness by exhibiting
self-pity, arrogance, lack of remorse after the guilt phase was completed, and
information about his prior criminal history could emerge.

       Just before the penalty phase began Whitfield said, "I would like to explain my
situation and Joe Whitfield in its entirety without being interrupted, if I may, because
my life is on the line." The trial court stated, "You have the right to testify or not to
testify and that right is yours alone." The trial court denied Whitfield the opportunity
to explain his situation in a narrative form, without cross-examination. The trial court
instructed Whitfield that whether he testified was a matter between him and his
attorney.2

      2
             WHITFIELD: Sir, for six years I've been going through this and
      I haven't taken the stand yet. All right. I've never taken the stand before
      in my life. There's no one in the world can talk about Joe Whitfield like
      Joe Whitfield can talk about Joe Whitfield. I would like to explain my
      situation and Joe Whitfield in its entirety without being interrupted, if
      I may, because my life is on the line.

                                          ...

             THE COURT: Let me respond to that in two ways, Mr. Whitfield.
      As I told you awhile back when we first got together, you have the right
      to testify or not to testify and that right is yours alone.

             WHITFIELD: Yes, sir.

                                          -7-
        At the conclusion of the State's evidence, Whitfield's counsel presented seven
witnesses and rested without comment or objection by Whitfield. At the conclusion
of all evidence, the trial court asked counsel whether all evidence had been presented
to the jury. Defense counsel explained Whitfield "reserved the right to testify to the


             THE COURT: And no inference can be drawn from your silence.
      As to whether you are called as a witness by your attorney, I do not wish
      to interfere with your relationship with your attorney. I leave that to you
      and she to work out.

            If you are – the only circumstances under which you would be
      permitted to speak to the jury, as far as I can tell at this point in time, is
      if you are called as a witness and you would be subject to cross-
      examination and the usual rules of any witness.

             So in other words, in terms of being allowed to address the jury
      in a narrative form, give a speech to the jury, I'm not prepared to allow
      that at this time. So that's all I can tell you at this point in time.

                                           ...

             Mr. Whitfield, notwithstanding what the jury may assess and
      declare, the final sentence will be pronounced by me. I can assure you
      that you will be given the opportunity to say whatever you want to me
      before sentence is pronounced.

            WHITFIELD: Your Honor, I've been sitting at this table – this is
      the second time looking like a dummy, you know. And I've been
      persecuted up here and I haven't had the chance to even talk about me.
      Do you see what I'm saying?

             THE COURT: I understand that. So I think I have to limit my
      response to what I've just indicated but we can revisit the issue when the
      State's case is concluded. Okay?

             WHITFIELD: Yes, sir.

                                           -8-
Court at allocution," but there was nothing further for the jury. Again Whitfield did
not comment or object. After the jury instructions were read, closing arguments were
heard, and the jury began to retire, Whitfield asked, "Can I talk on my own behalf?"
Whitfield said, "I'm not here to plead for my life. Get out of my face, woman."
Whitfield spoke in a "very loud voice," directing the last comment to his counsel as
he was standing and gesturing. The trial court asked him to be in order. The jury
retired to deliberate without hearing Whitfield make a statement. Whitfield did make
a statement to the court before sentencing.

      On direct appeal, the Missouri Supreme Court rejected Whitfield's claim,
finding waiver and stating Whitfield could have testified along with his other
witnesses, but could not talk extemporaneously to the jury. Whitfield, 939 S.W.2d
at 371-72. The court also relied on Whitfield's failure to testify at the Rule 29.15
hearing or to refute Whitfield's trial counsel's testimony. Id. The federal district court
determined the evidence of waiver on the record, including trial counsel's Rule 29.15
testimony, related to the guilt stage rather than the penalty stage of the trial.
According to the district court, the record did not support the finding that Whitfield
had waived his right to testify during the penalty phase.

        Additionally, Whitfield argues the trial court ignored his initial request to
testify, at the beginning of the penalty phase, and that the trial court misled him into
thinking the decision was that of the attorney, not his own. The State contends
Whitfield waived his right to testify because he did not assert a timely request, as the
first request was too early and the second was too late.

       Whitfield did make a lengthy statement during the April 8, 1994 post-trial
hearing before being sentenced. The statement is a narrative, which was not given
under oath or with the benefit of cross-examination. Whitfield now attests the
narrative is what he would have testified about during the penalty phase. The
narrative includes Whitfield's life history, prior convictions, prior involvement with

                                           -9-
law enforcement, his belief regarding the motivations of the police in this case, and
a detailed version of the events of January 20, 1988. In his statement, Whitfield
professed his innocence, blamed another for the Chester killing and contended he was
the victim of the prosecuting attorney's vendetta against Whitfield and his wife for
failing to testify against a person who years before had shot Whitfield's pregnant wife,
killing their baby. The State argues the content of the narrative given by Whitfield
does not create a reasonable probability that the outcome of the penalty phase would
have been different. Further, the ultimate sentencer – the state court trial judge – did
hear the narrative and sentenced Whitfield to death based on the conviction and on
the fact that this was Whitfield's third killing.

       No explicit, clear or obvious waiver of the right to testify at the penalty phase
exists on the record. Whitfield did ask to testify before and after the penalty phase.
However, Whitfield did not speak up when his attorney stated in open court that
Whitfield had no further evidence to present to the jury, but reserved the right to
allocute prior to sentencing.

       Whitfield's trial counsel testified she and Whitfield discussed his testifying and
it was Whitfield's decision not to testify. Whitfield clearly waived his right to testify
during the guilt phase. However, the trial counsel's testimony is ambiguous about
whether she meant she discussed with Whitfield his right to testify at both phases of
the trial or only at the guilt phase.

       The state court found Whitfield had agreed with his trial counsel not to testify
after being advised he may do so. Id. at 372. We presume this finding to be correct
because it is fairly supported by the record and we ascertain no clear and convincing
evidence to the contrary. The guilt-phase waiver, considered with his silence at the
conclusion of evidence during the penalty phase and with his counsel's comments that
he would make an allocution statement before sentencing, all support waiver.



                                          -10-
       Whitfield was no stranger to criminal proceedings, as evidenced by his criminal
history. The procedural limitations to the right to testify at trial reinforce the finding
that Whitfield's conduct constituted waiver. Whitfield sought to speak before the
penalty phase. Whitfield then sat silent while his counsel stated she had no additional
evidence, except that Whitfield wanted to make a statement before sentencing. As
evidenced by his allocution to the state trial court given during the post-trial hearing,
Whitfield sought to deliver a narration to the jury without being subjected to cross-
examination, which is not allowed.

       The state court's decision that Whitfield voluntarily and knowingly waived his
constitutional right to testify is not contrary to, and does not involve an unreasonable
application of, clearly established federal law, or result in a decision that was based
on an unreasonable determination of the facts. Therefore, we reverse the district
court's grant of habeas corpus relief on this claim.

      C.     Ineffective Assistance
             1. Right to Testify
       Whitfield's claim regarding his constitutional right to testify also relates to
whether he received effective assistance of counsel during the penalty phase of his
trial. To prevail on a claim of ineffective assistance of counsel, a petitioner must
show (1) his counsel's performance was deficient, and (2) the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Prejudice exists if "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. at
694.

      Our review of the record convinces us that Whitfield's trial counsel acted
within the wide range of reasonable competence demanded by the Sixth Amendment
when she advised Whitfield not to testify. See Preston v. Delo, 100 F.3d 596, 603-05
(8th Cir. 1996) (finding counsel was not ineffective where he did not have defendant

                                          -11-
testify or introduce any mitigating evidence during the penalty stage due to strategy
reasons); El-Tabech, 997 F.2d at 389-90 (finding no ineffective assistance where
evidence of waiver is in the record and defendant was silent through jury instruction
conference discussing him not testifying); Bernloehr, 833 F.2d at 752 (finding no
ineffective counsel where defendant argued his will was overborne by counsel,
although he made no objection when his counsel rested without calling him).

      With regard to prejudice, the State argues Whitfield's failure to testify at the
post-conviction Rule 29.15 hearing precludes a finding of Strickland prejudice. See
Foster v. Delo, 39 F.3d 873, 877 (8th Cir. 1994) (en banc) (denying relief under pre-
AEDPA standards where petitioner never indicated what his testimony would have
been). The State complains that the district court scoured the record looking for
evidence of prejudice, but did not adequately explain a source or method of the
prejudice. Whitfield argues he need not show prejudice because prejudice is
presumed due to the trial court error. Additionally, Whitfield contends a reasonable
probability exists that if Whitfield had testified, the holdout juror would have been
persuaded to sentence him to a life sentence.

       No evidence or argument exists supporting Whitfield's contention his testimony
would have made a difference to the jury. Whitfield's counsel had reasonable strategy
reasons, based on her professional evaluation of the case, for advising Whitfield to
refrain from testifying. Further, Whitfield made his allocution statement before the
final sentencer in this case, the judge. Whitfield's statement professed innocence,
blamed his situation on a vendetta by the prosecuting attorney and reargued the case
facts, with no sympathy expressed for the victims.

       Whitfield has not shown his trial counsel's performance was deficient, nor that
he suffered any prejudice. We therefore hold that Whitfield was provided with
effective assistance of counsel regarding his right to testify at the penalty stage.



                                        -12-
             2. Cross-Examination
       Whitfield contends he received ineffective assistance of counsel during the
guilt phase of his trial due to his counsel's treatment of witnesses Evans and Scott.
Whitfield argues defense counsel was ineffective in her cross-examination of Evans
in the following respects: (1) failure to impeach with prior statements; (2) failure to
question about whether the rear window was partially down or whether the door was
opened or closed; and (3) failure to question about pathological and physical
evidence.

       Shortly after the shooting, Evans, the injured eyewitness, gave three statements
to police officers. The statements were not identical to each other. Evans first
indicated her eyes were closed at the time she heard the shot, and later stated her eyes
were open just before the shot. Additionally, in one statement, she said Bolden had
directed Whitfield to shoot Chester and her, but Whitfield had refused. Whitfield's
counsel tried to impeach Evans with the statement where she told an officer Whitfield
refused to commit the shooting. Whitfield's counsel referred to the wrong officer, by
name. Evans truthfully denied making such a statement to that officer. Later,
Whitfield's counsel read Evans's actual statement to the jury. Counsel elected to read
the statement into evidence rather than play the audiotape version.

       Evans testified during a deposition that Whitfield, while seated behind Chester
and holding a handgun in his right hand, shot Chester in the back right side of his
head. At trial, Whitfield's counsel did not ask Evans to testify about Whitfield's
positioning in the vehicle or which hand he had used for the shooting. Additionally,
scientific evidence indicated the bullets entered Chester's head from the left side on
a downward path toward the right side. Whitfield's argument at trial was that the
shooter had to have been standing outside the vehicle.

     The Eighth Circuit has found constitutionally deficient performance of trial
counsel based on ineffective cross-examination where counsel allowed inadmissible

                                         -13-
devastating evidence before the jury or when counsel failed to cross-examine a
witness who made grossly inconsistent prior statements. See Hadley v. Groose, 97
F.3d 1131, 1135-36 (8th Cir. 1996) (finding police report grossly inconsistent where
officer testified two sets of footprints were the same when report said the footprints
were different); Driscoll v. Delo, 71 F.3d 701, 709-11 (8th Cir. 1995) (testifying
witness stated he saw defendant stab victim, but counsel failed to cross-examine with
a prior statement where witness said he was not present during the stabbing). A
failure to impeach constitutes ineffective assistance when there is a reasonable
probability that, absent counsel's failure, the jury would have had reasonable doubt
of the petitioner's guilt. Id. at 711.

       In this case, the errors alleged by Whitfield do not rise to the level of
constitutionally ineffective assistance of counsel. Although not perfect, counsel did
not allow inadmissible devastating evidence to be entered or grossly inconsistent
prior statements to go unchallenged. Evidence supporting Whitfield's theory of
another shooter was entered into evidence. And, although later in time, counsel
introduced evidence of the prior inconsistent statements. Whitfield's counsel made
closing arguments consistent with the defense theory of the case based on this
evidence. Therefore, we find the state court's determination that counsel's
performance was not constitutionally deficient in her treatment of Evans is not an
unreasonable application of clearly established federal law.

       Regarding Scott, another witness, Whitfield argues his counsel (1) failed to
confront her with a prior statement in which she had stated the assailant was standing
outside the vehicle, and (2) failed to depose Scott. Scott witnessed the shooting from
a vehicle parked a short distance from Chester's vehicle. Before the shooting,
Whitfield talked to Scott's companion, Porter, about purchasing heroin. At trial, Scott
testified the handgun used by Whitfield had been given to him by Porter who had
received it from Scott, herself. Before trial, Scott told Whitfield's counsel over the
phone that the shooter was standing outside the vehicle, but Scott did not comment

                                         -14-
on the shooter's location during trial. On the other hand, Scott also testified she saw
the shooter, whom she identified as Whitfield. Scott further testified Bolden did not
approach the vehicle until sometime after the shooting.

      We find the state court's determination, that Whitfield's counsel's performance
was not constitutionally ineffective in her treatment of Scott, was not an unreasonable
application of clearly established federal law. Counsel interviewed Scott over the
telephone before she testified at trial. When viewed in conjunction with the other
evidence at trial, Scott's testimony with the alleged errors is not significant. Scott's
impeachable testimony was not devastating because, although Scott stated the shooter
was outside the vehicle, she also identified Whitfield as the shooter and placed
Bolden, whom Whitfield contends did the shooting, completely away from the
vehicle. Therefore, the prior statement was not grossly inconsistent.

       Whitfield has not shown his trial counsel's performance was deficient, nor that
he suffered any prejudice. We therefore hold the state court did not unreasonably
apply clearly established federal law in determining Whitfield received effective
assistance of counsel regarding the cross-examination of Scott and Evans.

        D.     Motion for New Trial
        Whitfield argues the state trial court violated his Fifth and Fourteenth
Amendment rights by denying his motion for a new trial. The motion for a new trial
was based on new evidence provided by Willie Gream (Gream). Gream would have
testified that, on the night of the killing, Gream heard Bolden complain that Chester
had stolen money from him, and Bolden then grabbed a handgun and went out to
Chester's vehicle, shooting into it. Gream did not hear about Whitfield's trial until
1993. Gream provided an affidavit to the defense team in March of 1994, which was
before sentencing, but after the second conviction.




                                         -15-
      A Missouri defendant seeking a new trial based on newly-discovered evidence
must establish:

             (1) the evidence has come to the knowledge of the
             defendant since the trial;
             (2) it was not owing to want of due diligence that it was not
             discovered sooner;
             (3) the evidence is so material that it would probably
             produce a different result on a new trial; and
             (4) it is not cumulative only or merely impeaching the
             credit of the witness.

Whitfield, 939 S.W.2d at 367 (citing Missouri v. Amrine, 741 S.W.2d 665, 674 (Mo.
1987) (en banc)). "New trials on the basis of newly discovered evidence are not
favored, and the trial court is vested with substantial discretion in deciding whether
such should be granted." Amrine, 741 S.W.2d at 674. "The Constitution itself, of
course, makes no mention of new trials." Herrera v. Collins, 506 U.S. 390, 408
(1993).

      Whitfield argues his case is governed by Chambers v. Mississippi, 410 U.S.
284, 294 (1973). Chambers states, "[t]he right of an accused in a criminal trial to due
process is, in essence, the right to a fair opportunity to defend against the State's
accusations." Id.

      In this case, the state court denied the motion for a new trial because the new
evidence "would not probably produce a different result on a new trial" for two
reasons. First, the trial court found Gream's testimony not credible because he was
a convicted felon who did not come forward until after trial (and after Bolden was
acquitted) and whose story conflicted with other defense testimony. Whitfield, 939
S.W.2d at 367. Second, the trial court determined Gream's testimony would be, in



                                         -16-
part, cumulative because another defense witness had testified the shooter was
standing outside the car. Id.

       We agree with the federal district court that the decision of the state court was
not an unreasonable determination of the facts or an unreasonable application of
clearly established federal law. The state trial court did not unfairly foreclose
Whitfield from presenting evidence in his defense, but followed post-trial procedures
to deny a new trial based on new evidence. Whitfield was given a fair opportunity
to present evidence at trial and during the post-trial hearing. Even if Gream's
testimony were taken as true, the remaining evidence would still support Whitfield's
conviction. The jury heard two eyewitnesses identify Whitfield as the shooter, and
one witness was sitting only a few feet away.

       We have held that, "[t]o the extent petitioner attempts to couch his actual
innocence claim in terms of a due process violation based upon the state court's denial
of his motion for a new trial, petitioner does not allege an 'independent' constitutional
violation." Allen v. Nix, 55 F.3d 414, 417 n.5 (8th Cir. 1995) (citing Herrera, 506
U.S. at 400, 407-12, 416). Whitfield argues Allen misinterprets Herrera and to the
extent Allen is read to control this issue, it should be overruled.

       While Whitfield contends he is actually innocent, as allegedly shown by the
new evidence contained in Gream's testimony, the claim before this court is not based
on Schlup v. Delo, 513 U.S. 298, 327-29 (1995) (providing procedural due process
"gateway" to obtain review of otherwise barred substantive claims) or Herrera
(providing a substantive "free standing claim of innocence, unconnected to any other
constitutional violation"). See Cornell v. Nix, 119 F.3d 1329, 1333 (8th Cir. 1997).
Moreover, the state trial court was able to assess the new Gream evidence
contemporaneously with the evidence adduced at trial, because Whitfield challenged
the conviction with Gream's testimony before his sentencing.



                                          -17-
       If, however, we construe his claim as one of actual innocence under Herrera,
the claim fails. To prevail on a Herrera-type claim, the petitioner is held to an
"extraordinarily high" standard. Herrera, 506 U.S. at 426. In fact, the petitioner must
show new facts unquestionably establishing his innocence. Schlup, 513 U.S. at 317;
Allen, 55 F.3d at 417 (cited by Cornell, 119 F.3d at 1334-35 (holding standard at least
as stringent as clear and convincing)). Whitfield has failed to show new facts
unquestionably establishing his innocence. While Gream's testimony may partially
support Whitfield's trial theory, the testimony is suspect and contradicts other defense
witnesses, as well as the prosecution's witnesses.

      Despite the new evidence testimony of Gream, the state court's decision to deny
Whitfield's motion for a new trial is not contrary to and does not involve an
unreasonable application of clearly established federal law or result in a decision that
was based on an unreasonable determination of the facts.

IV.    CONCLUSION
       Whitfield is not entitled to relief on his present application for a writ of habeas
corpus. Accordingly, we affirm the district court's denial of relief based on (1)
alleged ineffective assistance of counsel related to the cross-examination of two
witnesses and (2) the denial by the trial court of Whitfield’s motion for a new trial
due to newly discovered evidence. However, we reverse the district court on the
issue of Whitfield's right to testify during the penalty phase and remand to the district
court for further proceedings consistent with this opinion.




                                          -18-
HEANEY, Circuit Judge, dissenting.

       Twice Joseph Whitfield tried to exercise his right to testify at the penalty stage
of his own trial. Yet, he was not permitted the opportunity to speak before the jury.
I cannot agree that a defendant who asks directly, at two different times, to speak to
the jury has somehow waived his right to testify. The trial court erred by not
honoring Whitfield’s invocation of his right to testify, and Whitfield’s attorney was
ineffective for failing to vindicate this right. Because Whitfield’s sentencing
proceeding was infected with constitutional error, I dissent.3

I.    TRIAL COURT ERROR

       A criminal defendant’s right to testify in his own defense is a well-established
and fundamental constitutional right. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987).
“The right to testify on one’s own behalf at a criminal trial has sources in several
provisions of the Constitution,” id. at 51, including the Fifth, Sixth, and Fourteenth
Amendments, id. at 51-53. Because this case involves the penalty phase of a trial, the
right also finds support in the Eighth Amendment. See Copeland v. Washington, 232
F.3d 969, 974 n.2 (8th Cir. 2000) (“Indeed, if there is any distinction between the
guilt and penalty phase arguments, it would seem that there should be a more
searching review of the penalty phase as the Eighth Amendment is implicated.”)

      “Because the right to testify is a fundamental constitutional guarantee, only the
defendant is empowered to waive the right.” United States v. Bernloehr, 833 F.2d


      3
         Ring v. Arizona, 122 S.Ct. 2428, 2443 (2002), effectively outlaws Missouri’s
capital sentencing system by requiring that death penalty determinations be made
solely by a jury, rather than a judge. I agree with the majority that because no Ring
issue was certified for appellate review we ought not address the matter at this time.
Still, the question of whether or not Ring has applicability to Whitfield’s case remains
open.

                                          -19-
749, 751 (8th Cir. 1987). I agree with the majority that a waiver of such a
fundamental right may not be presumed from a silent record. Ante at 5 (quoting
Boykin v. Alabama, 395 U.S. 238, 243 (1969)). I further agree that in Whitfield’s
case “[n]o explicit, clear or obvious waiver of the right to testify exists on the record.”
Id. at 10. Indeed, in stark contrast to affirmatively waiving his right to testify during
the penalty phase, or even remaining silent on the issue, Whitfield vigorously
attempted to exercise his right to testify, as is obvious from the following colloquy
captured just before the penalty phase of the trial began:

             THE DEFENDANT: Your Honor, can I say something to you sir?

            THE COURT: Well, Mr. Whitfield, can it wait until the
      conclusion of the State’s evidence?

             THE DEFENDANT: I just wanted to ask you a question.

             THE COURT: Okay.

            MS. MURPHY [DEFENSE COUNSEL]: I’d like the jury to not
      be brought in.

             THE COURT: I hope they’re not out there.

             MS. MURPHY: Can we close the door?

           THE COURT: Can you hold them out there for a moment, Ms.
      Wafer? Okay, Mr. Whitfield.

             THE DEFENDANT: Sir, for six years I’ve been going through
      this and I haven’t taken the stand yet. All right. I’ve never taken the
      stand before in my life. There’s no one in the world can talk about Joe
      Whitfield like Joe Whitfield can talk about Joe Whitfield. I would like
      to explain my situation and Joe Whitfield in its entirety without being
      interrupted, if I may, because my life is on the line.


                                           -20-
        MS. MURPHY: Your Honor, could we do this -- could we make
a record of -- as an offer of proof outside the presence of the jury of
what he would have testified to if he were testifying in Court, perhaps
at a later point in the trial?

       THE COURT: Let me respond to that in two ways, Mr. Whitfield.
As I told you awhile back when we first got together, you have the right
to testify or not to testify and that right is yours alone.

       THE DEFENDANT: Yes, sir.

       THE COURT: And no inference can be drawn from your silence.
As to whether you are called as a witness by your attorney, I do not wish
to interfere with your relationship with your attorney. I leave that to you
and she to work out.

      If you are -- the only circumstances under which you would be
permitted to speak to the jury, as far as I can tell at this point in time, is
if you are called as a witness and you would be subject to cross-
examination and the usual rules of any witness.

       So in other words, in terms of being allowed to address the jury
in a narrative form, give a speech to the jury, I’m not prepared to allow
that at this time. So that’s all I can tell you at this point in time.

       Ms. Murphy, if I can interrupt, one other thing I might mention.

       Mr. Whitfield, notwithstanding what the jury may assess and
declare, the final sentence will be pronounced by me. I can assure you
that you will be given the opportunity to say whatever you want to me
before sentence is pronounced.

        THE DEFENDANT: Your Honor, I’ve been sitting at this table --
this is the second time looking like a dummy, you know. And I’ve been
persecuted up here and I haven’t had the chance to even talk about me.
Do you see what I’m saying?



                                    -21-
             THE COURT: I understand that. So I think I have to limit my
      response to what I’ve just indicated but we can revisit the issue when the
      State’s case is concluded. Okay?

             THE DEFENDANT: Yes, sir.

(Tr. on Appeal, Vol. V at 1753-55.)

      To summarize, Whitfield began by asking permission to speak to the trial
judge. Instead of simply addressing an inquiry from a man who was quite literally
defending his life, the trial judge’s response implied it was more important to move
forward with the trial. Nonetheless, Whitfield persisted, and asked the judge if he
could be permitted to speak to the jury. This can only be viewed as an unequivocal
invocation of his right to testify,4 testament that “[t]he most persuasive counsel may
not be able to speak for a defendant as the defendant might, with halting eloquence,
speak for himself.” Green v. United States, 365 U.S. 301, 304 (1961).

        Next, counsel’s request to make a record of what Whitfield would say was
wholly ignored. Rather, the trial judge told Whitfield that he could not “give a speech
to the jury,” and that he could only address the jury through being called as a witness
by his lawyer. The court then reshaped the issue, shifting focus from Whitfield’s
right to testify to his right of allocution, and assured Whitfield that despite what the
jury may decide, the judge would make a final determination of sentence, and
Whitfield would be permitted to talk to the judge directly at a later hearing. While
it may have calmed Whitfield to think that he would later be able to talk directly to
the ultimate decisionmaker, the trial court’s assurance was a clear and obvious


      4
        The majority notes that Whitfield was “no stranger to criminal proceedings,”
ante at 10, and thus he should have been able to easily navigate the labyrinthian
procedural nuances of when, where, and how to testify before a jury. I would hold
Whitfield, a man with no legal training and brain damage as a result of several head
injuries, to a somewhat lesser standard than the majority.

                                         -22-
misstatement: had the jury unanimously decided that Whitfield should receive life
imprisonment, the trial judge could not have changed that sentence to one of death.
See Mo. Rev. Stat. 565.030 (2002) (granting trial court no power to sentence capital
defendant to death when jury is trier of fact in penalty phase and fixes punishment at
life imprisonment). The importance of this point comes clearly into focus when one
considers that the jury deadlocked eleven to one in favor of life imprisonment, even
without Whitfield’s testimony.

       Next, the state then put in its case in chief. At the end of the state’s case, one
would expect the court to address Whitfield regarding his right and desire to testify,
consistent with the court’s pledge that it would “revisit the issue when the State’s case
is concluded.” (Tr. on Appeal, Vol. V at 1755.) The record reveals, however, that
no discussion between Whitfield or his counsel and the court regarding Whitfield
testifying took place following the state’s case in chief.

       Defense counsel then put forth its case on behalf of Whitfield, never calling
him to the stand. At the close of the defense case, when Whitfield had not testified,
the court did not question Whitfield personally about the matter, or inform him of his
continuing right to testify on his own behalf. Instead, the court merely asked
Whitfield’s attorney if “[t]hat concludes all of the evidence in this case,” (Tr. on
Appeal, Vol. VII at 2178), to which Whitfield’s counsel responded that her client was
reserving his right to allocution before the court.5 When a criminal defendant speaks
personally about his desire to tell the jury of his life circumstances in a death penalty
case, it is incumbent upon the trial court to either honor the defendant’s invocation


      5
        Here again the trial judge gave Whitfield the impression that the court, and not
the jury, would ultimately determine the sentence by stating “I will afford him ample
opportunity to be heard before any sentence of death is passed, I can assure you.”
(Trial Tr. at 2179.) Missing from this statement, of course, is an accurate statement
of the governing law – that if Whitfield had convinced the jury to vote unanimously
in favor of life imprisonment, the court could not legally impose a sentence of death.

                                          -23-
of this fundamental right, or question the defendant personally to assure his waiver
of the right. See El-Tabech v. Hopkins, 997 F.2d 386, 389 n.3 (8th Cir. 1993) (noting
question of whether court must conduct on the record colloquy with criminal
defendant to ensure knowing and voluntary waiver of right to testify is “an issue of
recent debate in academia and in the courts”); cf. Miller v. Dormire, 310 F.3d 600
(8th Cir. 2002) (granting prisoner habeas relief where no evidence defendant
understood his fundamental right to jury trial and trial court failed to question
defendant personally regarding waiver of this right). Neither was done here.

      Counsel then gave their closing arguments. After argument was complete, the
following exchange occurred:

             THE COURT: Thank you, counsel.

            Ladies and gentlemen, I will ask you to retire to consider your
      verdict. I have to apologize for continually sending you out at mealtime.

             Mr. Whitfield, I have to ask you to retire in order.

             THE DEFENDANT: Can I talk on my own behalf?

             THE COURT: The jury will retire.

            THE DEFENDANT: I’m not here to plead for my life. Get out of
      my face, woman.

            THE COURT: Mr. Whitfield, you have to be in order, please. I
      have to ask you to be silent.

(Tr. on Appeal, Vol. VII at 2224.)

      During this exchange, Whitfield rose from his seat, and pulled away from his
attorney. He was then surrounded by sheriffs. Despite the unquestionable clarity of


                                        -24-
Whitfield’s second request to “talk on his own behalf,” the court ignored his request
and adjourned for the day, reconvening only after the jury returned its verdict.

       In sum, it is clear to me, as it was to the district court, that Whitfield’s obvious
invocations of his right to testify were not honored by the trial court; for the majority
to hold otherwise stretches the governing law and the facts of this case beyond their
elasticity. A finding that despite Whitfield’s two distinct requests to speak to the jury,
he somehow, through his silence during the proceedings between those requests,
indicated his desire not to testify, is an unreasonable determination of the facts. 28
U.S.C. § 2254(d)(2). Moreover, it is an unreasonable application of clearly
established Supreme Court precedent, 28 U.S.C. § 2254(d)(1), to hold that a
defendant waives his right to testify when he asks twice to speak to the jury during
the penalty phase of the trial and gives no affirmative indications to the contrary. I
would affirm the district court’s grant of habeas corpus relief on this claim.

II.   INEFFECTIVE ASSISTANCE OF COUNSEL

       A habeas petitioner is entitled to relief on an ineffective assistance of counsel
claim where counsel’s performance was deficient and the petitioner was prejudiced
by counsel’s performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Here, Whitfield contends that his lawyer was ineffective for not asserting his right to
testify at the penalty phase, and that counsel’s failure was not based on any
reasonable trial strategy. I agree.

      Although the record in this case is voluminous, there is no evidence within it
to suggest any possible strategy behind having Whitfield remain silent at the penalty
phase of his trial. Even speculation does not shed light on the issue: tactical reasons
for not testifying at the guilt phase, such as opening the door to evidence of
Whitfield’s criminal history, are not present at the penalty phase, where the
defendant’s criminal history can be introduced by the state. If anything, speculation

                                           -25-
suggests that, because the jury had not heard from Whitfield throughout the entirety
of the trial, he should testify in order to humanize himself before the jury. As he aptly
put it, “no one in the world can talk about Joe Whitfield like Joe Whitfield can talk
about Joe Whitfield.” (Tr. on Appeal, Vol. V at 1753.) The record reveals no
strategic basis for neglecting to exercise Whitfield’s right to testify at the penalty
stage, and thus Whitfield’s counsel was ineffective for failing to vindicate the right.

        Moreover, there is ample evidence in the record that Whitfield was prejudiced
by his counsel’s deficient performance. The jury deadlocked eleven to one in favor
of life. Had Whitfield been able to present his personal testimony, he may well have
changed the mind of the hold-out juror. See Strickland, 466 U.S. at 694 (holding
defendant entitled to relief when counsel’s errors “undermine confidence in the
outcome” of the proceedings). Further, this is not a case like Foster v. Delo, 39 F.3d
873, 877 (8th Cir. 1994) (en banc), where there was no evidence in the record as to
what the defendant would have said if given the opportunity to testify.6 On the
contrary, Whitfield did address the court at a 1994 hearing on numerous defense
motions, including a motion for a life sentence. In this statement, he speaks of his
difficult life history and circumstances; his feelings toward his father (“[E]very time
I look at my father I break up -- I love you, Daddy.” (Supp. Tr. at 86)); his reputation
in his community (“All the little kids in the neighborhood call me Uncle Joe.
Whenever they got into trouble they’d come and talk to Uncle Joe.” (Id. at 99)); and
the effect that his execution would have on his daughter (“My wife was murdered in
August of 1988. My daughter is in an orphanage right now.” (Id.)). In short,
Whitfield’s statement attests to his worth as a human being, loaded with emotion for
his family and the children of his community, and concern for the crucial bond
between father and daughter. Had he been permitted to present this image to the jury,


      6
        I note again that Whitfield’s attorney asked to make a record of what he would
testify to, but her request was ignored by the trial court. (Tr. on Appeal, Vol. V at
1754.)

                                          -26-
the outcome of the preceding may have been different. Under our Constitution,
Whitfield at least deserved the opportunity to speak. Failure to recognize as much
was an omission that rendered his counsel ineffective. I would affirm the district
court’s grant of habeas corpus relief on this claim as well.

                                   CONCLUSION

       Joseph Whitfield repeatedly asked the trial court to honor one request: allow
him to testify on his own behalf. He attempted to exercise this most sacred
constitutional right at least twice; nonetheless, the majority inexplicably concludes
that, despite Whitfield’s two emphatic requests to speak, he somehow waived the very
right he was seeking to exercise. The creation of such a legal fiction has no place in
a case where the defendant’s life hangs in the balance. I agree with the district court
that Whitfield was denied his right to testify at the penalty phase of his capital trial,
and that his counsel rendered ineffective assistance by failing to call him as a witness.
Accordingly, I dissent.

      A true copy.

             Attest:

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




                                          -27-
