                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2091
                                    ___________

Michael Eugene Blackwell,                *
                                         *
             Appellant,                  *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Leonard Graves, Warden, Iowa             * Southern District of Iowa.
State Penitentiary,                      *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: February 12, 2003

                                   Filed: November 12, 2003
                                    ___________

Before HANSEN,1 Chief Judge, LOKEN, and SMITH, Circuit Judges.
                              ___________

SMITH, Circuit Judge.

      Michael Eugene Blackwell was found guilty in Iowa state court of two counts
of murder and one count of burglary. After exhausting his direct and collateral
appeals in Iowa state courts, Blackwell filed a petition for a writ of habeas corpus in
the United States District Court for the Southern District of Iowa. In his petition,

      1
        The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
Blackwell argued that the Iowa Court of Appeals' rejection of his ineffective
assistance of counsel claim was an unreasonable application of clearly established
federal law. The district court2 disagreed and denied his writ. We affirm.

                                        I.
       On January 29, 1991, Blackwell brutally murdered his girlfriend and her
mother in his girlfriend's home. Blackwell then proceeded to hold his girlfriend's
infant son hostage. At 1:30 the next morning, after taking some pills, Blackwell
handed the baby to police and surrendered. Authorities took Blackwell to a hospital
where medical personnel pumped his stomach.3

       During the hostage standoff, Blackwell exhibited signs of mental illness and
impairment due to intoxicants. For example, Blackwell's uncle informed one of the
officers at the scene that Blackwell had been drinking vodka all day. Blackwell
behaved erratically while the police sought his surrender. One officer present, Kelley
Willis, stated spontaneously about Blackwell, "This guy is nuts," and noted that he
would just "go off on his own." Various friends and family members later testified
that Blackwell did not sound like himself, was talking in two different voices, and
"not in his right mind."

      Dr. Margaret Shin, a psychiatrist, evaluated Blackwell soon after his arrest. Her
finding initially was that "of antisocial personality disorder, and also adjustment
disorder with depressed mood." Later, on March 1, 1992, Dr. Shin changed her report


      2
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
      3
        Based on a blood-alcohol test obtained after Blackwell was taken into
custody, .159 was determined to be his probable blood alcohol level at the time of the
homicides. A police negotiator observed that Blackwell spoke in a "slurred fashion"
while the officers tried to get him to come out of the victim’s house.

                                         -2-
to state that her "diagnostic impression [was] a delusional paranoid disorder."
However, she also noted that Blackwell continued to suffer from an antisocial
personality disorder and was "somewhat malingering." It is not clear from the record
whether Blackwell's court-appointed trial counsel, John Wellman, knew about Dr.
Shin's report prior to trial.

        After Wellman was appointed, he requested a psychiatric evaluation from Dr.
Michael Taylor, a Des Moines psychiatrist. After meeting with Blackwell over a
period of months, Taylor reportedly concluded that Blackwell "was an angry young
man and had perceived events that he had been mistreated and his anger festered and
developed into rage and this was the action of somebody who was just very, very
angry . . . ." Because he concluded that Taylor's testimony would be unhelpful to his
trial strategy, Wellman did not file an affirmative defense on mental-health grounds
or diminished capacity. The case then proceeded to a bench trial, and Blackwell was
found guilty of two counts of first-degree murder and one count of aggravated
burglary.

      After exhausting his direct appeals, Blackwell filed an Application for Post-
Conviction Relief ("PCR"), which the Iowa District Court for Polk County denied.
Blackwell then appealed his PCR to the Iowa Court of Appeals, arguing–among other
things–that Wellman's failure to develop mental-health and diminished- responsibility
defenses constituted ineffective assistance of counsel in violation of the Sixth
Amendment. The Iowa Court of Appeals denied this claim, concluding that
"Wellman's decision not to present intoxication, insanity, or diminished responsibility
theories was a reasonable, strategic choice."

      Blackwell then filed a habeas corpus petition. The district court denied habeas
corpus relief, concluding that the "Iowa courts' decision on petitioner's claim was not
contrary to or an unreasonable application of clearly established federal law, as
determined by the United States Supreme Court." Blackwell appealed.

                                         -3-
                                            II.
       On appeal Blackwell argues that the Iowa Court of Appeals' rejection of his
ineffective assistance of counsel claim was an unreasonable application of clearly
established federal law. Because ineffectiveness of counsel is a mixed question of law
and fact, we review "the district court's legal conclusions de novo and its findings of
fact for clear error." Hoon v. Iowa, 313 F.3d 1058, 1060 (8th Cir. 2002); see also
Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003).4

       The scope of our review of the state-court determination is very narrow. As
relevant for this case, we will overturn a claim adjudicated on the merits in a state
court proceeding only if the adjudication of the claim resulted in a decision that
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).5 A
state court decision is considered an "unreasonable application of" clearly established
Supreme Court precedent if it "correctly identifies the governing legal rule but applies
it unreasonably to the facts of a particular prisoner's case . . . ." Williams v. Taylor,
529 U.S. 362, 407–08 (2000). However, we may not reverse a state court's decision
simply because we conclude that the court incorrectly applied the clearly established
federal law. Id. at 409–11. Rather we must conclude both that the law was applied
incorrectly and that the law was applied in an "objectively unreasonable" manner. See
Wiggins v. Smith, __ U.S. __, __, 123 S.Ct. 2527, 2535 (2003).




      4
        Moreover, the "state court's factual findings are presumed correct." Tunstall
v. Hopkins, 306 F.3d 601, 605 (8th Cir. 2002). Blackwell therefore has "the burden
to rebut this presumption by clear and convincing evidence." Id. (citing 28 U.S.C.
§ 2254(e)(1)).
      5
       See also 28 U.S.C. § 2254(d)(2) (providing an alternative ground for granting
§ 2254 relief, which is not relevant in this case).

                                          -4-
                                          III.
       Blackwell alleges that his trial counsel's failure to develop mental-health and
diminished-responsibility defenses constituted ineffective assistance of counsel in
violation of the Sixth Amendment.6 The right to effective counsel is a clearly
established federal right. See Strickland v. Washington, 466 U.S. 668 (1984). Under
the Strickland test, in order to demonstrate ineffective assistance of counsel,
Blackwell must show that: (1) his "counsel's performance was lacking–so lacking in
fact that counsel was not functioning as the 'counsel' guaranteed defendant by the
Sixth Amendment–and (2) that the deficient performance prejudiced the defense."
Brown v. United States, 311 F.3d 875, 877 (8th Cir. 2002) (citing Strickland, 466
U.S. at 687). Accordingly, we must determine whether the Iowa Court of Appeals
applied the Strickland standard unreasonably to the facts of this case.

      After citing the Iowa Supreme Court decisions that set forth the Strickland
standard, the Iowa Court of Appeals held the following:

      "Selection of the primary theory or theories of defense is a tactical
      matter." Schrier v. State, 347 N.W.2d 657, 663 (Iowa 1984). Counsel's
      choice whether and which evidence to present is also a strategic matter.
      We must determine whether Wellman's conduct was reasonable. . . . We
      conclude Wellman's decision not to present intoxication, insanity, or
      diminished responsibility theories was a reasonable, strategic choice.
                                     ...
      We note Blackwell fails to establish a reasonable probability [that] the
      outcome of the case would have been different had Wellman presented
      witnesses or theories of intoxication, insanity, or diminished
      responsibility. . . . The [Iowa] district court considered Blackwell's
      assertions [that] he did not have the intent to commit first-degree
      murder. In its verdict, the court stated "[s]uch contentions [that


      6
       We analyze Blackwell's claim on appeal based upon his Certificate of
Appealability. See Jackson v. Gammon, 195 F.3d 349, 353 (8th Cir. 1999).

                                         -5-
      Blackwell did not have the requisite state of mind to commit first-degree
      murder] are wholly without merit." In addition, evidence of Blackwell's
      blood alcohol content was before the court. We find Blackwell was not
      prejudiced by Wellman's conduct at trial. We affirm on this issue.

Blackwell v. Iowa, No. 7-668/96-2086, slip op. at 5–7 (Iowa Ct. App. Apr. 24, 1998)
aff'g Blackwell v. Iowa, No. CE 29477 (Iowa Dist. Ct. Polk Aug. 30, 1996); App. at
297–99. While it is possible that such a determination was incorrect, we cannot say
that such a determination is objectively unreasonable under Strickland because
Wellman's performance does not meet the first factor of Strickland. In order to
establish that Wellman's representation was ineffective under Strickland, Blackwell
must show that Wellman's "representation fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 688. Blackwell's allegations–upon an
examination of the record and the totality of the circumstances–however, cannot meet
this heavy burden.

       Blackwell first argues that Wellman should have presented a mental-health or
diminished-capacity defense. Wellman did initially pursue such affirmative defenses.
Wellman engaged Dr. Michael Taylor, who, according to Wellman, was one of the
"most qualified and probably the best [forensic psychiatrist] witness." Dr. Taylor met
with Blackwell over the course of several months. However, Wellman concluded that
he would not call Dr. Taylor "because his evaluation of [Blackwell] was not
helpful. . . . He would have established for the state premeditation, deliberation and
intent to kill." Wellman also concluded that Dr. Taylor's evaluation would ruin any
chances of establishing a mental-health or diminished-capacity defense.

       As a result, Wellman did not file such defenses. Such a decision was a
reasonable tactical decision under the circumstances. Strickland, 466 U.S. at 689. Had
Wellman filed a mental-health or diminished-responsibility defense and attempted to
call another expert, the State would have been able to call Dr. Taylor to testify against


                                          -6-
Blackwell. State v. Hardin, 569 N.W.2d 517, 519 (Iowa Ct. App. 1997) (no
physician-patient privilege when a defendant gives notice of the defense of insanity
or diminished capacity). We cannot say that such a strategy fell below the "objective
standard of reasonableness." See Weekley v. Jones, 76 F.3d 1459, 1462 (8th Cir.
1996) (en banc) (finding counsel was not ineffective for declining to have his client
examined by a second psychiatrist because if that psychiatrist had found him mentally
sound at the time he committed the offense, it could have done considerable damage
to his case).

       Blackwell also argues that Wellman should have had Dr. Taylor prepare a
report on his mental state. However, not having Dr. Taylor prepare a report was not
only reasonable under the circumstances, it was wise. As Wellman noted, if Dr.
Taylor had prepared the report, the prosecution would have had an exhibit to use
against Blackwell. Again, such a tactical decision is objectively reasonable. See id.

      Finally, Blackwell alleges that Wellman was ineffective because he failed to
uncover Dr. Shin's report or–if he did–to use Dr. Shin's report at trial. However, it is
not clear from the record whether Wellman knew that the Shin report existed.
Certainly, a perfect attorney would have, under the circumstances, asked his client
whether a psychiatrist had already interviewed him, but it is also reasonable to expect
Blackwell to offer his counsel this information. See Strickland, 466 U.S. at 691
(noting that counsel's choices regarding trial strategy often are based "on information
supplied by the defendant"). Because the Strickland standard is based on adequate
representation, and not perfection, this omission was not ineffective.

                                        IV.
      Thus, because we find Wellman's performance fell within Strickland's range
of constitutional competency and effectiveness, we cannot say that the Iowa Court of
Appeals' application of Strickland to the facts of this case was objectively
unreasonable. Accordingly, the opinion of the district court is affirmed.
                      _______________________________

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