                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2279
                        ___________________________

                           Christopher Dineaa Bahtuoh

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                              Michelle Smith, Warden

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                            Submitted: March 10, 2017
                              Filed: April 28, 2017
                                 ____________

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

MURPHY, Circuit Judge.

      Christopher Bahtuoh participated in a drive by shooting and was convicted in
state court of first degree felony murder. After unsuccessfully seeking state
postconviction relief, he brought this federal habeas action under 28 U.S.C. § 2254.
He claims that his defense counsel provided ineffective assistance by advising him
not to testify after counsel had promised the jury that he would. The district court1
denied habeas relief, and Bahtuoh appealed. We affirm.

                                          I.

       In April 2009 Christopher Bahtuoh was driving in a Minneapolis neighborhood
with Lamont McGee, a member of the I-9 gang. Although Bahtuoh was not a
member of the gang, he had associated with I-9 members for years. During their ride
Bahtuoh saw Kyle Parker, a member of the rival Taliban gang, standing with a few
friends. Bahtuoh knew Parker from school and turned his car around to speak with
him. When Parker spotted the car approaching, he told his friends that it was only Fat
Chris, a nobody. Bahtuoh stopped his car by Parker, and McGee pulled out a gun and
fired into Parker's chest. The shots killed Parker, and Bahtuoh sped away. Bahtuoh
then dropped off McGee and went into hiding himself.

         Approximately six weeks later, Bahtuoh surrendered to the police with the
assistance of his lawyer. He initially denied that he or his car had been at the scene
of the murder, but in a later interview admitted Parker had been shot from his car.
After the state filed its complaint against him, Bahtuoh explained to the grand jury
that on the night in question he had been hanging out with a group of friends when
shots were fired from a car driving by. The group fled to nearby cars, and Bahtuoh
got into his along with McGee. Shortly after the two drove away, Bahtuoh saw
Parker flagging him down. Then he turned his car around, stopped next to Parker and
asked "what's up?" According to Bahtuoh, he "didn't see [McGee's] gun until it was
. . . already standing out the window," right before McGee shot Parker. The grand
jury indicted Bahtuoh on multiple counts of first and second degree murder.



      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

                                         -2-
      The case was tried to a jury. Before trial Bahtuoh and his attorney decided that
he should testify on his own behalf, and defense counsel told the jury during opening
statements that Bahtuoh would waive his right to remain silent and testify. Defense
counsel predicted that Bahtuoh would explain how he and Parker were acquaintances
from college, that he was not very familiar with McGee, and why he had believed that
McGee was not armed. After going over Bahtuoh's testimony with the jury, defense
counsel asked the jurors "to keep an open mind" until Bahtuoh took the stand and
explained what had actually happened on the day of the killing.

       The night before the state rested its case, defense counsel nevertheless decided
to change strategy. The state had already introduced most of the evidence that
defense counsel had planned for by having Bahtuoh's grand jury testimony read into
the record. Defense counsel also believed at this point that the state's evidence was
weak and that it had failed to prove its case. Counsel advised Bahtuoh not to testify,
and Bahtuoh took the advice. The defense therefore rested immediately after the
state, without introducing any evidence of its own.

       During closing arguments, defense counsel addressed his change in strategy,
explaining that it was his fault that Bahtuoh had not testified and that he had decided
not to put Bahtuoh on the stand because "the government didn't prove their case and
his truthful story came across in his grand jury testimony." Defense counsel's
prediction about the strength of the government's case proved only partially correct,
however. The jury acquitted Bahtuoh of first degree premeditated murder, but
convicted him of first degree felony murder, where the underlying felony was a drive
by shooting, and second degree murder, both for the benefit of a gang.

       Bahtuoh appealed and also sought state postconviction relief on the basis of
ineffective assistance of counsel and other claims. The state court denied Bahtuoh
postconviction relief. In a consolidated appeal, the Minnesota Supreme Court
affirmed Bahtuoh's conviction and the denial of postconviction relief. State v.

                                         -3-
Bahtuoh, 840 N.W.2d 804 (Minn. 2013). As to Bahtuoh's ineffective assistance of
counsel claim, the court concluded that defense counsel's advice to Bahtuoh not to
testify, despite counsel's previous statements to the jury, was not constitutionally
deficient. Id. at 816–18. Bahtuoh then sought habeas relief in federal court under 28
U.S.C. § 2254 on multiple grounds, including ineffective assistance of counsel.
United States Magistrate Judge Jeffrey J. Keyes issued a Report and
Recommendation, advising the district court to deny Bahtuoh habeas relief. The
district court adopted the Report and Recommendation and issued a certificate of
appealability on Bahtuoh's ineffective assistance of counsel claim.

                                          II.

       Bahtuoh argues that the district erred by concluding that he was not entitled to
habeas relief on the basis of ineffective assistance of counsel. "We review legal
issues presented in a habeas petition de novo" and the district court's "underlying
factual findings for clear error." Nunley v. Bowersox, 784 F.3d 468, 471 (8th Cir.
2015) (internal quotation marks omitted).

       When, as here, a claim presented in a 28 U.S.C. § 2254 habeas petition has
been adjudicated by the state court, "habeas relief is permissible under the
Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA') only if the state
court's determination . . . 'was contrary to, or involved an unreasonable application
of, clearly established Federal law . . . [or] was based on an unreasonable
determination of the facts.'" Williams v. Roper, 695 F.3d 825, 830 (8th Cir. 2012)
(citation omitted) (quoting 28 U.S.C. § 2254(d)). Although Bahtuoh concedes that
the Minnesota Supreme Court properly recited the governing federal law for
ineffective assistance of counsel claims, he argues that the court's decision was based
on an unreasonable application of that law and an unreasonable determination of the
facts. Each argument will be addressed in turn.



                                         -4-
                                         A.

       The Supreme Court explained the standard governing ineffective assistance of
counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). To establish
ineffective assistance of counsel, a petitioner must show both that (1) his counsel's
performance was deficient, or that it "fell below an objective standard of
reasonableness," and also that (2) "the deficient performance prejudiced the defense."
Id. at 687–88. Bahtuoh argues that the Minnesota Supreme Court unreasonably
applied Strickland's deficiency prong by concluding that it was not objectively
unreasonable for defense counsel to advise Bahtuoh not to testify after having
promised the jury that he would.

       A federal court may grant relief under 28 U.S.C. § 2254(d)’s "unreasonable
application" clause if a state court has unreasonably applied the governing legal
principle to the facts of the case. Williams v. Taylor, 529 U.S. 362, 413 (2000). The
state court’s decision must be "more than incorrect or erroneous"—it "must be
objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). A decision
is not objectively unreasonable if "fairminded jurists could disagree" as to its
correctness. Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).

       Establishing objective unreasonableness is particularly difficult with
ineffective assistance of counsel claims. Strickland provides a deferential standard
to review such claims by having courts "apply a 'strong presumption' that counsel's
representation was within the 'wide range' of reasonable professional assistance."
Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). Because this
standard based on reasonable professional assistance is broad and general, courts
have "more leeway [under 28 U.S.C. § 2254(d)] . . . in reaching outcomes in case-by-
case determinations." Id. at 101 (quoting Yarborough, 541 U.S. at 664). Our review
of the Minnesota Supreme Court's application of Strickland's deficiency element to

                                         -5-
Bahtuoh's appeal "is thus doubly deferential," requiring a "highly deferential look at
counsel's performance through the deferential lens of § 2254(d)." Cullen v.
Pinholster, 563 U.S. 170, 190 (2011) (internal citation and quotation marks omitted).

       Given this doubly deferential review, we cannot say that the Minnesota
Supreme Court unreasonably applied Strickland here. We have previously
recognized that "failing to present witnesses promised in an opening is not always an
error of a constitutional dimension." Williams v. Bowersox, 340 F.3d 667, 671–72
(8th Cir. 2003). In Williams, defense counsel changed strategy after the state had
called most of the anticipated defense witnesses and counsel believed he had "beat
the state's case through his cross-examination of the state's witnesses." Id. at 669
(internal quotation marks omitted). In similar fashion, the Minnesota Supreme Court
determined here that defense counsel's change in strategy was reasonable in part
because he had weighed the risks of the defendant not testifying "in light of new
information—the strength of the State's case—that he [had] not know[n] at the
beginning of trial." Bahtuoh, 840 N.W. 2d at 817.

      We have not yet had reason to apply Williams to a case in which the promised,
but missing, witness was the defendant. Other courts have differed on whether it is
reasonable to advise a defendant not to testify after having promised the testimony
in opening statements. Compare Ouber v. Guarino, 293 F.3d 19, 27–32 (1st Cir.
2002) (concluding defense counsel's advice was constitutionally deficient), and
Williams v. Woodford, 859 F. Supp. 2d 1154, 1162–65 (E.D. Cal. 2012) (same),
with Yancey v. Hall, 237 F. Supp. 2d 128, 133–35 (D. Mass. 2002) (concluding
defense counsel's advice was not constitutionally deficient), and Francis v. State, 183
S.W.3d 288, 301–05 (Mo. Ct. App. 2006) (same). "This diversity of opinion alone"
suggests that the Minnesota Supreme Court did not unreasonably apply Strickland in
respect to Bahtuoh's case. See Williams, 340 F.3d at 672.




                                         -6-
       Furthermore, even courts that have concluded that defense counsel provided
ineffective assistance by advising a defendant not to testify after having promised
otherwise have suggested that there may be instances in which such a change in
strategy could be reasonable. In Ouber v. Guarino, a case relied on by Bahtuoh, the
court observed that "unexpected developments sometimes may warrant changes in
previously announced trial strategies." 293 F.3d at 29. That court nevertheless
concluded that there had been no such unexpected developments during the
petitioner's trial (a third attempt following two mistrials due to hung juries). Id.
Another court similarly granted habeas relief after concluding that defense counsel's
"failure to present the promised testimony [could not] be chalked up to unforeseeable
events." Madrigal v. Yates, 662 F. Supp. 2d 1162, 1184 (C.D. Cal. 2009).

       As the Minnesota Supreme Court observed, defense counsel's change in
strategy in this case was based on unexpected developments. Through both cross
examination of the government's witnesses and the reading of Bahtuoh's grand jury
testimony, the government's case in chief had provided defense counsel with an
opportunity to expose the jury to most of the evidence he had promised during
opening statements, namely, that Bahtuoh had a preexisting positive relationship with
Parker and was unaware that McGee had a gun in his car. Defense counsel also
believed that the state had failed to prove its case (a belief that proved partially
correct).

      Given that the Minnesota Supreme Court considered these trial developments
in order to assess the reasonableness of defense counsel's change in strategy,2 we


      2
        The Minnesota Supreme Court seemed to suggest that because defense counsel's
decision was "strategic" it must have been reasonable, see Bahtuoh, 840 N.W.2d at 818
n.3, which would have been contrary to Strickland's command that although strategic
decision are "virtually unchallengeable," they are not completely unchallengeable, see
Strickland, 466 U.S. at 690–91. On reviewing the Minnesota Supreme Court's decision
as a whole, however, it is clear that the court did actually analyze the reasonableness of

                                           -7-
decline to conclude that the court's application of Strickland was objectively
unreasonable. We therefore defer to the Minnesota Supreme Court's application of
the deficiency element in Strickland's test under 28 U.S.C. § 2254(d), and need not
determine whether that deficiency prejudiced Bahtuoh.

                                            B.

        Bahtuoh also argues that the Minnesota Supreme Court's decision was based
on an unreasonable determination of the facts. Specifically, he argues that the
Minnesota Supreme Court unreasonably determined (1) that the weaknesses in the
state's case were unforeseen to defense counsel and (2) that defense counsel weighed
the risks of Bahtuoh not testifying when he advised him not to take the stand. A state
court decision is based on an unreasonable determination of the facts only if the
"court's presumptively correct factual findings do not enjoy support in the record."
Evenstad v. Carlson, 470 F.3d 777, 782 (8th Cir. 2006). Here, there is record support
for the state court's factual findings.

        First, there is record support for its conclusion that the extent of the weaknesses
in the state's case was unforeseen to defense counsel. During cross examination of
a state witness, for example, defense counsel was able to establish that Parker had
signaled toward Bahtuoh, consistent with Bahtuoh's grand jury testimony. This
testimony suggested that Parker had no reason to fear Bahtuoh, and that the two were
acquaintances. Defense counsel also told the jury that he no longer had to put
Bahtuoh on the stand after the prosecution introduced Bahtuoh's grand jury
testimony, "which he gave under oath . . . [and] exonerate[d] him." Finally, Bahtuoh
testified at the postconviction hearing that defense counsel told Bahtuoh that he had
decided to change strategy and not have him testify because "the State did not prove


defense counsel's strategic decision to advise Bahtuoh not to testify. The court therefore
did not impermissibly treat that decision as unreviewable.

                                           -8-
their case and [Bahtuoh] won." Counsel's statements to the jury and Bahtuoh support
the Minnesota Supreme Court's determination that the weaknesses in the state's case
had been unforeseen by him. Defense counsel's prediction about the strength of the
state's case proved to be partially correct since the jury acquitted Bahtuoh of the most
serious charged offense (first degree premeditated murder).

       There is also record support for the Minnesota Supreme Court's determination
that defense counsel weighed the risks if Bahtuoh were not to testify. During the
colloquy in which Bahtuoh informed the court of his decision, defense counsel stated
that he and Bahtuoh had discussed a defendant's right to testify on "several occasions"
and the "pros and cons" of waiving that right. Bahtuoh did not indicate that defense
counsel's representation was inaccurate; rather, he affirmatively agreed with counsel's
characterization of their prior conversations. Further, Bahtuoh failed to develop a
record before the state court that would compel a contrary factual finding, as shown
in part by his decision not to call defense counsel as a witness to explain his decision
during the postconviction evidentiary hearing. The Minnesota Supreme Court's
determination that counsel did weigh the risks of Bahtuoh not testifying was therefore
not based on an unreasonable determination of the facts and is entitled to deference
under 28 U.S.C. § 2254(d).

                                          III.

      For these reasons, we affirm the district court's denial of Bahtuoh's 28 U.S.C.
§ 2254 habeas petition.
                             ____________________




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