                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-1653
                                   ___________

Craig Eugene Smith,                    *
                                       *
       Petitioner - Appellant,         *
                                       * Appeal from the United States
  v.                                   * District Court for the
                                       * Southern District of Iowa.
Rusty Rogerson, Warden, Iowa State     *
Medical and Classification Center,     *
                                       *
       Respondent - Appellee.          *
                                  ___________

                                Submitted: February 12, 1999
                                    Filed: March 12, 1999
                                  ___________

Before MURPHY, LAY, and JOHN R. GIBSON, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       After Craig Eugene Smith killed Craig Allen in an area frequented by homeless
people, a shelter worker put him in touch with John Wellman, an experienced
criminal defense attorney. Wellman met with Smith and advised him to make a
statement to the police. At trial some of Smith’s statements to the police were
admitted against him. He was convicted of first degree murder and sentenced to life.
Smith then raised ineffective assistance of counsel claims in a post-trial motion and
on his direct appeal in state court. He was unsuccessful there and later brought this
petition for habeas relief. The district court1 dismissed the petition, and Smith
appeals. We affirm.

       On September 30, 1993, Smith, Allen, and three other men were drinking and
smoking marijuana under the University Avenue bridge in Des Moines. Smith says
that after the others had fallen asleep or passed out, Allen made a homosexual
advance towards him and started pushing him. Smith fought back. There was
evidence that he picked up a piece of pipe and beat Allen with it, crushing his skull.
Allen had also been stabbed in the jaw and strangled. After the killing Smith threw
the pipe in the river and dragged the body into the woods, where he covered it with
a blanket. Allen’s body was discovered on or about October 2, 1993.

       Smith had meanwhile made inculpatory statements to several people, including
Janet Johnson, a volunteer shelter worker. She arranged for Smith to talk on the
phone with an attorney on the evening of October 2. The lawyer she contacted was
John Wellman, an experienced criminal trial attorney and the director of the Polk
County Public Defender Office. The following morning Smith went to Wellman’s
office and described what had happened on September 30. He told the attorney that
he had fought Allen and beat him with a pipe after Allen had made sexual advances.
Wellman explained to Smith the difference between first degree murder and
manslaughter and gave his opinion that the best Smith could hope for was a
manslaughter conviction. He indicated that the use of the pipe could be seen as proof
of a willful, deliberate, and premeditated killing rather than the result of a sudden,
violent, and irresistible passion. He told Smith that he did not have to talk to the
police, but recommended that he give himself up and make a statement describing
how Allen had provoked him by the homosexual advance which caused his violent
reaction in defending himself.


      1
       The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
                                         -2-
       Smith did not want to turn himself in but Johnson told him that she would go
to the police if he did not, and Smith agreed to make a statement. Wellman contacted
the police, who already had a material witness warrant for Smith, their prime suspect.
Prior to the interview Wellman advised Smith to keep his statement simple, to focus
on what started the physical encounter, and to make it clear that his actions were in
response to Allen’s attempt to engage in sex. After receiving his Miranda rights,
Smith confessed he had killed Allen in fighting off the unwelcome sexual advances.
Wellman asked the initial questions at the interview, but the police later asked Smith
what he had used to hit Allen. Smith replied that he had only used his hands. No
mention was made of the pipe, and Wellman did not intervene to bring out anything
about it. The pipe itself was never discovered by the police.

      Smith went to trial and his confession from the interview was played to the
jury. The prosecutor used his statements against him by pointing out the
inconsistency between the extent of Allen’s injuries and Smith’s claim that he had
only used his hands to kill Allen. The jury found Smith guilty of first degree murder.

        Prior to sentencing Smith moved for a new trial. His new lawyer argued that
trial counsel had provided ineffective assistance in several respects, including the
failure to investigate adequately before advising Smith to make an inculpatory
statement to the police. An evidentiary hearing was held at which John Wellman
testified. He indicated that he had represented close to 200 people charged with Class
A felonies and that he had appeared in over 500 felony jury trials. He said that he had
believed Smith’s story because he had not minimized his role in the killing and his
memory of the events was clear. During their initial meeting Wellman recognized
that Smith’s intelligence was limited and learned that he had served time in prison.
He learned that Smith had made inculpatory statements to several people and that
Johnson was going to report what Smith had told her to the police. Counsel also
testified that he knew that Smith would be connected to the murder by his admissions.
He planned to raise provocation as a defense, but felt Smith should not take the stand

                                          -3-
because he would not make an effective witness. In his view the best way to make
a record of provocation was for Smith to make a statement to the police that could
later be introduced into evidence. Counsel also hoped that a prompt confession might
lead to a satisfactory agreement with the state to avoid trial. He testified that he did
not tell Smith to lie to the police but that he had not expected him to tell them about
the pipe. When Smith gave the answer about using only his hands to kill Allen,
counsel did not intervene because he did not think it would help Smith to bring out
the facts about the pipe. Counsel thought that the interview had served its main
purpose of making a record of the provocation. The motion for a new trial was
denied.

       Smith again raised ineffectiveness of counsel on his appeal. The Iowa Court
of Appeals affirmed Smith’s conviction, State v. Smith, 543 N.W.2d 618 (Iowa. Ct.
App. 1995), and further review was denied by the Iowa Supreme Court (January 26,
1996). Smith indicates he did not file an application for state post-conviction relief
because he had already raised his ineffective assistance claim in his motion for new
trial and his direct appeal.

       Smith then filed this petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. He claimed that he received ineffective assistance because his trial counsel
failed to conduct an adequate investigation prior to advising him to give an
inculpatory statement to the police. The petition was referred to a magistrate judge2
who recommended that it be dismissed. Smith filed objections to the magistrate’s
report and recommendation. One objection was that the magistrate had not addressed
a claim that trial counsel had known Smith would lie in his statement to the police.
The district court adopted the magistrate’s report and recommendation and also




      2
      The Honorable Ross A. Walters, United States Magistrate Judge for the
Southern District of Iowa.
                                          -4-
concluded that Smith could not obtain relief on the claim that counsel had known he
would lie to the police. It dismissed the petition.

       The district court granted Smith’s request for a certificate of appealability,
although it did not specify the issue or issues on which it was granted. Smith renews
his claim that he received ineffective assistance of counsel because of counsel’s
inadequate investigation prior to recommending he make a statement to the police.
Smith also now claims that counsel’s assistance was ineffective because he
encouraged him to give the police an incomplete statement, which was used against
him at trial.

       The right to effective assistance of counsel “is a fundamental right of criminal
defendants; it assures the fairness, and thus the legitimacy, of our adversary process.”
Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). To succeed with the claim,
Smith must establish both that his lawyer’s performance was deficient and that “but
for” it “there is a reasonable probability that . . . the result . . . would have been
different.” Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).

       The state argues at the outset that Smith’s constitutional right to counsel had
not arisen at the time he had his first interview with Wellman because he had been
neither arrested nor charged. Smith counters that he had received his Miranda
warnings before actually making his statement to the police so that at the time he met
them his right had attached. We need not consider exactly when his constitutional
right came into play or exactly which part of counsel’s performance was relevant at
the time because analysis of the merits of Smith’s arguments shows he has not met
the Strickland test.

       Smith claims that counsel was ineffective because he did not adequately
investigate before recommending he make an inculpatory statement. Smith argues
that the duty to investigate cannot be abrogated, that his lawyer failed in this duty,

                                          -5-
and that the failure prejudiced him. The state contends that under the circumstances
the decision to advise Smith to make a statement without further investigation was
reasonable, and in any event it did not prejudice him. Under Smith’s view, if counsel
had conducted additional investigations he might have chosen not to recommend that
he make an inculpatory statement. He suggests counsel could have learned more
about his impairment and how the murder occurred and what the autopsy showed.3
Whether or not to recommend making a statement is a strategic decision which is only
deficient if it is unreasonable “from counsel’s perspective at the time” he made the
recommendation. Id. at 689.

       At the time counsel made his recommendation, he knew that there was a
material witness warrant out for Smith, that Smith was the prime suspect for the
killing, and that Smith had made incriminating admissions to several people,
including to at least one person who intended to reveal that information to the police.
In these circumstances it was not unreasonable for counsel to believe that Smith’s
best strategy would be to try to use a provocation defense to reduce the charge to
manslaughter. Since counsel knew Smith had previously served time in prison and
was probably of less than average intelligence, it was reasonable for him to believe
that the best way to get the provocation facts into evidence would be by having Smith
make a statement to the police instead of testifying at trial.4 He also hoped an early
admission would help Smith’s credibility and assist in plea bargaining. It was not



      3
       At oral argument Smith’s counsel suggested that the cause of death could have
been strangulation rather than the blows to the head. He suggests this could have
strengthened the provocation defense and minimized the negative impact of the pipe
evidence. This theory was not presented to the district court.
      4
        Smith had also told Johnson of the homosexual advances and she might have
been called at trial. Wellman testified, however, that he believed it was important that
the information come from Smith in order to be effective in showing his cooperation.
We cannot say that that belief was unreasonable.
                                          -6-
unreasonable from counsel’s perspective to decide without further investigation that
Smith was better off making a statement than not making a statement.

       Since it was not unreasonable at the time for counsel to recommend making a
statement, his performance was not deficient. Furthermore, Smith has not shown he
was actually prejudiced by his statement because there was so much other damaging
evidence against him. Since he has failed to meet either of the Strickland prongs, his
claim of ineffective assistance of counsel on the basis of inadequate investigation
fails on the merits.

       Smith also puts forward a claim that counsel provided ineffective assistance by
encouraging him to make an incomplete statement. Smith argues that counsel had a
duty to inform him of the consequences of giving an incomplete statement, that he
failed in that duty, and that Smith was prejudiced by that failure when the incomplete
nature of his statement was used against him at trial. The state argues that this issue
has not been exhausted because it was never presented to the state courts and that it
is without merit. This claim was not fairly presented to the state courts since Smith
did not directly make the argument he now asserts. See Picard v. Connor, 404 U.S.
270, 275 (1971) (claim must be “fairly presented” to state courts to satisfy exhaustion
requirement). Since it was not exhausted, the claim is not properly before us, but we
conclude that in any event it fails to satisfy either Strickland prong.5

       We conclude that the district court did not err in dismissing Smith’s habeas
petition, and we affirm.




      5
        It was not unreasonable for counsel to recommend to Smith that he not bring
up the pipe in his statement. A complete statement regarding the pipe would have
directly conflicted with the provocation defense while the incomplete statement only
indirectly damaged the defense by casting some doubt on Smith’s credibility.
                                          -7-
A true copy.

      ATTEST:

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




                              -8-
