                       United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 97-1849
                                      ___________
Jeffrey Eugene Frey,                       *
                                           *
             Plaintiff - Appellant,        * Appeal from the United States
                                           * District Court for the
   v.                                      * District of North Dakota.
                                           *
Timothy Schuetzle, Warden, North           *
Dakota State Penitentiary,                 *
                                           *
             Defendant - Appellee.         *

                                      ___________

                              Submitted: March 13, 1998
                                  Filed: August 13, 1998
                                    ___________

Before WOLLMAN and HANSEN, Circuit Judges, and GOLDBERG,1 Judge.
                         ___________

HANSEN, Circuit Judge.

        This case is before this court for a second time. Previously, we reversed the
district court’s grant of a writ of habeas corpus to Jeffrey Frey, who was convicted of
murder and aggravated assault in North Dakota, because the basis for granting relief
was not alleged in his petition. See Frey v. Schuetzle, 78 F.3d 359, 361 (8th Cir. 1996).
We remanded the case to the district court for further proceedings. See id. On



        1
       The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
remand, the district court 2 denied Frey’s petition for a writ of habeas corpus under 28
U.S.C. § 2254. Frey appeals, arguing that he did not knowingly and voluntarily waive
his constitutional right to testify on his own behalf and that he received ineffective
assistance of counsel. We affirm.

                                            I.

       Frey’s convictions stem from the shooting death of Douglas J. Bjornson and
shooting injuries sustained by Scott Ottum in the early morning of September 5, 1987.
The following factual recitation is taken principally from the opinion of the Supreme
Court of North Dakota on Frey’s direct appeal. See State v. Frey, 441 N.W.2d 668
(N.D. 1989). On September 4, 1987, Frey and nine other men, including Bjornson and
Ottum, went to Pierce County, North Dakota, to go crane hunting. After meeting at a
local tavern, the men camped near some abandoned farm buildings adjacent to the
southeast corner of a field. A number of the hunters, including Frey and Bjornson,
continued to drink well into the night and some smoked marijuana and used other drugs.
Shortly before dawn the next morning, three of the hunters left the campsite and went
through a gate towards the north end of the field. Soon thereafter a second group of six
hunters, including Frey, Bjornson, and Ottum, left the campsite and began walking along
a fence line at the south edge of the field. Ottum returned to the campsite to escape the
mosquitos, but the rest of the group continued to walk the field. Frey and Bjornson took
positions near some haystacks. The other hunters in the group continued along the
southern edge of the field.

      A short time later, Frey shot Bjornson two or three times with a twelve gauge
shotgun from a distance of approximately 200 feet. Frey then went to the north end of
the field where he shot a crane and left it in the field. He returned to the gate near the



      2
       The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.

                                          -2-
campsite and shot at Bjornson’s pickup truck. He then proceeded to the pickup and fired
three more shots towards the abandoned buildings and his own pickup truck. Two pellets
ricocheted off the pickup or buildings and hit Ottum in the head. Ottum had been
standing between the abandoned buildings and Frey’s pickup and could not identify who
had shot at him.

       Ottum then drove another hunter’s car into the field, where he found Bjornson’s
body near a haystack. Ottum was later taken to a hospital and treated for his injuries.
The remaining hunters returned to the campsite and found Frey lying in his pickup
holding his shotgun. Frey would not respond to their questions. Later, law enforcement
officers arrived and spoke with Frey. Frey said that he had not been hunting that morning
and that he had not fired his gun. He also denied any knowledge of the shootings. Frey
signed a sworn statement that afternoon denying any knowledge of the shootings and
stating that he had not been hunting that morning.

        Frey was charged with murder for the death of Bjornson and attempted murder for
Ottum’s injuries. Frey retained an experienced criminal trial attorney to represent him.
Frey initially gave no explanation to his counsel about what had happened the day of the
shootings, saying only that he could not remember what had happened. As the scheduled
trial date neared, Frey and his attorney met to discuss trial strategy. Frey’s counsel was
concerned because although there were no eyewitnesses to either shooting, the state’s
evidence showed that Frey shot both Bjornson and Ottum. Frey’s attorney concluded
that the only available defense to the charges was a self-defense theory. He outlined this
theory to Frey at their meeting, but Frey told him that it had not happened that way.

       As the trial neared, Frey began to tell his attorney that the shooting had been in
self-defense and he recounted details from the morning of the shooting consistent with
the theory. At trial, counsel presented a self-defense theory and the judge instructed the
jury on self-defense. The defense used an “all or nothing” strategy—successfully



                                          -3-
objecting to the state’s request to instruct the jury on lesser included homicide offenses.
Frey did not testify in his own defense. Frey’s attorney argued to the jury that the state’s
circumstantial evidence did not prove the elements of AA murder beyond a reasonable
doubt and that the evidence was consistent with Frey shooting in self-defense.

       The jury found Frey guilty of one count of AA murder and one count of aggravated
assault. He was sentenced to a combined term of 30 years of imprisonment. Frey’s
convictions were affirmed on direct appeal by the Supreme Court of North Dakota. Frey,
441 N.W.2d at 674. Frey’s state court petition for postconviction relief was denied by
the state trial court and by the Supreme Court of North Dakota. Frey v. State, 509
N.W.2d 261 (N.D. 1993).

       Frey then filed a habeas corpus petition and the district court referred the case to
a magistrate judge for a report and recommendation. After an evidentiary hearing, the
magistrate judge concluded that Frey did not knowingly and voluntarily waive his
constitutional right to testify on his own behalf. Based on this determination, the
magistrate judge recommended granting Frey habeas relief. The district court adopted
the magistrate judge’s report and recommendation and granted Frey a writ of habeas
corpus, ruling that he did not knowingly and voluntarily waive his constitutional right to
testify.

        The state appealed. We reversed the grant of a writ of habeas corpus because the
basis for relief, that Frey had been denied his constitutional right to testify, had not been
alleged in his petition. Frey, 78 F.3d at 361. We remanded the case to the district court
with directions to resolve each and every claim Frey raised in his habeas petition, noting
that Frey could seek permission to amend his petition to include additional claims for
relief. Id. at 361-62.




                                           -4-
       On remand, the district court granted Frey permission to amend his habeas petition
to assert a stand alone claim alleging that he did not knowingly and voluntarily waive his
constitutional right to testify on his own behalf. His petition also alleged, among other
claims, that his trial counsel had been ineffective. The magistrate judge ruled, with the
consent of the parties, that the record would not be supplemented and that no additional
evidence would be received. The magistrate judge then issued a report and
recommendation concluding that Frey’s petition should be granted because Frey did not
knowingly and voluntarily waive his right to testify and he was denied effective
assistance of counsel. The district court rejected the magistrate judge’s recommendation
and denied Frey’s habeas petition. Frey appeals.

                                        II. Analysis

                                    A. Right to Testify

       Frey first argues that he did not knowingly and voluntarily waive his right to testify
on his own behalf. The state initially contends that this claim is procedurally defaulted
because Frey failed to raise it as a stand alone claim in his state postconviction
proceedings. The state argues that Frey only raised this issue as a component of his
ineffective assistance of counsel claims.

       Before a federal court may reach the merits of a claim in a habeas petition by a
state prisoner, it “must first determine whether the petitioner has fairly presented his
federal constitutional claims to the state court.” See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curium); McCall v. Benson, 114 F.3d 754, 757 (8th Cir. 1997). “In
order to fairly present a federal claim to the state courts, the petitioner must have referred
to a specific federal constitutional right, a particular constitutional provision, a federal
constitutional case, or a state case raising a pertinent federal constitutional issue in a
claim before the state courts.” McCall, 114 F.3d at 757 (internal quotations omitted).
“[A]lthough the constitutional substance of a claim must be apparent, it is not


                                            -5-
necessary to cite book and verse on the federal constitution.” Wyldes v. Hundley, 69
F.3d 247, 251 (8th Cir. 1995) (internal quotation omitted), cert. denied, 116 S. Ct. 1578
(1996).

        The record shows that Frey fairly presented the substance of his claim that he did
not knowingly and voluntarily waive his constitutional right to testify. In his appeal from
the denial of state postconviction relief, the Supreme Court of North Dakota listed as one
of five separate issues Frey’s claim “that trial counsel impermissibly interfered with his
right to testify.” Frey, 509 N.W.2d at 262. Further, as the magistrate judge noted, Frey’s
brief to the Supreme Court of North Dakota specifically claimed that this interference by
counsel violated his constitutional right to testify on his own behalf. (See Appellant’s
adden. at 21 n.4.) We conclude that the claim has not been procedurally defaulted.

      We now address the merits of Frey’s claim, “review[ing] the district court’s legal
conclusions de novo and its factual findings for clear error.” Miller v. Lock, 108 F.3d
868, 870 (8th Cir. 1997). We defer to the state court’s findings of fact if fairly supported
by the record. See Pryor v. Norris, 103 F.3d 710, 712-13 (8th Cir. 1997); 28 U.S.C. §
2254(d) (1994).

       A criminal defendant has a constitutional right to testify in his or her own defense.
Rock v. Arkansas, 483 U.S. 44, 49 (1987); United States v. Bernloehr, 833 F.2d 749,
751 (8th Cir. 1987). This right is derived from the Fourteenth Amendment’s due process
clause, the Sixth Amendment’s Compulsory Process Clause, and the Fifth Amendment’s
prohibition on compelled testimony. Rock, 483 U.S. at 51-53. “Because the right to
testify is a fundamental constitutional guarantee, only the defendant is empowered to
waive the right.” Bernloehr, 833 F.2d at 751. A defendant’s waiver of this right must
be made knowingly and voluntarily. Id. We have previously held that a knowing and
voluntary waiver of the right may be found based on a defendant’s silence when his
counsel rests without calling him to testify. Id. at



                                           -6-
751-52. We stressed that under such circumstances the defendant must act
“affirmatively” rather than apparently “acquiesc[ing] in his counsel’s advice that he not
testify, and then later claim[ing] that his will to testify was overcome.” Id. (internal
quotation omitted).

        Frey’s argument that he did not knowingly and voluntarily waive his right to testify
is substantially dependent upon his testimony at the state postconviction and federal
habeas evidentiary hearings. At these hearings, Frey claimed that he told his attorney that
he wished to testify, whereupon counsel told him that he should not testify. Frey claims
that he believed that his trial attorney alone had the power to decide whether Frey would
testify. Frey also explained that he would have testified at trial that he shot both Bjornson
and Ottum while he was afraid and panicking, consistent with the self-defense theory.

        Frey’s attorney stated that he informed Frey that he had a right to testify, but that
he advised against testifying. (See Appellee’s app. at 120, 188.) According to counsel,
Frey “consented to [this] advice.” (Id. at 120.) Frey was also present during a hearing
before the state trial court in which the judge stated, “I’m glad we are all in 100 percent
agreement that Mr. Frey may testify if he wants to, . . . and, of course, has no obligation
to testify if he chooses not to.” (Id. at 26.) Frey, “an apparently mature and sophisticated
businessman,” voiced “no objection when his counsel rested without calling [Frey] to the
stand,” further suggesting he voluntarily and knowingly chose not to testify. See
Bernloehr, 833 F.2d at 751-52. In postconviction proceedings, the state district court
found that Frey waived his right to testify and exercised his right not to testify after being
advised of his right to testify by counsel. (Appellant’s app. at 194-97.) This finding was
affirmed by the Supreme Court of North Dakota on appeal. See Frey, 509 N.W.2d at 265
(“Trial counsel elected to advise Frey not to take the stand. Frey accepted the advice.”).
While “waiver” is a mixed question of law and fact, see United States v. Caldwell, 954
F.2d 496, 504 (8th Cir.), cert. denied, 506 U.S. 819 (1992), these factual findings of
advice and acceptance are clearly supported by the



                                            -7-
record, and we will not second guess them. See Pryor, 103 F.3d at 712-13; 28 U.S.C.
§ 2254(d).

       Considering all of the above, the district court correctly ruled that Frey voluntarily
and knowingly waived his constitutional right testify. Frey, after receiving the advice of
counsel, chose to exercise his constitutional right not to testify. His postconviction
dissatisfaction with this decision does not change our analysis. We hold that Frey
voluntarily and knowingly waived his constitutional right to testify on his own behalf, and
we reject his claim to the contrary.3

                          B. Ineffective Assistance of Counsel

      Frey next argues that he was denied his constitutional right to effective assistance
of counsel. Specifically, Frey claims that his attorney failed to explain to him why Frey
should not testify and misled him into believing that the ultimate decision on whether
Frey would testify would be made by counsel. Because an ineffective assistance of
counsel claim “presents a mixed question of law and fact,” we review the district



      3
         Because Frey did in fact knowingly and voluntarily waive his right to testify, we
need not address the state’s alternative argument that any error was harmless. We note
that it is unclear if harmless error analysis applies to the denial of a defendant’s right
to testify. Compare, Ortega v. O'Leary, 843 F.2d 258, 262 (7th Cir.), cert. denied, 488
U.S. 841 (1988) (applying harmless error analysis to denial of defendant’s right to
testify), with Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991) (“As a general
matter, it is only the most extraordinary of trials in which a denial of the defendant’s
right to testify can be said to be harmless beyond a reasonable doubt.”); Wright v.
Estelle, 572 F.2d 1071, 1080-84 (5th Cir.) (en banc) (Godbold, J., dissenting) (rejecting
application of harmless error analysis to claim that defendant was denied the right to
testify), cert. denied, 439 U.S. 1004 (1978); United States v. Butts, 630 F. Supp. 1145,
1148 (D. Me. 1986) (“[A] defendant’s right to testify in a criminal proceeding against
him [is] so basic to a fair trial that its infraction can never be treated as a harmless
error.”).

                                           -8-
court’s legal conclusions de novo and its factual findings for clear error. Dodd v. Nix,
48 F.3d 1071, 1073 (8th Cir.1995). We again defer to the state court’s finding of fact if
fairly supported by the record. See Pryor, 103 F.3d at 712-13; 28 U.S.C. § 2254(d).

       We evaluate ineffective assistance of counsel claims under the familiar two part
test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687
(1984). “First, the petitioner must show that counsel’s performance was deficient.” Id.
“Second, the petitioner must show that the deficient performance prejudiced the defense”
so as to deprive the petitioner of a fair trial. Id. To show that counsel’s performance was
deficient, the petitioner “must show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. In evaluating counsel’s performance, we
“indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional” competence. Id. at 689. To prove prejudice, the petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.

      Although the state asks us to affirm the district court based on the Supreme Court’s
holding in Nix v. Whiteside, 475 U.S. 157, 171-75 (1986), that failure to cooperate in
presenting the defendant’s perjured testimony does not render counsel ineffective, we
need not reach this issue.4 Our review of the record convinces us that Frey’s attorney
acted within the wide range of reasonable competence demanded by the Sixth
Amendment by advising Frey not to testify regardless of counsel’s belief that Frey’s
testimony would have been false.




      4
         Frey’s attorney stated that he believed Frey’s testimony would have been false
and that he did not want Frey to testify for that reason. Counsel did not inform Frey
that this was a reason he advised Frey not to testify. Frey’s attorney explained that he
did not tell Frey that he thought his testimony was false because “[Frey] knew it was
a lie, I knew it was a lie, we didn’t have to talk about that.” (Appellee’s app. at 116.)

                                          -9-
       Initially, we reject Frey’s claim that his attorney misled him into believing that
counsel had the ultimate authority to decide whether Frey would testify. We have held
that Frey knowingly and voluntarily waived his right to testify. Counsel advised Frey that
he had a right to testify and advised against exercising that right. Frey accepted his
attorney’s advice and chose not to take the witness stand. Frey has failed to show that
he was not aware that he could testify on his own behalf.

       Counsel listed several strategic reasons for advising Frey to exercise his Fifth
Amendment right not to testify. Frey’s attorney testified that more evidence of Frey’s
drug and alcohol use would have been admitted and that, in his view, this would have
hurt the chances for an acquittal before what he characterized as a conservative jury from
a sparsely populated North Dakota county. He was also concerned about Frey’s
demeanor on the witness stand. Counsel advised Frey that he could argue to the jury that
the state’s circumstantial evidence was consistent with the self-defense theory without
subjecting Frey to damaging cross-examination. He summed up his advice by telling Frey
that he thought they should “quit while [they were] ahead.” (Appellee’s app. at 188.)

       Counsel’s reasons for advising Frey not to testify show that the advice was
reasonable trial strategy based on counsel’s professional evaluation of the case. Frey has
not shown that his experienced trial attorney’s performance was deficient. We therefore
hold that Frey was provided with effective assistance of counsel.

                                           III.

      Accordingly, we affirm the judgment of the district court.




                                         -10-
A true copy.

      Attest:

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




                              -11-
