United States Court of Appeals
For the Eighth Circuit
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No. 13-3401
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Danny Kwami Barnes
lllllllllllllllllllllPetitioner - Appellant
v.
Steve Hammer, Acting Warden Rush City Correctional Facility; Attorney General
of the State of Minnesota
lllllllllllllllllllllRespondents - Appellees
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: June 10, 2014
Filed: August 25, 2014
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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BEAM, Circuit Judge.
Danny Kwami Barnes appeals the district court's1 denial of his petition for
habeas corpus pursuant to 28 U.S.C. § 2254. Certified for appeal is the sole question
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
of whether Barnes received ineffective assistance of counsel, leading him to reject a
favorable plea offer. We affirm the district court's denial of relief.
I. BACKGROUND
Barnes is a pastor at a church in Minnesota. On June 22, 2009, he led a group
of parishioners to a residence in Beardsley, Minnesota, in what he describes in his
brief as "a misguided attempt to help a wayward parishioner"–Max Bauer–by
breaking in and forcefully removing Max from the residence. Armed with firearms,
Barnes' group smashed a glass door to get inside, and once inside, the group pulled
Max (who was hiding under a bed) from a bedroom and beat him as they dragged him
out of the house. Max's father Chuck was a co-pastor, and one of the members of the
group that pulled Max from the house. Based upon this incident, Barnes was
ultimately charged in Minnesota state court with kidnaping, first-degree burglary with
a dangerous weapon, second-degree assault with a deadly weapon, and fifth-degree
assault. He waived a jury trial and following a two-day bench trial, was convicted of
the foregoing counts by the court.
Prior to trial, there were extensive plea negotiations. Barnes' first lawyer was
a public defender, Kenneth Hamrum. Hamrum informed Barnes that he faced a
mandatory minimum sentence of 36 months, and that he could be possibly given a
longer sentence, if convicted of the charges. At some point during Hamrum's
representation of Barnes, the prosecution offered Barnes a deal for a 36-month
sentence for pleading guilty on one count, and dismissing the others. Hamrum
testified that he communicated this deal to Barnes, but that Barnes was unwilling to
accept any deal involving prison time. On the eve of the scheduled trial date in
October 2009, Barnes discharged Hamrum and sought new counsel, eventually
securing the services of Jerome Lewis, with Mitchell Robinson serving as co-counsel.
Trial was rescheduled for January 2010. Because Barnes was in jail pending trial, his
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outgoing phone conversations with his new attorneys were recorded.2 These recorded
conversations show that Barnes and the attorneys were undecided and going back and
forth about whether Barnes should proceed to trial or take some kind of deal that was
presumably still in play. The conversations also indicate Barnes was hoping that
charges against Max's father would ultimately be dismissed as part of any plea deal
Barnes might accept.
After Barnes was tried, convicted, and sentenced to 138 months in prison, he
filed a motion for postconviction relief in Minnesota state court, alleging ineffective
assistance of counsel. At the postconviction hearing, Hamrum and Robinson both
testified, and the court considered transcripts of the recorded phone conversations,
as well as a video recording of a sermon Barnes preached wherein he detailed the fact
that he was facing a possible 24-year prison sentence for his actions. The
postconviction court denied relief, finding that the performance of Barnes' attorneys
was not objectively unreasonable, and that, in any event, there was no prejudice
because Barnes could not establish he would have taken the plea deal had he received
effective assistance of counsel. The postconviction court made a finding of fact,
based upon the testimony of both attorneys and the transcripts of recorded
conversations, that the reason Barnes did not accept the 36-month plea offer was
because he could not secure favorable treatment for Max's father, Chuck. On appeal,
the Minnesota Court of Appeals affirmed, finding that there was no prejudice because
it was clear that Barnes would not accept the deal if he could not get favorable
treatment for Chuck Bauer, and further, that Barnes was aware he faced a long
sentence if tried and convicted without pleading guilty. State v. Barnes, No. A10-
792, 2012 WL 762177, at *6-7 (Minn. Ct. App. Mar. 12, 2012).
2
And because Barnes alleged ineffective assistance of counsel, at the
postconviction hearing, he affirmatively waived his right to the attorney-client
privilege insofar as the conversations related to the specifics of the plea negotiations,
as this was the basis for his ineffective assistance claim.
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Barnes filed the current timely petition for habeas corpus pursuant to 28 U.S.C.
§ 2254, asserting, as relevant, the ineffective assistance of counsel claim. The
magistrate judge3 issued a report and recommendation denying relief, finding that the
Minnesota state courts' application of Supreme Court precedent, namely Strickland
v. Washington, 466 U.S. 668 (1984), was not objectively unreasonable or contrary to
law. The magistrate judge also found record support for the state courts' factual
findings. The district court adopted the magistrate judge's report and
recommendation, but issued a certificate of appealability on the assistance of counsel
issue.
II. DISCUSSION
We review petitions for writ of habeas corpus under the standards set forth in
the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Because
Barnes' claims were "adjudicated on the merits in State court proceedings," 28 U.S.C.
§ 2254(d), he is entitled to relief only by showing that the adjudication resulted in a
decision that was either "contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States," or "based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." Id. Our review of the state court's
decision on Barnes' ineffective assistance of counsel claim is "doubly deferential."
Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (quotation omitted). To establish
a constitutional violation, a petitioner must show both that counsel's performance was
deficient and that the deficiency prejudiced his defense. Strickland, 466 U.S. at 687.
In the plea negotiation context, in order to establish prejudice, a petitioner must show
that the outcome of the plea process would have been different had competent
counsel represented him during the plea process. Lafler v. Cooper, 132 S. Ct. 1376,
3
The Honorable Steven E. Rau, United States Magistrate Judge for the District
of Minnesota.
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1384 (2012). If a defendant turns down a legitimate plea offer due to incompetent
advice, and is later convicted on more serious counts after trial and receives a more
severe sentence, his claim for ineffective assistance of counsel will be successful. Id.
at 1386.
There is a strong presumption that counsel has rendered adequate assistance
and made all significant decisions for tactical reasons rather than through neglect.
Cullen, 131 S. Ct. at 1403-04. Where a state court concludes that there was no
ineffective assistance under this "highly deferential" standard, a federal court then
must review counsel's performance under the "deferential lens of § 2254(d)." Id. at
1403 (quotations omitted). In other words, we do not directly assess counsel's
performance; we assess the state courts' assessment of counsel's performance.
A writ of habeas corpus can also be granted if the state courts' resolution of a
prisoner's criminal case is "based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding." 28 U.S.C. §
2254(d)(2). Thus, habeas relief can be available if the conviction at issue is based on
findings of fact that could not reasonably be derived from the state court evidentiary
record. However, factual findings by the state courts are presumed correct. Id. §
2254(e).
We find that the Minnesota state courts' adjudication of Barnes' ineffective
assistance claim is not contrary to Supreme Court precedent. Under either Strickland
or Lafler,4 Barnes cannot prevail on a habeas ineffective assistance of counsel claim
in this instance. The Minnesota courts reasonably applied Strickland in finding no
prejudice, as the record supports the finding that Barnes did not turn down a
4
The Minnesota Court of Appeals did not have the benefit of the Supreme
Court's decision in Lafler, which was decided nine days after the Court of Appeals
issued the opinion in Barnes' case. When Barnes petitioned for further review, he
cited Lafler to the Minnesota Supreme Court, which, nonetheless, denied review.
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legitimate plea offer due to incompetent advice. Instead, the state courts found he
turned it down for a host of other personal reasons, including that he did not want to
do jail time, and that he was trying to get a better deal for his friend. These findings
are presumed correct, see 28 U.S.C. § 2254(e), and there is nothing in the record to
overcome that presumption. The state courts also found Barnes knew he was facing
a possibly longer term of imprisonment if he went to trial. Again, this finding is
presumed correct, and even if Barnes did not know the intricate particulars of
calculating the Minnesota sentencing guidelines, there was evidence that Barnes
knew of the approximate and lengthy possibilities for his sentencing. And, though
Barnes strenuously argues that counsel was deficient for not going through the
Minnesota sentencing guidelines with him, as previously noted, we do not directly
assess counsel's performance; we assess the Minnesota courts' assessment of counsel's
performance. Given that lens, we find that the state courts' adjudication of this claim
was not an unreasonable application of Supreme Court precedent, or an unreasonable
determination of the facts presented in the state court proceedings.
III. CONCLUSION
We affirm the denial of 28 U.S.C. § 2254 relief.
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