IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10524
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MICHAEL JOHN MULLINS,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
December 16, 2002
Before HIGGINBOTHAM, DUHÉ, and DeMOSS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Federal prisoner Michael John Mullins claims that he was
denied the effective assistance of counsel when his trial counsel
prevented him from testifying in spite of his repeated requests to
do so. The district court granted his petition, and the government
appeals. We reverse.
I.
Mullins was involved in a drug deal in which undercover
officers traded a television for drugs at a residence Mullins
shared with his girlfriend. At the conclusion of their
investigation, police officers executed an evidentiary search
warrant to recover the television from Mullins’s residence. During
a protective sweep of the apartment, the officers discovered a
shotgun in a bedroom closet. They disarmed it and left it in the
bedroom. Mullins was not arrested during the execution of the
warrant and remained on the front porch along with a friend.
Approximately a half hour later, Mullins spoke to Officer South on
the porch. Exactly what was said is in dispute. The officer
testified that Mullins told him that he had purchased the shotgun
on the street, and did not want it if it was stolen. The officer
had Mullins retrieve the gun, and gave Mullins a receipt which
Mullins signed stating that he had bought the gun on the street.
Mullins’s present explanation is that he told the officer that the
gun was not his, that his girlfriend had bought it on the street,
that it may be stolen, and that he did not want it around; that he
could not read the receipt because he did not have his glasses and
would not have signed it had he known that it stated he admitted
ownership of the gun.
Mullins was indicted by a federal grand jury on the charge of
felon in possession of a shotgun under 18 U.S.C. § 922(g)(1).
During the execution of an arrest warrant at Mullins’s new
residence, Mullins’s girlfriend consented to a search of the
residence. Officers found two handguns in a nightstand next to the
bed Mullins and his girlfriend shared, and drug paraphernalia in a
2
closet in the bedroom. In a superseding indictment, Mullins was
indicted on a second count of felon in possession of a firearm for
the two handguns.
Mullins was represented by counsel at a jury trial. He was
found guilty on Count 1, involving the shotgun, but the jury could
not reach a unanimous verdict on Count 2, involving the handguns.
Mullins was sentenced to imprisonment for 235 months, followed by
five years supervised release, based on his prior convictions.
Count 2 was dismissed on government motion.
On appeal, Mullins argued that the trial court gave an
erroneous jury instruction on reasonable doubt and used an invalid
prior conviction to enhance his sentence. This court affirmed his
conviction and sentence.
More than four years after his trial, Mullins filed a petition
under 28 U.S.C. § 2255 asserting that his counsel prevented him
from testifying at his trial over his expressed desire to do so.
The district court summarily dismissed Mullins’s motion as
untimely. In April 2000, this court granted Mullins’s request for
a COA “on the issue whether the district court erred in determining
that Mullins’s claim that counsel was ineffective in preventing him
from testifying was procedurally barred” and remanded to the
district court for further proceedings.
The magistrate judge held an evidentiary hearing. After
hearing testimony from Mullins and his trial counsel, the
magistrate judge concluded that Mullins’s petition was not time-
3
barred, and recommended that his petition based on a claim of
ineffective assistance of counsel be granted. Over the
government’s timely objections, the district court accepted the
magistrate judge’s findings and recommendations and entered
judgment granting Mullins’s § 2255 petition. The government timely
appeals.
II.
A criminal defendant’s right to testify is well established.1
Only the defendant may waive this right, not his counsel,2 and it must
be knowing and voluntary.3 We distinguish between interference with
that right by defense counsel, and interference by the court or
prosecutor.
In Sayre v. Anderson, we held that where the defendant
contends that his counsel interfered with his right to testify, the
“appropriate vehicle for such claims is a claim of ineffective
assistance of counsel.”4 If there is a claim that the court or
prosecutor has interfered with the right to testify there is a
1
Sayre v. Anderson, 238 F.3d 631, 634 (5th Cir. 2001) (citing Rock v.
Arkansas, 483 U.S. 44 (1987)).
2
Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997).
3
Id.
4
Sayre, 238 F.3d at 634 (quoting United States v. Brown, 217 F.3d 247,
258-59 (5th Cir. 2000), vacated and remanded on other grounds sub nom. Randle v.
United States, 531 U.S. 1136 (2001).
4
different standard.5 Mullins asserts that his counsel interfered
with his right to testify, and the district court applied the
Strickland standard.
Strickland requires that a defendant show both that: (1) trial
counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense.6 Ineffective assistance of
counsel is a mixed question of law and fact, and we review the
district court’s grant of habeas relief de novo, while crediting
the district court’s express or implied findings of discrete
historic fact that are not clearly erroneous.7
III.
To satisfy the first element of Strickland, the defendant must
show that “counsel's performance fell below an objective standard
of reasonableness.”8 In determining whether counsel’s performance
was deficient, we must be highly deferential to counsel’s trial
5
See id. at n.2; see also Brown, 217 F.3d at 258-59 (acknowledging a
substantive right to testify where the court’s conduct was challenged, and
performing a Strickland analysis where only defense counsel’s conduct was at
issue); United States v. Willis, 273 F.3d 592, 598 (5th Cir. 2001) (recognizing
both a substantive right to testify claim where the defendant asserted that the
trial court had erred in not sua sponte questioning him about whether he was
voluntarily waiving his right to testify and an ineffective assistance of counsel
claim where the defendant alleged that his counsel failed to allow him to
testify).
6
Sayre, 238 F.3d at 634 (citing Strickland v. Washington, 466 U.S. 668,
687-94 (1984)).
7
Id. at 634-35 (citing Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.
1999)).
8
Brown, 217 F.3d at 259 (citing Strickland, 466 U.S. at 687).
5
strategy.9 In the past, we examined counsel’s decision on whether
a defendant will testify as part of counsel’s trial strategy.10 In
examining that strategy, we keep in mind that “the decision whether
to put a Defendant on the stand is a 'judgment call' which should
not easily be condemned with the benefit of hindsight.”11
At the same time it cannot be permissible trial strategy,
regardless of its merits otherwise, for counsel to override the
ultimate decision of a defendant to testify contrary to his advice.
We have decided several cases where the defendant alleged that his
counsel in some way prevented him from testifying.12 In those
cases, we have often found that the record did not support the
defendant’s claim, concluding that the defendant agreed with his
counsel’s sound trial strategy that he not testify.13 In other
9
Sayre, 238 F.3d at 635.
10
See, e.g., Id. (stating that the defendant must overcome a strong
presumption that counsel’s decision not to place the defendant on the stand was
sound trial strategy); Robison v. Johnson, 151 F.3d 256, 262 (5th Cir. 1998)
(finding that counsel’s recommendation that the defendant not testify was
reasonable trial strategy); Hollenbeck v. Estelle, 672 F.2d 451, 454 (5th Cir.
1982) (stating that the decision not to put the defendant on the stand was trial
strategy).
11
Robison, 151 F.3d at 261 (quoting United States v. Garcia, 762 F.2d
1222, 1226 (5th Cir. 1985)).
12
See Willis, 273 F.3d at 594 n.2; Sayre, 238 F.3d at 634; Brown, 217 F.3d
at 259; Robison, 151 F.3d at 261; Emery, 139 F.3d at 198-99; Garcia, 762 F.2d at
1226; Hollenbeck, 672 F.2d at 453; Mays v. Estelle, 610 F.2d 296 (5th Cir. 1980).
13
See Brown, 217 F.3d at 259; Robison, 151 F.3d at 262; Emery, 139 F.3d
at 199; Hollenbeck, 672 F.2d at 453 (noting that the court informed the defendant
that he had the right to testify and that no one could prevent him from
testifying, and that the defendant understood, although later characterizing
counsel’s not calling the defendant to the stand “restraining” defendant’s
testimony).
6
cases, we determined that the decision that the defendant not
testify was sound trial strategy without directly addressing
whether the lawyer made the decision over the objection of his
client, or if the client made the decision.14 These cases
implicitly, and we think correctly, conclude that when the record
is simply that the defendant knew of his right to testify and
wanted to do so but counsel was opposed, defendant acquiesced in
his lawyer’s advice, and therefore the only inquiry is whether that
advice was sound trial strategy. That is not this record.
IV.
The decision of whether to testify belongs to the defendant
and his lawyer cannot waive it over his objection.15 Other circuits
have reached the same conclusion.16 As the Seventh Circuit stated
in United States v. Curtis:
When a defendant asserts that he desires to exercise his
constitutional right to testify truthfully, counsel's
duty is to inform the defendant why he believes this
course will be unwise or dangerous. If a defendant
insists on testifying, however irrational that insistence
might be from a tactical viewpoint, counsel must accede.
We hold that a defendant's personal constitutional right
to testify truthfully in his own behalf may not be waived
by counsel as a matter of trial strategy.17
14
See Willis, 273 F.3d at 598-99; Sayre, 238 F.3d at 635; Garcia, 762 F.2d
at 1226; Mays, 610 F.2d at 297.
15
Emery, 139 F.3d at 198.
16
See Brown v. Artuz, 124 F.3d 73, 78 (2nd Cir. 1997) (holding that the
decision whether to testify belongs to the defendant, and citing cases reaching
the same conclusion from the 3rd, 4th, 7th, 8th, 9th, 11th and D.C. Circuits).
17
742 F.2d 1070, 1076 (7th Cir. 1984).
7
The Eleventh Circuit reached the same conclusion in United States
v. Teague:
[I]f defense counsel refused to accept the defendant's
decision to testify and would not call him to the stand,
counsel would have acted unethically to prevent the
defendant from exercising his fundamental constitutional
right to testify....Under such circumstances, defense
counsel has not acted " 'within the range of competence
demanded of attorneys in criminal cases,' " and the
defendant clearly has not received reasonably effective
assistance of counsel.18
To hold otherwise is to ignore the fact that the defendant’s right
to testify is secured by the Constitution and only he can waive it.
It cannot be reasonable trial strategy for an attorney to not honor
his client’s decision to exercise his constitutional right to
testify, not because the advice not to take the stand is unsound,
but because counsel must in the end accede if the client will not
abide by the advice.
Relying on Hollenbeck, Garcia, Jordan v. Hargett,19 Robison and
Sayre, the government argues that when a defendant is aware of his
right to testify and remains silent before the trial court, this
court will not find his counsel’s refusal to allow him to testify
to be ineffective. Stated another way, the government asserts that
we have found that a defendant waives his right to testify by not
speaking out during the trial if his counsel will not allow him to
make the final decision.
18
953 F.2d 1525, 1534 (11th Cir. 1992) (citations omitted); see also Brown
v. Artuz, 124 F.3d 73, 80 (2nd Cir. 1997) (quoting Teague favorably).
19
34 F.3d 310 (5th Cir. 1994) vacated en banc, 53 F.3d 94 (5th Cir. 1995).
8
We disagree with this reading of our decisions. Hollenbeck
and Robison found that the defendant acquiesced in his counsel’s
advice that he not testify.20 Garcia and Sayre did not record
whether defense counsel left the ultimate decision to the client,
or whether the client acquiesced in his counsel’s advice.21 And in
Jordan, the en banc court stated that it “need not decide the
questions of constitutional law discussed in the panel opinion.”22
Mullins testified at the habeas hearing that he knew that he
had a constitutional right to testify. Nothing in the record
indicates that he made his desire to testify known to anyone but
his lawyer. If our record here had no more we could conclude that
Mullins had accepted the advice of counsel. There was more.
Mullins’s trial counsel testified that she did not leave the
decision to Mullins. She explained that while he had initially
agreed with her advice, he changed his mind during the trial. The
district court found that both Mullins and his trial counsel
“testified credibly at the evidentiary hearing that he expressed a
desire to testify [to his counsel] numerous times during trial and
that counsel alone chose to prevent his testimony.” We are
compelled to conclude that this finding is not clearly erroneous.
That is, the record is not silent on the outcome of the discussion
20
See Robison, 151 F.3d at 262; Hollenbeck, 672 F.2d at 453.
21
See Sayre, 238 F.3d at 635; Garcia, 762 F.2d at 1226.
22
Jordan, 53 F.3d at 95.
9
between lawyer and client. In this circumstance we cannot infer
from Mullins’s silence before the trial court that he acquiesced in
the advice not to testify.
We resist the suggestion that we ought to insist that a
defendant directly address the court at the pain of waiver to
assert his right to testify when his counsel will not abide his
decision. Such a requirement is not without appeal, offering a way
of avoiding after-trial swearing contests. However, the natural
location for any burden to enlist the aid of the court is upon
counsel, and that is no new burden. Careful defense counsel
routinely advise the trial judge out of the jury’s presence that
the defendant will or will not testify, contrary to their advice.
Even without its initiation by counsel, careful trial judges will
similarly inquire if the defendant understands his right to
testify. We think both these trial practices are better calculated
to protect a defendant’s right to testify. Declining to place upon
the defendant the responsibility to address the court directly is
consistent with the reality that routine instructions to defendants
regarding the protocols of the court often include the admonition
that they are to address the court only when asked to do so. We
agree with the Second Circuit’s observation that “[a]t trial,
defendants generally must speak only through counsel, and, absent
10
something in the record suggesting a knowing waiver, silence alone
cannot support an inference of such a waiver.”23
The district court found that there was credible evidence that
Mullins’s counsel did not honor his decision to testify. While
such a claim made for the first time four years after the trial is
more than suspect, Mullins’s counsel’s testimony at the evidentiary
hearing supports his claim. As we have detailed, she testified
that he repeatedly requested to testify, and that she “prevented”
him from doing so against his wishes. Bound by this finding, we
must conclude that Mullins’s counsel was deficient in preventing
him from testifying when he repeatedly told her he wanted to do so.
The district court also found that Mullins’s trial counsel’s
advice to not take the stand was not based on sound trial strategy.
After examining the record, we cannot agree. It is clear from the
record that defense counsel made a strategic decision that Mullins
ought not testify in order to keep from the jury evidence of his
past convictions for drug related crimes and bad check writing.
This trade off was supported by the circumstance that counsel was
able to put much of Mullins’s account before the jury by other
witnesses.24
23
Chang v. United States, 250 F.3d 79, 84 (2nd Cir. 2001) (acknowledging
a split among the circuits on this issue, but finding no waiver).
24
In reaching its conclusion, the district court relied in large part on
the testimony of Mullins’s counsel that in retrospect and with more experience,
she would have acted differently. This kind of hindsight analysis is not
permitted in determining whether trial strategy was sound. See Kitchens v.
Johnson, 190 F.3d 698, 701 (5th Cir. 1999).
11
In spite of the soundness of the adopted trial strategy that
Mullins should not testify, it cannot be considered within the
scope of sound trial strategy to not leave the ultimate decision to
the client, although as we will see, its very soundness cuts
against Mullins’s claim of prejudice. We conclude that Mullins has
met the first requirement of the Strickland test.
V.
The second prong of the Strickland test asks whether counsel’s
deficient performance prejudiced the defense.25 It requires “...
a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt” and that the
errors were “so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”26 This standard has not
been met.
At the evidentiary hearing, Mullins testified that he wanted
to take the stand to dispute the officer’s testimony that Mullins
admitted the gun was his and to explain why he signed the receipt
that stated he had purchased the gun off the street. Mullins says
that he wanted to testify that he told the officer that his
girlfriend bought the gun, and that he could not read the receipt
which he signed because he was not wearing his glasses.
25
Sayre, 238 F.3d at 634 (citing Strickland, 466 U.S. at 687-94).
26
Strickland, 466 U.S. at 687, 694-95.
12
Rather than put Mullins’s criminal record before the jury,
counsel offered the testimony of several other witnesses to
challenge the police officer’s testimony and support Mullins’s
story. His girlfriend testified that the gun was hers, and that
she had received it from a friend as collateral for a loan. The
girlfriend’s friend also testified to that effect. Another woman
present during the exchange between Mullins and the officer
testified that she never heard Mullins make the statement alleged
by the officer. His girlfriend testified that she did not recall
seeing the incriminating statement on Mullins’s copy of the receipt
for the gun. This testimony presented much of Mullins’s story to
the jury without his testimony.
The difficulty is that a denial by Mullins from the stand
would come at a high price. It would juxtapose a police officer
whose account is supported by Mullins’s signed statement with a
felon with a large incentive to lie. If Mullins took the stand his
extensive criminal record and drug use would have come into
evidence. The likelihood that the jury would credit the felon over
the police officer whose testimony is supported by the defendant’s
signed statement does not meet the reasonable probability of a
different outcome test. We can say only that his testimony might
have persuaded, but not that there is a reasonable probability that
it would have done so. In service of finality, the second prong of
13
Strickland raises high the bar to relief, and here it has not been
cleared.
We must conclude that Mullins was not prejudiced by his
counsel’s deficient performance. While it was defective
performance for Mullins’s counsel to not accede to Mullins’s
decision to testify, counsel’s errors were not “so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.”27
VI.
Because Mullins has failed to show that he was prejudiced by
his counsel’s failure to leave to him the final decision of whether
he ought to testify, he has failed to demonstrate that he was
denied the effective assistance of counsel. We therefore REVERSE
the district court’s grant of Mullins’s § 2255 motion.
27
Id. at 687.
14