Reva Francis v. Jennifer Miller

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 08-1492
___________

Reva Francis, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jennifer Miller; Chris Koster,1 *
Attorney General, *
*
Appellees. *
___________

Submitted: December 9, 2008
Filed: March 6, 2009
___________

Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.
___________

ARNOLD, Circuit Judge.

Reva Francis was convicted in a Missouri state court of second degree murder
and armed criminal action in the shooting death of her husband, Tony Francis. The
Missouri Court of Appeals affirmed her conviction but remanded the case to the trial
court for a ruling on Ms. Francis's motion for a reduction of sentence based on her
claim that she suffered from what is called battered spouse syndrome. See State v.
Francis, 60 S.W.3d 662 (Mo. Ct. App. 2001) (Francis I). When the trial court on

1
Pursuant to Fed. R. App. P. 43(c)(2), Chris Koster is automatically substituted
for his predecessor, Jeremiah W. Nixon.
remand imposed the same sentence, Ms. Francis moved for post-conviction relief,
claiming ineffective assistance of counsel, see Mo. S. Ct. R. 29.15. The state trial
court denied the motion and that decision was upheld on appeal, see Francis v. State,
183 S.W.3d 288 (Mo. Ct. App. 2005) (Francis II). Ms. Francis then applied for a writ
of habeas corpus in federal district court.2 See 28 U.S.C. § 2254. The district court
denied the application but granted Ms. Francis a certificate of appealability on her
ineffective-assistance claims, which she raises in this appeal. We affirm.

I.
On the afternoon of the day that the shooting occurred, Ms. Francis's eighteen-
year-old daughter, Roxanne Cummings, and Roxanne's boyfriend, Shane Ross, were
in Ms. Cummings's bedroom when they heard "something hit the wall" and then a
sound like a firecracker "pop." After the first "pop," Ms. Cummings heard her
stepfather, Mr. Francis, yell and she heard another "pop" a short time later. When Ms.
Cummings and Mr. Ross went to the kitchen, they saw Mr. Francis slumped over a
chair. Because Ms. Francis and her daughter were "freaking out," Mr. Ross went
outside and called 911. Francis I, 60 S.W.3d at 665 (internal quotation marks
omitted).

When Officer Tony Yates arrived at the house where these events happened,
he saw Ms. Francis standing in the kitchen. "She appeared distraught, was shaking,
and was standing about two and half to three feet from the body of Tony Francis,
which was slumped over a chair. There was a small pool of blood around the victim's
head," but none appeared to be on Ms. Francis. Ms. Francis told the officer that "it
was an accident [that] she accidentally shot her husband" with the "32-caliber
semi-automatic handgun lying next to her purse." Id.

2
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.

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 There was a hole in Ms. Francis's purse and testing showed that the gun had
been fired while the muzzle was in contact with the side of the purse. Ms. Francis told
Officer Yates that the gun was in her purse when it went off "through a struggle."
After Officer Dan Loney arrived at the scene, Ms. Francis waived her Miranda rights
and told him that she and her husband had been arguing, "that there was a struggle
over her purse and there was a gun inside of her purse and that the gun went off." She
said that they were sitting at the kitchen table when the first shot was fired, that
Mr. Francis "attempted to get her purse from her and that the weapon was in the purse
and it went off accidentally." Officer Loney twice asked Ms. Francis whether she had
intentionally shot her husband and "[b]oth times she stated she did not." Id. at 665-66.

Evidence introduced at trial showed that the handgun had a heavy "trigger pull"
of fifteen pounds and had to be "cycled" after inserting the magazine for a round to
be fired, and a state witness testified that a "loosely held automatic pistol is unlikely
to fire a second time and is likely to jam." The state also offered evidence that the
weapon "had two safety mechanisms: a magazine safety, which prevented the trigger
from being pulled if the magazine was removed[,] and a button on the left side of the
handgun that had to be turned to the 'off' position before the gun would fire." Id. at
666-67.

Ms. Francis was taken into custody and interrogated that evening for
approximately six hours. After waiving her rights a second time, she made a written
statement:

I came home around four p.m. Sunday night. We're s[i]tting ... at
the dining room table going over bills and [our] checkbook.... He called
the secretary to go over bills and I explained to him that I didn't like the
gun in the house and I was taking it to Anita's or Lanna's house. He got
mad and tried to get the gun out of my purse and my hand was in there,
too. Then, the gun went off. I stand up with the gun in my left hand and
with the purse in my right hand. Tony fell over the table and onto the

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 chair. The gun went off one more time in my hand. I dropped the gun
and my purse and fell to the ground. I yelled at Shane to call the police.

Id. at 666 (alteration in original).

At trial, an officer described Ms. Francis's response when the police asked her
to show how the second shot had been fired: She said that "Tony fell over the chair.
She had the gun in this hand, her hand on the right of the purse. She said, leave me
the f[______] alone, pointed the gun down and then did this motion [demonstrating]
with her hand, indicating the gun went off another time." The officer added that when
Ms. Francis demonstrated how the gun discharged the second time, it appeared that
"when [she] extended her arm out, she made a grasping motion with her hand, as if to
fire the gun again." Id.

"The autopsy revealed that Mr. Francis suffered gunshot wounds to the back of
the head, left shoulder and chest, caused by two bullets." A bullet entered his chest
and moved slightly downward from left to right, front to back, penetrating his left
lung, heart, and then the right lung before lodging under the skin. "A separate bullet
entered the back of the head, exited, and ended up in Mr. Francis' right shoulder. The
cause of death was listed as 'multiple gunshot wounds.' " Id.

On appeal, Ms. Francis contends that she received ineffective assistance of
counsel at her trial. She had three trial attorneys: She first hired Randell Wood, who
acted as her chief trial attorney; Brian Gepford and Willard Bunch, who had
significantly more criminal trial experience than Mr. Wood, were hired before trial to
assist in the defense.
II.
Ms. Francis claims that trial counsel was ineffective in failing to investigate
whether she suffered from battered spouse syndrome (BSS) by promptly obtaining an
opinion from a psychiatrist, Dr. William Logan, and in failing to have Dr. Logan

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testify that she suffered from BSS and post-traumatic stress disorder in support of a
claim of self-defense.3 BSS is "a type of post-traumatic stress disorder" that exhibits
a "collection of symptoms including a highly fearful state, isolation, withdrawal, and
a heightened sensitivity to situations that precede violence or an increase in violence"
and occurs as a result of being subjected to physical abuse by one's spouse or domestic
partner. State v. Edwards, 60 S.W.3d 602, 613 (Mo. Ct. App. 2001). The pertinent
Missouri statute provides that "[e]vidence that the actor was suffering from the
battered spouse syndrome shall be admissible upon the issue of whether the actor
lawfully acted in self-defense." Mo. Rev. Stat. § 563.033.1 The state court ruled in
limine that Ms. Francis could not simultaneously pursue defenses of accident and self-
defense. (The trial court ruled that counsel could not argue that Ms. Francis
performed the same act both accidentally and in self-defense, but the court did not
forbid counsel from presenting what we later refer to as a hybrid defense, i.e., that she
fired one shot accidentally and the other in self-defense.)

A.
Ms. Francis maintains that counsel should have investigated her mental state by
retaining Dr. Logan for an opinion before deciding on trial strategy, a claim that the
state contends we may not review because the state court rejected it on state
procedural grounds. Federal courts may not grant a petition for habeas corpus if a
state court has denied the asserted claim "pursuant to an independent and adequate
state procedural rule ... unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice."

3
Ms. Francis also contends that trial counsel should have used Dr. Logan's
testimony for other purposes, such as showing diminished capacity, but we do not
address those claims because she failed to raise them in state court and has provided
no excuse for her procedural default. See Interiano v. Dormire, 471 F.3d 854, 856
(8th Cir. 2006).

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Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Lee v. Kemna, 534 U.S.
362, 375-76 (2002).

The Missouri Court of Appeals refused to address the merits of Ms. Francis's
failure-to-investigate claim because she did not include it in her post-conviction
motion filed under Mo. S. Ct. R. 29.15. Francis II, 183 S.W.3d at 297-98.
Ms. Francis's motion asserted that counsel was ineffective for failing to call Dr. Logan
as a witness regarding his diagnosis of battered spouse syndrome but did not mention
a failure to investigate. We do not believe, as Ms. Francis maintains, that the state
court's opinion merely "not[ed] a possible procedural defect." The court specifically
found that her motion did "not assert that trial counsel was ineffective for failing to
investigate" a battered spouse defense, observed that "claims which were not
presented to the motion court cannot be raised for the first time on appeal," and
concluded that "Ms. Francis cannot now claim that her trial counsel was ineffective
for failing to investigate whether Dr. Logan's testimony would have supported a
battered spouse defense." Id. (emphasis in original) (internal quotation marks and
citation omitted).

Ms. Francis has asserted neither cause nor prejudice and does not maintain that
a miscarriage of justice occurred. Because the state court relied on an independent
state procedural rule, the only remaining question is whether the state's procedural bar
was "adequate" to preclude our review. "Ordinarily, violation of firmly established
and regularly followed state rules ... will be adequate to foreclose review of a federal
[habeas] claim," Lee, 534 U.S. at 376 (internal quotation marks and citation omitted),
and we will not "consider whether the state court properly applied its default rule to
the claim; federal courts do not sit to correct a state court's application of its ordinarily
adequate procedural rules, except in unusual circumstances." Clemons v. Luebbers,
381 F.3d 744, 750 (8th Cir. 2004) (emphasis and internal citation omitted), cert.
denied, 546 U.S. 828 (2005).

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 Ms. Francis maintains that the rule relied upon by the Missouri Court of
Appeals was not "firmly established and regularly followed." She relies, in part, on
Guinan v. State, 726 S.W.2d 754, 756-57 (Mo. Ct. App. 1986), cert. denied, 484 U.S.
873 (1987), where the court addressed a post-conviction claim even though it was
omitted from the motion. In that case, the court treated the motion as having been
amended by consent because evidence regarding the claim had been admitted without
objection at the motion hearing. Ms. Francis asserts that evidence regarding her
failure-to-investigate claim was likewise admitted without objection during the motion
hearing.

But the motion in Guinan was filed under Missouri's previous post-conviction
rule, Mo. S. Ct. R. 27.26 (repealed 1988), which was repealed long before Ms. Francis
filed her Rule 29.15 motion in December, 2000. Unlike the former rule, Rule 29.15
requires a movant to include in a post-conviction motion "every claim known to the
movant," as well as a declaration stating that the movant has listed all known claims
and understands that "the movant waives any claim for relief known to the movant
that is not listed in the motion." Mo. S. Ct. R. 29.15(d). In her motion, as required,
Ms. Francis specifically waived any unlisted claims known to her. (She does not say
that she was then unaware of the claim in question, nor do we see any reason that she
would have been.)

In Rohwer v. State, 791 S.W.2d 741, 743-44 (Mo. Ct. App. 1990), the Missouri
Court of Appeals noted that the previous rule lacked the waiver provision and
explained that Rule 29.15 was designed "to prevent delay, end the use of successive
motions, and to discourage 'sandbagging' by the movant." See also Day v. State,
770 S.W.2d 692, 693 (Mo. 1989). Not surprisingly, given the language of the rule,
Missouri courts have repeatedly rejected the argument that Ms. Francis relies on by
holding that a Rule 29.15 motion cannot be amended to conform to evidence later
presented at the motion hearing. See State v. Jacobs, 861 S.W.2d 621, 626 (Mo. Ct.
App. 1993); State v. Perry, 820 S.W.2d 570, 575 (Mo. Ct. App.1991); Rohwer,

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791 S.W.2d at 743-44; see also Kelly v. State, 784 S.W.2d 270, 273 (Mo. Ct. App.
1989).

We have previously described Rule 29.15 as providing "substantive,
well-established procedures that [movants] are required to follow in order to have
[their] claims considered post-trial." Brown v. Luebbers, 344 F.3d 770, 775 (8th Cir.
2003), adopted in relevant part and vacated in part, 371 F.3d 458, 460 (8th Cir. 2004)
(en banc), cert. denied, 543 U.S. 1189 (2005). There is no avoiding a conclusion that
the Missouri Court of Appeals relied on a "firmly established and regularly followed"
state procedural rule to reject Ms. Francis's claim.

Ms. Francis argues, in the alternative, that even if the rule relied upon was
firmly established and regularly followed, we should nonetheless review her claim
because hers is an "exceptional" case where the state court "exorbitantly" applied its
rules without furthering any identifiable state interest, see Lee, 534 U.S. at 376.
Although generally a state court's reliance on firmly established and regularly
followed rules is adequate to preclude federal review, the Supreme Court explained
in Lee that "exceptional cases [exist] in which exorbitant application of a generally
sound rule renders the state ground inadequate to stop consideration of the federal
question" in a habeas proceeding. Id. We do not believe, however, that Ms. Francis's
case is an exceptional one.

In Lee, the Court reviewed a federal claim despite the habeas petitioner's failure
to comply with a state rule that required continuance motions to be in writing. Id. at
366-67. The defendant had moved orally for a continuance when, on the last day of
trial, his subpoenaed alibi witnesses from out of state, who "were sequestered in the
courthouse" at the start of trial that day, disappeared suddenly and without
explanation. Id. at 365-66. The state judge denied the motion, indicating that the
requested continuance would interfere with other matters. Id. at 365-66, 369-70.
The state appellate court raised the written-motion requirement for the first time on

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appeal and refused to address the defendant's due process claim. Id. at 372-73, 380.
The Supreme Court held that the rule upon which the state court relied, even if "firmly
established and regularly followed," was inadequate to preclude federal review under
the particular circumstances. The Court provided several reasons for its conclusion,
but it relied heavily on the time constraints of trial and the unexpected nature of the
circumstances presented. Id. at 381-86. Of course, no such conditions were present
in Ms. Francis's case. She filed a Rule 29.15 motion pro se and later retained counsel
who filed an amended motion; they simply failed to include the failure-to-investigate
claim. Although a case may of course be exceptional without presenting the same
circumstances as Lee, we discern nothing exorbitant in the state court's application of
Rule 29.15 in this case.

In sum, the Missouri Court of Appeals relied on an independent and adequate
state procedural bar in rejecting Ms. Francis's claim that counsel was ineffective by
failing to retain Dr. Logan to investigate battered spouse syndrome as a defense. We
are thus precluded from addressing that claim. See Coleman, 501 U.S. at 750.

B.
Ms. Francis contends that the state court should have determined that counsel
was ineffective in failing to present Dr. Logan's testimony that Ms. Francis suffered
from battered spouse syndrome in support of a claim of self-defense. In Missouri,
expert testimony that a defendant suffered from BSS is admissible to "aid the jury in
determining whether a defendant's fear and claim of self-defense are reasonable."
Edwards, 60 S.W.3d at 613; see Mo. Rev. Stat. § 563.033. Such evidence may show
that a defendant had a reasonable belief that deadly force was required to protect her
from serious harm at the hands of the victim. State v. Pisciotta, 968 S.W.2d 185, 189
(Mo. Ct. App. 1998).

Ms. Francis argues first that counsel should have presented Dr. Logan's
testimony in support of a so-called hybrid defense by contending that the gun first

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discharged accidentally during a struggle, but relying on testimony regarding BSS to
show that she fired the second shot in self-defense. But the Missouri Court of Appeals
held that Ms. Francis could not pursue the hybrid-defense claim because, like the
failure-to-investigate claim, it was omitted from her Rule 29.15 motion. See
Francis II, 183 S.W.3d at 298. As we have already explained, the procedural rule that
the state court relied on to reject this claim was firmly established and regularly
followed. Nor has she presented an "exceptional case[] in which exorbitant
application of a generally sound rule renders the state ground inadequate." Lee,
534 U.S. at 376. She had adequate time to present the claim and was not prevented
from doing so; her Rule 29.15 motion makes no reference to such a defense and does
not even mention that two shots were fired. We note, moreover, that she did not
present evidence in support of the hybrid claim at the hearing on her Rule 29.15
motion. We therefore cannot address the claim.

The Missouri Court of Appeals addressed the merits of the motion court's
holding that counsel's "failure to present Dr. Logan's testimony on battered spouse
syndrome did not constitute ineffective assistance of counsel." Francis II, 183 S.W.3d
at 298 (emphasis omitted). The court correctly recognized that to prevail Ms. Francis
had to show that counsel's performance fell below an " 'objective standard of
reasonableness' " and that prejudice resulted. Id. at 297-98 (quoting Strickland v.
Washington, 466 U.S. 668, 688 (1984). Mr. Wood testified at the post-conviction
hearing that the decision to present an accident defense was one of trial strategy, and
the state court correctly noted that trial strategy decisions, if reasonable at the time,
cannot support an ineffective-assistance claim "even if, in hindsight, better choices
could have been made." Francis II., 183 S.W.3d at 298; see Bell v. Cone, 535 U.S.
685, 698 (2002).

Because the state court applied the correct law, we may grant habeas relief only
if the court applied that law "to the facts of [Ms. Francis's] case in an objectively
unreasonable manner," see Bell, 535 U.S. at 699, or if its decision "was based on an

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unreasonable determination of the facts in light of the evidence presented in the State
court proceeding." 28 U.S.C. § 2254(d)(1), (d)(2).

The state appellate court reasoned that to succeed on an ineffective-assistance
claim based on the failure to call a witness (here, Dr. Logan) Ms. Francis had to show,
inter alia, that counsel's decision "involved something other than reasonable trial
strategy" and that the witness's testimony "would have provided the defendant with
a viable defense." Francis II at 298 (internal quotation marks and citation omitted).
The court concluded that trial counsel's decision to proceed with a defense of accident
rather than presenting Dr. Logan's testimony regarding battered spouse syndrome to
support a claim of self-defense was reasonable trial strategy. Id. at 298-99.

Although we have already concluded that Ms. Francis did not preserve a free-
standing failure-to-investigate claim, we cannot evaluate counsel's choice of a defense
without addressing the adequacy of counsel's investigation beforehand. "[S]trategic
choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation." Strickland, 466 U.S.
at 690-91. In other words, the strength of the general presumption that counsel
engaged in sound trial strategy "turns on the adequacy of counsel's investigation."
White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005) (relying on Strickland, 466 U.S. at
690-91).

Perhaps recognizing this principle, the state court, while rejecting Ms. Francis's
failure-to-investigate claim on procedural grounds, nevertheless commented on the
adequacy of counsel's investigation. The court suggested the possibility that she did
not include the claim in her motion because "the evidence demonstrates that
Ms. Francis' trial counsel investigated the possibility of a battered spouse defense":

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 Mr. Wood testified that he investigated the possibility of a battered
spouse defense, obtaining police and medical records and interviewing
and endorsing witnesses. Mr. Wood believed he could obtain expert
testimony supporting such a defense prior to trial and that the evidence
was sufficient that he could obtain a jury instruction for a battered spouse
defense. Mr. Wood ultimately decided not to pursue such a defense after
comparing the relative merits of an accident defense and a battered
spouse defense. Thus, Mr. Wood's decision to pursue a defense of
accident was not made out of ignorance of the existence of a battered
spouse defense, but was based on an assessment of which defense would
produce the best result.

Francis II, 183 S.W.3d at 297-98.

The state court thus found that Mr. Wood, when deciding what defense to
pursue, assumed that an opinion similar to the one eventually obtained from Dr. Logan
would be available and could be presented at trial. Mr. Wood's testimony supports
this finding, and we do not believe it is "an unreasonable determination of the facts
in light of the evidence," 28 U.S.C. § 2254(d)(1). This case therefore differs from one
in which a decision is made when counsel is completely unaware of vital information.
And even if counsel's better course would have been to consult an expert before
choosing a defense, we cannot say that the state court unreasonably applied Supreme
Court precedent by concluding that counsel remained within the "wide range of
professionally competent assistance" without doing so. See Strickland, 466 U.S. at
690.

Of course, the fact that the investigation was adequate does not necessarily
mean that counsel's decision to pursue a defense of accident was not ineffective
assistance. As the state appellate court noted, under Missouri law battered spouse
syndrome "augments a claim of self-defense," rather than being in itself a defense to
murder, and a claim of self-defense requires an intentional act. The court further
observed that both before and shortly after Ms. Francis's arrest, she told the police that

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both shots were accidental, and the defense of accident requires an unintentional act.
Francis II, 183 S.W.3d at 299-300. Thus, according to the court, "because of the trial
court's pre-trial ruling, had trial counsel pursued a battered spouse defense,
Ms. Francis would have been forced to either repudiate her statements that the
shooting was an accident and somehow explain her repeated statements to the
contrary, or offer evidence that, while Ms. Francis believed the shooting was
accidental, the shooting was actually intentional." Id. at 300. We believe that the state
court did not unreasonably determine that "[e]ither tactic could have substantially
undermined Ms. Francis' credibility, weakening her defense." Id.

The state court's analysis of this issue was extensive and tightly reasoned. We
cannot conclude that the state court unreasonably applied Strickland by determining
that counsel's decision to pursue an accident defense was reasonable because it was
a "deliberate and informed choice to pursue one defense over another [as] a matter of
trial strategy." Francis II, 183 S.W.3d at 301. For this reason, we reject Ms. Francis's
contention.

III.
Ms. Francis also maintains that counsel unreasonably failed to offer her
testimony at trial after having told the jury that she would testify. Mr. Wood gave an
opening statement in which he told the jury that Ms. Francis would testify. Mr. Wood
further told jurors that Ms. Francis would say that her husband had abused her, that
she intended to remove the gun from the house because of arguments that they were
having, and that when Mr. Francis tried to take the gun out of her purse, she
accidentally shot him.

At the post-conviction hearing, Mr. Wood explained that unexpected events
during the trial convinced him that Ms. Francis should not testify after all. Counsel
testified that pretrial depositions revealed that the state had many witnesses, some of
whom were expected to testify that Ms. Francis had said that she wanted Mr. Francis

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dead and "had threatened Tony or wanted to kill him." This testimony would of
course tend to support a finding of deliberation, an element of the charged crime of
first degree murder, see Mo. Rev. Stat. §§ 565.020.1, 565.002(3); Francis II,
183 S.W.3d at 304, and, according to Mr. Wood, if the state put on evidence of Ms.
Francis "wanting to kill Tony," she "needed to testify." But the state rested its case
after presenting only a fraction of the witnesses that it had listed and without offering
any of this potentially damaging testimony. Mr. Wood testified that this turn of events
surprised him and that he was at first unsure of how to proceed.

After court was adjourned for the day, counsel, Ms. Francis, and her family
discussed the matter of whether she should testify. Mr. Wood advised her not to
testify to prevent the state from presenting damaging rebuttal testimony about the
statements that she had made before the shooting. Ms. Francis decided to take
Mr. Wood's advice, and when she was questioned at length in open court the next day,
she told the trial judge that she understood the circumstances and that the decision not
to testify was hers. She specifically said that she knew that the jury might have a
negative reaction to her not testifying after her lawyer had said that she would. Ms.
Francis claims on appeal that counsel's promises to the jury, combined with counsel
advising her not to testify, amounted to ineffective assistance of counsel.

Because the Missouri Court of Appeals denied this claim on the merits, our
review is governed by the standards in 28 U.S.C. § 2254(d). Ms. Francis primarily
maintains that the state court based its determination that counsel pursued a reasonable
trial strategy "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). She also challenges
the state court's application of the law to those facts, and we therefore consider
whether the state court's decision was based on an unreasonable application of
Supreme Court precedent. See 28 U.S.C. § 2254(d)(1)

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 The state court found that the state had witnesses who would testify that they
had heard Ms. Francis say that she "wanted to kill her husband." Francis II,
183 S.W.3d at 304. Ms. Francis in her brief describes this finding as the state court's
"most egregious error" because she "never once said she intended to kill her husband
or perpetrate a physical act of violence on him." According to Ms. Francis, the
witnesses would have testified instead that she had said that she wished Mr. Francis
was dead, which she argues would have been significantly less harmful to her case.
(Unfortunately, the depositions of the relevant witnesses are not part of the record.)
Regardless of the degree of harm that such testimony would have caused, we believe
that the state's finding was amply supported.

At the post-conviction hearing, as we have noted, Mr. Wood testified that he
expected the state to offer "all this evidence that she had threatened Tony or wanted
to kill him," and he later reiterated that counsel anticipated the state putting on
evidence "about her wanting to kill Tony or whatever." We note, moreover, that
Ms. Francis herself answered affirmatively when asked at the hearing whether she
knew that if she testified, the state would have offered evidence that she "had in the
past threatened to or wanted to or planned to kill" Mr. Francis. Given this evidence,
we do not see how the state court's finding could have been an unreasonable
determination of the facts.

We also reject Ms. Francis's contention that the state court "failed to recognize
uncontradicted evidence that Mr. Wood was not surprised by the prospect of
damaging rebuttal testimony." In fact, the evidence was not uncontradicted. As we
have already said, Mr. Wood specifically testified at the post-conviction hearing that
when the state rested, thereby leaving damaging witness testimony for rebuttal, he
"was surprised" and he also said that all three of Ms. Francis's attorneys "likely fell
out of our chair." Ms. Francis asserts that the state appellate court mistakenly believed
that the motion court had found Mr. Wood's testimony credible. But the motion court,
after quoting Mr. Wood's testimony that "together, all the lawyers and Reva" made the

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"tough decision" that she would not testify, found that her three lawyers "willingly
altered their initial trial strategy ... in light of the State's case-in-chief and the threat
of a damaging rebuttal case," a finding consistent only with Mr. Wood's version of the
events. Also without merit is Ms. Francis's contention that the evidence compelled
a finding that Mr. Wood decided that Ms. Francis should not testify because he "lost
his nerve," as one of her other attorneys believed: Nothing required the state court to
disbelieve Mr. Wood's explanation of why he advised her not to testify. See 28 U.S.C.
§ 2254(d)(2).

We agree with Ms. Francis that prejudice may well result when counsel
promises a jury that the defendant will testify and then she does not take the stand.
But that does not mean that the state court unreasonably applied the law when it
rejected Ms. Francis's ineffective-assistance claim. The state court carefully
considered the unique circumstances of the case, found that counsel was presented
with an unexpected and difficult decision regarding strategy, and held that counsel
reasonably decided to advise Ms. Francis not to testify (though it would have probably
also been reasonable to advise her to do so). She did not testify. The state did not
present rebuttal witnesses regarding her intent, and the jury did not convict her of first
degree murder. "Rather, the jury found Ms. Francis guilty of second degree murder
and recommended a sentence of twenty-three years in prison. Ms. Francis' conviction
of second degree murder, as opposed to first degree murder, may be largely
attributable to the fact that the jury never heard evidence that Ms. Francis wanted to
kill her husband prior to the day of the shooting." Francis II, 183 S.W.3d at 305.

We conclude therefore that the state court's rejection of Ms. Francis's claim was
not "contrary to" and did not involve "an unreasonable application of clearly
established Federal law, as determined by the Supreme Court," and was not based on
an unreasonable determination of the facts in light of the evidence. 28 U.S.C.
§ 2254(d).

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 IV.
We affirm the judgment of the district court.
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