Starkweather v. Smith

MANION, Circuit Judge,

concurring.

Under the AEDPA, habeas relief is appropriate only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined, by the Supreme Court of the United States.” 28 U.S.C. § 2254(d) (emphasis added). Thus, our analysis should focus solely on whether the Supreme Court has clearly established an affirmative duty to explain an otherwise reasonable strategic recommendation. It has not, and thus habeas relief was properly denied. We need not consider, then, dicta from other circuits or the ABA Model Rules in resolving Stark-weather’s habeas petition. Nor should there be any implication from our decision that Starkweather’s attorney violated his ethical duties in representing Stark-weather.

In analyzing Starkweather’s ineffective assistance claim we also should keep in mind that the explanation we have for his attorney’s recommendation against testifying comes from an exchange in open court. Specifically, in open court, Starkweather’s attorney stated:

*406MR. GRAY: Well, Your Honor, we had a talk this morning. I explained to him my opinion with respect to testifying in this phase of the case. My client has a desire to tell his story; however, it’s my opinion, based on my knowledge of the case and experience, that what he has to say would be better fit in the second phase of this trial, if there is a second phase. I advised him as you advised him yesterday that he has a right not to testify. And it’s my advice to him not to testify. He told me this morning, and I believe he’s going to tell the court now, that he has decided not to testify in this phase of the case, knowing full well that he has an absolute right to testify and that not his lawyer or anybody else in the world could stop him from testifying. (Trl23:3).
MR. GRAY: For the record, I advised him at the guilt phase that I believed his testimony, if he wants to testify, which would be against my advice, but his testimony would be more appropriate for the responsibility phase.

This court states that “there appears to be no dispute that Starkweather’s counsel did not explain the strategic implications of Starkweather’s decision to waive his right to testify during phase I.” Opinion at 403. But the above excerpt shows that Stark-weather’s attorney provided Starkweather with at least a general explanation about his recommended strategy. It is unclear from the record whether, in private, Stark-weather’s attorney further elaborated on his recommendation that Starkweather not testify. But in any event, we should not expect an attorney to provide greater detail on his recommendation against testifying in open court. After all, such further elaboration would likely consist in this case of Starkweather’s attorney telling the judge and the prosecutor that he informed his client that no jury would believe his incredible story that he did not shoot Demery and that, if anything, this claim indicated he was not mentally competent. Telling the court instead that “based on my knowledge of the case and experience, that what he has to say would be better fit in the second phase of this trial, if there is a second phase” was more than sufficient.

For these reasons, I concur.