Roger Lemaster v. Wendy Kelley ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2553
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Roger Lemaster
lllllllllllllllllllllPlaintiff - Appellant
v.
Wendy Kelley, Director, Arkansas Department of Correction
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: September 28, 2018
Filed: November 8, 2018
[Unpublished]
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Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
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PER CURIAM.
Roger Lemaster claims in his federal habeas petition that trial counsel was
ineffective for allegedly dissuading him from testifying in his own defense. The
district court1 concluded that he was not entitled to any relief, and we affirm.
I.
The state of Arkansas charged Lemaster with the rape of his minor
stepdaughter. Lemaster’s defense at trial was that she had fabricated the allegations,
largely due to the encouragement of her mother, with whom he had a fractured
relationship. Lemaster’s attorney aggressively cross-examined the victim at trial,
which revealed problems with her testimony and inconsistencies in her account.
Defense counsel focused on the victim’s credibility in closing argument.
Despite this focus, Lemaster did not testify. He now alleges that he expressed
a desire to do so, but counsel talked him out of it by allegedly telling him that “there
was ‘no reason’” for it and that “the ‘case was won’ without his testimony.” Lemaster
did not protest when the defense rested without calling him as a witness. Despite
counsel’s confidence, the jury found Lemaster guilty.
After his conviction became final, Lemaster filed a state postconviction petition
in which he alleged, among other things, that counsel had rendered constitutionally
ineffective assistance by advising him not to testify. The state trial court denied relief
without granting him an evidentiary hearing, and as relevant here, the Arkansas
Supreme Court affirmed. Lemaster v. State, 2013 Ark. 449, at 3–6 (per curiam). The
bottom-line conclusion of the Arkansas Supreme Court was that Lemaster had failed
to establish “that counsel’s decision to advise him not to testify was other than a
tactical decision within the realm of counsel’s professional judgment.” Id. at 6.
1
The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.
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Lemaster then petitioned for federal habeas relief. The district court denied his
ineffective-assistance-of-counsel claim, again without an evidentiary hearing. But
it granted him a certificate of appealability on the claim, which we now review de
novo. See O’Rourke v. Endell, 153 F.3d 560, 578 (8th Cir. 1998).
II.
Lemaster’s claim fails from the start. By statute, a federal court may not grant
habeas relief on “any claim that was adjudicated on the merits in State court
proceedings unless the adjudication,” as relevant here, “resulted in a decision that 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)(1).2 We must, in other words, defer to “[a] state court’s determination that
a claim lacks merit . . . so long as fairminded jurists could disagree on the correctness
of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(internal quotation marks and citation omitted).
Lemaster is not entitled to federal habeas relief because the Arkansas Supreme
Court’s decision was neither contrary to nor an unreasonable application of clearly
established federal law. To prevail on his ineffective-assistance-of-counsel claim,
Lemaster had to show that “counsel’s performance was deficient,” Strickland v.
Washington, 466 U.S. 668, 687 (1984), which the Arkansas Supreme Court
concluded that he did not do, Lemaster, 2013 Ark. 449, at 6.
2
A federal court may also grant a petition for a writ of habeas corpus if the state
court’s decision was “based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 18 U.S.C. § 2254(d)(2). The
state court’s decision did not rest on a factual determination, much less an
unreasonable one.
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Proving deficiency is no easy task, because attorneys who have prepared for
trial are entitled to a “strong presumption” that the challenged action was “sound trial
strategy.” Strickland, 466 U.S. at 689 (citation omitted); accord Francis v. Miller,
557 F.3d 894, 901 (8th Cir. 2009) (explaining the “general presumption” that
attorneys who have prepared for trial have “engaged in sound trial strategy”). For
example, provided that counsel has adequately investigated the “law and facts
relevant to plausible options,” a decision not “to call [a] witness[] . . . is presumed to
be reasonable trial strategy.” White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005)
(quoting Strickland, 466 U.S. at 690).
All the Arkansas Supreme Court did when it denied Lemaster’s
ineffective-assistance-of-counsel claim was apply the presumption from Strickland
and conclude that Lemaster had not overcome it. It did not, as the district court
thought, “announce[] a per se rule that counsel cannot be deficient for advising a
defendant not to testify as long as counsel informs the defendant of his right to testify
on his own behalf.” After all, saying that Lemaster “fail[ed] to meet his burden of
proof” or “show” that trial counsel’s decision was anything “other than a tactical
decision,” Lemaster, 2013 Ark. 449, at 5–6, is context-specific, not categorical.
The Arkansas Supreme Court’s decision also reasonably applied the
presumption. Among other things, Lemaster did not allege that counsel had
conducted a deficient investigation, relied on bad information, or intentionally misled
him or coerced him into giving up his right to testify. In fact, Lemaster did not even
“state what his testimony would have been.” Id. at 4. Instead, he simply made
conclusory assertions that trial counsel, in hindsight, should have made a different
strategic calculation. Given these threadbare allegations, the Arkansas Supreme
Court was entitled to conclude that Lemaster had failed to overcome the presumption
of competence and “meet his burden of proof” to show deficiency. Id. at 5.
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That the Arkansas Supreme Court reasonably rejected Lemaster’s claim also
establishes that the district court did not abuse its discretion when it declined to hold
an evidentiary hearing. See Wright v. Bowersox, 720 F.3d 979, 987 (8th Cir. 2013)
(explaining the standard of review). A district court is not required to hold an
evidentiary hearing if the record “precludes habeas relief.” Schriro v. Landrigan, 550
U.S. 465, 474 (2007). Lemaster’s claim fails under 28 U.S.C. § 2254(d)(1),
regardless of any facts that might emerge at an evidentiary hearing.
III.
We affirm the judgment of the district court.
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