Phillip Hartsfield v. Stephanie Dorethy

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1736
PHILLIP HARTSFIELD,
Petitioner-Appellant,
v.
STEPHANIE DORETHY,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14-cv-05816 — John Robert Blakey, Judge.
____________________
ARGUED JANUARY 8, 2020 — DECIDED FEBRUARY 3, 2020
____________________
Before FLAUM, ROVNER, and SCUDDER, Circuit Judges.
FLAUM, Circuit Judge. Fifteen years ago, an Illinois jury con-
victed Phillip Hartsfield of first-degree murder and home in-
vasion. Hartsfield unsuccessfully challenged his convictions
on direct appeal and collateral attack in the Illinois courts. In
2014, Hartsfield petitioned a federal district court for a writ of
habeas corpus alleging seven claims. The district court denied
his petition and Hartsfield appealed. We certified one of the
issues Hartsfield presented for review: whether the state court
2 No. 18-1736
reasonably held that Hartsfield’s counsel did not usurp his
personal right to testify at trial. We now affirm the judgment
of the district court.
I. Background 1
On January 4, 2004, Alberto Martinez found his brother
Alejandro shot dead in his bed. Police responding to the home
recovered two .40-caliber shell casings inside Alejandro’s bed-
room. The medical examiner identified four gunshot wounds
on Alejandro’s body and recovered one bullet. Police also no-
ticed that the back door to the Martinez home had a crack
along its narrow edge, as if it had been kicked or punched
open. Later, the People of the State of Illinois (“the State”)
charged Phillip Hartsfield and Mohammed Abukhdeir with
first-degree murder and home invasion. The co-defendants
simultaneously tried their cases before separate Cook County
juries.
A. Trial
The State put Claudia Garcia, Candy Richmond, and Kris-
tina Kasper on the stand. Together, the women’s testimony
established that they had attended a party at the Martinez
home that lasted into the early morning hours on January 4.
Alejandro Martinez and several other men were at the party.
While there, Kasper called Hartsfield, with whom she was
having a sexual relationship. Kasper got angry after she heard
another woman on the phone with Hartsfield. After she hung
up on Hartsfield, the men at the party asked Kasper why she
1 We take the facts from the Illinois Appellate Court’s opinions be-
cause they are presumptively correct on habeas review and Hartsfield has
not rebutted this presumption. See 28 U.S.C. § 2254(e)(1); Perez-Gonzalez v.
Lashbrook, 904 F.3d 557, 562 (7th Cir. 2018).
No. 18-1736 3
was dating “a black guy,” and an argument broke out be-
tween the women and the men. As the women left the house
between 4:30 and 5:00 a.m., the argument continued, and one
of the men struck Kasper and her friend Richmond as they got
into their car.
Garcia drove Kasper and Richmond home. During the car
ride, Kasper and Richmond made several phone calls. Ac-
cording to Garcia, Richmond gave someone Martinez’s ad-
dress over the phone and threatened to have someone killed.
Richmond subsequently denied making such a threat. As
stated by Kasper, either she or Richmond called Hartsfield
and gave him Martinez’s address.
Another woman, Katherine Chrzan, testified at Harts-
field’s trial. She claimed she was pregnant with Hartsfield’s
child in January 2004. Specifically, on January 4, Chrzan ex-
plained that Hartsfield was driving with Abukhdeir in
Chrzan’s car and they picked her up from a friend’s house
around 4:30 a.m. While in the car, Hartsfield received a phone
call, and Chrzan heard a woman raise her voice. Hartsfield
told the woman that he would be there in 20 minutes. Harts-
field drove to his house and brought Chrzan up to his bed-
room while Abukhdeir waited in the car. Before Hartsfield left
the room, he retrieved a shotgun from underneath his bed.
Hartsfield departed his house around 6:30 or 7:00 a.m. and
returned at 9:00 or 9:30 a.m.
At approximately 7:00 a.m., Hartsfield and Abukhdeir
picked up Richmond and Kasper in Chrzan’s car. Hartsfield
drove to Martinez’s home, where he and Abukhdeir knocked
on the front door. When no one answered, they returned to
the car and opened the trunk. Richmond saw Hartsfield pick
up a silver automatic handgun. Hartsfield and Abukhdeir
4 No. 18-1736
then walked down the gangway beside Martinez’s home, re-
turning five minutes later.
Back at the car, Richmond heard Abukhdeir say that “he
had blood all over him,” and when she looked, Richmond saw
blood on Abukhdeir’s knuckles. Hartsfield told Abukhdeir to
“shut the fuck up,” to which Abukhdeir responded: “If it
wasn’t for me, you wouldn’t have gotten through the back
door.” 2 Richmond also heard Abukhdeir say: “I hope you did
it right.” Kasper claimed she did not hear the men’s conver-
sation. After they left Martinez’s home, Hartsfield stopped the
car and put the gun in the trunk. He drove Kasper home first
and Richmond second.
The next evening, Chrzan discovered her gas tank was al-
most empty and asked Hartsfield where he had driven her car
earlier that morning. Hartsfield answered that he went to Chi-
cago. He added that if he told her what had happened, she
“wouldn’t want to come around anymore,” and that “if he
ever went to jail for murder, he would kill himself.” Shortly
afterward, Chrzan overheard Hartsfield on the phone, asking
if “Sally” was registered. Chrzan understood that “Sally” was
a gun.
John Waszak, a friend of Hartsfield and Abukhdeir’s, was
an additional witness at their trials. He testified that on Janu-
ary 6, 2004, he was at the home of a man named Billy Thomp-
son with Hartsfield and Abukhdeir. While there, Abukhdeir
gave Waszak a knotted sock, which contained a .40 caliber
gun barrel, spent casings, and live shells. Waszak recognized
2 Martinez’s aunt, who lived in the basement apartment of the Mar-
tinez home, did not hear any loud noises or notice anything unusual about
the back door that morning.
No. 18-1736 5
the gun as “Sally” because he had previously sold it to Abu-
khdeir. Waszak eventually threw the sock into the Des Plaines
River. On cross-examination, defense counsel elicited testi-
mony about inconsistencies between Waszak’s testimony and
his statements to police; Waszak’s extensive criminal history;
and the implausibility of Waszak dropping the sock off a
bridge on a busy street.
After the State rested, Hartsfield did not put on a case. The
jury convicted him of first-degree murder and home invasion.
The judge sentenced him to consecutive terms of 45 and 6
years in prison.
B. Direct Appeal and Collateral Attack
Hartsfield directly appealed his convictions and sentence
arguing that the State failed to prove him guilty beyond a rea-
sonable doubt. The Illinois Appellate Court affirmed, holding
that a rational jury could have found Hartsfield guilty, high-
lighting that the circumstantial evidence against Hartsfield
was strong. The Illinois Supreme Court denied Hartsfield’s
ensuing petition for leave to appeal.
Next, Hartsfield collaterally attacked his convictions and
sentence. He petitioned the state trial court pro se contending
that his trial counsel ineffectively assisted him when counsel
(1) usurped his right to testify and (2) declined to call Thomp-
son as a witness to impeach Waszak. The court appointed
counsel, who amended Hartsfield’s petition reiterating those
same claims. Hartsfield attached to his petition affidavits from
himself, his mother, and Thompson.
In his first affidavit, Hartsfield insists that he told counsel
“many times” that he wished to testify, to which counsel re-
6 No. 18-1736
plied that he did not want Hartsfield to testify. Hartsfield fur-
ther maintains that counsel asked his mother to “convince”
him not to testify, and Hartsfield told her that counsel would
not let him testify. At trial, counsel told Hartsfield that he
would “get his chance” when the judge admonished him
about his right to testify, but the judge never did that. When
Hartsfield attempted to speak up, counsel “shushed” him. For
her part, Hartsfield’s mother stated that counsel asked her to
convince Hartsfield not to testify and that Hartsfield informed
her that counsel would not let him testify; indeed, that coun-
sel “shushed” him.
In his second affidavit, Hartsfield described what his tes-
timony would have been if counsel would have permitted
him to testify in his own defense. Hartsfield asserted he spent
the night before the murder with Abukhdeir and Chrzan. Ac-
cording to his account, he left Chrzan asleep in his bedroom
and then drove to Chicago by himself. Around 7:00 a.m., he
unsuccessfully attempted to reach another woman with
whom he was having a sexual relationship. Chrzan called
Hartsfield at 8:00 a.m. asking where he was. After driving
downtown, Hartsfield turned around and arrived home
around 8:30 a.m. Hartsfield fell asleep and did not wake up
until 6:00 p.m.
The state trial court dismissed Hartsfield’s postconviction
petition. The appellate court affirmed that judgment, apply-
ing Strickland v. Washington, 466 U.S. 668 (1984), to both inef-
fective assistance of counsel allegations. Important here, the
appellate court held that defense counsel made “a tactical de-
cision” in advising Hartsfield, who was aware that it was ul-
timately his decision not to testify. It found that the record did
No. 18-1736 7
not support Hartsfield’s complaint that counsel prevented
him from speaking up.
Relatedly, it ruled that Hartsfield’s failure to contempora-
neously assert his right to testify barred his ineffective assis-
tance claim. Even if counsel deficiently performed, the court
reasoned, that did not prejudice Hartsfield because it was not
reasonably likely that his proposed testimony that he was
driving around at the time of the murder would have affected
the jury’s verdict, especially given the strong circumstantial
evidence against him. The Illinois Supreme Court denied
Hartsfield’s petition for leave to appeal that followed.
C. Federal Habeas Petition
In 2014, Hartsfield petitioned a federal district court for a
writ of habeas corpus under 28 U.S.C. § 2254, claiming that:
(1) the State failed to prove him guilty beyond a reasonable
doubt; (2) counsel usurped his right to testify; and (3) counsel
was ineffective for failing to call Thompson as a witness. The
district court denied the petition and declined to issue a cer-
tificate of appealability in 2018.
We, however, granted Hartsfield’s application for a certif-
icate, limited to the question presented regarding his right to
testify. We directed the parties to analyze whether the state
appellate court unreasonably concluded that: (1) Hartsfield
needed to contemporaneously assert his right to testify dur-
ing his trial; and (2) Strickland applied to such a claim, rather
than the harmless-beyond-a-reasonable-doubt standard from
Chapman v. California, 386 U.S. 18 (1967). Furthermore, if the
parties decided that Strickland did not apply, we asked the
8 No. 18-1736
parties to address whether Hartsfield suffered actual preju-
dice sufficient to justify habeas relief under Brecht v. Abraham-
son, 507 U.S. 619 (1993).
II. Discussion
We review the district court’s decision to deny habeas re-
lief de novo. See Jones v. Zatecky, 917 F.3d 578, 581 (7th Cir.
2019). The Antiterrorism and Effective Death Penalty Act
(AEDPA), however, sets the standard we apply to Hartsfield’s
petition. The Act permits us to grant relief only if the decision
of the Appellate Court of Illinois, the last state court to ad-
dress Hartsfield’s claim on its merits, was “contrary to, or in-
volved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d); see also Sims v. Hyatte, 914
F.3d 1078, 1086–87 (7th Cir. 2019).
Hartsfield argues that the state court decision is contrary
to federal law because Strickland does not control these cir-
cumstances, and even if it did, the state appellate court unrea-
sonably applied it in rejecting his claim that his counsel
usurped his right to testify. “We give state courts broad lati-
tude in applying [Strickland’s] general standard.” Weaver v.
Nicholson, 892 F.3d 878, 884 (7th Cir. 2018), cert. denied, 139 S.
Ct. 649 (2018) (citation omitted); see also Knowles v. Mirzayance,
556 U.S. 111, 123 (2009) (describing the standard of review on
Strickland claims evaluated under § 2254 as “doubly deferen-
tial”). In other words, “‘[t]he bar for establishing that the state
court’s application of the Strickland ineffective assistance of
counsel standard was ‘unreasonable,’ is a high one.” Felton v.
Bartow, 926 F.3d 451, 464 (7th Cir. 2019) (quoting Taylor v.
Bradley, 448 F.3d 942, 948 (7th Cir. 2006)).
No. 18-1736 9
A. Strickland and the Right to Testify
We begin with the question of how best to frame Harts-
field’s claim that his counsel usurped his right to testify.
Hartsfield contends that he need not show prejudice when the
case involves the right to testify, but that is contrary to our
precedent and the unanimous weight of authority. See Barrow
v. Uchtman, 398 F.3d 597, 603 n.4 (7th Cir. 2005) (holding that
“Strickland is the appropriate governing precedent” in cir-
cumstances such as these); see also Alexander v. United States,
219 F. App’x 520, 523 (7th Cir. 2007) (“We analyze Alexander’s
claim of ineffective assistance of counsel under the familiar
two-prong test laid out in Strickland[,] which requires proof
that counsel’s performance fell below minimum professional
standards and that this deficient performance ‘prejudiced’ the
defendant.”) (citation omitted).
Nonetheless, we take this opportunity to clarify what we
believe is explicit—but certainly implicit—in our earlier rul-
ings: An ineffective assistance of counsel claim is the appro-
priate vehicle in which to allege that counsel violated a de-
fendant’s right to testify. See United States v. Stuart, 773 F.3d
849, 853 (7th Cir. 2014) (applying the Strickland analytical
framework to a claim that counsel violated the defendant’s
right to testify); Starkweather v. Smith, 574 F.3d 399, 403–04 (7th
Cir. 2009), as corrected on denial of reh’g (Aug. 7, 2009) (same);
Gross v. Knight, 560 F.3d 668, 672–73 (7th Cir. 2009) (same);
United States v. Stark, 507 F.3d 512, 521 (7th Cir. 2007) (same);
Canaan v. McBride, 395 F.3d 376, 384 (7th Cir. 2005) (same); Ro-
driguez v. United States, 286 F.3d 972, 983–84 (7th Cir. 2002), as
amended on denial of reh’g and reh’g en banc (May 21, 2002)
(same); Milone v. Camp, 22 F.3d 693, 705 (7th Cir. 1994) (same);
10 No. 18-1736
Underwood v. Clark, 939 F.2d 473, 476 (7th Cir. 1991); United
States v. Muehlbauer, 892 F.2d 664, 669 (7th Cir. 1990).
Our sister circuits, so far as we can tell, all agree that “the
appropriate vehicle for claims that the defendant’s right to
testify was violated by defense counsel is a claim of ineffective
assistance of counsel.” Casiano-Jiménez v. United States, 817
F.3d 816, 819 (1st Cir. 2016) (citation and quotation marks
omitted); see also Palmer v. Hendricks, 592 F.3d 386, 397–98 (3d
Cir. 2010) (collecting cases); Matylinsky v. Budge, 577 F.3d 1083,
1097 (9th Cir. 2009); Hodge v. Haeberlin, 579 F.3d 627, 639 (6th
Cir. 2009); Winfield v. Roper, 460 F.3d 1026, 1035 n.3 (8th Cir.
2006); Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998); Wim-
berly v. McKune, 141 F.3d 1187, *3 (10th Cir. 1998) (un-
published table decision); Brown v. Artuz, 124 F.3d 73, 79 (2d
Cir. 1997); United States v. Teague, 953 F.2d 1525, 1534 (11th Cir.
1992). The Strickland standard applies to “any claim by the de-
fendant that defense counsel has not discharged this respon-
sibility—either by failing to inform the defendant of the right
to testify or by overriding the defendant’s desire to testify ….”
Artuz, 124 F.3d at 79.
The courts of appeals are united in reaching this conclu-
sion for good reason: “It is primarily the responsibility of the
defendant’s counsel, not the trial judge, to advise the defend-
ant on whether or not to testify and to explain the tactical ad-
vantages and disadvantages of doing so.” United States v.
Campione, 942 F.2d 429, 439 (7th Cir. 1991) (quoting United
States v. Goodwin, 770 F.2d 631, 637 (7th Cir. 1985)); see also
Teague, 953 F.2d at 1534. Not to put too fine a point on it, but
we have described “‘[t]he decision not to place the defendant
on the stand [as] a classic example’ of a strategic trial deci-
sion.” Stuart, 773 F.3d at 853 (quoting United States v. Norwood,
No. 18-1736 11
798 F.2d 1094, 1100 (7th Cir. 1986)) (additional citations omit-
ted); see also Stark, 507 F.3d at 516 (calling it a “sensitive aspect
of trial strategy”) (quoting United States v. Manjarrez, 258 F.3d
618, 624 (7th Cir. 2001)).
Now, it is true that “[t]his [C]ourt has previously ruled
that the Chapman standard [not Strickland] applies when a pe-
titioner has been denied the right to testify.” Ortega v. O’Leary,
843 F.2d 258, 262 (7th Cir. 1988) (citing Alicea v. Gagnon, 675
F.2d 913, 925 (7th Cir. 1982) (per curiam)). As an initial matter,
Alicea preceded Strickland by two years. More importantly, we
agree with Warden Dorethy that Alicea and its progeny stand
for the proposition that Chapman’s harmless error standard
applies when a court—not counsel—denies a defendant the
right to testify, at least on direct review. See United States v.
Books, 914 F.3d 574, 580 (7th Cir. 2019), cert. denied, 139 S. Ct.
2682 (2019) (citing Ortega and Alicea to support the assertion
that harmless error analysis applies when “the district court’s
ruling constructively foreclosed [the defendant’s] decision to
take the stand”).
In Ortega, as we have previously explained, “the defend-
ant twice interrupted the proceedings and expressed his de-
sire to testify. The trial judge ordered the defendant to remain
silent … The defendant protested, but the court treated the
evidence as closed and allowed the case to proceed to closing
arguments.” United States v. Jones, 844 F.3d 636, 646 (7th Cir.
2016). Similarly, in Alicea, the trial court “excluded [the de-
fendant’s] alibi testimony simply because he failed to notify
the prosecution that he intended to raise such a defense.” 675
F.2d at 916.
The Supreme Court’s recent precedents are not to the con-
trary; in fact, they too draw a distinction between a court’s
12 No. 18-1736
denial of a defendant’s constitutional right and counsel’s de-
nial of that same right. See McCoy v. Louisiana, 138 S. Ct. 1500,
1511–12 (2018) (reasoning its ineffective-assistance-of-counsel
jurisprudence did not apply in that case because “the viola-
tion of [the defendant’s] protected autonomy right was com-
plete when the court allowed counsel to usurp control of an issue
within [the defendant’s] sole prerogative.” (emphasis
added)).
This distinction is not arbitrary; it makes sense for reasons
the Supreme Court originally articulated in Strickland, which
we have since reiterated:
In Strickland, for example, the Court discussed and dis-
tinguished various “Sixth Amendment contexts” in
which prejudice to the defendant is legally presumed.
The latter situations include cases of “state interference
with counsel’s assistance,” and, most pertinently, cases
involving “actual or constructive denial of the assis-
tance of counsel altogether.” Relying in part on the
analysis in [United States v. ]Cronic, [466 U.S. 648,
(1984)], … the Court in Strickland distinguished these
latter circumstances on the grounds that prejudice to
the defendant “is so likely that case by case inquiry into
prejudice is not worth the cost,” and that they “involve
impairments of the Sixth Amendment right that are
easy to identify and, for that reason and because the
prosecution is directly responsible, easy for the gov-
ernment to prevent.” With respect to the kinds of er-
rors by defense counsel that would normally form a
basis for an ineffective assistance claim, on the other
hand, the “government is not responsible for, and
No. 18-1736 13
hence not able to prevent” them, they “come in an in-
finite variety and are as likely to be utterly harmless in
a particular case as they are to be prejudicial,” and they
cannot “be defined with sufficient precision to inform
defense attorneys correctly just what conduct to
avoid.” 3
Siverson v. O’Leary, 764 F.2d 1208, 1215–16 (7th Cir. 1985); see
also Smith v. Robbins, 528 U.S. 259, 287 (2000); United States v.
Hernandez, 948 F.2d 316, 319–20 (7th Cir. 1991); Lange v. Young,
869 F.2d 1008, 1012–13 (7th Cir. 1989); Solles v. Israel, 868 F.2d
242, 246 (7th Cir. 1989); Sanders v. Lane, 861 F.2d 1033, 1038 &
n.4 (7th Cir. 1988).
The Warden, of course, defends actual prejudice under
Strickland as the appropriate standard. Hartsfield, in his prin-
cipal brief, first vies for Brecht’s harmless-error standard for
habeas petitions. In his reply brief, however, Hartsfield de-
cides to operate outside the trial error paradigm and call for
the structural error standard to apply. In our view, the best
reading of the Supreme Court’s decisions in this realm is that
Strickland controls because defense counsel allegedly inter-
fered with Hartsfield’s right to testify. Accordingly, the state
3 As a clarification, Cronic is an exception to Strickland’s prejudice
prong for the most extreme displays of professional incompetence. We
presume prejudice in those circumstances because “counsel was absent
from the proceedings and unavailable to make any tactical judgments
whatsoever. Thus, both Strickland and Cronic expressly treat cases involv-
ing the total lack of assistance of counsel as separate and distinct from
cases involving ineffective assistance of counsel.” Siverson, 764 F.2d at
1216.
14 No. 18-1736
appellate court’s decision to apply Strickland was not contrary
to clearly established federal law. 4
B. Reasonableness of the State Court’s Decision
In applying Strickland, the state appellate court rejected
Hartsfield’s right-to-testify claim, concluding that Hartsfield
did not satisfy either of the test’s two prongs: (1) he has not
established counsel deficiently performed because he did not
contemporaneously assert his right to testify at trial; and
(2) assuming his allegations are true and counsel forbade him
from testifying, that decision did not ultimately prejudice
Hartsfield’s case. This was a reasonable application of Strick-
land.
First, Illinois law requires a defendant to “protest a law-
yer’s refusal to allow her to testify during trial to preserve the
right.” Thompson v. Battaglia, 458 F.3d 614, 619 (7th Cir. 2006)
4 To be sure, we have acknowledged that the call between an ineffec-
tive-assistance-of-counsel and an absence-of-counsel claim is a close one.
See Sanders, 861 F.2d at 1037–38 & n.4. And in absence-of-counsel cases,
we presume prejudice. See Hernandez, 948 F.2d at 320; Lange, 869 F.2d at
1013 (citations omitted). But even if this were an absence-of-counsel case—
and it is not—the Supreme Court has never adopted, and thereby clearly
established, a corresponding presumption of prejudice. See Schmidt v. Fos-
ter, 911 F.3d 469, 483 (7th Cir. 2018) (en banc) (noting “[t]here is no clearly
established lesser standard for state-action denials.”); see also Arredondo v.
Huibregtse, 542 F.3d 1155, 1171 n.4 (7th Cir. 2008) (distinguishing Ortega
because it “arose prior to Congress’ enactment of [AEDPA] and, therefore,
the court in Ortega was at liberty to apply a much more searching standard
of review than the one to which AEDPA confines us.”). Thus, the state
court could not have contradicted clearly established Supreme Court prec-
edent because there was never any clearly established precedent to begin
with.
No. 18-1736 15
(citing People v. Smith, 680 N.E.2d 291, 302–03 (Ill. 1997)) (ad-
ditional citations omitted); see also People v. Medina, 851 N.E.2d
1220, 1227 (Ill. 2006). Hartsfield and his mother both allege
that Hartsfield communicated his desire to testify to his coun-
sel. According to them, counsel disagreed and said he would
not put Hartsfield on the stand. Counsel assured Hartsfield,
however, that he would get his chance to speak when the trial
judge admonished him of his right to testify. But the trial
judge never so admonished Hartsfield, and when Hartsfield
attempted to contemporaneously assert his right to testify on
the record and in open court, he claims his counsel “shushed”
him. Therefore, the court was unaware of Hartsfield’s wishes,
and in the eyes of the appellate court, that added up to waiver.
Only two of our decisions hold that a defendant did not
properly preserve the right to testify. See Stark, 507 F.3d at
518–19 (illustrating and distinguishing Ward v. Sternes and Or-
tega v. O’Leary because of their unusual circumstances). It is
thus worth reiterating our prior suggestion that “prudent
counsel may choose to put such waivers on the record outside
the presence of the jury, as is standard practice in some
courts.” Thompson, 458 F.3d at 619 (citing Taylor v. United
States, 287 F.3d 658, 662 (7th Cir. 2002)). Even though “we do
not require judges to question defendants regarding their de-
sire to testify,” we certainly prefer it. Id. 5
5 Indeed, we are troubled by the obligation that Illinois caselaw ap-
pears to impose upon a defendant to contemporaneously assert a right to
testify in circumstances where defense counsel has just silenced the de-
fendant. Perhaps the Illinois Supreme Court will find occasion to take an-
other look at its approach when it considers Knapp later this term. See Peo-
ple v. Knapp, 2019 IL App (2d) 160162, ¶¶ 39–40, appeal allowed, 132 N.E.3d
283 (Ill. 2019).
16 No. 18-1736
Not all jurisdictions, however, follow Illinois’s lead when
it comes to requiring a defendant’s contemporaneous asser-
tion of the right to testify to preserve it for judicial review.
That has consequence in the habeas context: “The variety in
practice among the state courts and the various federal courts
shows … that there is no standard clearly established by the
Supreme Court of the United States that is binding on all.”
Thompson, 458 F.3d at 619; see also Arredondo, 542 F.3d at 1165;
Jenkins v. Bergeron, 824 F.3d 148, 153 (1st Cir. 2016) (agreeing
with our analysis and stating that “the Supreme Court has
never articulated the standard for assessing whether a crimi-
nal defendant has validly waived his right to testify or deter-
mined who has the burden of production and proof under
particular circumstances.”).
In ruling that Hartsfield did not contemporaneously assert
his right to testify, the state court did not unreasonably apply
clearly established Supreme Court precedent because there
was no clearly established Supreme Court precedent to apply
in the first place. See Clark v. Lashbrook, 906 F.3d 660, 664 (7th
Cir. 2018) (“Where Supreme Court cases ‘give no clear answer
to the question presented, let alone one in the petitioner’s fa-
vor,’ it cannot be said that the state court unreasonably ap-
plied Supreme Court precedent and thus ‘relief is unauthor-
ized.’” (citation omitted)). 6
6Hartsfield contends Rock, McCoy, and Garza v. Idaho, 139 S. Ct. 738
(2019) all clearly establish that a defendant need not point to an on-the-
record assertion of his right to testify in the trial court. As to Rock, we have
cautioned against reading it “too broadly in the habeas context” because
it applies, if at all, at a very high level of generality. Hanson v. Beth, 738
F.3d 158, 164 (7th Cir. 2013) (citing Arredondo, 542 F.3d at 1170). Turning
to McCoy and Garza, Hartsfield has not even begun to argue (let alone an-
alyze) that those decisions apply retroactively on collateral review. Cf.
No. 18-1736 17
Without the benefit of clearly established federal law, we
cannot say the Illinois Appellate Court unreasonably decided
that Hartsfield did not meet his burden of proving that his
attorney in fact prohibited his testimony. Assuming we could
independently find that Hartsfield met this burden, then that
would of course constitute deficient performance. See, e.g.,
Galowski v. Murphy, 891 F.2d 629, 636 (7th Cir. 1989) (“The at-
torney may not, as a tactical decision, forbid the defendant
from testifying, but instead may only advise the defendant as
to what the best approach would be.”).
Second, and though we need not address it, Hartsfield
cannot satisfy the prejudice prong under Strickland either. It
is, in short, not reasonably probable that his proposed testi-
mony would have affected the jury’s verdict. As a preliminary
matter, the circumstantial evidence against Hartsfield was
strong. Two eyewitnesses placed him at the scene of the crime,
armed with a weapon and a motive to use it. Hartsfield’s own
comments later that night further implicated him in the inci-
dent. More to the point, Hartsfield’s uncorroborated story is
that he was by himself and driving around during the time of
the murder. We agree with the Warden that this amounts “to
little more than a generic denial of guilt, which is insufficient
to establish prejudice.” In a nutshell, the state court reasona-
bly applied Strickland.
United States v. Khan, 769 F. App’x 620, 623–24 (10th Cir. 2019), petition for
cert. filed, No. 19-7223 (U.S. Jan. 2, 2020) (“Even assuming McCoy applies
retroactively to this collateral proceeding, [the defendant] has not made a
debatable showing that its holding applies under the facts of his case.”).
18 No. 18-1736
C. Scope of the Certificate of Appealability
For the sake of completeness, we note that Hartsfield
brings two claims in addition to his ineffective assistance
claim based on his right to testify. Hartsfield argues that the
state appellate court unreasonably discounted his claims that
the evidence at trial was insufficient for the jury to convict him
on, and counsel was ineffective for failing to call a witness. We
included neither of these issues in our order granting Harts-
field a certificate of appealability. The only issue we certified
for appellate review was the right-to-testify issue.
Therefore, those other evidentiary issues are outside the
scope of the certificate and we decline to review them. See Pe-
terson v. Douma, 751 F.3d 524, 529 (7th Cir. 2014) (“[W]e have
repeatedly said that an appeals panel will decide the merits of
only those issues included in the certificate of appealability.”
(citation omitted)). We also decline Hartsfield’s implicit re-
quest to amend the certificate this late in the game. See Thomp-
son v. United States, 732 F.3d 826, 831–32 (7th Cir. 2013) (in-
structing counsel who wish to raise additional claims to not
simply brief them but first request permission to do so).
III. Conclusion
The Appellate Court of Illinois reasonably held that de-
fense counsel did not usurp Hartsfield’s right to testify at trial.
For that reason, we AFFIRM the judgment of the district court
denying Hartsfield’s habeas petition.