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Bahtuoh v. Smith

United States Court of Appeals, Eighth Circuit

April 28, 2017

Christopher Dineaa Bahtuoh Petitioner - Appellant
Michelle Smith, Warden Respondent - Appellee

          Submitted: March 10, 2017

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, MURPHY, and BENTON, Circuit Judges.

          MURPHY, Circuit Judge.

         Christopher Bahtuoh participated in a drive by shooting and was convicted in state court of first degree felony murder. After unsuccessfully seeking state postconviction relief, he brought this federal habeas action under 28 U.S.C. § 2254. He claims that his defense counsel provided ineffective assistance by advising him not to testify after counsel had promised the jury that he would. The district court[1]denied habeas relief, and Bahtuoh appealed. We affirm.


         In April 2009 Christopher Bahtuoh was driving in a Minneapolis neighborhood with Lamont McGee, a member of the I-9 gang. Although Bahtuoh was not a member of the gang, he had associated with I-9 members for years. During their ride Bahtuoh saw Kyle Parker, a member of the rival Taliban gang, standing with a few friends. Bahtuoh knew Parker from school and turned his car around to speak with him. When Parker spotted the car approaching, he told his friends that it was only Fat Chris, a nobody. Bahtuoh stopped his car by Parker, and McGee pulled out a gun and fired into Parker's chest. The shots killed Parker, and Bahtuoh sped away. Bahtuoh then dropped off McGee and went into hiding himself.

         Approximately six weeks later, Bahtuoh surrendered to the police with the assistance of his lawyer. He initially denied that he or his car had been at the scene of the murder, but in a later interview admitted Parker had been shot from his car. After the state filed its complaint against him, Bahtuoh explained to the grand jury that on the night in question he had been hanging out with a group of friends when shots were fired from a car driving by. The group fled to nearby cars, and Bahtuoh got into his along with McGee. Shortly after the two drove away, Bahtuoh saw Parker flagging him down. Then he turned his car around, stopped next to Parker and asked "what's up?" According to Bahtuoh, he "didn't see [McGee's] gun until it was . . . already standing out the window, " right before McGee shot Parker. The grand jury indicted Bahtuoh on multiple counts of first and second degree murder.

         The case was tried to a jury. Before trial Bahtuoh and his attorney decided that he should testify on his own behalf, and defense counsel told the jury during opening statements that Bahtuoh would waive his right to remain silent and testify. Defense counsel predicted that Bahtuoh would explain how he and Parker were acquaintances from college, that he was not very familiar with McGee, and why he had believed that McGee was not armed. After going over Bahtuoh's testimony with the jury, defense counsel asked the jurors "to keep an open mind" until Bahtuoh took the stand and explained what had actually happened on the day of the killing.

         The night before the state rested its case, defense counsel nevertheless decided to change strategy. The state had already introduced most of the evidence that defense counsel had planned for by having Bahtuoh's grand jury testimony read into the record. Defense counsel also believed at this point that the state's evidence was weak and that it had failed to prove its case. Counsel advised Bahtuoh not to testify, and Bahtuoh took the advice. The defense therefore rested immediately after the state, without introducing any evidence of its own.

         During closing arguments, defense counsel addressed his change in strategy, explaining that it was his fault that Bahtuoh had not testified and that he had decided not to put Bahtuoh on the stand because "the government didn't prove their case and his truthful story came across in his grand jury testimony." Defense counsel's prediction about the strength of the government's case proved only partially correct, however. The jury acquitted Bahtuoh of first degree premeditated murder, but convicted him of first degree felony murder, where the underlying felony was a drive by shooting, and second degree murder, both for the benefit of a gang.

         Bahtuoh appealed and also sought state postconviction relief on the basis of ineffective assistance of counsel and other claims. The state court denied Bahtuoh postconviction relief. In a consolidated appeal, the Minnesota Supreme Court affirmed Bahtuoh's conviction and the denial of postconviction relief. State v. Bahtuoh, 840 N.W.2d 804 (Minn. 2013). As to Bahtuoh's ineffective assistance of counsel claim, the court concluded that defense counsel's advice to Bahtuoh not to testify, despite counsel's previous statements to the jury, was not constitutionally deficient. Id. at 816-18. Bahtuoh then sought habeas relief in federal court under 28 U.S.C. § 2254 on multiple grounds, including ineffective assistance of counsel. United States Magistrate Judge Jeffrey J. Keyes issued a Report and Recommendation, advising the district court to deny Bahtuoh habeas relief. The district court adopted the Report and Recommendation and issued a certificate of appealability on Bahtuoh's ineffective assistance of counsel claim.


         Bahtuoh argues that the district erred by concluding that he was not entitled to habeas relief on the basis of ineffective assistance of counsel. "We review legal issues presented in a habeas petition de novo" and the district court's "underlying factual findings for clear error." Nunley v. Bowersox, ...

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