Submitted: March 10, 2017
from United States District Court for the District of
Minnesota - Minneapolis
LOKEN, MURPHY, and BENTON, Circuit Judges.
MURPHY, Circuit Judge.
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
courtdenied habeas relief, and Bahtuoh appealed.
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.
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.
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
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.
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.
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.
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, ...