Hartsfield v. Dorethy, No. 18-1736 (7th Cir. 2020)
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In 2004, Martinez was shot dead. The Illinois Appellate Court affirmed Hartsfield's convictions for first-degree murder and home invasion. Hartsfield claimed ineffective assistance of counsel, insisting that he repeatedly told counsel that he wished to testify, that counsel asked his mother to “convince” him not to testify, and 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. Hartsfield claims counsel “shushed” him. Hartsfield’s mother supported his statements. The Illinois court affirmed the dismissal of Hartsfield’s postconviction petition, applying the “Strickland” standard and finding that counsel made “a tactical decision,” that Hartsfield was aware that testifying was ultimately his decision, and that Hartsfield’s failure to contemporaneously assert his right barred his claim.
The Seventh Circuit affirmed the denial of Hartsfield’s federal habeas petition, first agreeing that the “Strickland” standard applied to the allegation. Without clearly established federal law, it is not clear that the Illinois court unreasonably decided that Hartsfield did not meet his burden of proving that his attorney actually prohibited his testimony. It is not reasonably probable that his proposed testimony would have affected the verdict. Two eyewitnesses placed Hartsfield at the scene of the crime, armed with a weapon and a motive. Hartsfield’s comments later that night further implicated him. Hartsfield’s uncorroborated story, that he was alone, driving around during the time of the murder, is “little more than a generic denial of guilt," insufficient to establish prejudice.
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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 convicted Phillip Harts eld of rst-degree murder and home invasion. Harts eld unsuccessfully challenged his convictions on direct appeal and collateral attack in the Illinois courts. In 2014, Harts eld petitioned a federal district court for a writ of habeas corpus alleging seven claims. The district court denied his petition and Harts eld appealed. We certi ed one of the issues Harts eld presented for review: whether the state court 2 No. 18-1736 reasonably held that Harts eld’s counsel did not usurp his personal right to testify at trial. We now a rm 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 bedroom. The medical examiner identi ed four gunshot wounds on Alejandro’s body and recovered one bullet. Police also noticed 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 Harts eld and Mohammed Abukhdeir with rst-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 Kristina 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 Harts eld, with whom she was having a sexual relationship. Kasper got angry after she heard another woman on the phone with Harts eld. After she hung up on Harts eld, the men at the party asked Kasper why she 1 We take the facts from the Illinois Appellate Court’s opinions because 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 between 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. According to Garcia, Richmond gave someone Martinez’s address 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 Harts eld and gave him Martinez’s address. Another woman, Katherine Chrzan, testi ed at Harts eld’s trial. She claimed she was pregnant with Harts eld’s child in January 2004. Speci cally, on January 4, Chrzan explained that Harts eld 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, Harts eld received a phone call, and Chrzan heard a woman raise her voice. Harts eld told the woman that he would be there in 20 minutes. Harts eld drove to his house and brought Chrzan up to his bedroom while Abukhdeir waited in the car. Before Harts eld left the room, he retrieved a shotgun from underneath his bed. Harts eld 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., Harts eld and Abukhdeir picked up Richmond and Kasper in Chrzan’s car. Harts eld 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 Harts eld pick up a silver automatic handgun. Harts eld and Abukhdeir 4 No. 18-1736 then walked down the gangway beside Martinez’s home, returning ve 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. Harts eld 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 conversation. After they left Martinez’s home, Harts eld stopped the car and put the gun in the trunk. He drove Kasper home rst and Richmond second. The next evening, Chrzan discovered her gas tank was almost empty and asked Harts eld where he had driven her car earlier that morning. Harts eld answered that he went to Chicago. 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 Harts eld on the phone, asking if “Sally” was registered. Chrzan understood that “Sally” was a gun. John Waszak, a friend of Harts eld and Abukhdeir’s, was an additional witness at their trials. He testi ed that on January 6, 2004, he was at the home of a man named Billy Thompson with Harts eld 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 Martinez 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 Abukhdeir. Waszak eventually threw the sock into the Des Plaines River. On cross-examination, defense counsel elicited testimony about inconsistencies between Waszak’s testimony and his statements to police; Waszak’s extensive criminal history; and the implausibility of Waszak dropping the sock o a bridge on a busy street. After the State rested, Harts eld did not put on a case. The jury convicted him of rst-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 Harts eld directly appealed his convictions and sentence arguing that the State failed to prove him guilty beyond a reasonable doubt. The Illinois Appellate Court a rmed, holding that a rational jury could have found Harts eld guilty, highlighting that the circumstantial evidence against Harts eld was strong. The Illinois Supreme Court denied Harts eld’s ensuing petition for leave to appeal. Next, Harts eld collaterally attacked his convictions and sentence. He petitioned the state trial court pro se contending that his trial counsel ine ectively assisted him when counsel (1) usurped his right to testify and (2) declined to call Thompson as a witness to impeach Waszak. The court appointed counsel, who amended Harts eld’s petition reiterating those same claims. Harts eld attached to his petition a davits from himself, his mother, and Thompson. In his rst a davit, Harts eld 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 Harts eld to testify. Harts eld further maintains that counsel asked his mother to “convince” him not to testify, and Harts eld told her that counsel would not let him testify. At trial, counsel told Harts eld that he would “get his chance” when the judge admonished him about his right to testify, but the judge never did that. When Harts eld attempted to speak up, counsel “shushed” him. For her part, Harts eld’s mother stated that counsel asked her to convince Harts eld not to testify and that Harts eld informed her that counsel would not let him testify; indeed, that counsel “shushed” him. In his second a davit, Harts eld described what his testimony would have been if counsel would have permitted him to testify in his own defense. Harts eld asserted he spent the night before the murder with Abukhdeir and Chrzan. According 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 Harts eld at 8:00 a.m. asking where he was. After driving downtown, Harts eld turned around and arrived home around 8:30 a.m. Harts eld fell asleep and did not wake up until 6:00 p.m. The state trial court dismissed Harts eld’s postconviction petition. The appellate court a rmed that judgment, applying Strickland v. Washington, 466 U.S. 668 (1984), to both ineffective assistance of counsel allegations. Important here, the appellate court held that defense counsel made “a tactical decision” in advising Harts eld, who was aware that it was ultimately his decision not to testify. It found that the record did No. 18-1736 7 not support Harts eld’s complaint that counsel prevented him from speaking up. Relatedly, it ruled that Harts eld’s failure to contemporaneously assert his right to testify barred his ine ective assistance claim. Even if counsel de ciently performed, the court reasoned, that did not prejudice Harts eld because it was not reasonably likely that his proposed testimony that he was driving around at the time of the murder would have a ected the jury’s verdict, especially given the strong circumstantial evidence against him. The Illinois Supreme Court denied Harts eld’s petition for leave to appeal that followed. C. Federal Habeas Petition In 2014, Harts eld 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 ine ective for failing to call Thompson as a witness. The district court denied the petition and declined to issue a certi cate of appealability in 2018. We, however, granted Harts eld’s application for a certificate, 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) Harts eld needed to contemporaneously assert his right to testify during 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 Harts eld su ered actual prejudice su cient to justify habeas relief under Brecht v. Abrahamson, 507 U.S. 619 (1993). II. Discussion We review the district court’s decision to deny habeas relief de novo. See Jones v. Zatecky, 917 F.3d 578, 581 (7th Cir. 2019). The Antiterrorism and E ective Death Penalty Act (AEDPA), however, sets the standard we apply to Harts eld’s petition. The Act permits us to grant relief only if the decision of the Appellate Court of Illinois, the last state court to address Harts eld’s claim on its merits, 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); see also Sims v. Hyatte, 914 F.3d 1078, 1086–87 (7th Cir. 2019). Harts eld argues that the state court decision is contrary to federal law because Strickland does not control these circumstances, and even if it did, the state appellate court unreasonably applied it in rejecting his claim that his counsel usurped his right to testify. “We give state courts broad latitude 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 deferential”). In other words, “‘[t]he bar for establishing that the state court’s application of the Strickland ine ective 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 eld’s claim that his counsel usurped his right to testify. Harts eld 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 circumstances such as these); see also Alexander v. United States, 219 F. App’x 520, 523 (7th Cir. 2007) (“We analyze Alexander’s claim of ine ective 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 de cient performance ‘prejudiced’ the defendant.”) (citation omitted). Nonetheless, we take this opportunity to clarify what we believe is explicit—but certainly implicit—in our earlier rulings: An ine ective assistance of counsel claim is the appropriate vehicle in which to allege that counsel violated a defendant’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); Rodriguez 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 ine ective 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); Win eld v. Roper, 460 F.3d 1026, 1035 n.3 (8th Cir. 2006); Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998); Wimberly v. McKune, 141 F.3d 1187, *3 (10th Cir. 1998) (unpublished 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 defendant that defense counsel has not discharged this responsibility—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 conclusion for good reason: “It is primarily the responsibility of the defendant’s counsel, not the trial judge, to advise the defendant on whether or not to testify and to explain the tactical advantages 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 ne 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 decision.” 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 omitted); 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 petitioner 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 defendant twice interrupted the proceedings and expressed his desire 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 defendant’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 contrary; 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 denial of that same right. See McCoy v. Louisiana, 138 S. Ct. 1500, 1511–12 (2018) (reasoning its ine ective-assistance-of-counsel jurisprudence did not apply in that case because “the violation of [the defendant’s] protected autonomy right was complete 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 distinguished 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 assistance 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 government to prevent.” With respect to the kinds of errors by defense counsel that would normally form a basis for an ine ective 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 nite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial,” and they cannot “be de ned with su cient 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. Harts eld, in his principal brief, rst vies for Brecht’s harmless-error standard for habeas petitions. In his reply brief, however, Harts eld decides 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 interfered with Harts eld’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 involving 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 Harts eld’s right-to-testify claim, concluding that Harts eld did not satisfy either of the test’s two prongs: (1) he has not established counsel de ciently 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 Harts eld’s case. This was a reasonable application of Strickland. First, Illinois law requires a defendant to “protest a lawyer’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 ineffective-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. Foster, 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 precedent 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)) (additional citations omitted); see also People v. Medina, 851 N.E.2d 1220, 1227 (Ill. 2006). Harts eld and his mother both allege that Harts eld communicated his desire to testify to his counsel. According to them, counsel disagreed and said he would not put Harts eld on the stand. Counsel assured Harts eld, 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 Harts eld, and when Harts eld 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 Harts eld’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 Ortega 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 desire to testify,” we certainly prefer it. Id. 5 5 Indeed, we are troubled by the obligation that Illinois caselaw appears to impose upon a defendant to contemporaneously assert a right to testify in circumstances where defense counsel has just silenced the defendant. Perhaps the Illinois Supreme Court will find occasion to take another look at its approach when it considers Knapp later this term. See People 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 assertion 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 criminal defendant has validly waived his right to testify or determined who has the burden of production and proof under particular circumstances.”). In ruling that Harts eld 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 rst 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 favor,’ it cannot be said that the state court unreasonably applied Supreme Court precedent and thus ‘relief is unauthorized.’” (citation omitted)). 6 6 Hartsfield contends Rock, McCoy, and Garza v. Idaho, 139 S. Ct. 738 (2019) all clearly establish that a defendant need not point to an on-therecord 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 analyze) that those decisions apply retroactively on collateral review. Cf. No. 18-1736 17 Without the bene t of clearly established federal law, we cannot say the Illinois Appellate Court unreasonably decided that Harts eld did not meet his burden of proving that his attorney in fact prohibited his testimony. Assuming we could independently nd that Harts eld met this burden, then that would of course constitute de cient performance. See, e.g., Galowski v. Murphy, 891 F.2d 629, 636 (7th Cir. 1989) (“The attorney 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, Harts eld cannot satisfy the prejudice prong under Strickland either. It is, in short, not reasonably probable that his proposed testimony would have a ected the jury’s verdict. As a preliminary matter, the circumstantial evidence against Harts eld was strong. Two eyewitnesses placed him at the scene of the crime, armed with a weapon and a motive to use it. Harts eld’s own comments later that night further implicated him in the incident. More to the point, Harts eld’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 insu cient to establish prejudice.” In a nutshell, the state court reasonably 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 Certi cate of Appealability For the sake of completeness, we note that Harts eld brings two claims in addition to his ine ective assistance claim based on his right to testify. Harts eld argues that the state appellate court unreasonably discounted his claims that the evidence at trial was insu cient for the jury to convict him on, and counsel was ine ective for failing to call a witness. We included neither of these issues in our order granting Harts eld a certi cate of appealability. The only issue we certi ed for appellate review was the right-to-testify issue. Therefore, those other evidentiary issues are outside the scope of the certi cate and we decline to review them. See Peterson 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 certi cate of appealability.” (citation omitted)). We also decline Harts eld’s implicit request to amend the certi cate this late in the game. See Thompson v. United States, 732 F.3d 826, 831–32 (7th Cir. 2013) (instructing counsel who wish to raise additional claims to not simply brief them but rst request permission to do so). III. Conclusion The Appellate Court of Illinois reasonably held that defense counsel did not usurp Harts eld’s right to testify at trial. For that reason, we AFFIRM the judgment of the district court denying Harts eld’s habeas petition.
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