Bahtuoh v. Smith, 855 F.3d 868 (8th Cir. 2017): Promising a Bleak Future for Ineffective Assistance of Counsel Claims in the Eighth Circuit

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 1199. Bahtuoh v. Smith, 855 F.3d 868 (8th Cir. 2017): Promising a Bleak Future for Ineffective Assistance of Counsel Claims in the Eighth Circuit

Bahtuoh v. Smith, 855 F.3d 868 (8th Cir. 2017): Promising a Bleak Future for Ineffective Assistance of Counsel Claims in the Eighth Circuit

Mary R. Marcum

TABLE OF CONTENTS

I. Introduction .......................................... 1199

II. Background ........................................... 1202
A. The Strickland Standard .......................... 1202
B. The AEDPA Standard ............................. 1204
C. The First Circuit's Application of Strickland and AEDPA: Ouber v. Guarino ......................... 1206

III. Main Case: The Bahtuoh Trilogy ...................... 1209
A. Bahtuoh I ......................................... 1209
B. Bahtuoh II ........................................ 1212
C. Bahtuoh III ....................................... 1213

IV. Analysis .............................................. 1215
A. Application of Strickland: The First Prong ......... 1216
B. Application of Strickland: The Second Prong ....... 1225
C. The Future of Ineffective Assistance of Counsel Claims in the Eighth Circuit ...................... 1228

V. Conclusion ............................................ 1231

I. INTRODUCTION

Imagine that a man is on trial for murder. During opening statements, the defense attorney makes promises to the jury. The attorney

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promises that his client will testify and profess his innocence.(fn1) According to the attorney, the defendant's truthful testimony will clear up any ambiguities about the case. The attorney assures the jury that this testimony will demonstrate his client's innocence and asks jury members to preserve their judgments until they hear the defendant tell his story. Then, after the prosecution presents its case, the defense attorney has a change of heart. He instructs his client not to testify, and the client heeds this advice. Members of the jury are now left to consider the prosecution's case-in-chief and the defense attorney's broken promise.(fn2)

Two federal circuits have considered similar situations where a defense attorney reneged on opening statement promises to have a defendant testify.(fn3) Both cases made their way to federal court after (1) the jury returned a guilty verdict, (2) the defendants exhausted their state appeals, and (3) the defendants petitioned for habeas relief.(fn4) In Ouber v. Guarino, the First Circuit Court of Appeals found that an attorney's decision to renege on such a promise was unreasonable and ultimately prejudicial to the defendant.(fn5) Thus, for the First Circuit, such a decision can amount to ineffective assistance of counsel.(fn6) In Bahtuoh v. Smith, however, the Eighth Circuit recently concluded that such a decision was reasonable because it was merely a shift in strategy.(fn7) Given these two decisions, there is now a circuit split on the issue of whether an attorney's decision to not have a defendant testify-after promising the defendant's testimony in opening statements-amounts to ineffective assistance of counsel.

The Sixth Amendment to the U.S. Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [or her] defense."(fn8) This "counsel clause" protects a defendant's presumption of innocence by enabling that de-

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fendant to have "ample opportunity to meet the case of the prosecution."(fn9) Safeguarding this presumption is vital in criminal trials because an individual's liberty-or in some instances life-is on the line.(fn10)

The U.S. Supreme Court has held that for the counsel clause to carry weight, it must be interpreted to mean the right to effective assistance of counsel.(fn11) Courts have not constructed an exact formula for how to effectively assist a client in every criminal trial.(fn12) Courts have, rather, sensibly recognized that each case carries its own unique set of facts, legal principles, and strategic options.(fn13) As such, the standard for effective assistance is flexible.(fn14) While this flexibility is affording attorneys a great deal of independence, it may also be justifying a frighteningly low bar for the quality of legal representation.(fn15) The recent decision of Bahtuoh v. Smith by the Eighth Circuit Court of Appeals represents one such case that casts doubt on whether the current standard for effective assistance of counsel truly ensures fair proceedings for criminal defendants.(fn16) Importantly, this case also raises the serious question of whether federal courts are relying too heavily on deferential standards of review.

This Note proceeds in the following parts. Part II provides an overview of the relevant cases and statutes leading up to the Eighth Circuit's decision in Bahtuoh.(fn17) Specifically, section II.A describes the stringent ineffective assistance of counsel standard set out by the U.S. Supreme Court in Strickland v. Washington.(fn18) Section II.B explains the heightened standard that federal courts apply when ineffective assistance of counsel claims appear on petitions for habeas relief.(fn19) Sec-

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tion II.C then explores how the First Circuit Court of Appeals applied these two standards in Ouber v. Guarino.(fn20)

Part III of this Note provides a detailed account of the Bahtuoh case.(fn21) This Part describes the facts of the original Bahtuoh case at the state level(fn22) and explains how the case made its way into federal court.(fn23) Part III then details the analytical process employed by the United States District Court for the District of Minnesota(fn24) and the Eighth Circuit Court of Appeals(fn25) in rendering their decisions.

In Part IV, this Note analyzes the Eighth Circuit's decision in Bahtuoh.(fn26) Specifically, this Note questions the way in which the Eighth Circuit analyzed the state court's application of the Strickland standard.(fn27) This Part carefully reviews the state court's application of Strickland and explains why the Eighth Circuit should have reached a different conclusion. At the very least, it exposes missing analytical pieces from the court's decision. Part IV illustrates how the Bahtuoh attorney's decision to renege on his opening statement promise was clearly unreasonable-even under the stringent habeas standard. Rather than carefully analyzing the facts of the case and the state court's application of the Strickland standard, however, the Eighth Circuit overly adhered to the deferential standard of review to reach its conclusion. Part IV ultimately suggests that the Bahtuoh decision is a poignant example of the ways in which federal courts may be shackling themselves by relying too heavily on deferential standards of review.

Finally, Part IV considers how the Bahtuoh decision may prove harmful for future criminal defendants in the Eighth Circuit. It explores the dangers of federal courts relying too heavily on deferential standards of review when considering ineffective assistance of counsel claims. It also examines how a regressive assistance of counsel standard ultimately deprives individuals of the protection guaranteed by the Sixth Amendment. Part V concludes.

II. BACKGROUND

A. The Strickland Standard

In Strickland v. Washington, the U.S. Supreme Court clarified the standard that a defendant must meet in order to prevail on an ineffec-

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tive assistance of counsel claim.(fn28) The Strickland Court analyzed whether a defendant on death row for three murders received effective assistance of counsel when his attorney failed to (1) obtain a psychiatric evaluation for the defendant and (2) secure character witnesses prior to the defendant's sentencing.(fn29) Although the Supreme Court had previously dealt with Sixth Amendment assistance of counsel issues, it had not clarified the standard for ineffective assistance of counsel.(fn30) Thus, the Strickland case gave the Court an opportunity to elaborate on what effective assistance of counsel means.(fn31)

In Strickland, the Court explained that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."(fn32) To make such a determination, the Court outlined a two-pronged test.(fn33)

The first prong asks whether counsel was "deficient."(fn34) Specifically, this prong asks whether counsel's conduct "fell below an objective standard of reasonableness."(fn35) Individuals asserting ineffective assistance of counsel must overcome a "strong presumption" of reasonableness to satisfy this first prong.(fn36) The second prong asks whether counsel's performance prejudiced the defendant.(fn37) To satisfy this prong, the defendant must establish a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."(fn38)

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Recognizing that attorneys must be able to creatively strategize, however, the Supreme Court warned against establishing an overly strict standard for reasonable professional conduct.(fn39) There are many different ways to effectively assist a client and "[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness...