In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2354

JAY S TARKWEATHER,
                                            Petitioner-Appellant,
                               v.

JUDY P. S MITH, W ARDEN, O SHKOSH
C ORRECTIONAL INSTITUTION,

                                            Respondent-Appellee.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
           No. 07 C 513—William C. Griesbach, Judge.



     A RGUED O CTOBER 22, 2008—D ECIDED JULY 23, 2009




 Before C UDAHY, M ANION, and W ILLIAMS, Circuit Judges.
  C UDAHY, Circuit Judge. Jay Starkweather was convicted
of one count of first degree murder, four counts of at-
tempted murder and one count of reckless endanger-
ment. After his conviction became final, Starkweather
commenced this habeas proceeding, claiming that he
had been denied effective assistance of counsel. The
district court denied Starkweather’s petition. We affirm.
2                                               No. 08-2354

                   I. BACKGROUND
A. Facts
  On June 6, 1995, Jay Starkweather set out on a shooting
rampage that ended only after he was seriously injured
in a gunfight with the police. Starkweather had grown
increasingly paranoid, imagining that various acquain-
tances were conspiring to cheat his family out of his
father’s land. On the morning of the shootings, Stark-
weather apparently became convinced that his friend
Marty Austreng was part of the conspiracy. The two
quarreled, and when the argument escalated Starkweather
drew a gun and shot both Austreng and Wayne
Kittleson, another friend who had been sitting nearby.
Austreng managed to escape, and Starkweather went
chasing after him.
  Starkweather never managed to find Austreng. In the
course of searching for him, Starkweather broke into a
neighbor’s apartment. The neighbor later testified that
Starkweather was carrying a gun in each hand and that
he looked “insane.” Next, Starkweather went to a trailer
owned by Ted Demery. Starkweather’s neighbor testified
that she heard a single gun shot coming from the
direction of Demery’s trailer. A sheriff’s deputy who had
just arrived on the scene also testified that he heard a
single shot coming from Demery’s trailer.
  The police intercepted and exchanged fire with
Starkweather at Demery’s trailer. After the police shot
and injured Starkweather, they entered the trailer and
found Demery lying in a pool of fresh blood. Demery
had died of a single gunshot to the face at close range. The
No. 08-2354                                             3

gun with which he had been shot was lying at
Starkweather’s feet. A second gun was found near
Starkweather’s left hand.


B. Proceedings Below
  A bifurcated trial was held in Wisconsin in 1996.
Starkweather’s trial counsel encouraged him not to testify
in his own defense during the first phase of the trial—the
“guilt phase”—telling him that his testimony would be
more appropriate in the second, “responsibility phase.”
Based on this advice, Starkweather waived his right to
testify during phase I, stating that he understood that
his right to testify was absolute and that he understood
the benefits and costs of exercising this right.
  After he was found guilty at the conclusion of phase I
of the trial, Starkweather protested that his decision to
waive his right to testify during phase I was not fully
voluntary, explaining:
   with all due respect to my counsel and the proceedings
   and everything, I understand [counsel is] doing the
   best he can, and according to his wishes, I did not
   testify during the first phase against—it was against
   my wishes, but I followed his direction . . . There’s
   been a lot of accusations hurled at me back and forth,
   and I’m willing to stand up and be responsible for
   what I believe is—for my actions. I am not afraid to
   do that, but what I’m afraid is I’m going to be shut
   out of my only chance in court. I’m terrified. I want
   to be able to know I’m going to be able to stand up
   and tell my side of the story.
4                                                      No. 08-2354

As it happened, Starkweather was able to tell his side of
the story, but not during the phase of the trial when the
jury evaluated his guilt or innocence. During phase II,
Starkweather testified that he shot Austreng and
Kittleson in self-defense, that he did not kill Demery but
instead had discovered him already-dead earlier that
morning and that he, Starkweather, was attempting to
surrender to the police when he was shot. At the conclu-
sion of phase II, the jury found that Starkweather was
mentally ill but not insane, and the court sentenced him
to life plus five years.


                       II. DISCUSSION
  In state court post-conviction proceedings, Starkweather
argued (1) that his trial counsel rendered ineffective
performance by failing to properly advise him of his
right to testify and failing to introduce putatively exculpa-
tory evidence, and (2) that his appellate counsel rendered
ineffective performance by failing to challenge the jury
instructions that were given at trial.1 The Wisconsin



1
  Starkweather also argues that his appellate counsel was
ineffective for failing to challenge trial counsel’s performance
on direct appeal. Ineffective assistance claims are typically best
left for post-conviction challenges, where the petitioner can
develop a record. See Massaro v. United States, 

,
504-05 (2003); United States v. Harris, 

, 557 (7th Cir.
2005); United States v. Khedr, 

, 99-100 (2d Cir. 2003). It
would be an unusual case indeed where appellate counsel’s
                                                     (continued...)
No. 08-2354                                                  5

Court of Appeals rejected these arguments, and the
district court agreed, denying Starkweather’s petition for
federal habeas relief. We review the decision of the last
state court to adjudicate a habeas petitioner’s claims.
Watson v. Anglin, 

, 690 (7th Cir. 2009). Our
review is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214.
  Under the AEDPA, a federal court may grant habeas
relief only if the state court’s adjudication of the peti-
tioner’s constitutional claims was based on unreasonable
fact-finding or was contrary to, or involved an unreason-
able application of, clearly established federal law. 28
U.S.C. § 2254(d); Williams v. Taylor, 

, 376-77
(2000).
  Because Starkweather argues that he was denied his
Sixth Amendment right to effective assistance of counsel,


1
  (...continued)
failure to challenge trial counsel’s effectiveness on direct
appeal itself constituted ineffective assistance.
  More significantly, the nature of Starkweather’s claims
against his appellate counsel is such that—with the exception
of one claim, which we discuss separately below—any scenario
in which Starkweather would be entitled to habeas relief
based on appellate counsel’s performance would a fortiori be
one in which he would also be entitled to relief based on trial
counsel’s performance. We will not separately analyze
Starkweather’s redundant claims. It might have been better if
Starkweather’s post-conviction counsel had taken a more
parsimonious view of the issues this case presents; five
issues presented are often no better than three.
6                                              No. 08-2354

the relevant federal standard is provided by Strickland v.
Washington, 

(1984), which requires a habeas
petitioner to show that (1) counsel’s performance was
objectively unreasonable and (2) counsel’s errors affected
the outcome of the proceeding. 

694; 

. In the present case, the Wisconsin Court of
Appeals found that Starkweather failed to satisfy the
“performance” prong of the Strickland test, that he failed
to show that his counsel’s performance was objec-
tively unreasonable. To be entitled to habeas relief,
Starkweather’s burden is high: he must show that the
state court’s decision lay “well outside the boundaries
of permissible differences of opinion.” Hardaway v. Young,

, 762 (7th Cir. 2002); see also Mendiola v.
Schomig, 

, 591-92 (7th Cir. 2000) (holding that
habeas relief under Strickland is inappropriate so long
as the state court took the constitutional standard
seriously and produced an answer within the range of
defensible positions).


A. Right to Testify
  Starkweather’s most compelling argument is that his
trial counsel rendered ineffective assistance by encourag-
ing him to postpone his testimony until after the guilt
phase of the trial without advising him of the basis for
this advice. In effect, Starkweather argues that his trial
counsel’s failure to explain why he was advising
Starkweather to postpone his testimony until after the
guilt phase of the trial deprived him of the ability to
make a knowing and intelligent choice as to whether to
No. 08-2354                                                 7

waive this right. This argument is not wholly without
merit.
  As a general matter, the right of a criminal defendant
to testify in his or her own defense is “one of the rights
that are essential to due process of law in a fair
adversary process.” Rock v. Arkansas, 

, 51 (1987)
(internal quotation marks omitted). This right cannot be
waived without the defendant’s consent. See United
States v. Curtis, 

, 1076 (7th Cir. 1984) (per
curiam); see also United States v. Teague, 

, 1532
(11th Cir. 1992) (en banc). Further, a waiver of a defen-
dant’s Sixth Amendment rights must be made voluntarily,
knowingly and intelligently. Brewer v. Williams, 

, 404 (1977); United States v. Moya-Gomez, 

, 731 (7th Cir. 1988). Not surprisingly, therefore, a
number of cases have held that incorrect advice that
induces a defendant to waive his right to testify can
constitute ineffective assistance. See Foster v. Delo, 

, 1457 (8th Cir. 1993), rev’d on other grounds en banc,

(8th Cir. 1994); Nichols v. Butler, 

, 1553 (11th Cir. 1992); United States v. Poe, 

, 640 (D.C. Cir. 1965); see also Santillan v. Beto, 

, 196 (S.D. Tex. 1974).
  Of course, Starkweather has not argued that his counsel’s
advice was objectively incorrect, nor would such an
argument be plausible here. Rather, Starkweather argues
that in addition to a negative duty not to mislead, his
attorney had an affirmative duty to consult with him
on strategic matters. There is at least some support for
Starkweather’s argument that such an affirmative duty
exists. For instance, the American Bar Association’s
8                                                     No. 08-2354

Rules of Professional Conduct suggest that a lawyer has
a duty not only to abide by her client’s decision but also
to consult with the client about that decision. See
Model Rules of Prof’l Conduct R. 1.2(a) (“a lawyer shall
abide by a client’s decisions concerning the objectives of
representation and . . . shall consult with the client as to
the means by which they are to be pursued.”). Further, at
least two circuits have stated in dicta that a criminal
defense attorney has an affirmative duty to explain the
basis for otherwise reasonable strategic recommenda-
tions. See 

; 

. Most notably, the Eleventh Circuit, sitting en banc,
has said that,
    Defense counsel bears the primary responsibility for
    advising the defendant of his right to testify or not
    to testify, the strategic implications of each choice . . . This
    advice is crucial because there can be no effective
    waiver of a fundamental constitutional right unless
    there is an intentional relinquishment or abandon-
    ment of a known right or privilege.

(internal quotation marks
omitted and first emphasis added); see also 

(“Counsel should also discuss with the
defendant the strategic implications of choosing whether
to testify, and should make a recommendation to the
defendant.”).
  In the present case, there appears to be no dispute that
Starkweather’s counsel did not explain the strategic
implications of Starkweather’s decision to waive his
No. 08-2354                                                   9

right to testify during phase I.2 It is not hard to imagine
why an attorney in Starkweather’s counsel’s position
may have been inclined to be less than fully forthcoming.
Knowing that Starkweather wanted to testify that he
shot his victims in self-defense and that he was not respon-
sible for Demery’s death, a reasonable attorney could
have judged that the jury would be more likely to accept
his testimony as proof of insanity than it would be to
accept this testimony as proof of innocence. Further, had
counsel fully informed Starkweather of his reasons
for recommending that Starkweather postpone his narra-
tive, there is at least a reasonable possibility that
Starkweather would not have agreed to waive his right
to address the jury before it decided his guilt. Be that as
it may, an attorney’s ethical duty to consult with his or
her client is no less in situations where the attorney
(perhaps reasonably) judges it best to keep his or her



2
   The record does not support the suggestion of the concurrence
that Starkweather’s attorney provided him with “a general
explanation of his recommended strategy.” Counsel stated
that he advised Starkweather that his testimony “would be
more appropriate for the responsibility phase.” However, there
is no evidence that counsel explained that by agreeing to do
so Starkweather would forego his opportunity to tell his side
of the story before the jury decided his guilt.
  Contrary to the suggestion of the concurrence, we do not
imply that counsel’s explanation should have been delivered
in “open court.” To the contrary, this information could have
been imparted by affidavit or in a post-trial hearing after
Starkweather made an issue of his attorney’s advice.
10                                                    No. 08-2354

client in the dark. Cf. Model Rules of Prof’l Conduct
R. 1.2(a).
   All that being noted, the Supreme Court has recently
reminded us that “the Constitution does not codify the
ABA’s Model Rules.” Montejo v. Louisiana, No. 07-1529,

, at *8 (U.S. May 26, 2009). Thus, the
question before us is not whether counsel’s performance
was ideal, but whether the state court unreasonably
applied clearly established federal law in holding that
counsel’s performance was not objectively unreasonable.
We hold that it did not. A right becomes clearly estab-
lished only after a course of decisions establishes how
the Constitution’s generalities apply. Hill v. Wilson,

, 368 (7th Cir. 2008); see also Holman v.
Gilmore, 

, 885 (7th Cir. 1997) (“an argument
for the development of more favorable law necessarily
fails to establish that the state court’s decision ‘was con-
trary to, or involved an unreasonable application of,
clearly established Federal law . . .’ ”).
   Here, the cases on which Starkweather seeks to rely
do not actually establish that the Sixth Amendment
requires an attorney to explain the basis for his or her legal
advice. For instance, in Poe, although the D.C. Circuit held
that the defendant’s trial was constitutionally defective
because counsel misinformed his client of the consequences
of testifying, the court carefully limited its holding to
situations in which attorneys give incorrect advice. See 

–41 (“Counsel has chosen to disclose his
reason [for advising his client to waive his right to testify].
If he had not disclosed it . . . neither the District Court nor this
No. 08-2354                                                   11

court suggests that counsel’s decision could have been questioned
in any proceeding in any court.”) (emphasis added).
  Likewise, neither Teague nor Foster provides direct
support for Starkweather’s claim. Teague concerned an
attorney who never informed her client of his right to

. The same was true in 

. Unlike the defendants in Teague and Foster,
Starkweather was repeatedly informed of his absolute
right to testify both by his own attorney and by the trial
judge, and Starkweather stated that he understood the
potential costs and benefits of exercising this right. Al-
though Starkweather’s attorney perhaps could have
done more to ensure that Starkweather’s decision to
waive his right to testify during phase I was knowing
and voluntary, the cases on which Starkweather attempts
to rely do not establish that counsel’s advice here consti-
tutes a violation of Starkweather’s clearly established
federal rights.
 An additional word about prejudice: the state Circuit
Court found that
    considering the other evidence at trial, which would
    be largely contradictory to the defendant’s story, it is
    unlikely that there is a reasonable probability that by
    presenting this testimony the jury verdict would have
    been changed. Therefore, the prejudice prong is not
    satisfied . . .3


3
  The Wisconsin Court of Appeals found that trial counsel’s
performance was not objectively unreasonable, but did not
address prejudice. Because the Court of Appeals did not
                                             (continued...)
12                                               No. 08-2354

In the light of the rather overwhelming evidence of
Starkweather’s guilt, we cannot say that this finding was
clearly unreasonable.


B. Other Ineffective Assistance Claims
  Starweather’s remaining claims are much less compel-
ling. First, Starkweather argues that his trial counsel was
ineffective because he failed to introduce testimony
from Starkweather’s mother, who claimed to have over-
heard a police officer state that Demery’s blood was not
fresh when the police discovered his body.4 Assuming
that Starkweather could overcome the obvious hearsay
objection, the Circuit Court found that Starkweather



3
  (...continued)
address prejudice, we review the Circuit Court deferentially
as the last state court to address the issue. 

; see also Edwards v. Lamarque, 

, 1135 (9th
Cir. 2007).
4
  The State argues that Starkweather procedurally defaulted
on this claim by presenting, and then abandoning, essentially
the same claim in his initial pro se post-conviction petition.
However, the State waived this defense by opposing
Starkweather’s two motions to expand the record to rebut the
defense, and by providing only expurgated portions of the
record. Procedural default is an affirmative defense. See Gray
v. Netherland, 

, 165–66 (1996). Because the State
appears to have attempted to thwart our review of its proce-
dural default argument, it may not rely on this affirmative
defense.
No. 08-2354                                                13

could not possibly have been prejudiced by the trial
counsel’s failure to introduce this evidence, and we agree.
  Starkweather’s argument that appellate counsel was
ineffective for neglecting to challenge the trial court’s
failure to give a “lesser included offense” instruction is
equally unavailing. Wisconsin law does not require the
inclusion of such an instruction unless the evidence
provides reasonable grounds both for acquittal of murder
and conviction of reckless homicide. See State v. Wilson,

, 542 (Wis. 1989). Here, Demery was shot
in the face from close range. Starkweather did not main-
tain that he shot Demery without malice aforethought;
instead, he denied that he was the shooter. Thus,
appellate counsel was not ineffective for failing to chal-
lenge the trial court’s refusal to give a lesser-included-
offense instruction.


                    III. CONCLUSION
  The judgment of the district court is A FFIRMED.




  M ANION, Circuit Judge, concurring. Under the AEDPA,
habeas relief is appropriate only if the state court
decision 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.
14                                              No. 08-2354

§ 2254(d) (emphasis added). Thus, our analysis should
focus solely on whether the Supreme Court has clearly
established an affirmative duty to explain an otherwise
reasonable strategic recommendation. It has not, and
thus habeas relief was properly denied. We need not
consider, then, dicta from other circuits or the ABA Model
Rules in resolving Starkweather’s habeas petition. Nor
should there be any implication from our decision that
Starkweather’s attorney violated his ethical duties in
representing Starkweather.
  In analyzing Starkweather’s ineffective assistance
claim we also should keep in mind that the explanation we
have for his attorney’s recommendation against testifying
comes from an exchange in open court. Specifically,
in open court, Starkweather’s attorney stated:
     MR. GRAY: Well, Your Honor, we had a talk this
     morning. I explained to him my opinion with respect
     to testifying in this phase of the case. My client has
     a desire to tell his story; however, it’s my opinion,
     based on my knowledge of the case and experience,
     that what he has to say would be better fit in the
     second phase of this trial, if there is a second phase.
     I advised him as you advised him yesterday that he
     has a right not to testify. And it’s my advice to him
     not to testify. He told me this morning, and I believe
     he’s going to tell the court now, that he has decided
     not to testify in this phase of the case, knowing full
     well that he has an absolute right to testify and that
     not his lawyer or anybody else in the world could
     stop him from testifying.
     (Tr123:3).
No. 08-2354                                              15

    MR. GRAY: For the record, I advised him at the guilt
    phase that I believed his testimony, if he wants to
    testify, which would be against my advice, but
    his testimony would be more appropriate for the
    responsibility phase.
  This court states that “there appears to be no dispute
that Starkweather’s counsel did not explain the strategic
implications of Starkweather’s decision to waive his right
to testify during phase I.” Opinion at 8-9. But the above
excerpt shows that Starkweather’s attorney provided
Starkweather with at least a general explanation about
his recommended strategy. It is unclear from the record
whether, in private, Starkweather’s attorney further
elaborated on his recommendation that Starkweather
not testify. But in any event, we should not expect an
attorney to provide greater detail on his recommenda-
tion against testifying in open court. After all, such
further elaboration would likely consist in this case of
Starkweather’s attorney telling the judge and the prosecu-
tor that he informed his client that no jury would
believe his incredible story that he did not shoot Demery
and that, if anything, this claim indicated he was not
mentally competent. Telling the court instead that “based
on my knowledge of the case and experience, that what
he has to say would be better fit in the second phase of
this trial, if there is a second phase” was more than suffi-
cient.
  For these reasons, I concur.


                           7-23-09