UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

No. 1311 -- August Term 1996

Argued: April 28, 1997 Decided: August 6, 1997

Docket No. 96-2628

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JAMES BROWN,

Petitioner-Appellant,

v.

CHRISTOPHER ARTUZ,

Respondent-Appellee.

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Before: MESKILL and NEWMAN, Circuit Judges, and CEDARBAUM,[*]

District Judge.

Appeal from the July 15, 1996, judgment of the United States District Court for the Southern District of New York
(Charles S. Haight, Judge) denying appellant's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.

Affirmed.

Philip S. Glickman, Rochester, N.Y., for

petitioner-appellant.

Arthur D. Middlemiss, Asst. Dist. Atty.,

New York, N.Y. (Robert M. Morganthau, Dist. Atty., Alan Gadlin, Asst. Dist. Atty., New York, N.Y., on the brief), for
respondent-appellee.

JON O. NEWMAN, Circuit Judge:

This appeal presents several issues concerning a criminal defendant's constitutional right to testify at his trial, issues
that arise in a case where a defendant does not testify. The specific issues are (1) whether the decision to testify is
ultimately for the defendant or for trial counsel to make; (2) if the right to testify is "personal" to the defendant in
the sense that only the defendant may validly relinquish it, whether an obligation to advise the defendant concerning
the right to testify rests with either the trial judge or defense counsel; and (3) if the responsibility rests with
defendant's counsel, what standard governs a court's consideration of a defendant's claim that trial counsel either
failed to inform him that the decision to testify was ultimately his to make, or overrode his desire to testify.

These issues arise on an appeal by James Eric Brown from the July 15, 1996, judgment of the District Court for the
Southern District of New York (Charles S. Haight, Jr., Judge) denying Brown's petition for habeas corpus under 28
U.S.C. § 2254 to challenge his state court conviction. The petition alleged that defense counsel prevented Brown from
testifying and/or failed to inform the defendant that the ultimate decision whether to testify was his to make. We
conclude that the decision whether a defendant should testify at trial is for the defendant to make, that trial counsel's
duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this
constitutional right, and that the two-part test established in Strickland v. Washington, 466 U.S. 668 (1984), should be
used to assess a defendant's claim that defense counsel rendered ineffective assistance by preventing him from
testifying or at least failing to advise him concerning his right to testify. Because we also conclude that Brown has
failed to satisfy the prejudice prong of the Strickland test, we affirm the judgment of the District Court.

Background

Brown was arrested in February 1990 by local police for the murder of Eddie Lee Barr. After waiving his Miranda
rights, Brown gave a series of statements to the police concerning Barr's death. Although Brown repeatedly denied
any culpability in the offense, he eventually admitted, in his fourth statement to the police, that he had shot Barr to
death during an altercation. Brown's videotaped confession given on the morning after his arrest, substantially similar
to his fourth statement, contains the following description of the episode.

At the time of the murder, Brown lived with his mother and brother in Apartment 6H of a building located at 20
Paladino Avenue in Manhattan. Barr, the eventual victim, lived in the Bronx but often stayed with his mother, who
lived in Apartment 6G, next door to the Browns. The two families had been neighbors for more than twenty-five
years, and Brown and Barr had known each other since childhood. Although the families generally got along over the
years, several of the Browns, including the petitioner, suspected Barr of breaking into their apartment in January
1990 and stealing some kitchen utensils. Brown also blamed Barr for helping Brown's younger brother become
addicted to crack cocaine. Brown admitted, however, that prior to 1990, he had no problems with Barr.

Around 11 p.m. on the evening of February 21, 1990, Brown, who carried a loaded, unlicensed revolver in a shoulder
holster, was on his way home after visiting his girlfriend. As he walked along the sixth-floor hallway toward
Apartment 6H, he noticed that Barr was leaning into Apartment 6G and speaking in a low voice with someone inside.
As Brown walked past, Barr slammed his door and walked toward Brown. After the two men exchanged some initial
unpleasantries, including Brown's accusation that Barr had broken into, and stolen valuables from, the Browns'
apartment, an altercation ensued. At first, Barr simply walked away from Brown toward the staircase, and denied
Brown's accusations. Brown pursued the victim and continued to accuse him of the burglary and theft.

While the two men were standing on the sixth-floor landing of the staircase, Barr put his hands on Brown's chest and
made a "grabbing motion." Brown responded by seizing Barr by his wrists. Scuffling, the two men eventually made
their way down the stairs to the fifth-floor landing, all the while maintaining their grips on one another. As they
reached the fifth-floor landing, Brown pushed Barr away from him. While separated from Brown by a few feet, Barr
noticed that Brown was carrying a pistol under his jacket. Barr then "went for" the gun and managed to get two or
three fingers on the end of its handle. Brown realized, however, that Barr could not remove the gun from its holster,
even if he had had a better grip on the weapon, because the holster had to be unsnapped for the gun to be removed.
Brown then decided to reach for the gun himself and quickly overcame Barr's hand on the weapon. Brown swiftly
unsnapped the holster and pulled the revolver out.

Brown pushed Barr's hand away and Barr moved one step back. Brown then took two steps back, holding the gun
pointed at Barr. Barr then made a move toward Brown. Brown aimed at "about chest level" and fired one shot at
Barr. Struck by the bullet, Barr moaned, took several steps back, and "hit the wall with his back."

At this point, the two men were approximately three or four steps apart. Brown fired again. After this second shot,
Barr was still standing, but beginning to fall to the floor. As Barr fell, letting out a deep moan, Brown fired again.
After each shot, Barr "bounced" a bit and moaned. In all, Brown fired five shots at Barr's chest and leg areas, four of
which hit the victim.

Brown "panicked," quickly fled the building, and spent the evening at his girlfriend's house. Barr, meanwhile, crawled
back to his mother's apartment on the sixth floor. He eventually identified Brown as the shooter to his family, to the
emergency medical service team that took him to the hospital, and to a police officer who arrived on the scene soon
after the shooting. Barr died shortly after arriving at the hospital. Brown gave himself up to the police the following
day.

At Brown's trial for murder and criminal possession of a weapon, the prosecution established that Barr was unarmed
during the incident in question, that Brown did not believe that Barr possessed a weapon, and that at least three of
the four bullets that struck Barr were fired while the victim was already lying prone on the ground. The jury saw
Brown's videotaped confession. The defense case relied on the defense of justification, and consisted solely of the
testimony of Brown's mother. She stated that while she generally got along with Barr's family, she suspected Barr of
having broken into and stolen items from her apartment shortly prior to his death. Brown did not testify.

The jury convicted Brown of murder in the second degree and criminal possession of a weapon in the second and third
degrees. N.Y. Penal Law §§ 125.25(1), 265.03 & 265.02(4) (McKinney 1987, 1989). Brown's direct appeal challenged
his conviction and sentence on several grounds, including a claim that the prosecution had not disproved his
justification defense beyond a reasonable doubt, as required by New York law.[1] The Appellate Division affirmed
the conviction and ruled that "defendant's justification defense was disproved beyond a reasonable doubt by evidence
showing that defendant could have retreated with complete safety, and the number of shots fired into the victim. Nor
did defendant testify that he feared for his life." People v. Brown, 187 A.D.2d 312, 312, 589 N.Y.S.2d 448, 449 (1st
Dep't 1992) (emphasis added) (citations omitted). Leave to appeal to the Court of Appeals was denied. People v.
Brown, 81 N.Y.2d 836 N.Y.S.2d 736.

In March 1993, Brown moved to vacate the conviction in the state trial court pursuant to N. Y. Crim. Proc. Law
§ 440.10(1)(h) (McKinney 1994). Seizing upon the Appellate Division's observation that he had not testified that he
feared for his life, Brown claimed for the first time that ineffective assistance of trial counsel had prevented him from
testifying. He alleged that his attorney had "taken it upon himself to waive [Brown's] fundamental right to testify,"
despite Brown's repeated "insistence" that he wanted to testify, and had failed to inform him that the ultimate
decision whether to testify belonged to him. Brown further alleged that, had he taken the stand, he would have
testified that he had a "true, real, and well founded fear" of Barr based upon their numerous prior altercations,
Barr's prior threats against Brown, and Brown's previous observations of Barr's "violent temper" and "acts of
violence." Such testimony would have contradicted Brown's statements in the videotaped confession that he had not
had any prior negative encounters with Barr. The state trial court denied Brown's motion, ruling that (i) Brown's
purported dissatisfaction with counsel's performance came "[o]nly through the convenience of hindsight," and that
(ii) counsel's decision not to call Brown as a witness was reasonable, because the videotaped confession played to the
jury sufficiently set forth the elements of the justification defense and because, had he taken the stand, Brown would
have been cross-examined by the prosecution about the three contradictory statements he had made to the police
following his arrest. People v. Brown, Ind. No. 2950/90 (N.Y. Sup. Ct. Mar. 22, 1993). Leave to appeal to the
Appellate Division was denied.

Brown filed his section 2254 petition in February 1995, alleging that his Sixth Amendment right to effective assistance
of counsel had been violated because his attorney failed to inform him that he "enjoyed the fundamental right to
testify in his own defense and that the decision to testify is personal to [him]." Brown again claimed that trial counsel
overrode his desire to testify in his own defense, and contended that he would have testified that his past encounters
with the victim created a real and well-founded fear for his life during the encounter that preceded the shooting.

In a report and recommendation, Magistrate Judge Andrew Peck, relying on the two-prong Strickland analysis
suggested by both Brown and the respondent, concluded that Brown could not satisfy either the performance or the
prejudice prong of this test and recommended denial of Brown's petition. Judge Haight adopted the report and
recommendation, agreeing with the Magistrate Judge that "Brown's present stated desire to have testified is highly
suspect, and that in any event, the result [at trial] would not likely have been different if Brown had testified." Brown
v. Artuz, No. 95 Civ. 2740, 1996 WL 511558 at *1 (S.D.N.Y. June 10, 1996) (quotations omitted).

Discussion

In Rock v. Arkansas, 483 U.S. 44 (1987), the Supreme Court ruled that the right to testify at one's criminal trial,
although not found in the text of the Constitution, "has sources in several provisions of the Constitution," id. at 51,
including the Due Process Clause of the Fifth and Fourteenth Amendments, id., and the Compulsory Process Clause of
the Sixth Amendment, id. at 52. Moreover, "[t]he opportunity to testify is also a necessary corollary to the Fifth
Amendment's guarantee against compelled testimony." Id.; see United States v. Bifield, 702 F.2d 342, 349 (2d Cir.
1983).

Recognition of a constitutional right to testify in one's own defense only begins the inquiry in this case. Important
questions concerning this right were not answered by Rock and have not been resolved by this Circuit: (1) Is the
decision whether to testify to be made by the defendant or his trial counsel? (2) If the decision is the defendant's,
does either the trial judge or the defendant's attorney have a responsibility to inform the defendant of the existence
and nature of this right? (3) If defense counsel has the responsibility to inform the defendant of his right to testify,
what standard governs review of a claim that counsel failed to exercise that responsibility or even prevented the
defendant from testifying? We discuss each question in turn.

1. The Decision to Testify

As the Eleventh Circuit stated in a comprehensive in banc opinion, criminal defendants at trial "possess essentially
two categories of constitutional rights: those which are waivable by defense counsel on the defendant's behalf, and
those which are considered ´fundamental' and personal to the defendant, waivable only by the defendant." United
States v. Teague, 953 F.2d 1525, 1531 (11th Cir. 1992) (in banc). Included in the former category are matters that
"primarily involve trial strategy and tactics," such as "what evidence should be introduced, what stipulations should
be made, what objections should be raised, and what pre-trial motions should be filed." Id. Included in the latter
category of decisions "personal" to the defendant are, for instance, the decisions whether to enter a guilty plea, see
Boykin v. Alabama, 395 U.S. 238, 242-44 (1969), whether to waive a jury trial, see Adams v. United States ex rel.
McCann, 317 U.S. 269, 275 (1942), and whether to pursue an appeal, see Fay v. Noia, 372 U.S. 391, 438-40 (1963).
The question now before us is whether the defendant's right to testify on his own behalf is one of these "personal"
rights. If it is, then the defendant must be allowed to testify if he so desires, regardless of strategic considerations
that his lawyer concludes weigh against such a decision. If the right is not personal to the defendant, then trial counsel
could prevent the defendant from testifying even when the defendant insists on taking the stand.

Arguments are available to support either position. It might be argued, for instance, that once a defendant waives his
right to self-representation and retains counsel to represent him during trial, he thereby forfeits his right to
determine all tactical aspects of the conduct of trial, including whether certain objections will be made, how a
cross-examination of a prosecution witness will be conducted, and which witnesses, including the defendant himself,
will testify for the defense. Because the decision whether the defendant will testify requires weighing the potential
benefits against numerous dangers, it might well be left to defense counsel, like other strategic decisions. Defense
counsel has superior experience with the criminal process and detailed, objective knowledge of the strengths and
weaknesses in the defendant's case. At least one concurring opinion, predating Rock, has accepted this argument,
noting that the ultimate decision must reside with trial counsel because "[n]o one could seriously contend that a
defendant is in a better position to dictate trial strategy than his attorney," and because "[n]o attorney could
discharge [h]is duty [to provide his client with the best possible defense within the law] if he must yield to the
personal demands of his client." Wright v. Estelle, 572 F.2d 1071, 1073 (5th Cir. 1978) (in banc) (Thornberry, Clark,
Roney, Gee, and Hill, JJ., specially concurring). Cf. Campos v. United States, 930 F. Supp. 787, 790 (E.D.N.Y. 1996)
("[L]ogic suggests