Michael Williams v. Mike Bowersox ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-2050
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Michael Williams, *
*
Petitioner - Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Mike Bowersox, *
* [UNPUBLISHED]
Respondent - Appellee. *
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Submitted: January 13, 1997
Filed: March 4, 1997
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Before LOKEN, BRIGHT, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Michael Williams was convicted of first degree murder after he
entered a home in which three adults and numerous children were
present and shot Kevin Clark, who had reneged on a drug debt. The
Missouri Court of Appeals affirmed the conviction and the denial of
post-conviction relief. State v. Williams, 853 S.W.2d 371 (Mo.
App. 1993). Williams then filed this petition for a writ of habeas
corpus, presenting eight claims that he had previously presented to
the state courts. The district court1 denied the petition, and
Williams appeals. We affirm.
1
The HONORABLE EDWARD L. FILIPPINE, United States District
Judge for the Eastern District of Missouri, who adopted the Report
and Recommendation of the HONORABLE LAWRENCE O. DAVIS, United
States Magistrate Judge for the Eastern District of Missouri.
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On appeal, Williams first argues that the trial record does
not reflect that he knowingly and intelligently waived his
constitutional right to testify in his own defense. This issue is
procedurally defaulted, as it was in El-Tabech v. Hopkins, 997 F.2d
386, 389 (8th Cir. 1993). Williams only raised in the state courts
and in the district court the claim that he was denied his right to
effective assistance of counsel because counsel failed to inform
Williams of his right to testify and failed to call him as a
witness. The state courts found that Williams knew of his right to
testify and, following counsel's advice, decided not to do so.
Williams next contends (I) that he was denied the right to
offer testimony in his defense when the trial court excluded two
witnesses who had not been timely endorsed as defense witnesses,
and (ii) that trial counsel was ineffective for failing to endorse
these witnesses. Properly deferring to the fact-finding of the
state courts, the Magistrate Judge concluded that the exclusion of
these witnesses did not deny Williams a fundamentally fair trial
because "[t]heir testimony would have been dubious at best and
completely collateral to the question of petitioner's guilt or
innocence," and that trial counsel's failure to endorse resulted
from her "strategic decision to not call these witnesses because
she found their testimony unbelievable." Having carefully reviewed
the trial and post-conviction record, we reject these contentions
for the reasons given by the state courts and by the district
court. See 8th Cir. Rule 47B.
The judgment of the district court is affirmed.
A true copy.
Attest:
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CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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