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505 F.3d 827

Docket No. 06-3975.

Berkovitz v. Minnesota

Eighth Circuit Court of Appeals

Submitted: Sept. 24, 2007.

Filed: Oct. 16, 2007.

Eighth Circuit Court of Appeals · decided 2007-10-16

Cited by 5 later decisions — most recently April 2019

3 federal appellate · 1 district · 1 state decisions

2 counsel of record

Key passage — most relied on by later courts

“The trial court, on the record, made sure that [the defendant] understood that she had both the right to testify and the right to remain silent.”

quoted by 1 later decision, including U.S. v. Tull-Abreu

Applies 28 U.S.C. § 2253 (Antiterrorism and Effective Death Penalty Act of 1996) · 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Relies on Rock v. Arkansas · United States of America v. Willie James Richardson · Brown v. Artuz

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 2007-10-16

View the full empirical analysis of this case →

¶1Jason Kohlmeyer, Mankato, MN, for appellant.

¶2*828Jean E. Burdorf, Minneapolis, MN, for appellee.

¶3Before BYE, BENTON, and SHEPHERD, Circuit Judges.

¶4PER CURIAM.

¶5Susan Rae Berkovitz appeals the district court’s1 denial of her petition for habeas relief under 28 U.S.C. § 2254. Berkovitz argues she did not knowingly and voluntarily waive her constitutional right to testify at trial because of undue influence and coercion by her appointed counsel. Having jurisdiction under 28 U.S.C. § 2253(a), this court affirms.

¶6On the merits of a habeas petition, this court reviews the district court’s factual findings for clear error and its legal conclusions de novo. Frey v. Schuetzle, 151 F.3d 893, 897 (8th Cir.1998). Under section 2254, habeas relief is granted “only if the adjudication by the state courts ‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law’ or ‘resulted in a decision that was based on an unreasonable determination of the facts.’ ” Kenley v. Bowersox, 275 F.3d 709, 711 (8th Cir.2002), citing 28 U.S.C. § 2254(d) (2006).

¶7A criminal defendant has a constitutional right to testify on her behalf. Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Only the defendant may waive her right to testify, and the waiver must be made voluntarily and knowingly. Frey, 151 F.3d at 898.

¶8Here, Berkovitz voluntarily and knowingly waived her right to testify. She was not unduly influenced or coerced when her trial counsels stated that they were a “hundred five percent sure” that she should not testify and “[i]f we should allow you to testify we are going to lose.” Ber-kovitz admitted she received a letter from her trial counsel specifically stating that she had the right to testify. The trial court, on the record, made sure that Ber-kovitz understood that she had both the right to testify and the right to remain silent. Moreover, Berkovitz remained silent after her trial counsel rested. See id.(“We have previously held that a knowing and voluntary waiver of the right may be found based on a defendant’s silence when his counsel rests without calling him to testify”).

¶9Berkovitz also argues that this court should adopt a bright-line rule requiring all defendants who do not testify to waive this right to testify on the record. This court declines to adopt such a rule. See United States v. Glenn, 389 F.3d 283, 287 (1st Cir.2004); Brown v. Artuz, 124 F.3d 73, 79 (2d Cir.1997); United States v. Leggett, 162 F.3d 237, 246 (3d Cir.1998); United States v. Richardson, 195 F.3d 192, 197-98 (4th Cir.1999); United States v. Brown, 217 F.3d 247, 258 (5th Cir.2000); United States v. Stover, 474 F.3d 904, 908 (6th Cir.2007); United States v. Manjarrez, 258 F.3d 618, 623 (7th Cir.2001); United States v. Joelson, 7 F.3d 174, 177 (9th Cir.1993); United States v. Janoe, 720 F.2d 1156, 1161 (10th Cir.1983); United States v. Van De Walker, 141 F.3d 1451, 1452 (11th Cir.1998); United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996)

¶10The judgment is affirmed. See 8th Cir. R. 47B.

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