Susan Rae Berkovitz v. State of Minnesota
2007-10-16 United States Court of Appeals for the Eighth Circuit
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3975
___________
Susan Rae Berkovitz,
*
*
Appellant,
*
* Appeal from the United States
v.
* District Court for the
* District of Minnesota.
State of Minnesota,
*
* [PUBLISHED]
Appellee.
*
___________
Submitted: September 24, 2007
Filed: October 16, 2007
___________
Before BYE, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
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.
1The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Arthur J.
Boylan, United States Magistrate Judge for the District of Minnesota.
On 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
A criminal defendant has a constitutional right to testify on her behalf. Rock
testify, and the waiver must be made voluntarily and knowingly. Frey, 151 F.3d at
898.
Here, 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.” Berkovitz 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 Berkovitz 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”).
Berkovitz 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
-2-
1071 (D.C. Cir. 1996)
The judgment is affirmed. See 8th Cir. R. 47B.
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