Habeas corpus; The Antiterrorism & Effective Death Penalty Act (AEDPA); 28 USC § 2254(d). Ineffective assistance of counsel; Strickland v Washington; Failure to convince petitioner to take a plea deal; Post-conviction expert’s affidavit; Claim that trial counsel “prevented” petitioner from taking the stand; Failure to present mitigation evidence at the penalty phase; The trial court’s acceptance of a “mitigation waiver”

Rejecting petitioner-Fry’s ineffective assistance of counsel claims and holding that he could not “show that the state courts violated clearly established law under AEDPA[,]” the court affirmed the district court’s denial of his habeas petition. Fry was convicted of aggravated felony murder. As to his ineffective assistance claims, the state appellate “court reasoned that, even if his counsel had pushed him harder on the weakness of his case and even if they had enlisted family members to try harder to convince him to take the plea, Fry still would not have accepted the plea offer.” The court noted that “a defendant unwilling to consider his family’s input about whether to present mitigation evidence likely also would be unwilling to change his mind over their views about whether to accept a plea deal.” It also rejected his claim that the state court should have addressed the affidavit of an attorney expert who averred that counsel had offered deficient representation. The “only ruling that matters here involves prejudice, and this attorney, who had no role in the original trial, is even less qualified to explain what Fry would have done with different representation.” He also claimed that his counsel was ineffective for “unreasonably prevent[ing] him from taking the stand” and exercising his right to testify. But one of his trial attorneys testified at evidentiary hearings that “Fry at first wanted to testify, but he changed his mind as the trial progressed and eventually made the ‘unequivocal’ decision not to” do so. Further, Fry did not object at trial when the defense rested without calling him. And considering the detrimental evidence that could have surfaced should he have chosen to testify, the court found that the state courts reasonably concluded it would have been reasonable trial strategy to not have him do so. The court also agreed with the state courts’ rejection of Fry’s argument that his counsel’s failure to present mitigation evidence at sentencing constituted ineffective assistance. “The state court reasonably rejected this claim on no-prejudice grounds—namely, on the ground that Fry would not have presented mitigation evidence even with more forceful arguments by counsel in favor of it.” The trial court explained the importance of mitigation evidence, but when it told him “that all he needed to do was to persuade one juror against the death penalty, Fry responded firmly: ‘The hell with them, Your Honor.’” He also declined “the opportunity to make an unsworn statement to the jury.” As to his claim the trial court violated his rights by accepting his mitigation waiver, “[g]iven Fry’s unwavering attitude during his colloquy with the court, a fair-minded jurist could agree that no error occurred when the trial court respected Fry’s wishes to forgo the presentation of mitigation evidence.”