Whether the decision to forego a closing argument in the penalty phase of a capital murder trial is a tactical decision for trial counsel to make or a fundamental trial right that a defendant controls

QUESTIONS PRESENTED In this Missouri capital habeas case, trial counsel followed petitioner Leonard Taylor’s directive to waive closing argument at the penalty phase, notwithstanding the fact that a compelling argument could have been made to spare petitioner’s life based upon residual doubt and his good behavior during prior incarcerations. In the courts below, petitioner raised a procedurally defaulted claim of ineffective assistance of counsel contending that trial counsel was ineffective in blindly following his client’s directive because not to deliver a closing argument because it is a tactical decision for counsel to make and not a fundamental trial right over which a defendant has total autonomy under Florida v. Nixon, 543 U.S.175 (2004) and McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The district court held that trial counsel was not ineffective by finding a defendant has the ultimate authority to decide whether to present a closing argument in the penalty phase of a capital case under Nixon and McCoy. The Eighth Circuit affirmed the district court’s judgment by finding petitioner’s Sixth Amendment claim was defaulted under Martinez v. Ryan, 566 U.S. 1 (2012) because trial counsel’s performance can never be deemed deficient where trial counsel follows the directives of a mentally competent defendant. Based on the foregoing facts, this case presents the following questions: 1. Whether the decision to forego a closing argument in the penalty phase of a capital murder trial is a tactical decision for trial counsel to make or a fundamental trial right that a defendant controls. 2. Whether trial counsel’s decision to follow a mentally competent defendant’s directive to waive closing argument in the penalty phase of a capital trial forecloses a reviewing court from finding deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). 3. Whether the Court of Appeals erred in finding that petitioner could not establish prejudice to overcome the procedural bar to his Strickland claim, without affording him an evidentiary hearing, by conflating the Martinez prejudice standard with the Strickland performance test. ii