Jordan v. Dretke

United States Court of Appeals Fifth Circuit F I L E D REVISED AUGUST 16, 2005 July 6, 2005

Charles R. Fulbruge III In the Clerk

United States Court of Appeals for the Fifth Circuit _______________

m 04-10651 _______________

KEITH JORDAN,

Petitioner-Appellee,

VERSUS

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellant.

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Appeal from the United States District Court for the Northern District of Texas

_________________________

Before DAVIS, SMITH, and DEMOSS, the basis of pretrial ineffective assistance of Circuit Judges. counsel. Concluding that the district court was in error, we reverse the grant of habeas JERRY E. SMITH, Circuit Judge: corpus relief and remand so the balance of Jordan’s claims can be considered. In this habeas corpus proceeding we con- sider whether the district court erred in grant- I. ing relief to Texas prisoner Keith Jordan on A.

Jordan was indicted in November 1996 for (i.e., that she was 18 years old) was a valid aggravated sexual assault of a child. The state defense to aggravated sexual assault of a child; offered a plea bargain of ten years’ deferred (2) failed to challenge either the factual basis adjudication probation and a fine of $500. For or reliability of expert testimony of a police reasons we will discuss, Jordan failed to enter officer presented by the state; (3) did not a timely plea, and the state ultimately withdrew object to allegedly improper bolstering of the the plea offer in September 1997. A month complaining witness’s testimony at trial; and later Jordan was indicted for aggravated kid- (4) failed to object to allegedly prejudicial jury naping arising from the same incident as the instructions at the punishment phase regarding aggravated sexual assault charge. the amount of time Jordan would have to serve before being eligible for release. Jordan fur- Jordan pleaded not guilty on both counts ther claimed that the state had withheld im- and was convicted by a jury, which assessed peachment evidence in contravention of its due thirty years’ imprisonment for aggravated sex- process obligation under Brady v. Maryland, ual assault of a child and twenty years for ag- 373 U.S. 83 (1963), and its progeny. gravated kidnaping. Both convictions were af- firmed on direct appeal, see Jordan v. State, After an evidentiary hearing before the Nos. 05-97-02030-CR, 05-97-02031-CR same judge who had presided over the trial, (Tex. App.—Dallas, 1999, no pet.). the state habeas trial court entered two sepa- rate orders containing identical findings of fact Jordan filed two petitions for habeas corpus and conclusions of law, see Ex Parte Jordan, relief in state court, one challenging the legal- No. W96-78296-P(A) (203rd Dist. Ct., Dallas ity of his conviction for aggravated sexual as- County, Tex., June 28, 2001) (aggravated sault of a child; the other challenging his cus- sexual assault of a child); Ex Parte Jordan, tody under his conviction of aggravated kid- No. W97-03223-P(A) (203rd Dist. Ct., Dallas naping. Both petitions contained the same County, Tex., June 28, 2001) (aggravated substantive claims, which center on the con- kidnaping). The court made the following tention that Jordan’s counsel provided ineffec- findings regarding the plea-bargaining process: tive assistance under the Sixth Amendment The prosecutor initially responsible for han- during the plea bargaining process and at trial. dling the aggravated sexual assault of a child Jordan alleged that counsel’s representation charge against Jordan had made a plea offer of was constitutionally deficient in five respects, ten years’ deferred adjudication probation in the first being the failure to inform him that the exchange for a guilty plea. When a new prose- state’s plea bargain offer on the aggravated cutor was assigned to the case in May 1997, sexual assault charge would be withdrawn if he this plea offer had been on the table for more did not complete a pre-sentence investigation than three months. Defense counsel told the and formally enter his plea by the state’s dead- new prosecutor that Jordan would accept the line. plea but did not want to register as a sex offender; the prosecutor agreed that they could Jordan also maintained that counsel (1) had leave that condition for the court to decide. erroneously advised him and argued to the jury that under Texas law his alleged mistake of The offer then remained on the table for fact concerning the complaining witness’s age another four months, but Jordan failed to com-

plete the necessary pre-sentence investigation ing the plea process. The court stated: required by the probation department. At that point, the prosecutor informed counsel that Applicant contends, inter alia, that his at- Jordan had three weeks to accept the plea, torney failed to inform him of the deadline and thus complete the requisite investigatory for accepting the State’s plea offer of ten report, or the offer would be withdrawn. years deferred adjudication probation, and Counsel did not communicate to Jordan that a $500 fine. there was a deadline within which he had to complete the pre-sentence investigation and In the instant cause, the record reflects enter his plea; Jordan failed to complete the that the State made an offer of ten years de- report and enter a plea, and the prosecutor ferred adjudication probation, in return for withdrew the offer.1 The prosecutor later ob- a plea of guilty to aggravated sexual as- tained an additional indictment for aggravated sault. The trial court found that Applicant kidnaping arising from the same episode as the accepted the plea offer, but counsel failed aggravated sexual assault charge. to inform Applicant that he needed to com- plete the PSI by the State’s deadline, or the Based on these facts, the state habeas trial offer would be withdrawn. The trial court court determined that “counsel was ineffective has recommended that relief be granted. for failing to fully communicate the limits of We agree with this recommendation. the plea bargain agreement with [Jordan] and due to her actions, the State withdrew the fa- Ex Parte Jordan, No. 74, 201 (Tex. Crim. vorable plea offer and indicted [Jordan] for an App. Oct. 24, 2001) (per curiam) (unpub- additional offense.” In addition, the court sus- lished). Accordingly, the court granted habeas tained each of Jordan’s other specific ineffec- relief and vacated Jordan’s conviction of ag- tive assistance claims and his Brady claim con- gravated sexual assault of a child.2 The court cerning the criminal history of the complaining did not, however, accept the habeas trial witness. As a result, the court recommended court’s recommendation as to the aggravated to the Texas Court of Criminal Appeals that kidnaping conviction; the same day it issued its Jordan be granted habeas relief on his convic- opinion granting relief on the aggravated tions of aggravated sexual assault of a child sexual assault conviction, it denied without and aggravated kidnaping. written order habeas relief on the conviction of aggravated kidnaping.3 The Court of Criminal Appeals accepted the state habeas trial court’s recommendation that Jordan was entitled to habeas relief on his conviction of aggravated sexual assault of a 2 child on the basis of ineffective assistance dur- Having granted relief on this ground, the court dismissed as moot the balance of Jordan’s claims. 3 The record on appeal contains a photocopy of 1 The court also found that “[w]hen [Jordan] the notice sent to Jordan by the Court of Criminal was told the offer was withdrawn, he asked his Appeals, which bears Cause No. 49, 872-02 and attorney to ‘get it back.’ He would have accepted provides in full: “This is to advise that the Court the offer even if it required sexual offender has denied without written order the application for registration.” writ of habeas corpus.”

B. naping. The federal district court overruled Jordan then filed a petition for writ of ha- the state’s objections and adopted the findings beas corpus in federal district court, pursuant and conclusions of the magistrate judge’s re- to 28 U.S.C. § 2254, challenging the legality port. In doing so, the court acknowledged of his custody under the conviction of aggra- that “no direct evidence on this issue was pre- vated kidnaping. He sought relief on each of sented” at the state habeas hearing but never- the ineffective assistance grounds and the Bra- theless found that “the record as a whole” dy claim raised in his state writ. Relying on supported the conclusion that the aggravated the facts as found by the state habeas trial kidnaping charge was itself part of the pre- court, the magistrate judge determined that judice flowing from counsel’s ineffective as- “but for counsel’s ineffective pretrial perfor- sistance on the plea to the aggravated sexual mance, Petitioner would have accepted the assault charge. The district court therefore en- plea bargain, would have received only a ten tered judgment granting Jordan federal habeas year probated sentence and would not have relief from his conviction of aggravated kid- been charged with, or convicted of, aggravated naping. kidnaping.” II. Convinced of this causal link, the magis- A. trate judge determined that Jordan had proven, Jordan sought federal habeas relief in the by a preponderance of the evidence, deficient district court from a state-court judgment of performance and prejudice related to counsel’s conviction; hence our review is highly circum- pretrial representation. The magistrate judge scribed by the Anti-Terrorism and Effective thus concluded that the Court of Criminal Ap- Death Penalty Act of 1996 (“AEDPA”), 110 peals’ denial of habeas relief on Jordan’s ag- Stat. 1214. Under AEDPA, a petition for writ gravated kidnaping conviction was factually of habeas corpus shall not be granted with re- unreasonable, as well as directly contrary to spect to any claim that was adjudicated on the and an unreasonable application of Strickland merits in state court unless the petitioner can v. Washington, 466 U.S. 668 (1984). Accord- demonstrate that the state court resolution of ingly, the magistrate judge recommended that his case was “contrary to, or involved an un- the district court grant habeas relief on the reasonable application of, clearly established conviction of aggravated kidnaping.4 Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. The state filed written objections to the § 2254(d)(1), or “resulted in a decision that magistrate judge’s report, central among them was based on an unreasonable determination being the contention that the state habeas rec- of the facts in light of the evidence presented ord does not support the finding that had Jor- in the State court proceeding,” 28 U.S.C. § dan timely accepted the plea bargain offer on 2254(d)(2). See Miller-El v. Dretke, 125 S. the aggravated sexual assault charge, he would Ct. 2317, 2325 (2005).5 not have been charged with aggravated kid-

5 Neither party disputes that Jordan’s claim for 4 The magistrate judge did not consider whether ineffective assistance of counsel during the pretrial counsel’s performance at trial or Jordan’s Brady process was adjudicated on the merits by the claim otherwise provided a basis for relief. (continued...)

As we have explained, “[b]ecause a federal cient and that this deficient performance re- habeas court only reviews the reasonableness sulted in prejudice. Id. at 687. Stated gener- of the state court’s ultimate decision, the ally, the prejudice prong requires a petitioner AEDPA inquiry is not altered when, as in this to demonstrate that “but for counsel’s unpro- case, state habeas relief is denied without an fessional errors, the result would have been opinion.” Schaetzle v. Cockrell, 343 F.3d 440, different.” Id. at 694. Insofar as ineffective 443 (5th Cir. 2003).6 Rather, in such a situa- assistance claims arising from the pretrial pro- tion, “our court: (1) assumes that the state cess are concerned, this general prejudice court applied the proper ‘clearly established showing includes two specific lines of cases: Federal law’; and (2) then determines whether First, there are claims that, but for counsel’s its decision was ‘contrary to’ or ‘an objectively pretrial errors, the petitioner would not have unreasonable application of’ that law.” Id. pleaded guilty and would have insisted on (citing Catalan v. Cockrell, 315 F.3d 491, 493 going to trial, see, e.g., Hill v. Lockhart, 474 & n.3 (5th Cir. 2002)). U.S. 52, 59 (1985); and second, there are claims that, but for counsel’s pretrial errors, B. the petitioner would have pleaded guilty and Because Jordan seeks relief on the basis of received a lesser sentence, see, e.g., Teague v. ineffective assistance of counsel, the “clearly Scott, 60 F.3d 1167, 1170 & n.13 (5th Cir. established Federal law” against which we 1995) (collecting cases). measure the state court’s denial of relief is the standard set forth in Washington. To establish Jordan’s claim of pretrial ineffective assis- ineffective assistance, a petitioner must dem- tance of counsel with respect to his conviction onstrate that counsel’s performance was defi- of aggravated sexual assault is in the second category; his claim was that but for counsel’s failure to inform him of the deadline for com- 5 (...continued) pleting the pre-sentence report, he would have Court of Criminal Appeals. Our cases recognize accepted the plea and received ten years de- that, under Texas law, a denial of relief, as distin- ferred adjudication, rather than the thirty-year guished from a dismissal, by that court constitutes sentence imposed at trial. But the claim on an adjudication on the merits. See, e.g., McCall v. which Jordan now seeks relief with respect to Dretke, 390 F.3d 358, 362 n.12 (5th Cir. 2004); his conviction of aggravated kidnaping is dif- Bledsue v. Johnson, 188 F.3d 250, 256-57 & n.12 ferent in kind: He maintains that, but for (5th Cir. 1999); see also Ex Parte Torres, 943 counsel’s deficient representation, he would S.W.2d 469, 472 (Tex. Crim. App. 1997) (“In our have accepted the state’s plea to the aggravat- writ jurisprudence, a ‘denial’ signifies that we ad- ed sexual assault charge and would not have dressed and rejected the merits of a particular claim been charged with the additional offense. while a ‘dismissal’ means that we declined to Though we have not been directed to (nor has consider the claim for reasons unrelated to the our own research revealed) any case in which claim’s merits.”). the prejudice alleged is the state’s discretion- 6 See also Neal v Puckett, 286 F.3d 230, 246 ary decision to charge a defendant with an (5th Cir. 2002) (en banc) (“It seems clear to us that additional offense, we assume for present a federal habeas court is authorized . . . to review purposes that such a claim affords a cognizable only a state court’s ‘decision,’ and not the written basis for an ineffective assistance claim, one to opinion explaining that decision.”).

be measured against the general prejudice the district court’s conclusion that the state requirement (i.e., but for counsel’s errors, “the court’s denial of relief was “contrary to” clear- result would have been different.”). We thus ly established federal law. turn to the merits and consider whether the district court erred in granting habeas relief. B. Therefore, we turn our attention to the dis- III. trict court’s conclusion that the Court of Crim- A. inal Appeals’ denial of relief amounted to an As we indicated, the magistrate judge’s re- unreasonable application of the Washington port, which was adopted by the district court, standard to the facts at hand. In doing so, we concluded that the Court of Criminal Appeals’ must bear in mind that, as a federal court denial of relief was contrary to and an unrea- bound by AEDPA, “we have no authority to sonable application of clearly established fed- grant habeas corpus relief simply because we eral law, and was based on an unreasonable conclude, in our independent judgment, that a determination of the facts. Under the “con- state supreme court’s application of [Washing- trary to” clause of 28 U.S.C. § 2254(d)(1), ton] is erroneous or incorrect.” Neal, 286 however, a federal court’s power to grant ha- F.3d at 236. Rather, when a state court’s ap- beas relief is limited to instances in which “the plication of federal law is challenged, “it must state court arrives at a conclusion opposite to be shown to be not only erroneous, but objec- that reached by [the Supreme Court] on a tively unreasonable.” Yarborough v. Gentry, question of law or if the state court decides a 540 U.S. 1, 5 (2003) (per curiam). case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” 1. Williams v. Taylor, 529 U.S. 362, 412-13 The state does not appear to contest that (2000). Jordan’s counsel was constitutionally deficient in failing to inform him of the deadline for ac- Jordan does not suggest that the Court of cepting the state’s plea on the charge of ag- Criminal Appeals’ denial of relief on his pre- gravated sexual assault of a child. Indeed, as trial ineffective assistance claim was “contrary Jordan emphasizes, the Court of Criminal Ap- to” clearly established federal law under this peals granted relief on account of the same de- standard. Nor did the magistrate judge or dis- ficient performance on his conviction of ag- trict judge identify a direct conflict between gravated sexual assault of a child. Logic sug- the state court’s denial of relief and controlling gests, therefore, that a rejection of Jordan’s Supreme Court authority on materially in- showing of deficient performance does not ac- distinguishable facts.7 Accordingly, we reject count for that court’s denial of relief on Jor- dan’s pretrial ineffective assistance claim as it relates to his kidnaping conviction.

7 Indeed, in light of the heteroclite nature of this case and the specific ineffective assistance claim being advancedSSwhere the prejudice alleged is the state’s discretionary decision to indict a defendant for an additional offenseSSit is little surprise that 7 (...continued) there is no Supreme Court precedent directly on point.

2. granted; that it agreed with that recommenda- Thus, our focus narrows to the prejudice tion; and that the balance of Jordan’s claims prong; we must consider whether, to the ex- were thus rendered moot. tent the Court of Criminal Appeals denied re- lief on account of its rejection of Jordan’s No fair reading of this opinion suggests that showing of prejudice, that denial of relief was the Court of Criminal Appeals necessarily reasonable. Jordan argues it was unreasonable adopted the habeas trial court’s determination because, in granting relief on his aggravated of prejudice as it relates to the kidnaping sexual assault conviction, the Court of Crimi- charge. Rather, because the Court of Criminal nal Appeals adopted the findings of the state Appeals specifically identified the record facts habeas trial court; and, as we noted, one of on which it based its grant of relief on the those determinations was that “due to [coun- sexual assault conviction, and because the ha- sel’s] actions, the State withdrew the favorable beas trial court’s determination of prejudice as plea offer and indicted [Jordan] for an addi- it relates to his kidnaping charge was not a tional offense.” Therefore, Jordan reasons, the necessary premise for that grant of relief but is state habeas trial court foundSSand the Court instead ultimately inconsistent with the denial of Criminal Appeals acceptedSS that the ag- of relief on the kidnaping conviction, the Court gravated kidnaping charge was part of the of Criminal Appeals did not adopt this prejudice flowing from counsel’s deficient finding.8 performance. Thus, we agree with the state’s contention Contrary to Jordan’s assertion, the Court of that the district court erred to the extent it re- Criminal Appeals did not adopt the state ha- lied on the state habeas trial court’s determina- beas trial court’s determination of prejudice in tion of prejudice as a sufficient basis for con- granting relief on his conviction of aggravated cluding that Jordan had made the requisite sexual assault of a child. In its opinion grant- showing of prejudice. In any event, the preju- ing relief, the Court of Criminal Appeals noted dice inquiry is a mixed question of law and fact that on which federal courts do not ultimately defer to state court findings.9 Accordingly, we must [i]n the instant cause, the record reflects that the State made an offer of ten years de- 8 ferred adjudication probation, in return for Cf. Micheaux v. Collins, 944 F.2d 231, 232 a plea of guilty to aggravated sexual as- (5th Cir. 1991) (en banc) (per curiam) (“Not only sault. The trial court found that Applicant were the ‘proposed findings’ [of the state habeas accepted the plea offer, but counsel failed trial court] not adopted or incorporated in the ac- to inform Applicant that he needed to com- tion of the Texas Court of Criminal Appeals, they plete the PSI by the State’s deadline, or the are directly inconsistent with that court’s peremp- tory denial of relief. We conclude that the pro- offer would be withdrawn. posed findings did not survive scrutiny by the Tex- as Court of Criminal Appeals, the final decision- Beyond these specific factual findings based on maker in Texas habeas cases.”). the record developed in the habeas trial court, the Court of Criminal Appeals observed that 9 See, e.g., Westley v. Johnson, 83 F.3d 714, the trial court had recommended relief be 720-21 (5th Cir. 1996); Motley v. Collins, 18 F.3d (continued...)

determine whether, given the evidence pre- dependsSSnamely, that he would not have sented in the state habeas proceeding, the otherwise been charged with aggravated district court properly found that the Court of kidnaping. On this score, the district court Criminal Appeals’ denial of relief was objec- noted only that the state had not demonstrated tively unreasonable. that the prosecutor would have sought the ad- ditional charge. In doing so, however, the 3. court improperly placed on the state the bur- As we noted, in granting relief and overrul- den of disproving prejudice, when then burden ing the state’s objection to the magistrate of affirmatively proving prejudice properly judge’s report that Jordan had not sufficiently rests with Jordan.10 demonstrated prejudice, and therefore that the denial of relief was reasonable, the district So, although Jordan maintains that, as he court correctly acknowledged that no direct puts it, it “blinks reality”11 to suggest that the evidence of prejudice was presented at the prosecutor would have in any event sought the state habeas hearing. Yet, the district court kidnaping conviction, and the district court hy- concluded that “the record as a whole” sup- pothesized about what was the “more likely ports Jordan’s claim of prejudice. occurrence,” we cannot merely assume preju- dice. This is especially so where the record We do not share the district court’s view of from the state habeas hearing does contain the record. Indeed, we note that neither the some testimony indicating that the prosecutor district court nor the magistrate judge identi- may well have obtained the kidnaping indict- fied any testimony from the state habeas hear- ment regardless of the status of the aggravated ing, at which the prosecutor who withdrew the sexual assault plea. offer and obtained the kidnaping indictment testified, that supports Jordan’s claim that he In fact, the prosecutor testified that he was would not have been charged with aggravated not the first prosecutor on the case and that in kidnaping but for counsel’s deficient perfor- light of the “seriousness of the offense,” he did mance. Rather, the district court focused on not think this was “a probation case.” More- the fact that the prosecutor testified that he over, he believed the only reason the plea offer withdrew the plea offer, in part, because Jor- was initially made “was because the complain- dan did not complete the pre-sentence investi- ant was scared to testify,” but that he had gation, as well as the fact that the aggravated gained her confidence and she was prepared to kidnaping charge was obtained after the plea testify against Jordan. was withdrawn and concerned the same con- duct as the aggravated sexual assault charge. We cannot say with any degree of certainty whether the prosecutor would have obtained But none of these observations truly sub- stantiates the further proposition on which Jor- dan’s entitlement to habeas relief ultimately 10 See, e.g., Montoya v. Johnson, 226 F.3d 399, 408 (5th Cir. 2000); Martin v. Maggio, 711 F.2d 1273, 1279 (5th Cir. 1983). 9 (...continued) 11 1223, 1226 & n.2 (5th Cir. 1994); see also Wash- See Miller-El, 125 S. Ct. at 2340 (also using ington, 466 U.S. at 698. the phrase “blinks reality”).

the aggravated kidnaping indictment had Jor- opinion on the merit vel non of those other dan’s counsel informed him of the plea dead- claims. line on the aggravated sexual assault charge and thus enabled him to accept that plea. But this is so because Jordan never asked at the state habeas hearing. It is his burden affirma- tively to demonstrate prejudice, and we reject, as somehow coextensive with the prejudice requirement under the Sixth Amendment, the post hoc ergo propter hoc logic that animates much of Jordan’s argument and the district court’s grant of relief.

In any event, even if this sparse record evi- dence could be said to be sufficient for Jordan to demonstrate prejudice, it is certainly not such that the Court of Criminal Appeals’ de- nial of relief can be said to have been not just erroneous but objectively unreasonable. Thus, in light of the evidence presented in the state court proceedings, the Court of Criminal Ap- peals reasonably could have concluded that, even though Jordan’s counsel was constitu- tionally ineffective, Jordan did not sufficiently demonstrate prejudice as it relates to his con- viction of aggravated kidnaping.12

Therefore, we REVERSE the district court’s judgment granting Jordan’s petition for a writ of habeas corpus on the basis of pretrial ineffective assistance of counsel. Because, however, that court did not consider whether Jordan’s claims regarding counsel’s represen- tation at trial or his Brady claim otherwise entitle him to relief, we REMAND so these claims may be considered. We express no

12 Relatedly, given our view of the record, we likewise reject the district court’s conclusion that the Court of Criminal Appeals’ denial of relief was factually unreasonable in light of the evidence pre- sented in the state habeas proceedings. See 28 U.S.C. § 2254(d)(2).