Jones v. Jones

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 97-31342
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JEAN BAILEY JONES,

Petitioner-Appellee,

versus

JOHNNY JONES, Warden,

Respondent-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
December 16, 1998
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For the conditional habeas relief granted state prisoner Jean

Jones, serving a mandatory life sentence for heroin distribution,

the critical question for her ineffective assistance of counsel

claim is whether, at her half-day trial, deficient performance

caused the requisite prejudice. We REVERSE and RENDER.

I.

At the end of October 1987, a Louisiana grand jury indicted

Jones for distribution of heroin on 4 September. The charge

carried a mandatory life sentence. In early November, the state

trial court appointed Jack Dolan, with the Orleans Indigent
Defender Program, to represent Jones. That same day, Jones,

through counsel, entered a not guilty plea and orally moved to

suppress the evidence, her confession, and identification.

Approximately three weeks later, a hearing was held on the

motions to suppress evidence and the confession. The record does

not contain a transcript of the hearing; the minute entry reflects

that the State called New Orleans Police Officer Overman as a

witness. The motions were denied, but “the issue of identity of

the confidential informant [was] left open”.

Two weeks later, on 4 December, a hearing was held on the

motion to suppress statements. (Although the minute entry for the

previous hearing reflects that motions to suppress the evidence and

the confession were heard and denied, the entry for the December

hearing states that the subject of that hearing was the motion to

suppress “the statements”; and that the motion to suppress the

evidence was denied at the previous hearing.) There is no

transcript of the hearing. The minute entry reflects that the

State called New Orleans Police Officer Wethern as a witness; the

defense, Jones. The motion was denied. The minute entry also

reflects that Jones “re-urged” her motion to produce the

informant’s identity, whereupon the State advised the court that

the informant would not be referred to in any further proceedings.

On 10 March 1988, Jones moved for a speedy trial. That June,

the parties appeared for trial. But, the court was unable to seat

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a jury; 39 of 45 prospective jurors were excused for cause because

they were “unwilling to impose the consequences of a guilty as

charged verdict”. (Again, the heroin distribution charge carried

a mandatory life sentence.)

Trial, held on 12 September 1988, lasted a half-day. It was

stipulated that 46 pieces of foil were seized from Jones when she

was arrested on 4 September 1987, and were tested on 8 September;

and that 23 tested positive for heroin. Jones’ counsel added that

the other 23 were “bunk”. (“Bunk” is a substance, such as sugar,

which appears to be, but is not, heroin.)

The State called two witnesses in its case in chief. New

Orleans Police Officer Polk testified that, while working

undercover that 4 September, he was parked outside a fast-food

restaurant in New Orleans at about 9:30 p.m. Other officers were

in the immediate vicinity, observing him. While Officer Polk was

sitting in his vehicle, Jones entered it. The Officer told Jones

that he would like to purchase two “bundles” of “dope”; she replied

that she would sell only one bundle at a time. (A “bundle” is

approximately 30 shots of heroin.)

Officer Polk gave Jones $350 in previously photocopied bills

for one bundle; it consisted of approximately 35 aluminum foil

packets. Jones exited the vehicle, ostensibly to pick up the other

bundle and return, whereupon the Officer was to purchase it for an

additional $300. However, when Jones exited the vehicle, Officer

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Polk flashed his lights in a pre-arranged signal to alert the other

officers that the heroin and money had been exchanged. Jones was

arrested and advised of her constitutional rights.

On cross-examination, defense counsel asked Officer Polk

whether Jones appeared to be “intoxicated or maybe high on drugs”.

The Officer replied that Jones did not, but instead “seemed

perfectly sane”. He testified further that the deal had been made

before Jones arrived; that she knew what was going on and why she

was there; and that it “wasn’t like ... I went out looking for

her”. Jones’ counsel asked the Officer whether he was “quite sure”

that he did not instigate the sale or push Jones; Officer Polk

responded that he did not, that it was a pre-arranged sale.

The State’s other witness was Officer Wethern. Prior to 9:00

p.m. on 4 September, he and his partner were conducting an

undercover heroin investigation, and enlisted Officer Polk as an

undercover agent. The officers made arrangements to purchase two

bundles of heroin from a woman named “Jean” (Jones’ first name) at

a fast-food restaurant. For the purchase, Officer Wethern withdrew

$700 from the narcotics fund, photocopied the bills for

identification, and gave them to Officer Polk. He directed Officer

Polk to the fast-food restaurant, and they arranged the signal for

Officer Polk’s having received the heroin. Officer Wethern and his

partner were parked across the street. Five other officers were

also assisting with surveillance.

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 At approximately 9:30 p.m., Officer Wethern observed a black

female (later identified as Jones) arrive at the fast-food

restaurant parking lot and enter Officer Polk’s vehicle. After a

few minutes, Jones exited, and Officer Polk flashed his lights.

Jones was arrested. Officer Polk had purchased 36 packets.

Officer Overman searched Jones and seized currency and ten

additional foil packets of white powder. The cash seized from

Jones was that provided earlier by Officer Wethern to Officer Polk.

Officer Wethern testified further that Jones was taken to

headquarters and advised of her rights; and that, after

acknowledging that she understood them, she gave a statement.

Jones’ counsel objected to the admission of the statement and,

outside the presence of the jury, questioned the Officer about the

circumstances under which the statement was made. The objection

was overruled.

Officer Wethern testified that Jones stated that several of

the packets contained “bunk”; that only a few were “good”; that she

had obtained a package from “Lionel”; that Lionel was on the scene;

and that she could not believe that the officers did not see or

arrest him. After Jones made this statement, the officers

attempted unsuccessfully to locate Lionel.

On cross-examination, Officer Wethern testified that, when he

initially saw Jones, she was coming from the direction of a housing

project; that she went directly to Officer Polk’s vehicle; and

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that, after speaking to another individual, she entered the

vehicle. When asked whether she appeared “to be under the

influence of possibly liquor or drugs”, Officer Wethern responded

that, when he was speaking to her, she seemed “fairly lucid and

seemed to know what she was doing”.

Jones testified in her own defense. She saw Officer Polk in

the restaurant parking lot that 4 September, but did not speak to

him, or enter his vehicle, or sell him heroin. She talked to a

“white boy” who was standing outside of a car. Although she had

been using heroin and cocaine that night, and had been in a

hospital until two weeks earlier for methadone addiction treatment,

she recalled everything that happened. An officer searched her,

but did not seize any money from her, except for a few dollars and

ten days’ worth of heroin. She denied having $300.

Jones recalled speaking to the officers at police

headquarters; she told them that the 26 bags they took from her

contained her antibiotic medication. The medication was packaged

the same way as the heroin, because she had trouble swallowing

pills. The officers asked her to cooperate; but, when asked

whether she knew certain individuals, she did not. On the Tuesday

following her arrest on Friday, Officer Wethern and a district

attorney visited her in jail and made the same proposal. She was

charged originally only with possession of the heroin seized from

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her; the distribution charge was not made until after she met with

the district attorney and Officer Wethern.

On cross-examination, Jones testified that Officer Polk had

lied; that she never entered his vehicle, sold him drugs, or

received money from him; that she paid for her heroin by working as

a seamstress; that she did not sell heroin; and that she remembered

everything that happened on 4 September. Jones admitted to prior

convictions for possession of heroin in 1970 and for shoplifting.

When the prosecutor attempted to elicit testimony regarding a prior

conviction for theft, Jones’ counsel’s objection was sustained.

Officer Overman testified for the State in rebuttal. She

arrested Jones at approximately 9:30 p.m. on 4 September, after

having observed her entering an unmarked vehicle with an undercover

police officer. On searching Jones, Officer Overman found four

$100 bills in one of Jones’ pants pockets and, in another, 10

aluminum foil packets containing white powder.

In closing argument, Jones’ counsel stated:

I have no witnesses to bring forward on
behalf of this woman. She put herself on the
witness stand, and you saw her on that stand;
you heard her testimony. She testified that
she’s been a, from her own lips, an addict,
shooting up heroin, and anything else she can
get her hands on, for about 18 years. She’s
tried to kick it; she was right back on it.
At that time and point in question, September
4, ... she was back on the stuff again....

Now, the officers, I asked Polk, I said,
well what was her condition? Did she seem a
little high or something? And I think the

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other officer, I forget his name, I talked to
him; he was the one present when the statement
was allegedly made by this woman. He didn’t
notice anything unusual about her. Maybe at
some points and times, these people handle so
many addicts, they don’t see the difference
between addicts and normal people.

....

But we got a situation where we’ve got
maybe three or four officers involved in this
surveillance in the whole incident, and we get
this gal back at police headquarters and read
her her rights, and all of a sudden she starts
talking, whatever she said, allegedly said.
There’s no real record of it, no written
statement. If she was so clear in head and
mind, no written statement, if she was so
cooperative in whatever she was supposed to
have stated to the officers.

[T]hey booked her with ... maybe
distribution, which on the facts of the
situation is a beautiful case. My God, you
couldn’t have a better case than this. Three
to five officers watching this go down; her
with the money, the heroin. Locked, locked.
This is a locked case.

Now, she was busted on September the 4th.
She wasn’t indicted with this charge until
October the 28th.
....

Now, on that basis, she was arrested, I
think she said it was a Saturday. On Tuesday,
the following Tuesday, the last officer that
testified and someone from the district
attorney’s office goes back to see her. And I
guess she didn’t cooperate with them, ‘cause
then, bingo. She’s not charged with
possession; she’s charged with sale. But that
doesn’t come in till after.

Now, I’ve got a mountain to get over
‘cause I’ve got three officers who testified

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that they saw a transaction go down. Like a
woman who’s an addict doesn’t know what end is
up, realistically.

Now, like I said entering this thing, the
state’s shooting for a locked case; they’re
looking for life. That’s up to you to make
the determination whether or not you’ll go for
life. There are other responsive verdicts;
the judge will go into that aspect. But when
you look at the state’s case, and to make a
determination that this charge wasn’t taken
till over a month after she was arrested,
there’s something there that doesn’t ring.

Now I don’t know how they make cases. I
know it’s a dirty business. We all know that;
we see it on TV. We see what these drug
dealers do. We see how a dealer can get an
addict and use that addict, and we’ve seen
situations where cops can make this happen if
they want. Not saying that these officers
did, but there’s always that possibility.

Now if this gal is walking around near
that project with about 46 bags of junk on
her, bunk or otherwise, she’s got to be
nuttier than a fruitcake or loaded. She had
to be higher than a kite, because when you
walk around with that type of candy around
those projects, baby, you don’t walk; you are
laid flat and you are hijacked and you are
robbed.

....

I don’t know, I don’t know. I wasn’t
there. You got to put it all together....
You’ve got to figure out what happened. But
when they come back, the district attorney’s
office comes back, nearly a month later, and
writes her with a sale because she’s not
cooperating, I guess, then you better think
about it.

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 And there are other responsive verdicts;
think about that. The judge will instruct you
on them.

....

Now, let’s face it, one big point, and
these boys know when they’re out in that
street, if you got a bunker, he better have a
fast jet and take off, because whoever makes a
buy is going to be running at you up and down
and he’s going to ventilate his head.

Now that’s it; you don’t bunk. This babe
is an addict. If she knew what she was
putting down, she’s got to be nuts or high on
that night.

(Emphasis added.)

Although the jury instructions are not in the record, the jury

verdict form reflects that the jury could consider five possible

verdicts: (1) guilty as charged; (2) attempted distribution of

heroin; (3) possession of heroin; (4) attempted possession of

heroin; and (5) not guilty.

After deliberating only eight minutes, the jury unanimously

found Jones guilty, as charged, for distribution of heroin. The

trial court imposed a mandatory sentence of life imprisonment, at

hard labor, without benefit of parole, probation or suspension of

sentence.

Jones appealed to the Louisiana Fourth Circuit Court of

Appeal. In the brief filed by a new court-appointed counsel, also

with the Orleans Indigent Defender Program, Jones contended that,

by denying the right to parole, the trial court imposed an

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unconstitutionally excessive sentence. Apparently, Jones also

filed two pro se briefs. Although they are not in the record, the

state appellate court’s opinion reflects that she asserted that her

trial counsel was ineffective in failing to (1) prepare a trial

strategy, (2) investigate the case, (3) confer with her prior to

trial, (4) advise her, prior to her testimony, of her Fifth

Amendment right against self-incrimination; and in making (5)

improper remarks during closing arguments.

In August 1991, while her direct appeal was pending, Jones

filed for post-conviction relief in the state trial court,

presenting the following claims: (1) her Fourth Amendment rights

were violated when she was searched by a male officer, when a

female officer was in the vicinity; (2) her conviction was based on

insufficient and/or illegally produced evidence, and was the result

of entrapment, because the evidence allegedly seized from her was

planted on her; and (3) her rights under the confrontation clause

were violated, because the confidential informant was not present

at trial for cross-examination. Because Jones’ direct appeal was

pending, the trial court refused to entertain the application.

The Louisiana court of appeal ruled in March 1990 that Jones’

sentence was illegal, because the statutory penalty for heroin

distribution does not prohibit parole. State v. Jones, 559 So. 2d

892 (La. Ct. App. 4th Cir. 1990). Accordingly, it removed the

parole-prohibition from Jones’ sentence.

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 The appellate court stated that the record was inadequate to

address four of the five ineffective assistance of counsel claims

presented in Jones’ pro se briefs (preparing, conferring,

investigating, and advising). Id. at 893. It stated that Jones’

remedy on those claims was “through an application for post

conviction relief in the trial court, where the effectiveness of

defendant’s counsel can be fully developed in an evidentiary

hearing”. Id. at 894.

On the other hand, the court did address Jones’ fifth

ineffective assistance claim: improper, prejudicial remarks during

closing argument. As stated, Jones’ pro se briefs are not in the

record. However, the appellate court’s opinion states that Jones

complained specifically of the following closing argument

statements:

Now, I’ve got a mountain to get over,
‘cause I’ve got three officers who testified
that they saw a transaction go down. Like a
woman who’s an addict doesn’t know what end is
up, realistically.

State v. Jones, 559 So. 2d at 894.

The appellate court held:

Our review of the closing argument in its
entirety and the testimony adduced at trial
shows that counsel was not deficient in making
the statements complained of and defendant was
not prejudiced by counsel’s remarks. As
revealed by the trial transcript, three
officers testified for the State that they
took part in the surveillance and witnessed
defendant’s participation in the exchange.
They testified that the same $300 given to

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 defendant by Officer Polk was retrieved from
defendant’s person after the exchange. This
testimony was rebutted only by defendant’s own
self-serving testimony that she did not get
into Polk’s car, did not sell him anything,
and did not receive any money from him.
Additionally, defendant testified that she was
treated for a methadone addiction just prior
to the offense ... [and] that she was
“shooting” heroin and cocaine on the night of
the offense.

In his closing argument, defense counsel
merely acknowledged the unfavorable testimony
which was already before the jury. He then
appealed to the jury to consider returning one
of the responsive verdicts, due to defendant’s
addiction and consequent state of mind.

Id. (emphasis added).

In early 1992, Jones moved to correct her sentence, asserting

that, although the parole-prohibition had been removed, the parole

board had informed her that she was not eligible for parole

consideration until her life sentence had been commuted to a fixed

number of years. For the same reason, the trial court denied

Jones’ motion that April, citing LA. REV. STAT. 15:574.4B, which

provides, in pertinent part: “No prisoner serving a life sentence

shall be eligible for parole consideration until his life sentence

has been commuted to a fixed term of years”. (At oral argument in

our court, Jones’ counsel confirmed this requirement.)

Approximately five months later, in September 1992, Jones

filed for post-conviction relief in state court, claiming

ineffective assistance at trial and on direct appeal. Appellate

counsel was cited for failing to order a complete trial transcript.

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Trial counsel was charged with making an erroneous tactical

decision in having her testify, against her will; and with failing

to advise that she had a right not to do so. The record does not

contain a ruling or other disposition of this application; nor is

there any indication that Jones made an effort to obtain a ruling

from the trial court or any other state court.

In mid-1996, Jones, proceeding pro se, filed for federal

habeas relief, claiming that her conviction was the result of

counsel’s failure to (1) prepare a trial strategy; (2) investigate

her case; (3) confer with her prior to trial; (4) advise of her

right against self-incrimination; and (5) present an entrapment

defense.

The magistrate judge recommended that an evidentiary hearing

was not necessary and that relief be denied. He noted that Jones

had not exhausted her state remedies, but concluded that they were

technically exhausted, as discussed infra. Doubting the

applicability of the Antiterrorism and Effective Death Penalty Act

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), enacted a few

months before Jones sought federal relief, the magistrate judge

addressed the merits of Jones’ claims, using pre-AEDPA standards

and noting that she “may demonstrate either cause or prejudice for

the default or that a fundamental miscarriage of justice will

result from a failure to analyze her claims”.

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 Regarding the claim that counsel failed to prepare a strategy

that focused on lack of predisposition to distribute heroin, the

magistrate judge stated that Jones’ contention was unsupported by

any showing of evidence that counsel could have, but did not,

present at trial; and that Jones had not even alleged that she had

suggested such a defense to counsel. In this regard, the

magistrate judge rejected Jones’ claim that her counsel was

ineffective for failing to present an entrapment defense, because

Jones had not produced any facts supporting how the defense might

have changed the outcome of her case.

With respect to claims that counsel failed to investigate the

surveillance, the photocopying of the money used to pay for the

heroin, and the arrest warrant, the magistrate judge stated that

Jones had failed to allege what type of evidence would have

resulted from such an investigation.

As for the contention that counsel was ineffective for failing

to confer, resulting in her inability to request the presence of

the confidential informant to testify in her behalf, the magistrate

judge stated that Jones had not shown prejudice based on her

“conclusory allegation”, because she had not explained how such

testimony would have strengthened her defense.

Finally, with respect to Jones’ claim that counsel should have

advised of her right not to testify, the magistrate judge stated

that Jones had failed to show that, had the evidence concerning her

addiction not been heard, the result would have been different;

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that, in the light of the overwhelming evidence of Jones’ guilt,

any reference to her addiction did not contribute to her

conviction.

In her pro se objections to the magistrate judge’s

recommendation, Jones did not object to the recommendation

regarding her claim that counsel was ineffective in failing to

advise of her right not to testify. She did assert: at the time

of trial, she suggested to counsel the defense of lack of

predisposition to distribute heroin; had he investigated the

surveillance, the money-photocopying, and the warrant, he would

have established that someone other than Jones was supposed to

deliver the heroin; had he conferred with her before trial, she

would have requested the presence of the confidential informant to

testify in her behalf that the deal was made with someone other

than Jones to deliver the heroin, which would have strengthened her

entrapment defense; and he was ineffective in failing to present

that defense. Concerning entrapment, she maintained: had such a

defense been presented, counsel would have established that she was

brought to the restaurant parking lot; she was told to approach and

enter the officer’s vehicle and tell him she could only sell him

one bundle at that time; and someone else was supposed to deliver

two bundles of heroin for $750.

After the district court appointed counsel (federal public

defender) to represent Jones, it held an evidentiary hearing.

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Jones testified: she never had the opportunity to meet with

counsel in private before trial, but had met with him only while in

the courtroom; she never talked to any investigators from his

office; he never visited her at the jail; she did not discuss her

testimony with him before testifying and did not know what

questions he would ask her; he did not tell her that she had a

right not to testify; and he never discussed with her the

possibility of a plea bargain.

On cross-examination, when asked (1) whether there was

anything that she thought should have happened in the trial that

did not, Jones testified that “my lawyer could have talked to me

concerning my case so that he could get familiar with my side”, and

that, when she tried to talk to him in the courtroom, “he wouldn’t

listen”; (2) whether she provided counsel with the names of any

witnesses, she replied that she “told him about the man that wanted

to give the police officer his name and he told me that they didn’t

get the name, so that’s dead”; and (3) what defense she would

present at a new trial, Jones testified that she “would have asked

them where was the confidential informant”. According to Jones,

the informant could have testified that Lionel, not she, was

guilty, because “Lionel was the one with the dope”. Nevertheless,

directly contradicting her trial testimony, she admitted that she

entered Officer Polk’s vehicle and sold “it” to him.

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 Jones testified that she lied at trial because the officers

had lied. Then, contradicting her earlier admission that she had

sold heroin to Officer Polk, Jones testified that she “did not sell

the officer anything in the car”. She maintained: she entered his

vehicle because the confidential informant was standing beside it

and told her that the person in the vehicle was his friend; when

the officer said he had the money and asked for the “dope”, the

confidential informant told her, “Jean, he just wants the stuff,

that’s all”; she replied that she did not have it; Lionel, who was

inside the restaurant, had it; after she obtained the heroin from

Lionel, she gave it to the confidential informant, who gave it back

to her, and then she gave it to the officer; no money was seized

from her; and, instead, “they got the money off the ground

somewhere”.

On redirect, Jones testified that her counsel did not discuss

with her the level of her drug usage or how it might affect the way

she could recall what happened on the day of the incident.

Regarding how she became involved in the transaction, Jones

testified: on the day of her arrest, she was standing on the

corner when the confidential informant, whom she described as a

“white boy”, pulled up in his truck and beckoned for her; he asked

if she could get him two bundles of heroin for his friends, who

were about to leave town and needed some heroin to tide them over

until they reached their destination; she replied she did not have

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anything and did not know anyone who did, but would look around;

and she asked several people, but no one had two bundles of heroin.

She testified further: the confidential informant telephoned

her later; he knew her name because “he comes around there all the

time buying dope off that corner”; he again inquired about her

getting two bundles, and she stated she had not yet found any; she

then located Lionel, who agreed to sell two bundles; she did not

know Lionel; someone else had told her he had some drugs; and it

was the first time she had met him.

Continuing, Jones testified: when the confidential informant

called her back, she told him she had located someone who would

sell him two bundles; the informant told her to bring the dealer

with her to the fast-food restaurant at a certain time; and she

went to the pre-arranged location with Lionel, who had the heroin.

When questioned by the district court, Jones testified: the

confidential informant promised her $100 and ten bags of heroin if

she would obtain two bundles of heroin for him; and she became

involved with the deal in order to obtain money and drugs for

herself.

The State called Jones’ trial lawyer as a witness at the

evidentiary hearing. (Counsel testified that he had not reviewed

the file or his notes, because he had “no idea” where the file

clerks had put them.) He testified: he talked to Jones about her

defense; she told him she was an addict; he determined her defense

strategy would be that, because she was an addict, she thought she

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was selling “bunk” rather than heroin, and engaged in such conduct

only to make a little money to support her addiction; Jones did not

give him the names of any witnesses, and did not tell him she had

recently been in a drug treatment program; and he did not recall

any discussions concerning a confidential informant.

When asked by the district court whether he had considered an

entrapment defense, counsel replied:

The entrapment aspect, I don’t know, ...
based on what transpired at the motion
hearing, and also what transpired during the
trial, ... I believe she came forward on her
own, made the contact, left, came back and got
in the vehicle, and she was arrested ... it
was a prearranged situation.

(Emphasis added.)

Counsel testified further: he discussed the case with Jones

three or four times, including whether she wanted to testify; the

discussions took place in the courtroom; he did not visit Jones in

jail, because he had difficulty getting in and out of it; and the

district attorney’s office was not interested in a plea bargain,

because they had a good case. When asked whether he sought any

assistance from investigators, he testified that he did not need

such assistance; that, because Jones was arrested at the scene in

the presence of at least three officers, there was nothing to

investigate.

In her post-hearing memorandum, Jones asserted that counsel

(1) never acted upon his speedy trial motion by filing a motion to

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quash the indictment; (2) never attempted to build a rapport with

her, or visited her in jail, or spoke to her about her case; (3)

did not tell her she had a right not to testify; (4) should have

pursued his request for identity of the confidential informant, so

that he could present a coherent entrapment defense; (5) should

have subpoenaed the confidential informant, which could have caused

the State to offer a reduced charge in exchange for a plea; and (6)

should have investigated her medical, substance abuse, family, and

social history. Jones also pointed out that, in three published

opinions, counsel had been found incompetent.

The district court found Jones’ testimony more credible than

counsel’s with respect to their versions of their discussions about

the case. Jones v. Jones, 988 F. Supp. 1000, 1006 & n.11 (E.D.

La. 1997). Concerning counsel’s performance, the court stated:

[I]nstead of exploring what possible defenses
existed, trial counsel appeared to have
abandoned the case early on. At trial, he
presented a lackluster and to some extent
incoherent theory of defense which he had not
adequately investigated and which was
contradicted by the evidence he had to know
existed. He failed to meaningfully consult
with his client, called her to testify without
any preparation, and then in closing argument
gave the case away to the prosecution. The
defense appeared to be that Jones was high on
drugs and thought what she was distributing
was bunk, not heroin. Assuming this could
have been a valid legal defense, it was so
poorly investigated and presented as to be no
defense at all.

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Id. at 1003. As covered infra, the court discussed, in

considerable detail, numerous instances of deficient performance,

including waiving opening statement, and failing to argue for

lesser included offenses and to emphasize the mandatory life

sentence. Id. at 1003-08.

The court concluded that trial counsel’s representation was so

inadequate that it entirely failed to subject the prosecution’s

case to meaningful adversarial testing; and therefore, pursuant to

United States v. Cronic, 466 U.S. 648 (1984), constituted a denial

of Jones’ Sixth Amendment rights, without the necessity of showing

prejudice. 988 F. Supp. at 1003. Alternatively, the court held

that, pursuant to Strickland v. Washington, 466 U.S. 668 (1984),

Jones had demonstrated prejudice because of counsel’s deficient

performance. Jones, 988 F. Supp. at 1003.

Accordingly, the district court ordered Jones to be retried

within 120 days or the charge would be dismissed. Id. at 1010.

After the district court denied a stay pending appeal, our court

granted the stay and expedited review.

II.

Before reaching the merits, Jones’ failure to obtain a state

court ruling on her habeas claims (exhaust her state remedies) must

be addressed.

A.

- 22 -
 “To have exhausted his state remedies, a habeas petitioner

must have fairly presented the substance of his claim to the state

courts.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997),

cert. denied, ___ U.S. ___, 118 S. Ct. 1845 (1998). This serves

“to protect the state courts’ role in the enforcement of federal

law and prevent disruption of state judicial proceedings”. Rose v.

Lundy, 455 U.S. 509, 518 (1982).

Under our federal system, the federal and
state courts are equally bound to guard and
protect rights secured by the Constitution.
Because it would be unseemly in our dual
system of government for a federal district
court to upset a state court conviction
without an opportunity to the state courts to
correct a constitutional violation, federal
courts apply the doctrine of comity, which
teaches that one court should defer action on
causes properly within its jurisdiction until
the courts of another sovereignty with
concurrent powers, and already cognizant of
the litigation, have had an opportunity to
pass upon the matter.

Id. (brackets, internal quotation marks, and citations omitted).

Although claims are considered to be “technically” exhausted

when state relief is no longer available, without regard to whether

the claims were actually exhausted by presentation to the state

courts, Coleman v. Thompson, 501 U.S. 722, 731-33 (1991), if a

petitioner “fails to exhaust available state remedies and ‘the

court to which the petitioner would be required to present his

claims in order to meet the exhaustion requirement would find the

claims procedurally barred’”, then the claim is procedurally

- 23 -
defaulted. Nobles, 127 F.3d at 420 (quoting Coleman, 501 U.S. at

735 n.1). In other words, when federal habeas claims “are

‘technically’ exhausted because, and only because, [petitioner]

allowed his state law remedies to lapse without presenting his

claims to the state courts ...[,] there is no substantial

difference between nonexhaustion and procedural default.” Magouirk

v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998). Federal habeas

relief may be granted on a procedurally defaulted claim only if the

petitioner “can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law or

demonstrate that failure to consider the claim[] will result in a

fundamental miscarriage of justice”. Moawad v. Anderson, 143 F.3d

942, 947 (5th Cir.) (pre-AEDPA), cert. denied, ___ U.S. ___, 119 S.

Ct. 383 (1998); Nobles, 127 F.3d at 423 n.33 (post-AEDPA); Williams

v. Cain, 125 F.3d 269, 276 (5th Cir. 1997) (post-AEDPA), cert.

denied, ___ U.S. ___, 119 S. Ct. 144 (1998); cf. United States v.

Flores, 135 F.3d 1000, 1006 n.23 (5th Cir. 1998) (post-AEDPA, §

2255).

In her pro se brief in support of her habeas petition, Jones

asserted that she had exhausted her state remedies. The State

responded that the petition should be dismissed without prejudice

on the basis of nonexhaustion. In her pro se reply to the State’s

response, Jones asserted that she had applied for post-conviction

relief in September 1992, but that the trial court had not ruled.

- 24 -
She did not dispute the State’s assertion that she had neither

sought mandamus nor pursued other remedies to obtain a ruling.

But, she asserted that no purpose would be served by requiring her

to return to state court because, in that the time limitation in

which to apply for state relief had expired, she no longer had

state remedies available within the meaning of 28 U.S.C. § 2254(b).

Jones has failed to exhaust her state remedies on her

ineffective assistance claims. As noted, although she raised five

ineffective assistance claims on direct appeal (not preparing,

investigating, conferring, or advising of right not to testify; and

improper closing argument), the state appellate court ruled that

all but the closing argument claim were premature and should be

presented in a post-conviction application. (Jones did not assert

a closing argument claim in her federal habeas petition.)

In her 1992 application for state post-conviction relief,

Jones raised two ineffective assistance of trial counsel claims,

one of which had been raised on direct appeal: (1) calling her as

a witness, against her will; and (2) failing to advise of her right

not to testify. As stated, the record contains no evidence that

the court ever ruled on this application; nor is there any evidence

that Jones took any steps to secure a ruling.

Jones presented five ineffective assistance claims in her

federal application: (1) not preparing a trial strategy focused on

her lack of predisposition to distribute heroin; (2) not

- 25 -
investigating the surveillance, money-photocopying, and arrest

warrant; (3) not conferring with her before trial, which prevented

her from requesting the presence of the confidential informant to

testify in her behalf; (4) not advising of her right not to

testify, which resulted in her admitting to being on heroin and

cocaine at the time of the arrest and to her methadone addiction;

and (5) not presenting an entrapment defense. The prepare,

investigate, and confer claims, numbers (1), (2), and (3) above,

were presented on direct appeal, but the state appellate court

ruled that they were premature and should be presented in a post-

conviction application; none of these three claims were presented

in a post-conviction application. The advise claim, number (4)

above, was presented both on direct appeal and in the 1992 post-

conviction relief application; it, too, was not resolved on direct

appeal. And, again, the record contains no evidence of a ruling on

the 1992 application. The entrapment claim, number (5) above, was

presented for the first time in Jones’ federal application.

Accordingly, none of the claims are exhausted.

The magistrate judge noted that Jones cannot seek leave to

appeal her claim in state court, because she has already made the

one appeal to which she is entitled, LA. CODE CRIM. PROC. art. 914;

and that state court collateral review of the unexhausted claims is

barred, because the time limitation in which to apply has expired.

- 26 -
LA. CODE CRIM. PROC. art. 930.8 (imposing three-year time limit except

under certain circumstances not applicable here).

The magistrate judge noted also that our court has held that,

if a habeas petitioner has not exhausted state remedies because of

a failure to meet a state procedural requirement, federal relief is

barred, and suggested that relief could be denied on the basis of

procedural default. Nevertheless, as discussed, he addressed the

merits of the claims, stating that “petitioner may demonstrate

either cause or prejudice for the default or that a fundamental

miscarriage of justice will result from a failure to analyze her

claims”. The magistrate judge did not find that Jones had overcome

the procedural bar; he apparently addressed the merits based on the

assumption that she might be able to do so.

The district court did not address exhaustion; instead, at the

end of the opinion, it states only that failing to grant habeas

relief “would result in a fundamental miscarriage of justice”.

Jones, 988 F. Supp. at 1010. See Magouirk, 144 F.3d at 359

(“Procedural default may be excused upon a showing of cause and

prejudice or that application of the doctrine will result in a

fundamental miscarriage of justice.”). Perhaps this was intended

as a ruling that Jones had overcome the procedural bar to federal

relief; but the opinion offers no guidance on that point.

In its brief in our court, the State did not claim failure to

exhaust state remedies and did not rely on a procedural bar.

- 27 -
However, at oral argument, it asserted that, pursuant to AEDPA, as

discussed infra, it did not waive the exhaustion requirement.

Prior to the April 1996 enactment of AEDPA, § 2254 contained

the following provisions regarding exhaustion of state remedies:

(b) An application for a writ of habeas
corpus in behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted unless it appears that
the applicant has exhausted the remedies
available in the courts of the State, or that
there is either an absence of available State
corrective process or the existence of
circumstances rendering such process
ineffective to protect the rights of the
prisoner.

(c) An applicant shall not be deemed to
have exhausted the remedies available in the
courts of the State, within the meaning of
this section, if he has the right under the
law of the State to raise, by any available
procedure, the question presented.

(Emphasis added.)

Under pre-AEDPA law, an appellate court may raise, sua sponte,

the failure to exhaust state remedies. See Granberry v. Greer, 481

U.S. 129, 133-34 (1987) (appellate court may raise sua sponte

petitioner’s failure to exhaust state remedies); Graham v. Johnson,

94 F.3d 958, 970 (5th Cir. 1996) (emphasis omitted) (“a panel of

this court, in its discretion may either accept or reject the

state’s waiver of the exhaustion requirement, or notice sua sponte

the lack of exhaustion”).

And, under pre-AEDPA law, exhaustion was not required if an

attempt to exhaust state remedies would be futile (futility

- 28 -
exception). See Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (“An

exception [to the exhaustion requirement] is made only if there is

no opportunity to obtain redress in state court or if the

corrective process is so clearly deficient as to render futile any

effort to obtain relief”); Graham, 94 F.3d at 969 (“exhaustion is

not required if it would plainly be futile”). The futility

exception appears to be derived from the language of pre-AEDPA §

2254(b) (habeas relief shall not be granted unless it appears that

petitioner has exhausted state remedies “or that there is either an

absence of available State corrective process or the existence of

circumstances rendering such process ineffective to protect the

rights of the prisoner”).

But, as noted, Jones filed her federal application after the

effective date of AEDPA. Accordingly, it applies. See Nobles, 127

F.3d at 415. AEDPA amended the exhaustion provisions of § 2254.

Subsection (b)(1) is substantially identical to pre-AEDPA §

2254(b); it provides:

(b)(1) An application for a writ of
habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted unless it appears that—

(A) the applicant has exhausted
the remedies available in the courts
of the State; or

(B)(I) there is an absence of
available State corrective process;
or

- 29 -
 (ii) circumstances exist that
render such process ineffective to
protect the rights of the applicant.

(Emphasis added.)

AEDPA contains no counterpart to pre-AEDPA § 2254(c) (no

exhaustion if applicant has right under state law to raise question

presented). But, two new subsections were added by AEDPA to §

2254(b):

(2) An application for a writ of habeas
corpus may be denied on the merits,
notwithstanding the failure of the applicant
to exhaust the remedies available in the
courts of the State.

(3) A State shall not be deemed to have
waived the exhaustion requirement or be
estopped from reliance upon the requirement
unless the State, through counsel, expressly
waives the requirement.

(Emphasis added.) Both of these new provisions come into play in

this case. Although, at first glance, they might appear to be in

conflict, they are not, for the reasons that follow.

Our court has not addressed whether the futility exception to

exhaustion survived AEDPA’s enactment. But, as noted, the language

of § 2254(b)(1)(B) is substantially identical to the language of

pre-AEDPA § 2254(b), upon which the futility exception appears to

be based.

Assuming arguendo that this exception applies post-AEDPA,

Jones has not shown it applies here. She asserted in her pro se

reply to the State’s answer to her petition that requiring

- 30 -
exhaustion would be futile, because state court relief was no

longer available. But, that is “only because[] [s]he allowed h[er]

state law remedies to lapse without presenting [them] to the state

courts” in a timely application for post-conviction relief.

Magouirk, 144 F.3d at 358. Under such circumstances, she cannot

find shelter under the assumed futility exception. See Coleman,

501 U.S. at 732.

As discussed, both before and after AEDPA’s enactment, § 2254

provides that habeas relief “shall not be granted” unless the

applicant has exhausted state remedies, or there is an absence of

available state corrective process, or there are circumstances that

render such corrective process ineffective to protect the

petitioner’s rights. 28 U.S.C. § 2254(b)(1), as amended by AEDPA;

28 U.S.C. § 2254(b) (pre-AEDPA). On the other hand, as the

magistrate judge noted, AEDPA allows a federal court, in its

discretion, to deny habeas relief on the merits, regardless of

whether the applicant has exhausted state remedies. 28 U.S.C. §

2254(b)(2). See Nobles, 127 F.3d at 423 (noting that “AEDPA

amended 28 U.S.C. § 2254(b) to allow a federal court to deny an

application on the merits” notwithstanding petitioner’s failure to

exhaust state remedies; and reviewing de novo district court’s

alternative conclusion that unexhausted claim would not have

succeeded on merits).

- 31 -
 This reading of the new § 2254(b)(2) does not conflict with

the earlier-referenced new provision which immediately follows it,

§ 2254(b)(3), which allows a State to rely on the exhaustion

requirement, unless it expressly waives that requirement. As

noted, although, in its appellate brief, the State did not urge

dismissal for failure to exhaust, at oral argument it refused,

pursuant to § 2254(b)(3), to waive exhaustion. But, obviously,

when a federal court denies habeas relief on the merits for an

unexhausted claim, concerns for comity are much less compelling

than when it grants relief on such a claim.

Accordingly, even when, as in this case, exhaustion is not

waived, courts have the “discretion in each case [under §

2254(b)(2)] to decide whether the administration of justice would

be better served by insisting on exhausting or by reaching the

merits of the petition forthwith”. See Granberry, 481 U.S. at 131,

134 (pre-AEDPA). Because, as explained infra, we conclude that

Jones does not prevail on the merits, we may, pursuant to §

2254(b)(2), deny relief, notwithstanding Jones’ failure to exhaust

state remedies.

The dissent fails to comment on the fact that all of Jones’

ineffective assistance claims have not been exhausted in state

court. As explained, although AEDPA gives a federal court the

discretion to deny such claims on the merits, notwithstanding the

State’s failure to expressly waive exhaustion, it does not

- 32 -
authorize the result reached by the district court and urged by the

dissent—granting habeas relief on unexhausted claims.

B.

An ineffective assistance claim presents mixed questions of

law and fact. E.g., Nobles, 127 F.3d at 418. Therefore, the

district court’s conclusion is reviewed de novo, id. at 423; but

its underlying factual findings, for clear error. See Self v.

Collins, 973 F.2d 1198, 1203 (5th Cir. 1992), cert. denied, 507

U.S. 996 (1993).

AEDPA, § 2254(d), provides standards for granting habeas

relief when a claim has been adjudicated on the merits in state

court. Pursuant to § 2254(d)(1), “a federal court will ... not

grant a writ of habeas corpus unless the state court’s conclusions

involved an ‘unreasonable application’ of clearly established

federal law as determined by the Supreme Court”. Nobles, 127 F.3d

at 418. “An application of federal law is unreasonable if it is so

clearly incorrect that it would not be debatable among reasonable

jurists”. Id. (internal quotation marks and citation omitted).

But, with only one exception (closing argument claim, raised in

appellate brief but not in federal application, which was

adjudicated on merits on state direct appeal), that standard is

inapplicable here, because the balance of Jones’ ineffective

assistance claims have not been adjudicated on the merits in state

court.

- 33 -
 The Supreme Court’s “decisions have emphasized that the Sixth

Amendment right to counsel exists ‘in order to protect the

fundamental right to a fair trial’”. Lockhart v. Fretwell, 506

U.S. 364, 368 (1993) (quoting Strickland, 466 U.S. at 684)

(emphasis added). Indeed,

[T]he right to the effective assistance of
counsel is recognized not for its own sake,
but because of the effect it has on the
ability of the accused to receive a fair
trial. Absent some effect of challenged
conduct on the reliability of the trial
process, the Sixth Amendment guarantee is
generally not implicated.

Cronic, 466 U.S. at 658 (emphasis added).

To prevail on an ineffective assistance claim, the applicant

ordinarily must show “that counsel’s performance was deficient” and

“that the deficient performance prejudiced the defense”.

Strickland, 466 U.S. at 687. On the other hand, “if counsel

entirely fails to subject the prosecution’s case to meaningful

adversarial testing, then there has been a denial of Sixth

Amendment rights that makes the adversary process itself

presumptively unreliable”. Cronic, 466 U.S. at 659 (emphasis

added).

As discussed, the district court held that, pursuant to

Cronic, Jones was not required to demonstrate prejudice;

alternatively, that Jones had done so under Strickland.

1.

- 34 -
 As the earlier, lengthy recitation of the procedural history

and proceedings for Jones’ trial demonstrates, counsel did not

“entirely fail to subject the prosecution’s case to meaningful

adversarial testing”; far from it. Among other things, he

attempted pre-trial to suppress the evidence and Jones’ statement,

objected at trial to the admission of that statement, and cross-

examined the State’s witnesses. As the district court

acknowledged, the evidence against Jones was strong, which

necessarily limited the available defenses. And, as the Court

noted in Cronic, “the Sixth Amendment does not require that counsel

do what is impossible or unethical. If there is no bona fide

defense to the charge, counsel cannot create one and may disserve

the interests of his client by attempting a useless charade.”

Cronic, 466 U.S. at 656 n.19.

Previously faced with a similar question,
we drew the line between simple ineffective
assistance requiring a showing of prejudice—
the more typical case—and presumptive
unreliability: bad lawyering, regardless of
how bad, does not support the presumption;
more is required. See Woodard v. Collins, 898
F.2d 1027 (5th Cir. 1990) (suggesting claim of
no investigation by attorney would still
require showing of actual prejudice). We must
remember that we are addressing the case from
hindsight, a luxury not available to an
attorney developing trial strategies and
making judgement calls prior to and at trial.
The fact that another lawyer might have
developed different strategies or made
different calls itself does not necessarily
show unfairness....

- 35 -
McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir. 1990) (emphasis

in original); see also Jackson v. Johnson, 150 F.3d 520, 524 (5th

Cir. 1998) (constructive denial of counsel under Cronic “is a very

narrow exception to the Strickland prejudice requirement”);

Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997) (“A

constructive denial of counsel occurs ... in only a very narrow

spectrum of cases where the circumstances leading to counsel’s

ineffectiveness are so egregious that the defendant was in effect

denied any meaningful assistance at all.”).

In sum, Cronic does not control. Remaining is the alternative

conclusion that Jones is entitled to relief under Strickland:

“counsel’s performance was deficient”; and “the deficient

performance prejudiced the defense.” Strickland, 466 U.S. at 687.

2.

a.

To prove deficient performance, the first of the two

Strickland-prongs, Jones must show that counsel’s actions “fell

below an objective standard of reasonableness”. Id. at 688. In

this regard, it is well to remember that “[o]ur scrutiny of

counsel’s performance is highly deferential, and we must make every

effort to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time”.

- 36 -
Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997) (brackets,

internal quotation marks, and citation omitted).

Jones must overcome this “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance”. Williams, 125 F.3d at 276 (internal quotation marks

and citation omitted). “A conscious and informed decision on trial

tactics and strategy cannot be the basis for constitutionally

ineffective assistance of counsel unless it is so ill chosen that

it permeates the entire trial with obvious unfairness”. Green v.

Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997) (internal quotation

marks and citation omitted) (emphasis added).

As stated, the five deficient performance claims Jones

presented in her federal petition were that counsel failed to (1)

prepare a strategy focused on lack of predisposition to distribute

heroin; (2) investigate the surveillance, money-photocopying, and

warrant; (3) confer prior to trial, which prevented Jones from

requesting the presence of the confidential informant to testify in

her behalf; (4) advise her, prior to calling her as a witness, of

her right to remain silent, which resulted in her admission to

being on heroin and cocaine at the time of the arrest and to her

methadone addiction; and (5) present an entrapment defense.

Following the district court evidentiary hearing, Jones’ post-

hearing memorandum claimed six instances of deficient performance:

counsel (1) never acted upon the speedy trial motion by moving to

- 37 -
quash the indictment; (2) never attempted to build a rapport with

Jones, or visited her in jail, or spoke to her about her case; (3)

did not tell her she had a right not to testify; (4) should have

pursued the request for identity of the confidential informant, so

that he could present a coherent entrapment defense; (5) should

have subpoenaed the confidential informant, which could have caused

the State to offer a reduced charge in exchange for a plea; and (6)

should have investigated Jones’ medical, substance abuse, family,

and social history. (In short, as discussed infra, three of the

six instances were new; only items (2), (3), and (4) were presented

in the habeas application.)

And, finally, in her appellate brief, Jones contends that

counsel’s performance was deficient in the following respects: (1)

not pursuing a speedy trial motion by moving to quash the

indictment; (2) not visiting Jones in jail; (3) not speaking to her

about her case; (4) not telling her she had a right not to testify;

(5) not investigating the confidential informant and Jones’ medical

and substance abuse history, family, and friends; (6) not

exercising any peremptory challenges or conducting lengthy voir

dire during jury selection; and (7) his closing argument

demonstrates his abdication of his role as advocate for his client.

(In short, as discussed infra, Jones has presented two deficient-

performance-bases for the first time on appeal—items (6) and (7).)

- 38 -
 The district court found deficient performance in the

following respects:

First, pretrial preparation was inadequate. Counsel should

have requested assistance from investigators, contacted witnesses

to bolster the defense that Jones was an addict, and consulted

“meaningfully” with her to prepare her testimony. Jones, 988 F.

Supp. at 1006.

Second, assistance should have been requested from

investigators to support the defense that Jones was an addict,

especially considering the mandatory life sentence. Id.

Third, in that Jones’ trial testimony contradicted not only

the State’s case, but also the theory of defense, counsel should

have consulted with Jones prior to trial. Id. This should have

included advising Jones of her right not to testify and giving her

guidance in deciding whether to do so. Id. at 1007. Although

counsel testified that he consulted with Jones about such matters,

the district court accepted as credible Jones’ evidentiary hearing

testimony that counsel did not discuss her testimony with her in

advance and did not advise her of her right not to testify. Id. at

1006-07.

Fourth, an entrapment defense should have been presented. Id.

at 1007. The following evidence was “readily available” to counsel

and would have supported a viable entrapment defense: (1) the sale

was solicited by a person acting in cooperation with the police

- 39 -
(the confidential informant); (2) the confidential informant was

“untested”, in that there had been no prior relationship between

the informant and the officers; (3) Jones, who was vulnerable to

solicitation because she was a heroin addict with no source of

income, testified credibly at the evidentiary hearing that the

informant instigated the transaction by persuading Jones to obtain

two bundles of heroin, and induced her participation by promising

her $100 and ten bags of heroin; (4) Jones had no criminal history

of drug distribution; and (5) the offense involved only one sale.

Id. at 1007-08. Counsel did not make a strategic decision to

forego an entrapment defense, which would have been entitled to

deference. Instead, he failed to make the effort to investigate

the viability of such a defense. Id. at 1008.

Fifth, counsel committed “a serious error” by abandoning his

effort to obtain disclosure of the confidential informant’s

identity. Id.

Sixth, counsel should not have waived opening statement.

Because counsel was fully aware, from the pretrial proceedings, of

the specifics and strength of the State’s case, there was no

justifiable strategic reason for waiver. Id. at 1003 & n.4.

Seventh, counsel undermined his theory of defense by asking

Officer Wethern whether, at the time of her arrest, Jones appeared

to be under the influence of drugs. Because the Officer had

testified at the suppression hearing, counsel should have known the

- 40 -
answer would be “no”. Id. at 1004. Along this line, the court

also criticized counsel’s cross-examination of Officer Polk about

whether Jones appeared to be under such influence at the time of

the sale. Id. at 1004 & n.5. The court noted that Officer Polk

did not testify at the pretrial hearings but, regardless of whether

counsel asked the officers who did so testify about Jones’ state of

mind, counsel was remiss. Id. at 1004 n.5.

Eighth, counsel “surrendered the case” in closing argument.

Id. at 1004.

Ninth, and finally, the closing argument was also deficient

because counsel failed both to argue adequately that the jury

should return a verdict on a lesser included offense, and to

emphasize the mandatory life sentence for a conviction as charged.

Id. at 1005.

b.

To prove the other Strickland-prong, prejudice, Jones must

show that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different”. Strickland, 466 U.S. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in

the outcome” of the proceeding. Id.

In the light of the deficient performance conclusions, the

district court concluded that Jones had demonstrated Strickland

prejudice in three respects: instead of the mandatory life

- 41 -
sentence, she would have (1) been acquitted by, or (2) received a

lesser sentence from, the jury; or (3) the State would have offered

a lesser sentence through a plea bargain. Specifically, the court

reasoned that,

with a proper defense, J[ones] could have
presented evidence of entrapment by the
confidential informant which could have
provided exculpation despite the proof of all
the elements of the offense.... Her longtime
heroin addiction, her lack of a criminal
record with respect to heroin distribution,
the pressures by the “untested” informant and
her succumbing to his entreaties in exchange
for drugs and money, the difficulty she had in
locating a source until “Lionel” appeared,
could have established to the jury that she
was not a sophisticated dangerous dope dealer
needing life imprisonment, but rather was a
heroin addict susceptible to easy manipulation
with simple suggestion, much less coercion.

Even if the entrapment defense did not
persuade the jury to acquit, the evidence
presented would have had a “reasonable
probability” of bringing in a lesser verdict
than the verdict mandating life imprisonment.
With a proper presentation through closing
argument, the jury would have been fully
informed that it was proper to consider the
severity of the penalty in deciding whether
J[ones] should be convicted as charged. It is
difficult to imagine that a jury would
unanimously order a life sentence in a factual
circumstance such as this, had it been
properly presented.

Finally, a spirited investigation by
counsel and persistence in purs[u]ing the
entrapment defense, may well have resulted in
a plea bargain offer from the prosecution to a
lesser charge. Had the case been effectively
defended, it is difficult to imagine the

- 42 -
 prosecution pursuing a life sentence on this
petition with any enthusiasm....

Id. at 1009 (emphasis added).

As noted, several instances of deficient performance claimed

in Jones’ post-hearing memorandum and appellate brief were not

raised in her habeas petition (failure to fully act on speedy trial

motion; investigate history; conduct thorough voir dire; and

exercise peremptory challenges). And, several instances of

deficient performance relied on by the district court were never

raised by Jones in her application or in her post-hearing

memorandum. For example, she did not urge ineffective assistance

through waiving opening statement; or cross-examining the officers

about Jones’ state of mind; or making improper remarks and failing

to stress certain points in closing argument.

With respect to closing argument, the district court failed to

address the state court’s conclusion, discussed supra, that the

performance was not deficient, and that, in the light of the

overwhelming evidence against her, Jones was not prejudiced by his

remarks. Jones, 559 So. 2d at 894. Moreover, the district court

failed to apply AEDPA’s earlier-referenced deferential standard of

review to that conclusion.

In this regard, a federal court may not grant habeas relief on

a claim rejected on the merits by a state court, unless that

court’s adjudication of the claim

- 43 -
 (1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States; or

(2) resulted in a decision that was
based on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d). The second clause of § 2254(d)(1)

(unreasonable application) applies to challenged state court

applications of law to fact. See Williams, 125 F.3d at 277. Such

application is unreasonable “only when it can be said that

reasonable jurists considering the question would be of one view

that the state court ruling was incorrect”. Id.

As quoted supra, the state appellate court applied Strickland

in resolving Jones’ closing argument claim. Jones, 559 So. 2d at

893. Again, it concluded that counsel’s performance was not

deficient, because he “merely acknowledged the unfavorable

testimony which was already before the jury” and “then appealed to

the jury to consider returning one of the responsive verdicts, due

to defendant’s addiction and consequent state of mind”, id. at 894;

and, that Jones was not prejudiced by the remarks, because the

evidence of her guilt was overwhelming. Id.

Reasonable jurists considering this issue would not be of one

view that the state court was incorrect. Accordingly, Jones was

not entitled to federal habeas relief on the ground that counsel

- 44 -
rendered ineffective assistance by making improper remarks during

closing argument.

With respect to the conclusion that counsel’s performance was

deficient for failure to adequately argue that the jury should

return a verdict on a lesser included offense, and to emphasize the

mandatory life sentence, we note that counsel touched on both

subjects during closing argument:

Now, like I said entering this thing, the
state’s shooting for a locked case; they’re
looking for life. That’s up to you to make
the determination whether or not you’ll go for
life. There are other responsive verdicts;
the judge will go into that aspect. But when
you look at the state’s case, and to make a
determination that this charge wasn’t taken
till over a month after she was arrested,
there’s something there that doesn’t ring.

....

And there are other responsive verdicts;
think about that. The judge will instruct you
on them.

As noted, although the jury instructions are not in the record, the

jury verdict form lists five responsive verdicts: (1) guilty as

charged; (2) attempted distribution of heroin; (3) possession of

heroin; (4) attempted possession of heroin; and (5) not guilty.

No authority need be cited for the rule that issues raised for

the first time on appeal are reviewed only for plain error. But,

even if, under a very liberal reading, we utilize instead the more

lenient, normal standard of review for all of the claimed instances

of deficient performance; and, even if we assume that counsel’s

- 45 -
performance was deficient in all of the respects urged by Jones

and/or found, sua sponte, by the district court, we still cannot

agree that there is a reasonable probability that the outcome of

Jones’ trial would have been different had counsel’s performance

not been deficient in those many respects.

First, the evidence of Jones’ guilt on the distribution of

heroin charge was overwhelming, to say the least. Three officers

testified that they witnessed Jones’ participation in the

distribution of heroin. She was arrested at the scene, immediately

after selling the heroin to an undercover officer. The currency

given to Jones by the undercover officer for the heroin was seized

from Jones when she was arrested. Jones has not demonstrated that

any amount of preparation or investigation would have been

reasonably likely to blunt the impact of that evidence. Again, as

Cronic reminds: “[T]he Sixth Amendment does not require that

counsel do what is impossible or unethical. If there is no bona

fide defense to the charge, counsel cannot create one and may

disserve the interests of his client by attempting a useless

charade.” Cronic, 466 U.S. at 656 n.19. As stated in Green v.

Lynaugh, 868 F.2d 176, 177 (5th Cir.), cert. denied, 493 U.S. 831

(1989): “If the facts adduced at trial point so overwhelmingly to

the defendant’s guilt that even the most competent attorney would

be unlikely to have obtained an acquittal, then the defendant’s

ineffective assistance claim must fail”.

- 46 -
 Second, entrapment was not a viable defense. Under Louisiana

law, “an entrapment is perpetrated when a law enforcement official

or a person acting in cooperation with such an official, for the

purpose of obtaining evidence of the commission of an offense,

solicits, encourages, or otherwise induces another person to engage

in conduct constituting such offense when he is not then otherwise

disposed to do so.” State v. Batiste, 363 So. 2d 639, 641 (La.

1978) (emphasis added). The Louisiana Supreme Court noted that its

law is consistent with federal law. Id. “In entrapment cases, a

line must be drawn between the trap for the unwary innocent and the

trap for the unwary criminal.” State v. Brand, 520 So. 2d 114, 117

(La. 1988) (citing Sherman v. United States, 356 U.S. 369 (1958)).

“For entrapment to exist, a defendant must be induced in some way

to engage in criminal conduct which he is not otherwise disposed to

engage in; an entrapment defense will not lie if the officers or

agents have merely furnished a defendant, who is predisposed to

commit the crime, the opportunities to do so.” State v. Bernard,

441 So. 2d 817, 820 (La. Ct. App. 3d Cir. 1983), writ denied, 445

So. 2d 439 (La. 1984). See also State v. Wysinger, 479 So. 2d 673,

675 (La. Ct. App. 3d Cir. 1985) (“Entrapment exists when the

officer instigates the crime: that is, the officer must plan and

conceive the crime and the defendant must have perpetrated it only

because of the trickery, persuasion, or fraud of the officer.”).

- 47 -
 The defendant has the burden of proving that she was induced

to engage in criminal conduct by a preponderance of the evidence.

State v. Brand, 520 So. 2d at 117. If the defendant satisfies that

burden, the State has the burden of proving beyond a reasonable

doubt that the defendant was predisposed to commit the crime.

State v. Kerrigan, 671 So. 2d 1242, 1245 (La. Ct. App. 2d Cir.

1996).

Jones’ trial testimony certainly did not support an entrapment

defense; she denied entering Officer Polk’s vehicle and selling him

drugs. Obviously, an entrapment defense cannot succeed when the

defendant denies any involvement in the act she allegedly was

entrapped into committing. See Strickland, 466 U.S. at 691 (“the

reasonableness of counsel’s actions may be determined or

substantially influenced by the [accused’s] own statements or

actions”).

But, assuming that counsel could have discovered from Jones

the vastly different version of events to which she testified at

the district court evidentiary hearing, that version likewise does

not support entrapment. At that hearing, Jones admitted that she

sold heroin to Officer Polk to get money and heroin for herself.

She never claimed that she would not have become involved in the

transaction but for the informant’s inducement.

In the light of Jones’ addiction, her lack of a legitimate

source of income, and her prior convictions, including for

- 48 -
possession of heroin, there is no reasonable probability that the

jury would have believed that Jones was not predisposed to

distribute heroin in exchange for cash and/or heroin to support her

habit. See State v. Prudhomme, 532 So. 2d 234, 240 (La. Ct. App.

3d Cir. 1988) (defendant’s “long history as a drug user, and the

fact that defendant made a drug commission on the sale, lends

support to the conclusion that [distribution of cocaine] is a crime

that the defendant was predisposed to commit”), writ denied, 541

So. 2d 871 (La. 1989); State v. Antoine, 539 So. 2d 771, 773 (La.

Ct. App. 3d Cir. 1989) (prosecution proved predisposition where,

although undercover narcotics agent “took advantage of his

friendship with defendant, and the officers planned and conceived

the crime, defendant readily participated in it upon discovering

that he would be paid for each drug transaction he arranged”);

State v. Chatman, 599 So. 2d 335, 348 (La. Ct. App. 1st Cir. 1992)

(defendant’s admission that he asked for and received marijuana

from confidential informant as compensation for delivering cocaine

to confidential informant and undercover agent, and defendant’s

“admission that he smoked marijuana and had purchased marijuana

numerous times were indicative of his predisposition to commit the

... offense [of attempted distribution of cocaine]”).

Again, there is not a reasonable probability that entrapment

was a viable defense for Jones. Accordingly, contrary to the

district court’s conclusions, there is not a reasonable probability

- 49 -
that pursuing the defense would have resulted either in an

acquittal; or guilt on a lesser charge; or a plea agreement.

As support for her counsel being ineffective under either

Cronic or Strickland, Jones contends that the trial judge was aware

that counsel was providing ineffective assistance, but was more

concerned with maintaining a low case load than providing indigent

defendants with an able attorney. First, even assuming this charge

enters into the mix for ineffective assistance claims, Jones did

not make this claim in her federal application, but raised it for

the first time in her post-hearing memorandum. Second, there is no

evidence in the record to support the contention that the trial

judge was aware that counsel was providing ineffective assistance

to Jones, or that the judge rushed the trial. Jones claims in her

appellate brief that “the state appellate court put the trial judge

on notice that [her] trial counsel was ineffective”; but, at oral

argument, her counsel acknowledged the error in this assertion.

The referenced opinions were rendered after Jones’ trial.

Likewise, we give no weight to Jones’ contention that we

should conclude that counsel rendered ineffective assistance

because, “[o]n other occasions in the same period of time as

[Jones’] trial, trial counsel was found to have provided

ineffective assistance of counsel to other indigent defendants

before the same trial judge”. Obviously, each case of claimed

- 50 -
ineffective assistance must turn on its own facts and

circumstances.

In short, these trial-judge-interested-only-in-low-docket and

counsel-ineffective-at-other-trials assertions are wide of the

mark. While some might feel they show admirable zeal in

representing a client, others might find them doing more harm than

good in seeking to show ineffective assistance of counsel. Along

this line, perhaps the most egregious comment by Jones’ habeas

counsel is his characterization of the following response by Jones’

trial counsel at the district court evidentiary hearing:

[Jones’ habeas counsel]: But you did know
that she had a prior conviction for possession
of heroin, didn’t you?

[Jones’ trial counsel]: Many of them in the
city have that conviction.

Jones’ habeas counsel states: “Trial counsel’s utter contempt for

his client, apparent throughout, is most evident in this

unmitigatedly racist remark”. (Emphasis added.) Is the remark

racist? Perhaps; perhaps not. Perhaps one had to be there to form

a judgment. Perhaps, being of this view, Jones’ habeas counsel

should have pursued the matter when the statement was made; he

didn’t. When presented in a brief in this fashion, it merely

hinders, rather than helps, in determining whether Jones was

deprived of effective assistance of counsel.

The charge against Jones carried a most severe penalty—a

mandatory life sentence. But, the sentence qua sentence is not at

- 51 -
issue. Nevertheless, for such a sentence, this was a short trial.

Other defense counsel might, or should, have handled this case

differently. This is a classic example of ineffective assistance

claims needing to be resolved first in state courts, which have far

greater familiarity with the procedural possibilities, such as

lesser sentences.

Some fair-minded persons, reading this record, might conclude

that Jones’ trial counsel did about as well as a lawyer, faced with

these facts, could do. Others might find his performance

deplorable. (The dissent certainly does.) But, this is not our

task. We review, neither to praise nor to condemn, but to

determine, guided by binding precedent, whether Jones received

ineffective assistance of counsel.

Much of that precedent, especially Strickland, speaks directly

to this case, to the bases for prejudice advanced, especially by

the district court. In the final analysis, those bases boil down

to speculation and the idea that, if only a vigorous defense had

been presented, no fair-minded jury would have translated a sale of

heroin, on these facts, into a life sentence. Simply put, this is

jury nullification. But, as Strickland instructs, this cannot be

a basis for the requisite deficient-performance-caused-prejudice

prong:

An assessment of the likelihood of a result
more favorable to the defendant must exclude
the possibility of arbitrariness, whimsy,
caprice, “nullification,” and the like. A

- 52 -
 defendant has no entitlement to the luck of a
lawless decisionmaker, even if a lawless
decision cannot be reviewed. The assessment
of prejudice should proceed on the assumption
that the decisionmaker is reasonably,
conscientiously, and impartially applying the
standards that govern the decision. It should
not depend on the idiosyncracies of the
particular decisionmaker, such as unusual
propensities toward harshness or leniency.
Although these factors may actually have
entered into counsel’s selection of strategies
and, to that limited extent, may thus affect
the performance inquiry, they are irrelevant
to the prejudice inquiry.

Strickland, 466 U.S. at 695 (emphasis added).

Characterizing the performance by Jones’ trial counsel as “one

of the more shameful pictures of legal representation that [he has]

reviewed as a judge”, the dissent concludes that Jones received

such ineffective assistance that it equates to a “travesty”, and

fears that, in denying habeas relief, we have “lost sight of the

forest for the trees”. The sincerity of that view is not to be

doubted. But, notwithstanding how heartfelt the dissent, and as

reflected in the foregoing detailed statement of facts and

procedural history, the dissent’s view of what constitutes

prejudice in this case is bottomed on speculation, is contrary to

Strickland, and seems to be influenced by disagreement with the

State of Louisiana’s exercise of its prerogative to impose a

mandatory life sentence for persons convicted for what the State

obviously considers to be the very serious crime of distribution of

heroin. (As stated, the sentence qua sentence is not at issue; for

- 53 -
example, Jones does not claim that it is unconstitutionally

disproportionate.)

The dissent faults Jones’ trial counsel for never having a

serious conference with Jones, abdicating his responsibility to

conduct an investigation into the facts surrounding her arrest,

failing to request assistance from investigators, and failing to

structure a coherent theory of defense. But, the dissent fails to

square such shortcomings with the prejudice required by Strickland.

The dissent posits that there is a reasonable probability that the

outcome of the proceeding would have been affected, in that Jones

might have obtained a plea bargain or lesser conviction. But, as

shown, there is no basis in the record for suggesting that the

State would have considered a plea bargain; again, we cannot

indulge in speculation. And, again, when ruling on the prejudice

prong, we cannot factor in jury sympathy, which is the only

possible basis for a lesser verdict.

Returning to the dissent’s metaphor, a forest is made up of

its trees; each must be considered in determining the impact of the

whole. As the dissent acknowledges, we have painstakingly examined

each tree—each item of deficient performance. But, in so doing, we

have remained focused on the forest—prejudice. At the completion

of our task, we concluded that habeas relief cannot be granted. We

remain of that view.

- 54 -
 The requisite prejudice was not shown. Jones is not entitled

to federal habeas relief.

III.

For the foregoing reasons, the judgment granting conditional

habeas relief is REVERSED; such relief is DENIED.

REVERSED and RENDERED

E. GRADY JOLLY, Circuit Judge, dissenting:

I respectfully dissent from the majority’s conclusion that

counsel’s representation of the petitioner in this case did not

constitute Strickland error. In my view, the merit of this habeas

claim is told by the undisputed facts that a petty dope dealer and

drug addict stood trial for a relatively smalltime drug-related

crime1 that, as charged, carried with it a mandatory life sentence.

Yet counsel made no effort to work out a compromised plea

agreement, and counsel hardly lifted a finger in her defense at

trial.

In my view, this case presents one of the more shameful

pictures of legal representation that I have reviewed as a judge.

Notwithstanding that his client was charged with the crime that, if

convicted, would send her automatically to the penitentiary with a

1
All drug-related crimes are serious crimes. We see everyday,
however, crimes more egregious than the present case involving
monumental amounts of drugs where the defendants are exposed to far
less penalties than the petitioner was here.
life sentence, counsel never had a serious conference with Jones to

discuss her trial testimony nor other trial issues. He abdicated

his responsibility to conduct any sort of investigation into the

facts surrounding her arrest, including obtaining any information

on the confidential informant. Counsel did not request any

assistance from the investigators at the Indigent Defender Board.

He wholly failed to structure any sort of coherent theory of

defense. Although defending the case was made extraordinarily

difficult by the solid case that the state had against Jones, a

minimum amount of thought and energy would have at least presented

a more intelligible and appealing defense for the petitioner than

the totally botched case that the jury heard. Moreover, Jones’s

attorney basically handed her head to the prosecutor on a silver

platter, when he allowed her to testify without having (1) advised

her of her right not to do so; (2) advised her as to whether, in

his legal opinion, she should do so; and (3) discussed with her how

her testimony would impact her defense. Under these circumstances,

Jones’s testimony was so disastrous that there is little wonder

that the jury reached the verdict it did.

It seems to me that, under the facts found by the

conscientious district judge in her extensive opinion, Jones v.

--56--
56
Jones, 988 F. Supp. 1000 (E.D. La. 1997), it is impossible

objectively not to conclude that there is a reasonable probability

that the outcome of this proceeding would have been

different--whether by a plea bargain or a lesser conviction. This

reasonable probability of a different outcome is virtually dictated

by the inability of the trial court initially to seat a jury for

the trial of this case, for the reason that the first venire of

jurors (39 out of 45) were “unwilling to impose the consequences of

a guilty as charged verdict.” After the failure to seat a jury

occurred, the time surely was propitious for a successful plea

agreement, especially in view of the relatively smalltime drug

offense and the fact that Jones had no prior arrests nor

convictions for heroin distribution. Yet again, Jones’s attorney

sat on his hands. If, at that moment, she had been represented by

a minimally effective attorney, the result in the case--Jones’s

conviction for a crime carrying a mandatory life sentence--surely

would have been different.

The majority opinion has indeed examined in great detail each

tree in the forest of this travesty. But in giving such great

detail to each tree, the view of the forest--that this petitioner

was doomed to a mandatory life sentence conviction only and solely

--57--
57
because of a completely ineffective counsel--is somehow lost on the

majority. That is regrettable.

I respectfully dissent.

--58--
58