United States Court of Appeals
Fifth Circuit
F I L E D
November 14, 2003
United States Court of Appeals
for the Fifth Circuit Charles R. Fulbruge III
_____________________________________ Clerk
No. 02-20289
_____________________________________
CEDRICK JEROME BASS,
Petitioner-Appellant
VERSUS
DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee,
__________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
__________________________________________________
Before DAVIS and EMILIO M. GARZA, Circuit Judges, and F. A. LITTLE, JR.*
District Judge.
PER CURIAM:**
Petitioner, Cedric Jerome Bass (“Bass”), challenges the district court’s order
*
District Judge of the Western District of Louisiana, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
denying federal habeas corpus relief based on ineffective assistance of counsel under 28
U.S.C. § 2254. We granted COA to consider whether the district court correctly deferred
to the state habeas court findings which were made without the benefit of an evidentiary
hearing. This appeal on the merits ensued.
I
On August 31, 1995 Bass was stopped for speeding by Texas constables. During
the traffic stop officers discovered crack cocaine and arrested Bass. Petitioner was
indicted for possession of more than four grams but less than 200 grams of cocaine, and
scheduled for trial in Texas District Court for the 221st Judicial District, Montgomery
County, Texas. Bass alleges that in January 1997, several months before the trial, the
prosecutor offered him a plea bargain with a sentence of probation. Bass declined the
offer and instead he and his lawyer James Dyer (“Dyer”) proceeded with trial
preparations. In August 1997, Bass allegedly received a phone call from Dyer explaining
that Nancy Neff (“Neff”) had offered two years incarceration in exchange for a guilty
plea. Bass avers that in a three way conversation between Dyer, Bass, and Bass’s wife,
he told Dyer to accept the two year offer. According to Bass, Dyer never communicated
the acceptance to the prosecution. The day of trial, September 2, 1997, the prosecution
offered Bass a final deal of four years incarceration. Bass rejected the offer and
proceeded with trial, which resulted in a guilty verdict and an eighteen year sentence.
2
Bass did not pursue a direct discretionary appeal in the Texas state courts but
instead filed a state habeas application claiming, inter alia, ineffective assistance of
counsel for the failure to communicate the acceptance of the two year offer. The habeas
application was filed in the same court where Bass was convicted but was heard by a
different judge. Bass submitted sworn affidavits with his application for habeas relief
from his wife, his aunt, and a friend, in addition to his own affidavit, to support his
contention that he was offered and accepted a two year plea bargain. Bass’s wife stated
she heard the August 1997 conversation between Dyer and Bass, and Bass’s aunt and
friend stated that they were told by Bass they were no longer needed as witnesses since
he had accepted a plea offer of two years. Respondent submitted an affidavit from the
prosecutor Neff in support of its proposed findings of fact and conclusions of law. She
stated in her affidavit that in January 1997 she offered to allow Bass to plead to a term of
probation. That summer when she discovered that other state and federal drug charges
were pending she revoked that offer. Neff stated that she “then conveyed an offer of
incarceration. On the morning of trial, September 2, 1997, [she] offered to allow the
defendant to plead to four years in [the Texas Department of Criminal Justice].” St. Hab.
R. at 167. She stated that Bass rejected that offer of four years incarceration and never
expressed interest in any of her plea offers.
The state court further ordered submission of an affidavit from Dyer regarding the
plea bargaining and his investigation. Dyer acknowledged generally that plea bargaining
3
occurred during the course of the proceeding, and that any acceptance of any plea offer
would have been communicated to the prosecutor.
Based on these affidavits the state habeas court determined that there was no
failure to communicate acceptance of plea offers to the prosecution because Bass never
agreed to accept any plea bargain offer. The court found Neff and Dyer’s affidavits
credible since they were consistent with each other and the record:
8. The Court finds the affidavits of James Dyer to be credible because they
are supported by the record, and because they are supported by the affidavit
of the prosecutor, Nancy Neff.
9. Based on the credible affidavits of James H. Dyer and Nancy Neff, Dyer
did not fail to communicate [Petitioner’s] acceptance of a plea bargain offer
because [Petitioner] never agreed to accept any plea bargain offer extended
by the State.
St. Hab. Findings of Fact & Concl. of Law, at 4. Based upon this factual finding the state
habeas court held that there was no ineffective assistance of counsel. The Texas Court of
Criminal Appeals upheld the state district court’s habeas determination without a written
opinion.
Petitioner then filed a § 2254 petition in federal district court. There the district
court granted a summary judgment motion filed by Respondent without allowing
discovery or an evidentiary hearing. It deferred to the state habeas court’s factual
findings. Bass filed a notice of appeal and requested COA on the district court’s denial
of discovery, the failure to conduct an evidentiary hearing, and problems regarding
deference to the state court determination. A judge of this Court found that “Bass . . .
4
demonstrated that the issue whether the district court was correct in affording the state
habeas court’s findings a presumption of correctness is adequate to deserve
encouragement to proceed further,” and granted COA on that issue only. This appeal on
the merits followed.
II
In a federal habeas appeal, this court reviews the district court's grant of summary
judgment de novo, Williams v. Scott, 35 F.3d 159, 161 (5th Cir.1994), “applying the same
standard of review to the state court's decision as the district court.” Beazley v. Johnson,
242 F.3d 248, 255 (5th Cir.2001) (quoting Thompson v. Cain, 161 F.3d 802, 805 (5th
Cir.1998)). Because Bass filed his habeas petition after the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254,
that statute supplies the appropriate standard of review of the state court's order.
AEDPA requires that strong deference be given to factual determinations made by
the state habeas courts:
(d)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 with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim–
***
(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.
5
(e)(1) In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to
be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(d)-(e)(1).
The law in this circuit is clear that, in contrast to the pre-AEDPA law,1 deference
to a state habeas court’s factual determinations is not dependent upon the quality of the
state court’s evidentiary hearing. See Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001). In
Valdez v. Cockrell, we deferred to the state habeas factual findings even where exhibits
were lost and thus ignored by the state court. The Valdez Court held that “a full and fair
hearing is not a precondition to according § 2254(e)(1)’s presumption of correctness to
state habeas court findings of fact nor to applying § 2254(d)’s standards of review.” Id.
at 951. We concluded that deference was owed unless the findings were rebutted by
clear and convincing evidence to the contrary. Simply put, deference is not dependent
upon the existence of a full and fair hearing in the state habeas proceeding.2
1
See e.g. Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996) (holding that full and fair
hearing is a prerequisite to deference, but that paper hearing can under circumstances be a full and
fair hearing).
2
We are aware of a small number of post-AEDPA cases with language suggesting that the
sufficiency of the hearing in the state habeas court could impact the degree of deference owed.
See, e.g., Rudd v. Johnson, 256 F.3d 317, 319 (5th Cir. 2001) (pre-Valdez case suggesting even
stronger deference to a paper hearing where the state trial judge and the habeas judge are the
same, and thus better able to evaluate veracity); Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir.
2000) (pre-Valdez case finding that a full and fair hearing has not always required live testimony);
Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002) (upholding the district court judgment that
deferred to state court habeas factual findings even though based upon paper hearing). These
cases have relied entirely upon pre-AEDPA precedent. E.g., Nethery v. Collins, 993 F.2d 1154,
6
The federal district court properly paid deference to the state habeas findings when
it held that “based on the factual findings and the credibility choices of the state court,
which are presumed correct under 28 U.S.C. § 2254(e)(1), Bass did not actually accept
any plea bargain offer prior to his trial. It follows that Bass cannot show that his attorney
was deficient under Strickland, as a matter of law, because there was no acceptance to
communicate.”3 Bass v. Cockrell, No. H-00-3925, slip op. at 17 (S.D. Tex. Feb. 7,
2002). This finding by the district court is fully supported by the state court finding that
“Dyer did not fail to communicate [Bass’s] acceptance of a plea bargain offer because
[Bass] never agreed to accept any plea bargain offer extended by the State.” St. Hab.
Findings of Fact & Concl. of Law, at 4. The finding that Dyer made no error precludes an
ineffective assistance claim under Strickland.
The district court correctly deferred to the state habeas court factual findings and
properly denied habeas relief.
1157 n.8 (5th Cir. 1993) (pre-AEDPA case cited by post-AEDPA courts when attempting to
acknowledge the relevance of the sufficiency of the state habeas proceeding). Valdez, however, is
the first and only case that has directly addressed the question whether federal courts owe
deference even absent a full and fair hearing in state court. It is the law of this circuit.
3
Bass argues that the district court erred when it found that no plea offer carrying a
sentence of two years had been made. See Bass v. Cockrell, No. H-00-3925, slip op. at 17 (S.D.
Tex. Feb. 7, 2002) (“[O]nly two plea bargains were made, one for probation and another for four
years of imprisonment.”). He avers that this federal court finding is not properly deferential since
it contradicts an implicit factual finding in state court. Petitioner asserts that when the state court
found that “Dyer did not fail to communicate . . . acceptance of a plea bargain offer” it implicitly
acknowledged the existence of a two-year plea offer. Because the district court’s holding
properly denies habeas relief on independent grounds there is no need to address this issue raised
by the petitioner.
7
AFFIRMED.
8