United States Court of Appeals,
Fifth Circuit.
No. 93-7660.
John S. JORDAN, Petitioner-Appellant,
v.
Edward HARGETT, Superintendent, Mississippi State Penitentiary,
et al., Respondents-Appellees.
Oct. 7, 1994.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before REAVLEY, DeMOSS and STEWART, Circuit Judges.
REAVLEY, Circuit Judge:
John Jordan filed a petition for writ of habeas corpus
asserting that his constitutional right to testify had been
violated in the course of his state court trial for rape. The
district court denied the petition. We reverse and remand.
BACKGROUND
In 1987 Jordan was tried and convicted in Mississippi state
court for the rape of G.R. After exhausting his state remedies, he
sought federal habeas corpus relief. He alleged that he was denied
his right to testify on his own behalf at trial. A magistrate
judge conducted an evidentiary hearing on this claim. Jordan
testified at the hearing that he informed his attorney prior to
trial and during each trial recess that he wished to testify. In
particular, he wished to testify that he was visiting relatives in
Dallas at the time of the rape. He further wanted to testify to
refute the victim's description of him as the rapist, to point out
1
that the fingerprints taken from the scene were not his, and to
show that the jacket taken from his house in 1986 by the sheriff
was different from the jacket the victim described the rapist as
wearing. Jordan stated that his lawyer told him he could not
testify because such testimony might result in the jury learning of
Jordan's 1976 conviction for child molestation. Jordan's wife and
daughter corroborated his testimony. The magistrate found the
testimony of the witnesses believable and uncontradicted. Jordan's
attorney from the state trial could not be located and did not
testify at the habeas hearing.
The magistrate recommended that habeas corpus relief be
granted. After hearing the testimony, the magistrate made factual
findings that Jordan repeatedly requested to testify at trial, that
his counsel's decision not to call him was made against his wishes,
that Jordan understood that he had a right to testify, and that he
never voluntarily and intentionally waived that right.
The district court rejected the magistrate's recommendation
and denied the request for habeas corpus relief. The court
concluded that Jordan had waived his right to testify by
voluntarily choosing not to testify on the advice of his attorney,
and by failing to assert his right to testify either through his
attorney or on his own during the state trial.
DISCUSSION
A criminal defendant has a fundamental constitutional right
to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 49-
52, 107 S.Ct. 2704, 2708-10, 97 L.Ed.2d 37 (1987). This right is
2
granted to the defendant personally and not to his counsel. Id. at
51, 107 S.Ct. at 2709. See also United States v. Teague, 953 F.2d
1525, 1532 (11th Cir.) (on rehearing en banc) ("We now reaffirm
that a criminal defendant has a fundamental constitutional right to
testify in his or her own behalf at trial. This right is personal
to the defendant and cannot be waived either by the trial court or
by defense counsel."), cert. denied, --- U.S. ----, 113 S.Ct. 127,
121 L.Ed.2d 82 (1992).
A. Whether a Constitutional Violation Occurred
A defendant may of course waive his right to testify, and
frequently does so on the advice of counsel. We would find no
violation of the right to testify if Jordan acquiesced during trial
to his attorney's recommendation that he not testify and later
decided that he should have testified. Instead, a violation of
this right only occurred if the "final decision that [defendant]
would not testify was made against his will. In other words, we
must determine whether [defendant] made a knowing, voluntary and
intelligent waiver of his right to testify." United States v.
Teague, 908 F.2d 752, 759 (11th Cir.1990), rehearing granted, 953
F.2d 1525 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 127,
121 L.Ed.2d 82 (1992).
Based on his report and recommendation we conclude that the
magistrate fully understood the relevant factual inquiry. He
concluded that Jordan had repeatedly asked to testify, had never
voluntarily waived his right to testify, and that "the decision
that John Jordan would not testify was made against his wishes."
3
These findings are findings of fact, and are based on the
magistrate's view of the credibility of the witnesses he observed.
The district court rejected the magistrate's findings and
recommendation. It relied in part on testimony from Jordan in the
civil case G.R. brought against Jordan, which suggests that Jordan
chose not to testify in the prior criminal trial on the advice of
counsel. This evidence was offered by the State after the
magistrate issued his report and recommendation.
We have often stated, in cases where the district court
adopts the fact findings of a magistrate who conducted an
evidentiary hearing, that on appeal we should defer to such
findings unless clearly erroneous.1 The district court, however,
is not so limited it its review. Under 28 U.S.C. § 636(b)(1)(C),
which governs district court review of a magistrate's findings of
fact and recommendations for the disposition of applications for
post-conviction relief:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate. The judge
may also receive further evidence or recommit the matter to
the magistrate with instructions.
See also Louis v. Blackburn, 630 F.2d 1105, 1110 (5th Cir.1980)
1
E.g., Johnson v. Collins, 964 F.2d 1527, 1536 (5th Cir.),
cert. denied, --- U.S. ----, 113 S.Ct. 4, 120 L.Ed.2d 933 (1992);
McInerney v. Puckett, 919 F.2d 350, 352 (5th Cir.1990); Meyer v.
Estelle, 621 F.2d 769, 775 (5th Cir.1980); Parnell v.
Wainwright, 464 F.2d 735, 737 n. 1 (5th Cir.1972) ("The
magistrate's findings of fact receive the imprimatur of Rule
52(a) by the district court's adoption of those findings as its
own.").
4
("The district judge, in his decision whether to reject or accept
the magistrate's recommendations, is not limited to a clearly
erroneous standard as we are in our appellate review of facts found
by the district courts."); Tijerina v. Estelle, 692 F.2d 3, 5 (5th
Cir.1982) ("Under the Federal Magistrate's Act, the district court
may give to the magistrate's proposed findings of fact and
recommendations "... such weight as [their] merit commands and the
sound discretion of the judge warrants.' ") (quoting Mathews v.
Weber, 423 U.S. 261, 273, 96 S.Ct. 549, 556, 46 L.Ed.2d 483
(1976)).
While the statute, by its terms, grants the district court
broad discretion to accept or reject a magistrate's fact findings,
we have placed some limits on that discretion. In particular, we
have limited district court discretion to reject a fact finding of
the magistrate where (1) the finding is based on the credibility of
the witnesses the magistrate heard, and (2) the finding is
dispositive of an application for post-conviction relief involving
the constitutional rights of a criminal defendant. In Blackburn we
held that in such circumstances the district judge cannot reject
the finding without personally hearing live testimony from the
witnesses whose testimony is in issue. We explained:
One of the most important principles in our judicial system is
the deference given to the finder of fact who hears the live
testimony of witnesses because of his opportunity to judge the
credibility of those witnesses. The Supreme Court has
emphasized, in cases that involve the constitutional rights of
criminal defendants, that factual findings may not be made by
someone who decides on the basis of a cold record without the
opportunity to hear and observe the witnesses in order to
determine their credibility.
5
* * * * * *
If the district judge doubts the credibility determination of
the magistrate, only by hearing the testimony himself does he
have an adequate basis on which to base his decision.
* * * * * *
In order to adequately determine the credibility of a witness
as to such constitutional issues, the fact finder must observe
the witness. This may be accomplished either by the district
judge accepting the determination of the magistrate after
reading the record, or by rejecting the magistrates's decision
and coming to an independent decision after hearing the
testimony and viewing the witnesses.
Blackburn, 630 F.2d at 1109-10 (citations omitted).
We conclude that the district court erred in rejecting the
magistrate's credibility-based fact findings without conducting its
own evidentiary hearing. We believe that Jordan's testimony from
the civil trial was not sufficiently telling for the district court
to reject the magistrate's fact findings without conducting its own
hearing.2 Further, as discussed below, we can find no alternative
2
The testimony from the civil trial can be read to suggest
that Jordan waived his right to testify on the advice of counsel,
but it is not conclusive. At one point in the civil trial he
testified as follows:
Q: Why didn't you testify a year ago [at the criminal
trial]?
A: I—It didn't seem necessary to—to testify. It—I—I
had my—the trial was by advisement of my
attorneys; and, they didn't think it was
necessary that I even testify.
Q: But you made that decision also; did you not?
A: Did I make the decision?
Q: Yes, sir.
A: I took advisement and made the decision.
6
ground for affirming the district court's decision. Consistent
with Blackburn, therefore, we remand the case for further
proceedings.
B. The Effect of Failure to Object
Neither Jordan nor his counsel made a record in the state
trial of Jordan's desire to testify. In similar circumstances some
courts have concluded that the defendant waived his right to
testify.3 We do not believe that a defendant's failure to make a
record of his desire to testify against his counsel's wishes is
always fatal. Unlike many trial errors asserted in habeas
proceedings, this alleged error by its very nature is one where the
defendant and his lawyer are necessarily at odds with each other.
We think it unrealistic to expect that defense counsel will always
bring this attorney-client dispute to the attention of the trial
However, shortly thereafter, he offered the following
testimony:
Q: Mr. Jordan, a year ago you exercised your right and
you chose not to testify in that case when you
were charged with rape in the criminal trial; is
that correct?
A: No. No. You said I chose.
Q: Yes, sir.
A: No, I didn't; I didn't choose. I was working, you
know, on the advisement of my attorneys.
3
E.g., United States v. Edwards, 897 F.2d 445, 447 (9th
Cir.), cert. denied, 498 U.S. 1000, 111 S.Ct. 560, 112 L.Ed.2d
567 (1990); United States v. Martinez, 883 F.2d 750, 760 (9th
Cir.1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.),
cert. denied, 501 U.S. 1249, 111 S.Ct. 2886, 115 L.Ed.2d 1052
(1991); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987);
United States v. Bernloehr, 833 F.2d 749, 752 (8th Cir.1987).
7
court. Likewise, we believe that a rule requiring the defendant
personally to make such a record is inappropriate. We agree with
the reasoning of the panel opinion in Teague:
The defendant may not realize until after the jury has retired
to deliberate that the proper time for his testimony has
passed. Furthermore, once a defendant elects to take
advantage of his right to counsel, he is told that all further
communications with the court and the prosecutor should be
made through his attorney. Aside from any testimony he may
give at pre-trial hearings or during trial, a defendant is not
permitted to speak directly to the court. In fact, in the
interests of decorum and the smooth administration of justice,
defendants who speak out of turn at their own trials are
quickly reprimanded, and sometimes banned from the courtroom,
by the court. It would be anomalous to consider the right to
counsel of fundamental importance because of the common lack
of understanding of the trial process by defendants, and to
require a defendant to rely on his attorney to be his sole
spokesperson in the courtroom, while at the same time holding
that by failing to speak out at the proper time a defendant
has made a knowing, voluntary and intelligent waiver of a
personal right of fundamental importance such as the right to
testify.
Teague, 908 F.2d at 759-60 (footnote omitted). The uncertainty in
this area could be avoided if counsel would obtain a signed
statement from the defendant or if trial courts would conduct a
colloquy and obtain, outside of the jury's hearing, a statement on
the record from the non-testifying defendant that he is aware of
his right to testify and has chosen voluntarily to waive that
right.4
4
The courts are not in uniform agreement on whether such a
colloquy from the trial court is advisable. State and federal
courts widely have held that such a colloquy is not required.
See Martinez, 883 F.2d at 757. The majority opinion in Martinez
argues that such a court inquiry not only is not required, but is
an inappropriate intrusion into the attorney-client relationship.
Id. See also Siciliano, 834 F.2d at 30 (Breyer, J.) ("To require
the trial court to follow a special procedure, explicitly telling
defendant about, and securing an explicit waiver of, a privilege
to testify (whether administered within or outside the jury's
8
We do not mean to suggest that a defendant's failure to object
in the state court proceeding is entirely irrelevant. That silence
may itself be evidence of voluntary waiver of the right to testify.
In the absence of evidence in the state court record of the
defendant's wish to testify, we think it appropriate for the habeas
court to presume that the defendant acquiesced in his counsel's
advice or otherwise made a voluntary choice not to testify. We
hold only that such silence does not raise an irrebuttable
presumption of waiver. Here the magistrate as fact-finder
carefully considered the live evidence presented and the
credibility of the witnesses, and we cannot say on this record that
Jordan waived his right to testify.
C. Whether the Constitutional Error, if Any, Was Harmless
The State argues in the alternative that even if Jordan's
right to testify was denied, such a constitutional violation was
harmless error which does not justify habeas corpus relief. In
Brecht v. Abrahamson, --- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d
353 (1993), the Supreme Court addressed the standard for
determining, in a federal habeas corpus proceeding, whether a
conviction must be set aside because of constitutional error. The
constitutional error in that case was a Doyle error which occurred
when the prosecution made reference to the defendant's post-Miranda
hearing), could inappropriately influence the defendant to waive
his constitutional right not to testify, thus threatening the
exercise of this other, converse, constitutionally explicit, and
more fragile right."). In contrast, the dissent in Teague would
require courts to establish on the trial record a waiver of the
defendant's right to testify. Teague, 953 F.2d at 1544 (Clark,
J., dissenting).
9
silence. Id. at ----, 113 S.Ct. at 1713-14. The Court discussed
in general the distinction between "trial errors" which are
amenable to harmless-error analysis and "structural defects," such
as denial of the right to counsel, which require automatic reversal
of the conviction "because they infect the entire trial process."
Id. at ----, 113 S.Ct. at 1717. The Court held that the standard
for determining whether habeas relief must be granted is whether
the Doyle error " "had substantial and injurious effect or
influence in determining the jury's verdict.' " Id. at ----, 113
S.Ct. at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 66
S.Ct. 1239, 90 L.Ed. 1557 (1946)). This standard must now be
followed in habeas proceedings, in lieu of the "harmless beyond a
reasonable doubt" standard announced in Chapman v. California, 386
U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and applied in direct
appeals. Since Brecht, our court and others have held generally
that the Brecht/Kotteakos standard applies in habeas proceedings
where the court must decide whether a constitutional trial error
requires reversal of the conviction. E.g., Kyles v. Whitley, 5
F.3d 806, 807 (5th Cir.1993) (holding that in habeas proceedings
Brecht standard "controls all trial, as distinguished from
structural, errors"); Shaw v. Collins, 5 F.3d 128, 132 (5th
Cir.1993); Lowery v. Collins, 996 F.2d 770, 772 (5th Cir.1993).
Justice Stevens, concurring in Brecht, explained that the
Kotteakos standard "places the burden on prosecutors to explain why
those errors were harmless" and "requires a habeas court to review
the entire record de novo in determining whether the error
10
influenced the jury's deliberations." --- U.S. at ----, 113 S.Ct.
at 1723. As we noted in Lowery:
Justice Stevens, in his concurring opinion in Brecht, wrote to
explicate the Kotteakos standard and to "emphasize that the
standard is appropriately demanding." Under Kotteakos, "the
burden of sustaining a verdict by demonstrating that the error
was harmless rests on the prosecution" unless that "error is
merely "technical' "—which a constitutional violation could
never be.
996 F.2d at 773 (footnote omitted) (quoting Brecht, --- U.S. at ---
-, 113 S.Ct. at 1723-24 (Stevens, J., concurring)).
We conclude that this case involves a trial error and so the
Brecht standard should govern.5 If a constitutional error
occurred, we would hold based on the record before us that it "had
substantial or injurious effect or influence in determining the
jury's verdict." The burden was on the State to demonstrate
otherwise, and it did not meet this burden. This case in not one
5
But see Wright v. Estelle, 572 F.2d 1071, 1080-82 (5th
Cir.) (en banc) (Godbold, J., dissenting) (suggesting that denial
of defendant's right to testify should be reversible per se),
cert. denied, 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978).
We also note that when the Eleventh Circuit decided the Teague
case en banc, it adopted an approach different from the one we
choose to follow. Although the Teague court held that "a
criminal defendant has a fundamental constitutional right to
testify on his behalf, that this right is personal to the
defendant, and that the right cannot be waived by defense
counsel," 953 F.2d at 1535, it concluded that a claim that the
defendant was denied his right to testify should be reviewed as
an ineffective assistance of counsel claim under Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
953 F.2d at 1534. We cannot agree with this approach. First, we
believe that the right of a defendant to testify on his own
behalf is a fundamental constitutional right entirely separate
from his right to counsel. Second, in our view, treating a
claimed denial of the defendant's right to testify as an
ineffective assistance of counsel claim ignores recognition of
the right as one personal to the defendant which can never be
waived by counsel, competent or not.
11
where the evidence of guilt was so overwhelming that we can say
that the constitutional error, if any, was harmless under the
Brecht standard. Numerous witnesses (albeit relatives) testified
at trial in support of Jordan's alibi—that he was in or on his way
to Dallas at the time of the rape. G.R. did not identify Jordan as
the rapist until the summer of 1986, some two years after she had
been shown photographs of Jordan and other suspects on several
occasions. Jordan claims that her incentive for identifying him as
the rapist was financial. She obtained counsel to bring a civil
suit against Jordan in the summer or fall of 1986, and ultimately
won a large judgment against Jordan. Jordan testified at the civil
trial, and points out that even with the lower burden of proof in
that proceeding and even though the fact of his rape conviction was
brought out at the civil trial, the jury was split ten to two on
the verdict.6 Jordan offered plausible reasons that his own
testimony would have helped his case. Further, his lawyer's reason
for not calling him seems implausible. The child molestation
conviction was more than ten years old. Mississippi Rule of
Evidence 609(b) is the same as FED.R.EVID. 609(b), and provides that
evidence of a conviction more than ten years old is not admissible
unless "the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial
effect," and "the proponent gives to the adverse party sufficient
6
The magistrate observed: "If two jurors would vote in John
Jordan's favor under a preponderance of the evidence standard
while knowing of his conviction for rape, the undersigned cannot
conclude that the violation of his right to testify at his
criminal trial was harmless beyond a reasonable doubt."
12
advance written notice of intent to use such evidence...." Our
review of the state and federal court records indicate that these
requirements were not met.
CONCLUSION
We reverse the district court's order denying the habeas
corpus petition, and remand the case for further consideration
consistent with this opinion.
REVERSED and REMANDED.
13