UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11096
TERRY LYNN JACKSON,
Petitioner-Appellee,
VERSUS
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice, Institutional Division,
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
August 21, 1998
Before KING, SMITH and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Terry Lynn Jackson, Texas state prisoner # 671756, filed a
petition for federal habeas relief, pursuant to 28 U.S.C. § 2254,
alleging that he had received ineffective assistance of counsel on
direct appeal from his state drug offense conviction. The district
court conditionally granted Jackson’s habeas petition, stating that
the writ would not issue if, within a reasonable time, Jackson was
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afforded an out-of-time direct appeal. Respondent, Gary L. Johnson
(“the State”), appeals. We reverse.
FACTS AND PROCEDURAL HISTORY
Following a jury trial in May 1994, Jackson was convicted of
delivery of less than 28 grams of cocaine, sentenced to 80 years’
imprisonment, and ordered to pay a $200,000 fine.
The following facts were adduced at trial: on August 9, 1993,
Kaufman County, Texas, Deputy Sheriff Gregory Parks was operating
as an undercover narcotics officer, riding through Terrell, Texas
in a truck driven by confidential informant, Ronald Durbin. The
truck was fitted with a concealed video camera to record drug
transactions on the passenger side of the vehicle. At
approximately 1:20 a.m., petitioner Jackson sold Parks twenty
dollars’ worth of crack cocaine (later identified by a chemist as
.13 grams of cocaine). The hidden camera recorded the transaction.
At trial, Jackson moved to suppress the videotape, asserting
that it was not a clear and accurate depiction of the individual
engaged in the drug transaction. The trial court denied the
motion, finding that the clarity of the tape went to the weight of
the evidence, not the admissibility. The videotape was played for
the jury. The jury asked to view the videotape again during
deliberations, then returned a guilty verdict.
Confidential informant Durbin, who had known Jackson for five
years, identified Jackson at trial as the individual who sold the
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cocaine. However, he admitted that he relied on the videotape in
making his identification.
Deputy Parks testified that his identification of Jackson was
based on Durbin’s knowledge of Jackson’s identity and on a
comparison of the videotape to a photographic lineup of suspects
arrested for drug trafficking. Parks admitted that, without the
videotape, he could provide only a very general description of the
suspect. In his initial report, Parks did not record any of
Jackson’s distinguishing characteristics, such as that he had a
beard, a pockmarked face, tattoos on his hands and was missing a
front tooth.
Jackson’s wife testified that she was able to adequately
observe the person depicted in the videotape and that the person in
the tape was not Jackson. Two other witnesses who were not present
at the transaction identified Jackson solely on the basis of the
videotape.
On direct appeal in state court, Jackson raised two grounds of
error: 1) whether the videotape was improperly admitted due to its
lack of clarity; and 2) whether the proper predicate had been laid
prior to admission of the videotape into evidence. The state
appellate court affirmed the conviction, finding that Jackson’s
claim that the videotape was improperly admitted was not preserved
for review because the videotape had not been made part of the
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record on appeal.1 Jackson’s motion for rehearing, as well as his
subsequent petition for discretionary review, were denied.
Jackson filed a state application for habeas corpus on January
29, 1996, challenging his confinement on several grounds, including
that he had received ineffective assistance of counsel in
connection with counsel’s failure to submit the videotape for
appellate consideration. The state trial court denied Jackson’s
application, determining that he had received effective assistance
of counsel. See Ex parte Jackson, Application No. 17,492A (86th
Judicial District Court, Kaufman County, Texas January 26,
1996)(unpublished). The Texas Court of Criminal Appeals denied the
petition without written order. See Ex parte Jackson, Application
No. 30,398-01 (Tex.Crim.App. March 27, 1996)(unpublished).
Jackson filed the instant petition for federal habeas relief,
pursuant to 28 U.S.C. § 2254, in July 1996, renewing his argument
that he had received ineffective assistance of counsel on several
grounds, including that counsel had failed to submit a complete
record to the state appellate court. The parties consented to
proceed before a magistrate judge. The magistrate judge found that
Jackson’s counsel was deficient in failing to include the video
tape in the record on appeal and that Jackson was prejudiced by the
deficiency when the state appellate court declined to reach the
1
The appeals court also found that Jackson’s claim that there was
not proper predicate for the videotape was not preserved for
appellate review under the contemporaneous objection rule.
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merits of his claim because the videotape was not included in the
record. The magistrate judge therefore conditionally granting
Jackson’s habeas petition.
DISCUSSION
a. Standard of review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
applies to federal habeas petitions that were filed after its
enactment. Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997). The
parties do not dispute that the AEDPA applies to Jackson’s
petition, filed in July, 1996. Under the AEDPA, if the state court
has adjudicated the merits of the federal constitutional claim now
raised in the federal habeas petition, the new standards of §
2254(d) apply. See Drinkard v. Johnson, 97 F.3d 751, 766-68 (5th
Cir. 1996), cert. denied, 117 S. Ct. 1114 (1997).
The State contends that its claim is reviewable under §
2254(d)(1), which provides:
(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 adjudications of the claim --
(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. . . .
28 U.S.C. § 2254(d). This court must determine whether Jackson’s
claim was “adjudicated on the merits in State court proceedings”
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and is thus subject to the rigorous § 2254(d)(1) standard of
review.
Jackson’s state petition for writ of habeas corpus was filed
originally in the convicting court pursuant to Texas Code of
Criminal Procedure, Art. 11.07. The state of Texas, represented by
the criminal district attorney of Kaufman County, answered urging
the trial court to give the attorney who served as Jackson’s trial
and appellate counsel an opportunity to respond to the ineffective
assistance of counsel allegations. The state trial court ordered
a hearing “which will consist only of an affidavit from Houston M.
Smith concerning the allegations made in the petition in connection
with his representation of [Jackson].” Smith complied with the
order, filing an affidavit in which he listed various steps he took
in representing Jackson and alleged that he provided Jackson with
competent legal counsel at every stage of the proceedings. The
state trial court entered an order finding “that the Petitioner was
rendered effective assistance of counsel” and recommending that the
writ petition be denied. Texas post-conviction procedures direct
that:
After the convicting court makes findings of fact . . .
the clerk of the convicting court shall immediately
transmit to the Court of Criminal Appeals, under one
cover, the application, any answers filed, any motions
filed, transcripts of all depositions and hearings, any
affidavits, and any other matters such as official
records used by the court in resolving issues of fact.
Art. 11.07, Sec. 3.(d). Jackson’s writ was thus transmitted to the
Court of Criminal Appeals, which denied relief without written
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order, upon the findings and conclusions of the state trial judge,
pursuant to Art. 11.07, Sec. 5.
We have previously found that Texas’ post-conviction
procedures provide petitioners “adjudication on the merits”
sufficient to satisfy § 2254(d). In Moore v. Johnson, 101 F.3d
1069, 1075 (5th Cir. 1996), the state trial court conducted an
evidentiary hearing, heard testimony and entered detailed findings
of fact and conclusions of law in support of its conclusion that
Moore failed to show ineffective assistance of counsel. The Court
of Criminal Appeals then denied Moore’s writ. We found such
procedure sufficient to support the application of AEDPA’s
stringent standard of review. See id.
However, in Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir.
1997), cert. denied, 118 S. Ct. 1845 (1998), this court expressed
reservations about applying the stringent AEDPA standard of review.
Nobles’ writ application was based on a claim that the state used
false or misleading evidence in violation of his due process
rights. To establish his claim, Nobles needed to show that the
evidence was false, material and that the prosecution knew it was
false. See Giglio v. United States, 405 U.S. 150, 153-54 (1972).
The state habeas court ruled without evidentiary hearing that
Nobles had not satisfied the “falsity” prong of Giglio, but did not
address the “materiality” prong, which had become the focus of his
federal writ.
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The thoroughness of the state court’s writ proceedings in this
case fall somewhere between Moore and Nobles. The state trial
court conducted a limited evidentiary hearing on affidavit, and
held that Jackson had received effective assistance of counsel.
The state court did not make detailed findings of fact and
conclusions of law, nor did it specifically address counsel’s
undisputed failure to provide the state appellate court with an
adequate record on direct appeal. However, we are convinced that
the state court did rule against Jackson on the merits of his
ineffective assistance of counsel claim and that ruling deserves
the deference afforded state courts under the new AEDPA writ
procedures. The court of conviction ruled explicitly on the merits
and the denial of relief by the Court of Criminal Appeals serves,
under Texas law, to dispose of the merits of the claim. See Ex
parte Torres, 943 S.W.2d 469 (Tex.Crim.App. 1997)(“denial”
signifies that court addressed and rejected the merits of a
particular claim, while “dismissal” means that the court declined
to consider the claim for reasons unrelated to claim’s merits.)
We therefore apply the AEDPA’s deferential standard of review,
which precludes the grant of Jackson’s petition unless the state
court’s adjudication:
(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
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evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). State court factual determinations shall be
presumed correct unless rebutted by “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). Furthermore, when a petitioner
challenges the application of law to fact, AEDPA permits federal
court relief “only when it can be said that reasonable jurists
considering the question would be of one view that the state court
ruling was incorrect.” Drinkard v. Johnson, 97 F.3d 751, 769 (5th
Cir. 1996).
b. Ineffective assistance of counsel on direct appeal
To demonstrate that he received ineffective assistance,
Jackson must show, under the two-prong test enunciated in
Strickland v. Washington, 466 U.S. 668 (1984), that counsel’s
assistance was deficient and that the deficiency prejudiced his
defense. See id. at 687.
1. Deficiency of representation
The State does not challenge the magistrate judge’s conclusion
that Jackson’s counsel performed deficiently in failing to supply
the state court of appeals with the videotape. The Texas Rules of
Appellate Procedure make clear that it was counsel’s affirmative
duty to include the videotape in the appellate record: “[t]he
burden is on the appellant . . . to see that a sufficient record is
presented to show error requiring reversal. TEX. R. APP. P. 50(d);
see also Ex parte Coy, 909 S.W.2d 927, 928 (Tex.Crim.App.
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1995)(finding counsel deficient in failing to include a videotape
capturing the offense in the record before the court of appeals).
2. Prejudice
Rather, the State takes the position that Jackson has not
demonstrated Strickland prejudice and that the ineffectiveness
claim therefore fails. Jackson counters that he need not prove
prejudice since counsel’s deficiency resulted in a constructive
complete denial of assistance of appellate counsel. The standard
Strickland analysis is not performed when there has been actual or
constructive complete denial of any assistance of appellate
counsel. See Sharp v. Puckett, 930 F.2d 450, 451-52 (5th Cir.
1991). “If a petitioner can prove that the ineffective assistance
of counsel denied him the right to appeal, then he need not further
establish -- as a prerequisite to habeas relief -- that he had some
chance of success on appeal.” United States v. Gipson, 985 F.2d
212, 215 (5th Cir. 1993).
We must determine, pursuant to § 2254(d)(1), whether clearly
established Federal law, as determined by the Supreme Court of the
United States, affords Jackson relief. The Supreme Court has held
that when a criminal defendant receives no meaningful assistance at
all from his court-appointed lawyer, he is constructively denied
his Sixth Amendment right to counsel. See United States v. Cronic,
466 U.S. 648 (1984). However, Jackson can point to no clearly
established Federal law from the Supreme Court that says, in
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anything like his situation, that prejudice is presumed.
This court has held that the constructive-denial claim is a
very narrow exception to the Strickland prejudice requirement:
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.
Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997)(internal
quotation marks and citation omitted). We have found a
constructive denial of counsel in cases involving the absence of
counsel from the courtroom, conflicts of interest between defense
counsel and the defendant, and official interference with the
defense. Id. at 1228. We have indicated that constructive denial
will also be found “when counsel fails ‘to subject the
prosecution’s case to meaningful adversarial testing.’”
Id.(citation omitted).
In contrast, this court has refused to presume prejudice when
defense counsel investigated certain issues but not others; when
counsel’s trial preparation was “‘somewhat casual;’” when counsel
failed to pursue a challenge based on racial bias in jury
selection; when counsel failed to object to a variation between the
indictment and the jury charge; and when counsel failed to raise a
meritorious issue on appeal. Childress, 103 F.3d at 1229 (citation
omitted); see also Sharp, 930 F.2d at 452.
Examining these different holdings, the Childress court
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explained that prejudice is presumed when the defendant
demonstrates that counsel “was not merely incompetent but inert,”
distinguishing “shoddy representation from no representation at
all.” Childress, 103 F.3d at 1228-29. When the defendant
complains of errors, omissions, or strategic blunders, prejudice is
not presumed; “‘bad lawyering, regardless of how bad, does not
support the [per se] presumption’ of prejudice. . . .” Id. at 1229
(citation omitted). The question is thus whether Jackson complains
of counsel’s “maladroit performance,” in which case Strickland
prejudice must be shown, or nonperformance, in which case prejudice
is presumed. See Childress, 103 F.3d at 1229-30. Because
Jackson’s complaint is that of shoddy representation -- one
essential error in the midst of otherwise adequate representation2
-- rather than total absence of counsel, Jackson must demonstrate
that the error complained of resulted in Strickland prejudice. See
Childress, 103 F.3d at 1228-30.
The magistrate judge concluded that Jackson had made the
required showing of prejudice by demonstrating that counsel’s
failure resulted in the state appellate court’s refusal to reach
the merits of the claim that the videotape was improperly admitted.
The State challenges the magistrate judge’s conclusion, arguing
2
Counsel actively represented Jackson at trial, objecting to the
State’s evidence, cross-examining witnesses, and putting on defense
witnesses and evidence. Counsel filed a timely appeal and
submitted a complete appellate brief. Following the dismissal of
the appeal, counsel submitted a timely motion for reconsideration.
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that it incorrectly applied the Strickland prejudice standard. The
State argues that the “different result” contemplated by Strickland
is not whether the court of appeals would have reached the merits
of the claim had the videotape been produced, but whether the
ultimate result of the appeal would have been different, i.e.,
whether Jackson’s conviction would have been overturned.
We cannot affirm the magistrate judge’s reasoning nor can we
adopt the State’s argument. It is clear that under Federal law, as
articulated by the Supreme Court of the United States, focus on
mere outcome determination at the appellate level is defective.
See Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). “[T]he
presence or absence of prejudice, both with respect to claims of
ineffective assistance of counsel at the trial and appellate
levels, hinges upon the fairness of the trial and the reliability
of the judgment of conviction resulting therefrom.” See Goodwin v.
Johnson, 132 F.3d 162, 174 (5th Cir. 1998). “[T]he right to
effective assistance of counsel, both at the trial and appellate
level, ‘is recognized not for its own sake, but because of the
effect that it has on the ability of the accused to receive a fair
trial.’” Id. In Goodwin, this court held that no prejudice
resulted from counsel’s failure to raise on appeal an objection to
the trial court’s failure to provide the jury with a warranted jury
instruction since the absence of the instruction in no way rendered
the trial unfair or the verdict suspect. Id. at 176.
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Here, several witnesses testified that Jackson was the suspect
who sold cocaine to Parks and who was depicted on the videotape,
including Durbin, who had known him for five years. Further,
Jackson’s wife, a defense witness, testified that she could discern
the identity of the person in the videotape, although she stated
that the person was not Jackson. The reliability of the videotape
and the weight to which it was entitled were questions
appropriately entrusted to the jury. Jackson’s trial and resultant
judgment of conviction were not rendered unfair or unreliable
because of the admission of the videotape. Under Fretwell and
Goodwin, Jackson has not satisfied the prejudice prong of
Strickland. Therefore, applying AEDPA’s deferential standard of
review, we cannot say that the State court erred in denying
Jackson’s requested relief.
CONCLUSION
Based on the foregoing, we reverse the conditional grant of
habeas corpus relief on Jackson’s § 2254 petition.
REVERSED.
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