UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-31342
_____________________
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.
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“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
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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
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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”.
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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.”).
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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
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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
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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
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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
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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
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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
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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.
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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