Opinion
No. 3:02-CV-0086-P
February 5, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
Petitioner challenges his conviction for aggravated kidnapping. State v. Jordan, No. F97-03223-KP (203rd Dist.Court Dallas, County, Tex. Nov. 12, 1997). A jury found him guilty and assessed punishment at twenty years in prison. Id. His conviction was affirmed on appeal. Jordan v. State, No. 05-97-02030-CR (Tex.App.-Dallas, April 27, 1999, no pet.). He did not seek discretionary review. He filed a state application for a writ of habeas corpus. Ex parte Jordan, 49,872-02 (Tex.Crim.App. Oct. 24, 2001). After a hearing, the trial court enumerated five instances of constitutionally ineffective assistance in R.J. Daniel's representation of Petitioner on this charge, including, inter alia, ineffective assistance at the pretrial stage of the proceedings. The trial court found that Petitioner's application for a writ of habeas corpus had merit and recommended that the application be granted. Id. at 71. The Texas Court of Criminal Appeals denied the application without written order. Id. at cover.
Exhaustion of State Court Remedies
Respondent agrees that Petitioner has exhausted his state court remedies with respect to all of his claims except his complaints of infirmities in the state habeas corpus proceedings.
Issues
Petitioner raises the following claims:
1. He received constitutionally ineffective assistance of counsel; and
2. The conviction was obtained in violation of his due process rights when the state suppressed evidence favorable to the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963).
Standard of Review
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The pertinent terms of the AEDPA provide:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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 a State court proceeding.28 U.S.C.A. § 2254(d). The AEDPA applies to all federal habeas corpus petitions that were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). Petitioner's state habeas application was denied on the merits.
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412. Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. A claim of ineffective assistance of counsel is a mixed question of law and fact that courts review under the "contrary to" and "unreasonable application" prongs of 28 U.S.C. § 2254(d). Valdez v. Cockrell, 274 F.3d 941, 946 (2001).
Statement of Facts
Petitioner and Respondent each present a different set of facts for this court to review. Respondent relies on the facts that constitute the basis for the aggravated kidnapping charge. However, the facts established at the trial court's hearing on Petitioner's state application for writ of habeas corpus are important to this Court in deciding whether the Texas Court of Criminal Appeals' denial of that writ resulted in a decision that was contrary to, or involved an unreasonable application of Strickland v. Washington or 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. The Hon. Lana McDaniel, the same judge who conducted Petitioner's jury trial, found on habeas review that those facts "overwhelmingly support" Petitioner's contention that trial counsel provided constitutionally ineffective assistance in this case.
466 U.S. 668, 687 (1984).
On November 6, 1996, Petitioner was indicted for aggravated sexual assault of a child. (Exh. B to Pet.) The State offered Petitioner a plea agreement of ten years deferred adjudication probation in exchange for a guilty plea. (Ex Parte Jordan, No. 49,872-02, at 68.) Petitioner's counsel was told that the offer would be withdrawn if Petitioner did not complete the presentence investigation procedure by a certain date. ( Id.) Counsel did not communicate to Petitioner that the plea offer was conditioned upon completion of the presentence investigation by a certain date. ( Id.) If counsel had advised Petitioner adequately, Petitioner would have taken the steps that were required to complete the plea bargain process before the offer was withdrawn. Due to counsel's failure to communicate the time deadline for the plea agreement to Petitioner, the State withdrew the favorable plea offer and indicted Petitioner for the offense he challenges here, aggravated kidnapping. ( Id.) The kidnapping charge arose from the same incident that gave rise to the aggravated sexual assault indictment. Petitioner went to trial on both charges, represented by the same counsel, and a jury found him guilty on both counts. The jury assessed punishment at thirty years on the aggravated sexual assault conviction and twenty years on the aggravated kidnapping. Both convictions were upheld on appeal. Jordan v. State, Nos. 05-97-02030-CR and 05-97-02031-CR (Tex.App.-Dallas, April 27, 1999, no writ). Petitioner then filed two state applications for a writ of habeas corpus. Ex parte Jordan, No. 49, 872-01 (aggravated sexual assault conviction) and No. 02-49,872-02 (aggravated kidnapping conviction), In each writ proceeding, Petitioner filed amended applications attacking his convictions for aggravated sexual assault and aggravated kidnapping. In his amended state applications, Petitioner complained of the Brady violation and ineffective assistance of counsel. Among other constitutional deficiencies, Petitioner complained that counsel was ineffective for mishandling the plea offer on the aggravated sexual assault charge and that this deficiency resulted in the additional charge, thereby prejudicing Petitioner.
After a hearing on habeas review, the trial court enumerated five instances of constitutionally ineffective assistance in R.J. Daniel's representation of Petitioner on each charge and found that each of Petitioner's applications for a writ of habeas corpus had merit. Ex parte Jordan, No. 48, 872-01 at 65-68; No. 48, 872-02 at 68-71. The trial court recommended that the applications be granted. Id. The Texas Court of Criminal Appeals granted the application for a writ of habeas corpus with respect to the sexual assault charge, but denied the application on the aggravated kidnapping conviction without written order. Id. at cover. The State's highest Criminal Court vacated the aggravated sexual assault conviction and the State did not reindict him on that charge. Petitioner seeks a federal writ of habeas corpus on the aggravated kidnapping conviction.
Petitioner's Ineffective Assistance of Counsel Claims
The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. U.S. CONST., art. VI. The merits of the ineffective assistance of counsel claims that are now before the Court are squarely governed by the United States Supreme Court's holding in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Petitioner is required to prove that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense so gravely as to deprive Petitioner of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687. In Strickland, the United States Supreme Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential" and that "every effort [must] be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689. Courts, therefore, must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. A petitioner must prove both deficient performance and prejudice. To prove such prejudice, a petitioner must show "a reasonable probability that the result of the proceedings would have been different but for counsel's unprofessional errors." Strickland, 466 U.S. at 694.
The failure to inform a defendant of a plea offer may constitute ineffective assistance of counsel. See Teague v. Scott, 60 F.3d 1167, 1170-71 (5th Cir. 1995); see also United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994) (holding counsel's failure to communicate plea bargain offer constitutes unreasonable performance under prevailing professional standards); Johnson v. Ducksorth, 793 F.2d 898, 902 (7th Cir. 1986) (finding defense attorney has a duty to inform his client of plea offer and his failure to do so constitutes ineffective assistance); United States v. ex rel. Caruso v. Zolinsky, 689 F.2d 435, 438 (3d Cir. 1982) (holding counsel's failure to communicate plea offer is a denial of his client's Sixth and Fourteenth Amendment rights). A trial counsel's failure to inform a defendant of the deadline for entering a plea may constitute ineffective assistance of counsel. See Turner v. State, 49 S.W.3d 461, 470 (Tex.App. Fort Worth 2001). Furthermore, a defendant, after rejecting a proposed plea bargain and receiving a fair trial, may still show prejudice if acceptance of the plea bargain would have resulted in a lesser sentence. Engelen v. United States, 68 F.3d 238 (8th Cir. 1995). But, the habeas petitioner must show that but for counsel's advice he would have accepted the plea bargain. Engelen, 68 F.3d 238 at 241.
Analysis
After a hearing on habeas review, the trial court found as follows with respect to Petitioner's claim that counsel provided constitutionally ineffective pretrial representation in this case:
. . . The evidence in this case overwhelming [sic] supports Applicant's position. There was a plea bargain offer on the table that Applicant accepted. Counsel was told that the offer would be withdrawn if Applicant did not move on the case and complete the PSI. Counsel did not pass that information to Applicant to allow him to undertake the steps necessary to get the deferred adjudication probation. The court finds that counsel was ineffective for failing to fully communicate the limits of the plea bargain agreement with Applicant and due to her actions, the State withdrew the favorable plea offer and indicted Applicant for an additional offense.Ex parte Jordan, No. 49,872-02 at 69. In addition to the pretrial constitutionally ineffective assistance, the trial court also found four instances of constitutionally ineffective assistance of counsel at trial and a due process violation, as well.
Petitioner's trial counsel lost her licence to practice law in the State of Texas by virtue of her disbarment on March 18, 2003. She was actively suspended on October 20, 2001.
The trial court recommended that Petitioner's state application for writ of habeas corpus be granted. The Texas Court of Criminal Appeals denied his state application for a writ of habeas corpus without written opinion. The undisputed facts show that, but for counsel's ineffective pretrial performance, Petitioner would have accepted the plea bargain, would have received only a ten year probated sentence and would not have been charged with, or convicted of, aggravated kidnapping. This is analogous to a situation in which (1) the State offers a plea bargain to a lesser offense; (2) counsel provides ineffective assistance with respect to that plea; and (3) the State then goes to trial on the greater offense. One criminal episode led to (1) an initial charge, (2) the appointment of defense counsel, (3) constitutionally ineffective pretrial performance that resulted in an additional charge, (4) a consolidation of both charges for trial, (5) one jury trial, and (6) one hearing on Petitioner's state applications for writ of habeas corpus.
The Sixth Amendment guarantee of effective assistance of counsel was violated in this case. No aggravated kidnapping charges would have been filed if counsel had provided constitutionally effective assistance with respect to the plea bargain offer. Counsel's pretrial representation cannot be isolated, differentiated, and compartmentalized with respect to the two charges. The Texas Court of Criminal Appeals' attempt to do so is an unreasonable application of the facts. Petitioner proved both deficient performance and prejudice by a preponderance of the evidence, as required by Strickland.
This Court has thoroughly reviewed the record and concludes that the State court's denial of habeas corpus relief resulted in a decision that was contrary to and involved an unreasonable application of the United States Supreme Court's clearly-established law set forth in Strickland. Further, it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Accordingly, the Petitioner is entitled to federal habeas corpus relief. 28 U.S.C. § 2254(d).
The Court finds that the Texas Court of Criminal Appeals unreasonably applied Strickland because counsel provided constitutionally ineffective assistance at the pretrial stage in this case and Petitioner was prejudiced by this ineffective assistance. But for counsel's ineffectiveness, Petitioner would not have received the twenty year sentence he is now serving. It appears that counsel also provided ineffective assistance at the trial stage of the proceedings, but the Court need not reach those claims or Petitioner's Brady claim because the pretrial ineffectiveness entitles Petitioner to relief. This Court requests that the District Court re-refer the petition for consideration of the remaining issues and for supplemental findings, if it should disagree with this Court's Findings, Conclusions, and Recommendation with respect to counsel's pretrial representation of Petitioner.
RECOMMENDATION
This court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be granted. The District Court should issue a writ of habeas corpus and direct Douglas Dretke, Director of TDCJ-CID, to release Petitioner from custody imposed in State v. Jordan, No. F-97-03223-P, (203rd Dist. Court of Dallas County, Tex. Nov. 12, 1997) unless, within sixty days of the date these findings, conclusions and recommendation are adopted by the District Court, the State of Texas affords Petitioner a new trial. Signed this day of