Jordan v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
July 6, 2005
Charles R. Fulbruge III
Clerk
REVISED AUGUST 16, 2005
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-10651
_______________
KEITH JORDAN,
Petitioner-Appellee,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
Before DAVIS, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
In this habeas corpus proceeding we con-
sider whether the district court erred in grant-
ing relief to Texas prisoner Keith Jordan on
the basis of pretrial ineffective assistance of
counsel. Concluding that the district court
was in error, we reverse the grant of habeas
corpus relief and remand so the balance of
Jordan’s claims can be considered.
I.
A.

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Jordan was indicted in November 1996 for
aggravated sexual assault of a child. The state
offered a plea bargain of ten years’ deferred
adjudication probation and a fine of $500. For
reasons we will discuss, Jordan failed to enter
a timely plea, and the state ultimately withdrew
the plea offer in September 1997. A month
later Jordan was indicted for aggravated kid-
naping arising from the same incident as the
aggravated sexual assault charge.
Jordan pleaded not guilty on both counts
and was convicted by a jury, which assessed
thirty years’ imprisonment for aggravated sex-
ual assault of a child and twenty years for ag-
gravated kidnaping. Both convictions were af-
firmed on direct appeal, see Jordan v. State,
Nos. 05-97-02030-CR, 05-97-02031-CR
(Tex. App.—Dallas, 1999, no pet.).
Jordan filed two petitions for habeas corpus
relief in state court, one challenging the legal-
ity of his conviction for aggravated sexual as-
sault of a child; the other challenging his cus-
tody under his conviction of aggravated kid-
naping. Both petitions contained the same
substantive claims, which center on the con-
tention that Jordan’s counsel provided ineffec-
tive assistance under the Sixth Amendment
during the plea bargaining process and at trial.
Jordan alleged that counsel’s representation
was constitutionally deficient in five respects,
the first being the failure to inform him that the
state’s plea bargain offer on the aggravated
sexual assault charge would be withdrawn if he
did not complete a pre-sentence investigation
and formally enter his plea by the state’s dead-
line.
Jordan also maintained that counsel (1) had
erroneously advised him and argued to the jury
that under Texas law his alleged mistake of
fact concerning the complaining witness’s age
(i.e., that she was 18 years old) was a valid
defense to aggravated sexual assault of a child;
(2) failed to challenge either the factual basis
or reliability of expert testimony of a police
officer presented by the state; (3) did not
object to allegedly improper bolstering of the
complaining witness’s testimony at trial; and
(4) failed to object to allegedly prejudicial jury
instructions at the punishment phase regarding
the amount of time Jordan would have to serve
before being eligible for release. Jordan fur-
ther claimed that the state had withheld im-
peachment evidence in contravention of its due
process obligation under Brady v. Maryland,
373 U.S. 83 (1963), and its progeny.
After an evidentiary hearing before the
same judge who had presided over the trial,
the state habeas trial court entered two sepa-
rate orders containing identical findings of fact
and conclusions of law, see Ex Parte Jordan,
No. W96-78296-P(A) (203rd Dist. Ct., Dallas
County, Tex., June 28, 2001) (aggravated
sexual assault of a child); Ex Parte Jordan,
No. W97-03223-P(A) (203rd Dist. Ct., Dallas
County, Tex., June 28, 2001) (aggravated
kidnaping). The court made the following
findings regarding the plea-bargaining process:
The prosecutor initially responsible for han-
dling the aggravated sexual assault of a child
charge against Jordan had made a plea offer of
ten years’ deferred adjudication probation in
exchange for a guilty plea. When a new prose-
cutor was assigned to the case in May 1997,
this plea offer had been on the table for more
than three months. Defense counsel told the
new prosecutor that Jordan would accept the
plea but did not want to register as a sex
offender; the prosecutor agreed that they could
leave that condition for the court to decide.
The offer then remained on the table for
another four months, but Jordan failed to com-

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3
plete the necessary pre-sentence investigation
required by the probation department. At that
point, the prosecutor informed counsel that
Jordan had three weeks to accept the plea,
and thus complete the requisite investigatory
report, or the offer would be withdrawn.
Counsel did not communicate to Jordan that
there was a deadline within which he had to
complete the pre-sentence investigation and
enter his plea; Jordan failed to complete the
report and enter a plea, and the prosecutor
withdrew the offer.1 The prosecutor later ob-
tained an additional indictment for aggravated
kidnaping arising from the same episode as the
aggravated sexual assault charge.
Based on these facts, the state habeas trial
court determined that “counsel was ineffective
for failing to fully communicate the limits of
the plea bargain agreement with [Jordan] and
due to her actions, the State withdrew the fa-
vorable plea offer and indicted [Jordan] for an
additional offense.” In addition, the court sus-
tained each of Jordan’s other specific ineffec-
tive assistance claims and his Brady claim con-
cerning the criminal history of the complaining
witness. As a result, the court recommended
to the Texas Court of Criminal Appeals that
Jordan be granted habeas relief on his convic-
tions of aggravated sexual assault of a child
and aggravated kidnaping.
The Court of Criminal Appeals accepted
the state habeas trial court’s recommendation
that Jordan was entitled to habeas relief on his
conviction of aggravated sexual assault of a
child on the basis of ineffective assistance dur-
ing the plea process. The court stated:
Applicant contends, inter alia, that his at-
torney failed to inform him of the deadline
for accepting the State’s plea offer of ten
years deferred adjudication probation, and
a $500 fine.
In the instant cause, the record reflects
that the State made an offer of ten years de-
ferred adjudication probation, in return for
a plea of guilty to aggravated sexual as-
sault. The trial court found that Applicant
accepted the plea offer, but counsel failed
to inform Applicant that he needed to com-
plete the PSI by the State’s deadline, or the
offer would be withdrawn. The trial court
has recommended that relief be granted.
We agree with this recommendation.
Ex Parte Jordan, No. 74, 201 (Tex. Crim.
App. Oct. 24, 2001) (per curiam) (unpub-
lished). Accordingly, the court granted habeas
relief and vacated Jordan’s conviction of ag-
gravated sexual assault of a child.2 The court
did not, however, accept the habeas trial
court’s recommendation as to the aggravated
kidnaping conviction; the same day it issued its
opinion granting relief on the aggravated
sexual assault conviction, it denied without
written order habeas relief on the conviction of
aggravated kidnaping.3
1 The court also found that “[w]hen [Jordan]
was told the offer was withdrawn, he asked his
attorney to ‘get it back.’ He would have accepted
the offer even if it required sexual offender
registration.”
2 Having granted relief on this ground, the court
dismissed as moot the balance of Jordan’s claims.
3 The record on appeal contains a photocopy of
the notice sent to Jordan by the Court of Criminal
Appeals, which bears Cause No. 49, 872-02 and
provides in full: “This is to advise that the Court
has denied without written order the application for
writ of habeas corpus.”

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4
B.
Jordan then filed a petition for writ of ha-
beas corpus in federal district court, pursuant
to 28 U.S.C. § 2254, challenging the legality
of his custody under the conviction of aggra-
vated kidnaping. He sought relief on each of
the ineffective assistance grounds and the Bra-
dy claim raised in his state writ. Relying on
the facts as found by the state habeas trial
court, the magistrate judge determined that
“but for counsel’s ineffective pretrial perfor-
mance, 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
kidnaping.”
Convinced of this causal link, the magis-
trate judge determined that Jordan had proven,
by a preponderance of the evidence, deficient
performance and prejudice related to counsel’s
pretrial representation. The magistrate judge
thus concluded that the Court of Criminal Ap-
peals’ denial of habeas relief on Jordan’s ag-
gravated kidnaping conviction was factually
unreasonable, as well as directly contrary to
and an unreasonable application of Strickland
v. Washington, 466 U.S. 668 (1984). Accord-
ingly, the magistrate judge recommended that
the district court grant habeas relief on the
conviction of aggravated kidnaping.4
The state filed written objections to the
magistrate judge’s report, central among them
being the contention that the state habeas rec-
ord does not support the finding that had Jor-
dan timely accepted the plea bargain offer on
the aggravated sexual assault charge, he would
not have been charged with aggravated kid-
naping. The federal district court overruled
the state’s objections and adopted the findings
and conclusions of the magistrate judge’s re-
port. In doing so, the court acknowledged
that “no direct evidence on this issue was pre-
sented” at the state habeas hearing but never-
theless found that “the record as a whole”
supported the conclusion that the aggravated
kidnaping charge was itself part of the pre-
judice flowing from counsel’s ineffective as-
sistance on the plea to the aggravated sexual
assault charge. The district court therefore en-
tered judgment granting Jordan federal habeas
relief from his conviction of aggravated kid-
naping.
II.
A.
Jordan sought federal habeas relief in the
district court from a state-court judgment of
conviction; hence our review is highly circum-
scribed by the Anti-Terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), 110
Stat. 1214. Under AEDPA, a petition for writ
of habeas corpus shall not be granted with re-
spect to any claim that was adjudicated on the
merits in state court unless the petitioner can
demonstrate that the state court resolution of
his case was “contrary to, or involved an un-
reasonable application of, clearly established
Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C.
§ 2254(d)(1), 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,” 28 U.S.C. §
2254(d)(2). See Miller-El v. Dretke, 125 S.
Ct. 2317, 2325 (2005).5
4 The magistrate judge did not consider whether
counsel’s performance at trial or Jordan’s Brady
claim otherwise provided a basis for relief.
5 Neither party disputes that Jordan’s claim for
ineffective assistance of counsel during the pretrial
process was adjudicated on the merits by the
(continued...)

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5
As we have explained, “[b]ecause a federal
habeas court only reviews the reasonableness
of the state court’s ultimate decision, the
AEDPA inquiry is not altered when, as in this
case, state habeas relief is denied without an
opinion.” Schaetzle v. Cockrell, 343 F.3d 440,
443 (5th Cir. 2003).6 Rather, in such a situa-
tion, “our court: (1) assumes that the state
court applied the proper ‘clearly established
Federal law’; and (2) then determines whether
its decision was ‘contrary to’ or ‘an objectively
unreasonable application of’ that law.” Id.
(citing Catalan v. Cockrell, 315 F.3d 491, 493
& n.3 (5th Cir. 2002)).
B.
Because Jordan seeks relief on the basis of
ineffective assistance of counsel, the “clearly
established Federal law” against which we
measure the state court’s denial of relief is the
standard set forth in Washington. To establish
ineffective assistance, a petitioner must dem-
onstrate that counsel’s performance was defi-
cient and that this deficient performance re-
sulted in prejudice. Id. at 687. Stated gener-
ally, the prejudice prong requires a petitioner
to demonstrate that “but for counsel’s unpro-
fessional errors, the result would have been
different.” Id. at 694. Insofar as ineffective
assistance claims arising from the pretrial pro-
cess are concerned, this general prejudice
showing includes two specific lines of cases:
First, there are claims that, but for counsel’s
pretrial errors, the petitioner would not have
pleaded guilty and would have insisted on
going to trial, see, e.g., Hill v. Lockhart, 474
U.S. 52, 59 (1985); and second, there are
claims that, but for counsel’s pretrial errors,
the petitioner would have pleaded guilty and
received a lesser sentence, see, e.g., Teague v.
Scott, 60 F.3d 1167, 1170 & n.13 (5th Cir.
1995) (collecting cases).
Jordan’s claim of pretrial ineffective assis-
tance of counsel with respect to his conviction
of aggravated sexual assault is in the second
category; his claim was that but for counsel’s
failure to inform him of the deadline for com-
pleting the pre-sentence report, he would have
accepted the plea and received ten years de-
ferred adjudication, rather than the thirty-year
sentence imposed at trial. But the claim on
which Jordan now seeks relief with respect to
his conviction of aggravated kidnaping is dif-
ferent in kind: He maintains that, but for
counsel’s deficient representation, he would
have accepted the state’s plea to the aggravat-
ed sexual assault charge and would not have
been charged with the additional offense.
Though we have not been directed to (nor has
our own research revealed) any case in which
the prejudice alleged is the state’s discretion-
ary decision to charge a defendant with an
additional offense, we assume for present
purposes that such a claim affords a cognizable
basis for an ineffective assistance claim, one to
5(...continued)
Court of Criminal Appeals. Our cases recognize
that, under Texas law, a denial of relief, as distin-
guished from a dismissal, by that court constitutes
an adjudication on the merits. See, e.g., McCall v.
Dretke, 390 F.3d 358, 362 n.12 (5th Cir. 2004);
Bledsue v. Johnson, 188 F.3d 250, 256-57 & n.12
(5th Cir. 1999); see also Ex Parte Torres, 943
S.W.2d 469, 472 (Tex. Crim. App. 1997) (“In our
writ jurisprudence, a ‘denial’ signifies that we ad-
dressed and rejected the merits of a particular claim
while a ‘dismissal’ means that we declined to
consider the claim for reasons unrelated to the
claim’s merits.”).
6 See also Neal v Puckett, 286 F.3d 230, 246
(5th Cir. 2002) (en banc) (“It seems clear to us that
a federal habeas court is authorized . . . to review
only a state court’s ‘decision,’ and not the written
opinion explaining that decision.”).

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6
be measured against the general prejudice
requirement (i.e., but for counsel’s errors, “the
result would have been different.”). We thus
turn to the merits and consider whether the
district court erred in granting habeas relief.
III.
A.
As we indicated, the magistrate judge’s re-
port, which was adopted by the district court,
concluded that the Court of Criminal Appeals’
denial of relief was contrary to and an unrea-
sonable application of clearly established fed-
eral law, and was based on an unreasonable
determination of the facts. Under the “con-
trary to” clause of 28 U.S.C. § 2254(d)(1),
however, a federal court’s power to grant ha-
beas relief is limited to instances in which “the
state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a
question of law or if the state court decides a
case differently than [the Supreme Court] has
on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 412-13
(2000).
Jordan does not suggest that the Court of
Criminal Appeals’ denial of relief on his pre-
trial ineffective assistance claim was “contrary
to” clearly established federal law under this
standard. Nor did the magistrate judge or dis-
trict judge identify a direct conflict between
the state court’s denial of relief and controlling
Supreme Court authority on materially in-
distinguishable facts.7 Accordingly, we reject
the district court’s conclusion that the state
court’s denial of relief was “contrary to” clear-
ly established federal law.
B.
Therefore, we turn our attention to the dis-
trict court’s conclusion that the Court of Crim-
inal Appeals’ denial of relief amounted to an
unreasonable application of the Washington
standard to the facts at hand. In doing so, we
must bear in mind that, as a federal court
bound by AEDPA, “we have no authority to
grant habeas corpus relief simply because we
conclude, in our independent judgment, that a
state supreme court’s application of [Washing-
ton] is erroneous or incorrect.” Neal, 286
F.3d at 236. Rather, when a state court’s ap-
plication of federal law is challenged, “it must
be shown to be not only erroneous, but objec-
tively unreasonable.” Yarborough v. Gentry,
540 U.S. 1, 5 (2003) (per curiam).
1.
The state does not appear to contest that
Jordan’s counsel was constitutionally deficient
in failing to inform him of the deadline for ac-
cepting the state’s plea on the charge of ag-
gravated sexual assault of a child. Indeed, as
Jordan emphasizes, the Court of Criminal Ap-
peals granted relief on account of the same de-
ficient performance on his conviction of ag-
gravated sexual assault of a child. Logic sug-
gests, therefore, that a rejection of Jordan’s
showing of deficient performance does not ac-
count for that court’s denial of relief on Jor-
dan’s pretrial ineffective assistance claim as it
relates to his kidnaping conviction.
7 Indeed, in light of the heteroclite nature of this
case and the specific ineffective assistance claim
being advancedSSwhere the prejudice alleged is the
state’s discretionary decision to indict a defendant
for an additional offenseSSit is little surprise that
there is no Supreme Court precedent directly on
7(...continued)
point.

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2.
Thus, our focus narrows to the prejudice
prong; we must consider whether, to the ex-
tent the Court of Criminal Appeals denied re-
lief on account of its rejection of Jordan’s
showing of prejudice, that denial of relief was
reasonable. Jordan argues it was unreasonable
because, in granting relief on his aggravated
sexual assault conviction, the Court of Crimi-
nal Appeals adopted the findings of the state
habeas trial court; and, as we noted, one of
those determinations was that “due to [coun-
sel’s] actions, the State withdrew the favorable
plea offer and indicted [Jordan] for an addi-
tional offense.” Therefore, Jordan reasons, the
state habeas trial court foundSSand the Court
of Criminal Appeals acceptedSS that the ag-
gravated kidnaping charge was part of the
prejudice flowing from counsel’s deficient
performance.
Contrary to Jordan’s assertion, the Court of
Criminal Appeals did not adopt the state ha-
beas trial court’s determination of prejudice in
granting relief on his conviction of aggravated
sexual assault of a child. In its opinion grant-
ing relief, the Court of Criminal Appeals noted
that
[i]n the instant cause, the record reflects
that the State made an offer of ten years de-
ferred adjudication probation, in return for
a plea of guilty to aggravated sexual as-
sault. The trial court found that Applicant
accepted the plea offer, but counsel failed
to inform Applicant that he needed to com-
plete the PSI by the State’s deadline, or the
offer would be withdrawn.
Beyond these specific factual findings based on
the record developed in the habeas trial court,
the Court of Criminal Appeals observed that
the trial court had recommended relief be
granted; that it agreed with that recommenda-
tion; and that the balance of Jordan’s claims
were thus rendered moot.
No fair reading of this opinion suggests that
the Court of Criminal Appeals necessarily
adopted the habeas trial court’s determination
of prejudice as it relates to the kidnaping
charge. Rather, because the Court of Criminal
Appeals specifically identified the record facts
on which it based its grant of relief on the
sexual assault conviction, and because the ha-
beas trial court’s determination of prejudice as
it relates to his kidnaping charge was not a
necessary premise for that grant of relief but is
instead ultimately inconsistent with the denial
of relief on the kidnaping conviction, the Court
of Criminal Appeals did not adopt this
finding.8
Thus, we agree with the state’s contention
that the district court erred to the extent it re-
lied on the state habeas trial court’s determina-
tion of prejudice as a sufficient basis for con-
cluding that Jordan had made the requisite
showing of prejudice. In any event, the preju-
dice inquiry is a mixed question of law and fact
on which federal courts do not ultimately defer
to state court findings.9 Accordingly, we must
8 Cf. Micheaux v. Collins, 944 F.2d 231, 232
(5th Cir. 1991) (en banc) (per curiam) (“Not only
were the ‘proposed findings’ [of the state habeas
trial court] not adopted or incorporated in the ac-
tion of the Texas Court of Criminal Appeals, they
are directly inconsistent with that court’s peremp-
tory denial of relief. We conclude that the pro-
posed findings did not survive scrutiny by the Tex-
as Court of Criminal Appeals, the final decision-
maker in Texas habeas cases.”).
9 See, e.g., Westley v. Johnson, 83 F.3d 714,
720-21 (5th Cir. 1996); Motley v. Collins, 18 F.3d
(continued...)

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8
determine whether, given the evidence pre-
sented in the state habeas proceeding, the
district court properly found that the Court of
Criminal Appeals’ denial of relief was objec-
tively unreasonable.
3.
As we noted, in granting relief and overrul-
ing the state’s objection to the magistrate
judge’s report that Jordan had not sufficiently
demonstrated prejudice, and therefore that the
denial of relief was reasonable, the district
court correctly acknowledged that no direct
evidence of prejudice was presented at the
state habeas hearing. Yet, the district court
concluded that “the record as a whole” sup-
ports Jordan’s claim of prejudice.
We do not share the district court’s view of
the record. Indeed, we note that neither the
district court nor the magistrate judge identi-
fied any testimony from the state habeas hear-
ing, at which the prosecutor who withdrew the
offer and obtained the kidnaping indictment
testified, that supports Jordan’s claim that he
would not have been charged with aggravated
kidnaping but for counsel’s deficient perfor-
mance. Rather, the district court focused on
the fact that the prosecutor testified that he
withdrew the plea offer, in part, because Jor-
dan did not complete the pre-sentence investi-
gation, as well as the fact that the aggravated
kidnaping charge was obtained after the plea
was withdrawn and concerned the same con-
duct as the aggravated sexual assault charge.
But none of these observations truly sub-
stantiates the further proposition on which Jor-
dan’s entitlement to habeas relief ultimately
dependsSSnamely, that he would not have
otherwise been charged with aggravated
kidnaping. On this score, the district court
noted only that the state had not demonstrated
that the prosecutor would have sought the ad-
ditional charge. In doing so, however, the
court improperly placed on the state the bur-
den of disproving prejudice, when then burden
of affirmatively proving prejudice properly
rests with Jordan.10
So, although Jordan maintains that, as he
puts it, it “blinks reality”11 to suggest that the
prosecutor would have in any event sought the
kidnaping conviction, and the district court hy-
pothesized about what was the “more likely
occurrence,” we cannot merely assume preju-
dice. This is especially so where the record
from the state habeas hearing does contain
some testimony indicating that the prosecutor
may well have obtained the kidnaping indict-
ment regardless of the status of the aggravated
sexual assault plea.
In fact, the prosecutor testified that he was
not the first prosecutor on the case and that in
light of the “seriousness of the offense,” he did
not think this was “a probation case.” More-
over, he believed the only reason the plea offer
was initially made “was because the complain-
ant was scared to testify,” but that he had
gained her confidence and she was prepared to
testify against Jordan.
We cannot say with any degree of certainty
whether the prosecutor would have obtained
9(...continued)
1223, 1226 & n.2 (5th Cir. 1994); see also Wash-
ington, 466 U.S. at 698.
10 See, e.g., Montoya v. Johnson, 226 F.3d 399,
408 (5th Cir. 2000); Martin v. Maggio, 711 F.2d
1273, 1279 (5th Cir. 1983).
11 See Miller-El, 125 S. Ct. at 2340 (also using
the phrase “blinks reality”).

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9
the aggravated kidnaping indictment had Jor-
dan’s counsel informed him of the plea dead-
line on the aggravated sexual assault charge
and thus enabled him to accept that plea. But
this is so because Jordan never asked at the
state habeas hearing. It is his burden affirma-
tively to demonstrate prejudice, and we reject,
as somehow coextensive with the prejudice
requirement under the Sixth Amendment, the
post hoc ergo propter hoc logic that animates
much of Jordan’s argument and the district
court’s grant of relief.
In any event, even if this sparse record evi-
dence could be said to be sufficient for Jordan
to demonstrate prejudice, it is certainly not
such that the Court of Criminal Appeals’ de-
nial of relief can be said to have been not just
erroneous but objectively unreasonable. Thus,
in light of the evidence presented in the state
court proceedings, the Court of Criminal Ap-
peals reasonably could have concluded that,
even though Jordan’s counsel was constitu-
tionally ineffective, Jordan did not sufficiently
demonstrate prejudice as it relates to his con-
viction of aggravated kidnaping.12
Therefore, we REVERSE the district
court’s judgment granting Jordan’s petition for
a writ of habeas corpus on the basis of pretrial
ineffective assistance of counsel. Because,
however, that court did not consider whether
Jordan’s claims regarding counsel’s represen-
tation at trial or his Brady claim otherwise
entitle him to relief, we REMAND so these
claims may be considered. We express no
opinion on the merit vel non of those other
claims.
12 Relatedly, given our view of the record, we
likewise reject the district court’s conclusion that
the Court of Criminal Appeals’ denial of relief was
factually unreasonable in light of the evidence pre-
sented in the state habeas proceedings. See 28
U.S.C. § 2254(d)(2).

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