Jackson v. Johnson

• Citation: 150 F.3d 520
• Decision Date: 21 August 1998
• Docket Number: No. 97-11096,97-11096
• Parties: Terry Lynn JACKSON, Petitioner-Appellee, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 520

150 F.3d 520

Terry Lynn JACKSON, Petitioner-Appellee, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellant.

No. 97-11096.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 1998.

Terry Lynn Jackson, Huntsville, TX, pro se.

Tommy Lee Skaggs, Asst. Atty. Gen., Austin, TX, for Respondent-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, SMITH and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Terry Lynn Jackson, Texas state prisoner # 671756, filed a petition for federal habeas relief, pursuant to 28 U.S.C. § 2254, alleging that he had received ineffective assistance of counsel on direct appeal from his state drug offense conviction. The district court conditionally granted Jackson's habeas petition, stating that the writ would not issue if, within a reasonable time, Jackson was afforded an out-of-time direct appeal. Respondent, Gary L. Johnson ("the State"), appeals. We reverse.

FACTS AND PROCEDURAL HISTORY

Following a jury trial in May 1994, Jackson was convicted of delivery of less than 28 grams of cocaine, sentenced to 80 years' imprisonment, and ordered to pay a $20,000 fine.

The following facts were adduced at trial: on August 9, 1993, Kaufman County, Texas, Deputy Sheriff Gregory Parks was operating as an undercover narcotics officer, riding through Terrell, Texas in a truck driven by confidential informant, Ronald Durbin. The truck was fitted with a concealed video camera to record drug transactions on the passenger side of the vehicle. At approximately 1:20 a.m., petitioner Jackson sold Parks twenty dollars' worth of crack cocaine (later identified by a chemist as .13 grams of cocaine). The hidden camera recorded the transaction.

At trial, Jackson moved to suppress the videotape, asserting that it was not a clear and accurate depiction of the individual engaged in the drug transaction. The trial court denied the motion, finding that the Confidential informant Durbin, who had known Jackson for five years, identified Jackson at trial as the individual who sold the cocaine. However, he admitted that he relied on the videotape in making his identification.

clarity of the tape went to the weight of the evidence, not the admissibility. The videotape was played for the jury. The jury asked to view the videotape again during deliberations, then returned a guilty verdict.

Deputy Parks testified that his identification of Jackson was based on Durbin's knowledge of Jackson's identity and on a comparison of the videotape to a photographic lineup of suspects arrested for drug trafficking. Parks admitted that, without the videotape, he could provide only a very general description of the suspect. In his initial report, Parks did not record any of Jackson's distinguishing characteristics, such as that he had a beard, a pockmarked face, tattoos on his hands and was missing a front tooth.

Jackson's wife testified that she was able to adequately observe the person depicted in the videotape and that the person in the tape was not Jackson. Two other witnesses who were not present at the transaction identified Jackson solely on the basis of the videotape.

On direct appeal in state court, Jackson raised two grounds of error: 1) whether the videotape was improperly admitted due to its lack of clarity; and 2) whether the proper predicate had been laid prior to admission of the videotape into evidence. The state appellate court affirmed the conviction, finding that Jackson's claim that the videotape was improperly admitted was not preserved for review because the videotape had not been made part of the record on appeal. ¹ Jackson's motion for rehearing, as well as his subsequent petition for discretionary review, were denied.

Jackson filed a state application for habeas corpus on January 29, 1996, challenging his confinement on several grounds, including that he had received ineffective assistance of counsel in connection with counsel's failure to submit the videotape for appellate consideration. The state trial court denied Jackson's application, determining that he had received effective assistance of counsel. See Ex parte Jackson, Application No. 17,492A (86th Judicial District Court, Kaufman County, Texas January 26, 1996) (unpublished). The Texas Court of Criminal Appeals denied the petition without written order. See Ex parte Jackson, Application No. 30,398-01 (Tex.Crim.App. March 27, 1996) (unpublished).

Jackson filed the instant petition for federal habeas relief, pursuant to 28 U.S.C. § 2254, in July 1996, renewing his argument that he had received ineffective assistance of counsel on several grounds, including that counsel had failed to submit a complete record to the state appellate court. The parties consented to proceed before a magistrate judge. The magistrate judge found that Jackson's counsel was deficient in failing to include the video tape in the record on appeal and that Jackson was prejudiced by the deficiency when the state appellate court declined to reach the merits of his claim because the videotape was not included in the record. The magistrate judge therefore conditionally granted Jackson's habeas petition.

DISCUSSION

a. Standard of review

The Antiterrorism and Effective Death Penalty Act ("AEDPA") applies to federal habeas petitions that were filed after its enactment. Lindh v. Murphy, 521 U.S. 320, ----, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997). The parties do not dispute that the AEDPA applies to Jackson's petition, filed in July, 1996. Under the AEDPA, if the state court has adjudicated the merits of the federal constitutional claim now raised in the federal habeas petition, the new standards of § 2254(d) apply. See Drinkard v. Johnson, 97 F.3d 751, 766-68 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1114, 137 L.Ed.2d 315 (1997).

The State contends that its claim is reviewable under § 2254(d)(1), which provides (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudications of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States....

28 U.S.C. § 2254(d). This court must determine whether Jackson's claim was "adjudicated on the merits in State court proceedings" and is thus subject to the rigorous § 2254(d)(1) standard of review.

Jackson's state petition for writ of habeas corpus was filed originally in the convicting court pursuant to Texas Code of Criminal Procedure, Art. 11.07. The state of Texas, represented by the criminal district attorney of Kaufman County, answered urging the trial court to give the attorney who served as Jackson's trial and appellate counsel an opportunity to respond to the ineffective assistance of counsel allegations. The state trial court ordered a hearing "which will consist only of an affidavit from Houston M. Smith concerning the allegations made in the petition in connection with his representation of [Jackson]." Smith complied with the order, filing an affidavit in which he listed various steps he took in representing Jackson and alleged that he provided Jackson with competent legal counsel at every stage of the proceedings. The state trial court entered an order finding "that the Petitioner was rendered effective assistance of counsel" and recommending that the writ petition be denied. Texas post-conviction procedures direct that:

After the convicting court makes findings of fact ... the clerk of the convicting court shall immediately transmit to the Court of Criminal Appeals, under one cover, the application, any answers filed, any motions filed, transcripts of all depositions and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues of fact.

Art. 11.07, Sec. 3. (d). Jackson's writ was thus transmitted to the Court of Criminal Appeals, which denied relief without written order, upon the findings and conclusions of the state trial judge, pursuant to Art. 11.07, Sec. 5.

We have previously found that Texas' post-conviction procedures provide petitioners "adjudication on the merits" sufficient to satisfy § 2254(d). In Moore v. Johnson, 101 F.3d 1069, 1075 (5th Cir.1996), the state trial court conducted an evidentiary hearing, heard testimony and entered detailed findings of fact and conclusions of law in support of its conclusion that Moore failed to show ineffective assistance of counsel. The Court of Criminal Appeals then denied Moore's writ. We found such procedure sufficient to support the application of AEDPA's stringent standard of review. See id.

However, in Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998), this court expressed reservations about applying the stringent AEDPA standard of review. Nobles' writ application was based on a claim that the state used false or misleading evidence in violation of his due process rights. To establish his claim, Nobles needed to show that the evidence was false, material and that the prosecution knew it was false. See Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The state habeas court ruled without evidentiary hearing that Nobles had not satisfied the "falsity" prong of Giglio, but did not address the "materiality" prong, which had become the focus of his federal writ.

The thoroughness of the state court's writ proceedings in this case fall somewhere between Moore and Nobles. The state trial court conducted a limited evidentiary hearing on affidavit, and held that Jackson had received effective assistance of counsel. The state court did not make...