Jordan v. Hargett

• Decision Date: 07 October 1994
• Docket Number: No. 93-7660,93-7660
• Citation: 34 F.3d 310
• Parties: John S. JORDAN, Petitioner-Appellant, v. Edward HARGETT, Superintendent, Mississippi State Penitentiary, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 310

34 F.3d 310

John S. JORDAN, Petitioner-Appellant, v. Edward HARGETT, Superintendent, Mississippi State Penitentiary, et al., Respondents-Appellees.

No. 93-7660.

United States Court of Appeals, Fifth Circuit.

Oct. 7, 1994.

Jim Waide, Tupelo, MS, for appellant.

Jo Anne McFarland McLeod, Asst. Atty. Gen., Mike Moore, Atty. Gen., Jackson, MS, for appellees.

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

Before REAVLEY, DeMOSS and STEWART, Circuit Judges.

REAVLEY, Circuit Judge:

John Jordan filed a petition for writ of habeas corpus asserting that his constitutional right to testify had been violated in the course of his state court trial for rape. The district court denied the petition. We reverse and remand.

BACKGROUND

In 1987 Jordan was tried and convicted in Mississippi state court for the rape of G.R. After exhausting his state remedies, he sought federal habeas corpus relief. He alleged that he was denied his right to testify on his own behalf at trial. A magistrate judge conducted an evidentiary hearing on this claim. Jordan testified at the hearing that he informed his attorney prior to trial and during each trial recess that he wished to testify. In particular, he wished to testify that he was visiting relatives in Dallas at the time of the rape. He further wanted to testify to refute the victim's description of him as the rapist, to point out that the fingerprints taken from the scene were not his, and to show that the jacket taken from his house in 1986 by the sheriff was different from the jacket the victim described the rapist as wearing. Jordan stated that his lawyer told him he could not testify because such testimony might result in the jury learning of Jordan's 1976 conviction for child molestation. Jordan's wife and daughter corroborated his testimony. The magistrate found the testimony of the witnesses believable and uncontradicted. Jordan's attorney from the state trial could not be located and did not testify at the habeas hearing.

The magistrate recommended that habeas corpus relief be granted. After hearing the testimony, the magistrate made factual findings that Jordan repeatedly requested to testify at trial, that his counsel's decision not to call him was made against his wishes, that Jordan understood that he had a right to testify, and that he never voluntarily and intentionally waived that right.

The district court rejected the magistrate's recommendation and denied the request for habeas corpus relief. The court concluded that Jordan had waived his right to testify by voluntarily choosing not to testify on the advice of his attorney, and by failing to assert his right to testify either through his attorney or on his own during the state trial.

DISCUSSION

A criminal defendant has a fundamental constitutional right to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 49-52, 107 S.Ct. 2704, 2708-10, 97 L.Ed.2d 37 (1987). This right is granted to the defendant personally and not to his counsel. Id. at 51, 107 S.Ct. at 2709. See also United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.) (on rehearing en banc) ("We now reaffirm that a criminal defendant has a fundamental constitutional right to testify in his or her own behalf at trial. This right is personal to the defendant and cannot be waived either by the trial court or by defense counsel."), cert. denied, --- U.S. ----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992).

A. Whether a Constitutional Violation Occurred

A defendant may of course waive his right to testify, and frequently does so on the advice of counsel. We would find no violation of the right to testify if Jordan acquiesced during trial to his attorney's recommendation that he not testify and later decided that he should have testified. Instead, a violation of this right only occurred if the "final decision that [defendant] would not testify was made against his will. In other words, we must determine whether [defendant] made a knowing, voluntary and intelligent waiver of his right to testify." United States v. Teague, 908 F.2d 752, 759 (11th Cir.1990), rehearing granted, 953 F.2d 1525 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992).

Based on his report and recommendation we conclude that the magistrate fully understood the relevant factual inquiry. He concluded that Jordan had repeatedly asked to testify, had never voluntarily waived his right to testify, and that "the decision that John Jordan would not testify was made against his wishes." These findings are findings of fact, and are based on the magistrate's view The district court rejected the magistrate's findings and recommendation. It relied in part on testimony from Jordan in the civil case G.R. brought against Jordan, which suggests that Jordan chose not to testify in the prior criminal trial on the advice of counsel. This evidence was offered by the State after the magistrate issued his report and recommendation.

of the credibility of the witnesses he observed.

We have often stated, in cases where the district court adopts the fact findings of a magistrate who conducted an evidentiary hearing, that on appeal we should defer to such findings unless clearly erroneous. ¹ The district court, however, is not so limited it its review. Under 28 U.S.C. Sec. 636(b)(1)(C), which governs district court review of a magistrate's findings of fact and recommendations for the disposition of applications for post-conviction relief:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.

See also Louis v. Blackburn, 630 F.2d 1105, 1110 (5th Cir.1980) ("The district judge, in his decision whether to reject or accept the magistrate's recommendations, is not limited to a clearly erroneous standard as we are in our appellate review of facts found by the district courts."); Tijerina v. Estelle, 692 F.2d 3, 5 (5th Cir.1982) ("Under the Federal Magistrate's Act, the district court may give to the magistrate's proposed findings of fact and recommendations '... such weight as [their] merit commands and the sound discretion of the judge warrants.' ") (quoting Mathews v. Weber, 423 U.S. 261, 273, 96 S.Ct. 549, 556, 46 L.Ed.2d 483 (1976)).

While the statute, by its terms, grants the district court broad discretion to accept or reject a magistrate's fact findings, we have placed some limits on that discretion. In particular, we have limited district court discretion to reject a fact finding of the magistrate where (1) the finding is based on the credibility of the witnesses the magistrate heard, and (2) the finding is dispositive of an application for post-conviction relief involving the constitutional rights of a criminal defendant. In Blackburn we held that in such circumstances the district judge cannot reject the finding without personally hearing live testimony from the witnesses whose testimony is in issue. We explained:

One of the most important principles in our judicial system is the deference given to the finder of fact who hears the live testimony of witnesses because of his opportunity to judge the credibility of those witnesses. The Supreme Court has emphasized, in cases that involve the constitutional rights of criminal defendants, that factual findings may not be made by someone who decides on the basis of a cold record without the opportunity to hear and observe the witnesses in order to determine their credibility.

* * * * * *

If the district judge doubts the credibility determination of the magistrate, only by hearing the testimony himself does he have an adequate basis on which to base his decision.

* * * * * *

In order to adequately determine the credibility of a witness as to such constitutional issues, the fact finder must observe the witness. This may be accomplished either by the district judge accepting the determination of the magistrate after reading the record, or by rejecting the magistrates's decision and coming to an independent decision after hearing the testimony and viewing the witnesses.

Blackburn, 630 F.2d at 1109-10 (citations omitted).

We conclude that the district court erred in rejecting the magistrate's credibility-based fact findings without conducting its own evidentiary hearing. We believe that Jordan's testimony from the civil trial was not sufficiently telling for the district court to reject the magistrate's fact findings without conducting its own hearing. ² Further, as discussed below, we can find no alternative ground for affirming the district court's decision. Consistent with Blackburn, therefore, we remand the case for further proceedings.

B. The Effect of Failure to Object

Neither Jordan nor his counsel made a record in the state trial of Jordan's desire to testify. In similar circumstances some courts have concluded that the defendant waived his right to testify. ³ We do not believe that a defendant's failure to make a record of his desire to testify against his counsel's wishes is always fatal. Unlike many trial errors asserted in habeas proceedings, this alleged error by its very nature is one where the defendant and his lawyer are necessarily at odds with each other. We think it unrealistic to expect that defense counsel will always bring this attorney-client dispute to the attention of the trial court. Likewise, we believe that a rule requiring the defendant personally to make such a record is inappropriate. We agree with the reasoning of the panel opinion in Teague:

The defendant may not realize until after the jury has retired to deliberate that the proper time for his testimony has passed. Furthermore, once a defendant elects to take...