Ward v. Dretke

• Citation: 420 F.3d 479
• Decision Date: 09 August 2005
• Docket Number: No. 03-51352.,03-51352.
• Parties: Bernard James WARD, Jr., Petitioner-Appellee-Cross-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 479

420 F.3d 479

Bernard James WARD, Jr., Petitioner-Appellee-Cross-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee.

No. 03-51352.

United States Court of Appeals, Fifth Circuit.

August 9, 2005.

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David L. Botsford (argued), Law Office of David L. Botsford, Austin, TX, for Bernard James Ward, Jr.

Gretchen Berumen Merenda, Asst. Atty. Gen. (argued), Austin, TX, for Doug Dretke.

Appeals from the United States District Court for the Western District of Texas.

Before REAVLEY, HIGGINBOTHAM and DeMOSS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Claiming that he had received ineffective assistance of counsel, Bernard Ward sought relief under 28 U.S.C. § 2254 from his conviction and sentence by a Texas court for indecency with a child, sexual assault, aggravated sexual assault, and possession of child pornography. The federal district court denied relief as to his conviction, but granted Ward's petition as to his sentence. Ward and the State filed cross-appeals, and the district court granted Ward's motion for COA. We hold that the district court correctly denied Ward's petition as to his conviction, but erred in granting his petition as to his sentence.

I

In August 1993, Shannon Grant, then age 13, and his mother, Patti Love, moved into a house in Williamson County, Texas. The house was located next door to Bernard Ward, a single male. Ward befriended the family, and began working with Grant in an effort to improve his performance at school. He also encouraged Grant to stop abusing illegal drugs. As their friendship progressed, Ward began allowing Grant to spend the night at his house, purchased time for him on a web-based video game, and took him to Big Bend National Park. In addition to these innocuous activities, Ward allowed Grant to view pornographic videos. Grant also discovered a number of Playboy and Hustler magazines in Ward's attic. Roughly eighteen months into their friendship, Ward encouraged Grant to enter into a sexual relationship with him. The two engaged in sexual acts four or five times, after which Grant refused to participate further.

Roughly one month after these sexual encounters began, Ward leased a room in his house to Grant's best friend, Mike Carta. Carta was 18 years old at the time. Grant also introduced Ward to one of his friends from school, Adam Clouse. Clouse, who was twelve or thirteen years old at the time, began frequenting Ward's house along with Grant. Ward ultimately invited Clouse to participate in sexual activity with him, resulting in a number of sexual encounters over an eight-day period. Finally, Ward was introduced to Chad Wright, another friend of Grant's. Ward made a number of passes at Wright, and attempted to initiate a sexual encounter. Wright quickly stopped the encounter and refused to participate in further sexual activity with Ward.

When Grant first met Ward, Ward owned a personal computer. Ward allowed Grant access to his personal computer on a regular basis. Eventually, Grant's use of Ward's computer became so excessive that Ward purchased Grant his own computer. Shortly thereafter, Ward discovered the internet and purchased a second new computer for his own use. Ward quickly became addicted to internet pornography, including child pornography and photographs of adult bestiality. He would download files containing pornographic pictures from the internet and store the files in folders marked "Animals, Boy/Girl, Female, Male, Male 10 to 13, Male 13 to 16, Male 7 to 10, Male in Briefs, and Celeb Boys."

Ward attempted to hide his use of internet pornography from the boys who frequented his home, but his furtiveness ultimately piqued the suspicions of Grant and Carta. One day while Ward was away, Grant used a password to log onto Ward's computer, and he and Carta accessed the files containing child pornography and photographs of bestiality. Rightly disgusted and disturbed, Carta reported Ward to the police. On September 24, 1996, Carta spoke with detectives Dan LeMay and Mary Ryle of the Round Rock Police Department and told them that he had observed child pornography on Ward's computer. The next day, LeMay and Ryle accompanied Carta to Ward's house while Ward was away. Carta let them into the house, logged onto Ward's computer, and showed them the child pornography. At that point, LeMay and Ryle turned Ward's computer off and prepared a search warrant. They returned later that day and seized Ward's computer along with pornographic videos, magazines, condoms and K-Y Jelly. Ward was arrested on charges of possessing child pornography and was subsequently released after posting bond.

On September 27, Clouse went to the Round Rock Police Department and informed LeMay that Ward had sexually assaulted him on numerous occasions. Further investigation revealed the abuse of Grant and Wright. Ward was arrested again and indicted for possession of child pornography, indecency with a child, and multiple counts of sexual assault, and charged in a second indictment with multiple counts of aggravated sexual assault. Ward elected to have a jury assess punishment in both cases, and filed a motion to suppress evidence based upon an illegal search.

During this time, Ward's counsel, Hugh Lowe, devised a defense strategy aimed at securing either probation or the most lenient prison sentence possible. As part of this strategy, Lowe sought to have the cases against Ward consolidated into a single trial. The prosecutor agreed to consolidate in exchange for a guilty plea, a confession from Ward, and the name of Ward's testifying expert. Ward agreed to plead guilty, and Lowe disclosed the name of Ward's expert, Dr. Collier Cole, a psychologist specializing in the treatment of sex offenders. Dr. Cole had treated Ward for seven months prior to his trial. Lowe also declined to pursue the earlier filed suppression motion.

In addition to taking these steps, Lowe determined that a posture of complete openness was the proper approach to take at Ward's sentencing. Prior to trial, Lowe had Ward prepare a lengthy written statement detailing his life up to the point of his incarceration. The statement included Ward's account of the charged offenses, a summary of his employment history, an account of his troubled childhood, and a summary of his use and sale of illegal drugs many years before trial. Lowe provided the written statement to Dr. Cole with the knowledge that it would be subpoenaed by the State.¹

Pursuant to his openness strategy, Lowe also failed to object when the State sought to admit photographs of bestiality that were stored on Ward's computer. Neither did he object when the prosecutor solicited testimony that of the 4,100 probationers in Williamson County, not one was on probation granted by a jury for aggravated sexual assault.

Lowe did lodge an objection when, in response to testimony by Dr. Cole that it was not uncommon for a sex offender to be required to place a sign in his yard announcing his status, the prosecutor inquired whether a judge had ever required that the names, addresses and telephone numbers of jurors be placed on the sign if they gave the sex offender probation. However, Lowe opted not to request a curative instruction or move for a mistrial.

Lowe's passive approach continued throughout the State's closing argument, during which the prosecutor made a number of inflammatory remarks. The prosecutor quoted extensively from the Bible and discussed attitude about crime in Williamson County compared to that in other putatively less hospitable Texas counties. Lowe failed to object to these statements.

Following deliberation, the jury returned a verdict of four concurrent 20-year sentences, one 10-year sentence, three concurrent 60-year sentences for aggravated sexual assault, and a number of fines. Ward's sentence was affirmed on direct appeal, and his petition for discretionary review was denied.² On November 27, 2000, Ward filed a state habeas application alleging ineffective assistance of counsel. The State responded by filing a one-page general denial and an affidavit by Lowe. Ward's application was considered by the same judge who presided over his trial. After making findings of fact and conclusions of law, the judge recommended that relief be denied.³ The Texas Court of Criminal Appeals denied relief without issuing a written opinion.

Ward filed a petition under 28 U.S.C. § 2254 in the District Court for the Western District of Texas, Austin Division. The federal magistrate recommended that all relief be denied. Oral argument was then held before the district court. The court denied relief on Ward's claim that his trial counsel was ineffective in failing to challenge the search and seizure of his computer files prior to his guilty plea, finding that this claim was barred because he had not made a showing that his plea was involuntary.⁴

The court granted relief, however, on Ward's claim that his trial counsel was ineffective at sentencing. The court identified five instances of ineffectiveness by Lowe: (1) his failure to request a curative instruction or move for a mistrial after the prosecutor queried whether the names of jurors had ever been placed on a sign in a sex offender's front yard in response to a sentence of probation; (2) his failure to make efforts to keep the portion of Ward's statement regarding unadjudicated drug offenses out of evidence; (3) his failure to object to the introduction of photographs of bestiality; (4) his failure to object to testimony regarding the absence of probationers in Williamson County granted probation by a jury after being convicted of aggravated sexual assault; and (5) his failure to object to improper jury argument by the prosecutor.⁵ The court found that there was a reasonable probability that but for these...