1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-11096

TERRY LYNN JACKSON,

Petitioner-Appellee,

VERSUS

GARY L. JOHNSON, Director,

Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

August 21, 1998

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 was2

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 $200,000 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., p e titioner 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 clarity of the tape went to the weight of

the evidence, not the admissibility. The videotape was played for

the j ury. The jury asked to view the videotape again during

deliberations, then returned a guilty verdict.

Confidential informant Durbin, who had known Jackson for five

years, identified Jackson at trial as the individual who sold the3

cocaine. However, he admitted that he relied on the videotape in

making his identification.

Deputy Parks testified that his identification of Jackson was

based on Durbin’s knowledge o f Jackson’s identity and on a

comparison of the videotape to a photog raphic lineup of suspects

arrested for drug trafficking. Parks admitted that, without the

videotape, he could provide only a very general description of the

s uspect. In his initial report, Parks did not record any of

Jackson’s distinguishing characteristi cs, 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 t hat Jackson’s

claim that the videotape was improperly admitted was not preserved

for review because the videotape had not been made part o f the1 The appeals court also found that Jackson’s claim that there was

not proper predicate for the videotape was not preserved for

appellate review under the contemporaneous objection rule.

4 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. S ee 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. S ee 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, includi ng 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 w as 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 the5

merits of his claim because the videotape was not included in the

record. The magistrate judge therefore conditionally granting

Jackson’s habeas petition.

DISCUSSION

a. Standard of review

T he Antiterrorism and Effective Death Penalty Act (“AEDPA”)

applie s to federal habeas petitions that were filed after its

enactment. L indh v. Murphy

, 117 S. Ct. 2059, 2068 (1997). The

p arties do not dispute that the AEDPA applies to Jackso n’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 , 117 S. Ct. 1114 (1997).

The Stat e 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 contrar y

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 merit s in State court proceedings”6

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

. . .

t he 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 an y 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 App eals, which denied relief without written7

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”

s ufficient to satisfy § 2254(d). In M oore 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 o f 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 , 118 S. Ct. 1845 (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. S ee Giglio v. United States

, 405 U.S. 150, 153-54 (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.8

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 detailed findings of fact and

conclusions of law, nor did it specifically address counsel’s

undisputed failure to provide the state appellate court with an

adequate record on direct appeal. However, we are convinced that

the state court did rule agai nst Jackson on the merits of his

ineffective assistance of counsel claim and that ruling deserves

the deference afforded st ate courts under the new AEDPA writ

procedures. The court of conviction ruled explicitly on the merits

and the denial of relief by the Court of Criminal Appeals serves,

under Texa s law, to dispose of the merits of the claim. S ee Ex

parte Torres

, 943 S.W.2d 469 (Tex.Crim.App. 1997)(“denial”

signifies that court addressed and rejected the merits of a

particular claim, while “dismissal” means that the court declined

to consider the claim for reasons unrelated to claim’s merits.)

We therefore apply the AEDPA’s deferential standard of review,

which precludes the grant of Jackson’s petition unless the state

court’s adjudication:

(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 base d on an

unreasonable determination of the facts in light of the9

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). State court factual determinations shall be

presumed correct unless rebutted by “clear and convin cing

evidence.” 28 U.S.C. § 2254(e)(1). Furthermore, when a petitioner

challenges the application of law to fa ct, AEDPA permits federal

court relief “only when it can be said that reasonable jurists

considering the question would be of one view that the state court

ruling was incorrect.” D rinkard v. Johnson

, 97 F.3d 751, 769 (5th

Cir. 1996).

b. Ineffective assistance of counsel on direct appeal

To demonstrate that he received ineffective assistance,

Jackson must show, under the two-prong test enunciated in

Strickland v. Washington

, 466 U.S. 668 (1984), that counsel’s

assistance was defi cient and that the deficiency prejudiced his

defense. See id . at 687.

1. Deficiency of representation

The State does not challenge the magistrate judge’s conclusion

that Jackson’s counsel performed deficiently in failing to supply

the state court of appeals with the videotape. The Texas Rules of

Appellate Procedure make clear that it was counsel’s affirmative

duty to include the videotape in the appella te record: “[t]he

burden is on the appellant

. . . to see that a sufficient record is

presented to show error requiring reversal. T E X

. R. A PP

. P. 50(d);

see also Ex parte Coy

, 909 S.W.2 d 927, 928 (Tex.Crim.App.10

1995)(finding counsel deficient in failing to include a videotape

capturing the offense in the record before the court of appeals).

2. Prejudice

Rather, the State takes the position that Jackson has not

demonstrated Strickland prejudice and that the ineffectiveness

claim therefore fails. Jackson counters that he need not prove

prejudice since counsel’s d eficiency resulted in a constructive

complete denial of assistance of appellate counsel. The standard

Strickland analysis is not performed when there has been actual or

constructive compl ete denial of any assistance of appellate

counsel. See Sharp v. Puckett

, 930 F.2d 450, 451-52 (5th Cir.

1991). “If a petitioner can prove that the ineffective assistance

of counsel denied him the right to appeal, then he need not further

establish

-- as a prerequisite to habeas relief

-- that he had some

chance of success on appeal.” U nited States v. Gipson , 985 F.2d

212, 215 (5th Cir. 1993).

We must determine, pursuant to § 2254(d)(1), whether clearly

established Federal law, as determined by the Supreme Court of the

United States, affords Jackson relief. The Supreme Court has held

that when a criminal defendant receives no meaningful assistance at

all from his court-appointed lawyer, he is constructively denied

his Sixth Amendment right to counsel. S ee United States v. Cronic

,

466 U.S. 648 (1984). However, Jackson can point to no clearly

established Federal law from the Supreme Court that s ays, in11

anything like his situation, that prejudice is presumed.

This court has held that the construc tive-denial claim is a

very narrow exception to the Strickland prejudice requirement:

A constructive denial of counsel occurs . . . in only a

very narrow spectrum of cases where the circumstances

leading to counsel’s ineffectiveness are so egregious

that the defendant was in effe ct denied any meaningful

assistance at all.

Childress v. Johnson

, 103 F.3d 1221, 1229 (5th Cir. 1997)(internal

quotation marks an d citation omitted). We have found a

constructive denial of coun sel in cases involving the absence of

counsel from the courtroom, conflicts of interest between defense

counsel and the defendant, and official interference with the

defense. I d. at 1228. We have indicated that constructive denial

will also be found “when counsel fails ‘to subject the

prosecution’s case to meaningful adversarial testing.’”

Id. (citation omitted).

In contrast, this court has refused to presume prejudice when

defense counsel investigated certain issues but not oth ers; when

counsel’s trial preparation was “‘somewhat casual;’” when counsel

failed to pursue a challenge based on racial bias in jury

selection; when counsel failed to object to a variation between the

indictment and the jury charge; and when counsel failed to raise a

meritorious issue on appeal. C hildress

, 103 F.3d at 1229 (citation

omitted); see also Sharp , 930 F.2d at 452.

Examining these different holdings, the Childress court2 Counsel actively represented Jackson at trial, objecting to the

State’s evidence, cross-examining witnesses, and putting on defense

wit nesses and evidence. Counsel filed a timely appeal and

submitted a complete appellate brief. Following the dismissal of

the appeal, counsel submitted a timely motion for reconsideration.

12 explained that prejudice is presum ed when the defendant

demonstrates that counsel “was not merely incompetent but inert,”

distinguishing “shoddy representation from no representation at

all.” C hildress

, 103 F.3d at 1228-29. When the defendant

complains of errors, omissions, or strategic blunders, prejudice is

not presumed; “‘bad lawyering, regardless of how bad, does not

support the [per se] presumption’ of prejudice.

. . .” Id. at 1229

(citation omitted). The question is thus whether Jackson complains

of counsel’s “ maladroit performance,” in which case S trickland

prejudice must be shown, or nonperformance, in which case prejudice

is presumed. S ee Childress

, 103 F.3d at 1229-30. Because

Jackson’s complaint is that of shoddy representation -- one

essential error in the midst of otherwise adequate representation 2

-- rather than total absence of counsel, Jackson must demonstrate

that the error complained of resulted in Strickland prejudice. S ee

Childress , 103 F.3d at 1228-30.

The magistrate judge concluded that Jackson had made the

required showing of prejudice by demo n strating that counsel’s

failure resulted in the state appellate court’s refusal to reach

the merits of the claim that the videotape was improperly admitted.

The State challenges th e magistrate judge’s conclusion, arguing13

that it incorrectly applied the Strickland prejudice standard. The

State argues that the “different result” contemplated by Strickland

is not whether the court of appeals would have reached the merits

of the claim had the videotape been produced, but whether the

ultimate result of the appeal would have been different, i.e.,

whether Jackson’s conviction would have been overturned.

We cannot affirm the magistrate judge’s reasoning nor can we

adopt the State’s argument. It is clear that under Federal law, as

articulated by the Supreme Court of the United States, focus on

mere outcome determination at the appellate level is defective.

See Lockhart v. Fretwell

, 506 U.S. 364, 369 (1993). “[T]he

presence or absence of prejudice, both with respect to claims of

ineffecti ve assistance of counsel at the trial and appellate

levels, hinges upon the fairness of the trial and the reliability

of the judgment of conviction resulting therefrom.” S ee Goodwin v.

Johnson

, 132 F.3d 162, 174 (5th Cir. 1998). “ [T]he right to

e ffective assistance of counsel, both at the trial and appell ate

level, ‘is recognized not for its own sake, but becau se of the

effect that it has on the ability of the accused to receive a fair

trial.’” Id. In Goodwin

, this court held tha t no prejudice

resulted from counsel’s failure to raise on appeal an objection to

the trial court’s failure to provide the jury with a warranted jury

instruction since the absence of the instruction in no way rendered

the trial unfair or the verdict suspect. Id . at 176.14

Here, several witnesses testified that Jackson was the suspect

who sold cocaine to Parks and who was dep icted on the videotape,

including Durbin, who had known him for five years. Further,

Jackson’s wife, a defense witness, testified that she could discern

the identity of the person in the videotape, although she stated

that the person was not Jackson. The reliability of the videotape

and the weight to which it was en titled were questions

appropriately entrusted to the jury. Jackson’s trial and resultant

judgment of conviction were not rendered unfair or unreliable

because of the admission of the videotape. Under F retwell and

Goodwin, Jackson has not satisfied the prejudice prong of

Strickland. T herefore, appl ying AEDPA’s deferential standard of

review, we cannot say that the State court erred in denying

Jackson’s requested relief.

CONCLUSION

Based on th e foregoing, we reverse the conditional grant of

habeas corpus relief on Jackson’s § 2254 petition.

REVERSED.