UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30019

_____________________

GEORGE PRATT, JR.,

Petitioner-Appellee,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

_________________________________________________________________ May 20, 1998

Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In this c hallenge to habeas relief conditionally granted to

George Pratt, Jr., at issue is whether, pursuant to L A

. C ODE C RIM

.

P ROC

. A NN

. art. 770 (West 1981) (mistrial for objected-to references

by the State to inadmissible evidence of other crimes committed by

the defendant), Pratt’s counsel’s failu re to object to the

prosecutor’s references to Pratt’s involvement with illegal drugs,

both in questions on cross-examination of Pratt and during rebuttal

closing argument, constitutes ineffective assistance of counsel,

violative of the Sixth Amendment. The district court concluded

that it did. We REVERSE and RENDER

.- 2 - I.

A Louisiana jury convicted Pratt for the second degree murder

o f Leo Washington. S tate v. Pratt

, 653 So. 2d 174, 176 (La. Ct.

App.), writ denied , 662 So. 2d 9 (La. 1995). The State presented

evidence that, on 19 Nove mber 1992, in a parking lot in Monroe,

Louisiana, Washington demanded paym e nt from Pratt for cocaine

seized by police due to Pratt’s being an informant; that, when

Pratt claimed he could not pay, Washington began hitting Pratt in

the head; that Pratt pulled a gun from his back pocket and fired it

at Washington, who was unarmed and ran; that, while firing the gun,

Pratt pursued Washington; that Pratt followed Washington i nto a

nearby residence, firing once wh ile inside; and that Washington

died of a single gunshot wound to the chest. Id . at 175-76.

Along this line, the theory of the defense was that Washington

and his family were involved in drug-trafficking; that Pratt,

acting as an informant for the Houston, Texas, Police, had caused

the arrest of two of Washington’s nep hews and the loss of the

cocaine; and that the fight and shooting arose out of Washington’s

demand that Pratt pay him $10,000 for the lost cocaine. S ee id

. at

175.

The following testimony was presented at Pratt’s trial. On

cross-examination of the State’s first witness, P ratt’s counsel

elicited evidence that Washington’s two nephews were in jail in

Houston on a cocaine charge. On cross-examination of another of

the State ’s witnesses, Bessie Washington (the victim’s sister),

Pratt’s counsel asked whether any of the persons involved used- 3 -

drugs; and whether the homicide arose out of problems stemming from

the arrest of Washington’s nephews. And, on cross-examination of

the State’s fi nal witness, Monroe Police Detective Kerry Black,

Pratt’s counsel elicited evidence that Bessie Washington had told

Detective Black that there was “bad blood” between Pratt and the

Washington family stemming from a cocaine arrest in Houston.

Pratt testified in his own defense. O n direct examin ation,

his counsel elicited testimony that Washington thought Pratt owed

him $10,000, because Pratt had informed on Washington’s nephews and

caused their arrest, as well as confiscation of two “big bags” of

cocaine; that Pratt had a prior conviction for attempted possession

of cocaine in 1989; and that Pratt was “on drugs” in 1986 or 1987.

The following exchange occurred on cross-examination of Pratt:

Q. The two nephews that got arrested in

Houston, you went with them over there

didn’t you?

A. Sir?

Q. You went with the two nephews to Houston

didn’t you?

A. Yes, sir.

Q. You were also going over there to get

some drugs weren’t you?

A. No, sir.

Pratt’s counsel did not object.

In closing argument, Pratt’s counsel stated:

Quite candidly perhaps Leo [Washington]

deserved it. Leo Washington, I believe it is

clear, was a drug deal er. My client was an

informant, informed on Leo’s money, Leo’s two

cousins who are in jail in Texas. Leo didn’t

like that. Leo frightened my client.- 4 - ....

[L eo] [g]ot in an argument, over dope money

that he lost, his $10,000. Drug dealers ...

get killed when they’re trying to pressure

informants, when they’re trying to pressure

people, and that’s what happened here.

During rebuttal closing argument for the State, the prosecutor

stated:

[Pratt’s] on trial for murder. H e’s not going

to get up on that stand and tell you that he’s

not a drug dealer. What’s not clear from the

testimony that his attorney brought out at

trial is why was Leo Washington asking him for

$10,000.00 if he just went to Houston to visit

some of Leo’s relatives. If he wasn’t

involved in something himself why would he

even give Leo some money. Why? It doesn’t

mak e sense. It’s a smoke screen. You still

can’t kill somebody regardless of what you may

think about Leo [Washington]. The defense has

put Leo Washington on trial. He is not on

trial, he was a living, breathing human being.

He’s no longer a living, breathing human

being, he’s dea d. He can’t come into this

courtroom a nd he can’t talk to you and tell

you what he was thinking or he can’t tell you

that George Pratt was the one involved with

drugs

.

(Emphasis added.) Pratt’s counsel did not object to the references

to drugs.

Pratt was sentenced to life in prison without benefit of

probation, parole, or suspension of sentence. After obtaining new

counsel, he moved for a new trial, on the ground that his trial

counsel rendered ineffective assistance by failing to object: to

the State’s cross-examination of Pratt about accompanying

Washington’s nephews to obtain drugs; and to the State’s rebuttal

closing argument, in which Pratt was referred to as a drug-dealer.

Pra tt maintained that a mistrial would have been granted had- 5 -

counsel objected. After conducting a hearing, the trial court

denied the motion.

Pratt appealed, claiming error in the denial of his new trial

motion. Noting that an ineffective assistance claim is usually

properly raised in seeking collateral relief, the state court of

appeal found the record sufficient to instead consider the claim on

direct appeal. P ratt

, 653 So. 2d at 176. The court affirmed,

holding that, even assuming the prosecutor’s response to Pratt’s

evidence and argument was improper and Pratt’s counsel rendered

deficient performance by not objecting, Pratt had not demonstrated

a reasonable probability that, bu t for the State’s references to

other crimes, the outcome would have been different. Id . at 177-

78. The court stated: “[E]ven if counsel had moved for a mistrial

and it had been granted, there is no reasonable probability that

the outcome of a new trial would have been different”. I d

. at 178.

The Louisiana Supreme Court denied Pratt’s application for a writ

of certiorari. State v. Pratt , 662 So. 2d 9 (La. 1995).

In March 1996, Pratt filed for federal habeas relief, raising

t he same ineffective assistance claim: that his trial counsel’s

performance w as deficient, because he failed to object when the

prosecutor referred to uncharged drug-dealing, both during crossexamination and in closing argument; and that he was prejudiced by

that deficient performance, because, under state law, an objection

would have resulted in a mandatory mistrial.

Concluding both that an evidentiary hearing was not necessary

and that the state court records provided a sufficient basis for1 Although the State timely appealed, it did not seek a

stay of the district court’s order, and kept Pratt in custody

beyond the 60-day limit before rearraigning him. In his brief,

Pratt contended that the State’s institution of a new prosecution

mooted this appeal. At oral argument, however, he conceded that it

is not moot. S ee Calderon v. Moore

, 518 U.S. 149 (1996). As noted

by counsel at oral argument, Pratt, of course, will not be re-tried

unless we affirm the habeas relief.

- 6 - resolving the sol e issue presented, the magistrate judge

recommended habeas relief, on the bas is that Pratt’s trial

a ttorney’s performance was deficient when he failed to object to

the prosecutor’s remarks and ask for a mistrial; and that Pratt had

shown prejudice, because an objection would have resulted in a

mandatory mistrial. The district court overruled the State’s

objections to the recommendation, and ordered that Pr att be

discharged from custody unless the State rearraigned him within 60

days after the date of the judgment. 1

II.

The Supreme Court’s “decisions have emphasized that the Sixth

Amendment right to counsel exists ‘in order to prot ect the

fundamental right to a fair trial.’” Lockhart v. Fretwell

, 506

U.S. 364, 368 (1993) (quoting S trickland v. Washington

, 466 U.S.

668, 684 (1984)).

[T]he right to the effective assistance of

counsel is recognized not for it s own sake,

but because of the effect it has on the

ability of the accused to receive a fair

trial. Absent some effect of challenged

conduct on the reliability of the trial

process, the Sixth Amendment guarantee is

generally not implicated.

United States v. Cronic , 466 U.S. 648, 658 (1984).- 7 -

The standard for prevailing on an ineffecti ve assistance of

counsel claim is well-known. Pratt was required to show “that

counsel’s performance was deficient” and “that the de ficient

performance prejudiced the defense”. S trickland

, 466 U.S. at 687.

Of course, Pratt must succeed on both prongs. In maintaining that

Pratt was not denied his right, under the Sixth Amendment, to

effective assistance of counsel, the State contends that not

objecting to the prosecutor’s references to Pratt’s involvement

with drugs was part of a sound trial strategy (therefore, no

deficient performance); and, in the alternative, that the district

court erroneously interpreted Louisiana law as mandating a mistrial

had Pratt’s counsel so objected (therefore, no prejudice).

An i neffective assistance claim presents mixed questions of

law and fact; accordingly, we review de novo the conclusion that

Pratt received ineffective assistance of counsel. E .g.

, Earhart v.

Johnson

, 132 F.3d 1062, 1065 (5th Cir. 1998); R icalday v.

P rocunier , 736 F.2d 203, 206 (5th Cir. 1984). In this regard,

because Pratt filed his habeas petition prior to 24 April 1996, the

effective date of the Antiterrorism and Effective Death Penalty Act

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), pre-AEDPA law

applies. See Green v. Johnson , 116 F.3d 1115 (5th Cir. 1997).

And, although state court findings of fact made in the course

of deciding an ineffective assistance claim are presumptively

correct under pre-AEDPA 28 U.S.C. § 2254(d ), determinations

regarding the adequacy of counsel’s performance and prejudice are

mixed questions of law and fact to which that presumption does not- 8 -

apply. See Westley v. Johnson , 83 F.3d 714, 720 (5th Cir. 1996),

cert. denied , ___ U.S. ___, 117 S. Ct. 773 (1997); Amos v. Scott

,

6 1 F.3d 333, 348 (5th Cir.), c ert. denied

, 516 U.S. 1005 (1995).

Therefore, we must independently review the state appellate court’s

conclusion that Pratt did not receive ineffective assistance of

counsel.

The district court’s conclusion that Pratt’s trial counsel’s

performance was deficient because he did not object to the State’s

questioning and argument regarding Pratt’s alleged involvement with

drugs, and that Pratt was prejudiced by that deficient performance,

was premised on L A

. C ODE C RIM

. P ROC

. A NN . art. 770 (West 1981). The

court ruled that, under Article 770, and had counsel objected, a

mis trial would have been mandatory. Article 770 provides, in

pertinent part:

Upon motion of a defendant, a mistrial

shall be ordered when a remark or comment,

made within the hearing of the jury by the

judge, district attorney, or a court official,

during the trial or in argument, refers

directly or indirectly to:

....

(2) Another crime committed or alleged to

have been committed by the defendant as to

which evidence is not admissible....

....

An admonition to the jury to disregard

the remark or comment shall not be sufficient

to prevent a mistrial. If the defendant,

however, requests that only an admonition be

given, the cour t shall admonish the jury to

disregard the remark or comment but shall not

declare a mistrial.- 9 -

The State contends that, because the failure to object was

part of a sound trial strategy, the district court erroneously

f ound deficient performance; and, in the alternative, that Pratt

was not prejudiced, because the court misinterpreted Article 770 as

mandating a mistrial had counsel objected.

A.

To prove deficient performance, the first of the two prongs

for satisfying a constitutional ineffective assistance claim, Pratt

must show that his counsel’s a ctions “fell below an objective

standard of reasonableness”. S trickland

, 466 U.S. at 688. “Our

scrutiny of counsel’s performance is highly deferential, a nd we

must make every effort to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time”. P itts v. Anderson

, 122 F.3d 275, 279 (5th Cir. 1997)

(brackets, internal quotation marks, and citation omitted).

In other words, Pratt must overcome the “strong pr esumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance”. W illiams v. Cain

, 125 F.3d 269, 276 (5th

Cir. 1997) (i nternal quotation marks and citation omitted). “A

conscious and informed decision on trial tactics and strategy

cannot be the basis for constitutionally ineffective assistance of

counsel unless it is so ill chosen that it permeates the entire

trial with obvious unfairness”. Green v. Johnson , 116 F.3d 1115,

1122 (5th Cir. 1997) (in ternal quotation marks and citation

omitted).- 10 -

As noted, the issue at hand was presented i n state court on

direct appeal, not habeas review. And, the record in district

court consisted only of the state court record. In short, for

collateral review purposes, no new evidence, such as an affidavit

by Pratt’s trial counsel, was made part of the record.

In any event, the apparent defense strategy was to negate the

crime of murder, or to reduce it to manslaughter, by portraying the

victim, Washington, as a drug-dealer who provoked the shooting by

demanding that Pratt repay $10,000, the value of cocaine allegedly

lost when Washington’s nephews were arrested after Pratt allegedly

informed the police about their drug-dealing. It would seem

Pratt’s counsel knew that, by employing this strategy, including by

asking Pratt on direct examination about his involvement with

drugs, the State would — a nd could

, as discussed infra

— make

references, as it did, to Pratt’s drug-activities.

In th e light of the strong evidence that Pratt committed

second degree murder

— after all, he chased Washington, who was

unarmed, into a house, shooting at him several times

— it is quite

a rguable that Pratt has not overcome the strong presumption that

his counsel exercised reasonable professional judgment in employing

such strategy. As the state trial court noted in denying Pratt’s

new trial motion, the strategy was almost successful: the jury

voted only ten-to-two to convict.

B.

But, even assuming that the failure to object was not part of

a sound legal strategy and that, therefore, Pratt has shown- 11 -

deficient performance, he must, of course, still show pre judice.

To prove prejudice, the second prong, Pratt must show that “there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different”.

Strickland

, 4 66 U.S. at 694 (emphasis added). A “reasonable

probability” is a probability sufficient to undermine confidence in

the outcome of the proceeding. Id.

When distilled, the prejudice question becomes whether,

because Pratt’s counsel did not object, Pratt was deprived of the

procedural right, vested by Article 770, to a mistrial/new trial.

In this regard, the application in Lockhart of the S trickland

prejudice prong guides the way. L ockhart reminds t hat the

prejudice prong

focuses on

... whether counsel’s deficient

performance renders the result of the trial

unreliable or the proce eding fundamentally

unfair. Unreliability or unfairness does not

result if the ineffectiveness of counsel does

not deprive the defendant of any substantive

or procedural right to which the law entitles

him.

Lockhart , 506 U.S. at 372 (citations omitted).

Admittedly, Article 770

— “[u]pon motion of a d efendant, a

mistrial shall be ordered”

— appears to mandate a mistrial whenever

a prosecutor refers to inadmissible evidence of another crime

alleged to have been committed by the defendant, and the defendant

so moves. However, the rule has not been interpreted or applied

quite so broadly.

In State v. Gay

, the Louisiana Court of Appeal for the Second

Circuit add r essed a Sixth Amendment ineffective assistance of- 12 -

counsel claim based, in part, on counsel’s failure to object and

move for a mistrial under Article 770, when the prosecutor referred

to other alleged crimes committed by the defendant. S tate v. Gay

,

616 So. 2d 1290, 1295-98 (La. Ct. App .), writ denied , 624 So. 2d

1223 (La. 1993). The court stated in that case: “To be within the

scope of Article 770(2), the remark complained of must be an

unambiguous reference to crimes alleged to have been committed by

the defendant”. I d

. at 1296-97. Of course, as noted in that case,

there are exceptions to Article 770's mandating mistrials.

First, “the Louisiana Supreme Court has held that failure to

grant a mistrial is not reversible error when the question asked is

purely ‘interrogatory’....” S tate v. Cotten

, 438 So. 2d 1156, 1161

(La. Ct. App. 1983) (quoting State v. Anderson

, 358 So. 2d 276 (La.

1978); State v. Hatch

, 305 So. 2d 497 (La. 1974), cert. denied

, 423

U.S. 842 (1975); and State v. Huizar , 414 So. 2d 741 (La. 1982)),

writ denied , 444 So. 2d 606 (La. 1984).

Second, “references to inadmissible evidence of other crimes

do not apply to evidence of words or actions which form an integral

part of the charged offense, formerly res gestae”. State v. Gay

,

616 So. 2d at 1297.

Third, as referenced in note 2 infra

, “a mistrial is not

mandated where, considering the totality of the evidence, there is

no reasonable probability that, absent the error, the trier of fact

would have had a reasonable doubt respecting the defe ndant’s

guilt....” I d .; see also State v. Johnson

, 622 So. 2d 845, 852

(La. Ct. App. 1993) (prosecutor’s reference in closing argument to- 13 -

uncharged crime of possession of cocaine with intent to sell was

not so prejudicial as to warrant a mistrial).

And, fourth, the rule does not apply “when the defendant has

‘opened the door’ to evidence of other crimes.” S tate v. Gay

, 616

So. 2d at 1297; see also State v. Cotten , 438 So. 2d at 1162-63

(where defendant testified on direct examination about his previous

arrest record, qu estions posed by prosecution about such arrests

“do not constitute impermissible references to other crimes” and

Article 770(2) is inapplicable). In other words, “[a] mistrial is

not required when the prosecutor’s references or questions can be

classified as responsive to an is sue which the defendant himself

has brought into the case”. State v. Gay , 616 So. 2d at 1297.

Obviously, the latter exception is particularly relevant here.

Pratt’s counsel introduced evidence of drug-dealing into the case,

through cross-examination of the State’s witnesses and in Pratt’s

case-in-chief. Especially significant is Pratt’s testimony o n

direct examination that he was “on drugs” in 1986 or 1987; that he

was convicted of attempted possession of cocaine in 1989; and that

there was “bad blood” between him and Washington, because

Washington thought Pratt had informed on his nephews, causing their

arrest and the loss of $10,000 worth of cocaine. Finally, in

closing argument, Pratt’s counsel argued that Washington “perhaps”

deserved to be murdered because he was a drug-dealer.

Under these circumstances, the State’s cross-examination of

Pratt regarding whether he accompanied Washington’s nephews to

obtain drugs, and the prosecutor’s characterizations, during2 Left for another day, in another case, is the following

possible question, prompted in part by one of the earlier-discussed

state court exceptions to application of Article 770(2) and by

possible tension between state rules of procedure and federal

habeas constitutional fundamental fairness questions, as well as by

possible tension between Strickland and Lockhart : even when the

procedural right to a mistrial is shown pursuant to Article 770(2),

does this concomitantly satisfy the requisite Strickland

unconstitutional prejudice prong?

- 14 - closing argument, of Pratt as a drug-dealer were responsive to

Pratt’s evidence and argument, which attempted to portray

Washington as a drug-dealer and Pratt as, instead, an innocent

informant. In short, the challenged State conduct falls outside

the prohibition of Article 770(2).

Accordingly, had an objection b een made, it would not have

resulted in a mistrial. Therefore, Pratt was not deprived of a

procedural right to one. There was no prejudice. 2

III.

For the foregoing reasons, the judgment granting habeas relief

is REVERSED

, and judgment is RENDERED denying Pratt habeas relief.

REVERSED and RENDERED