United States Court of Appeals

Fifth Circuit 

## FILED

January 9, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-50341

EDWARD MICHAEL YOUNG,

Petitioner - Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONS DIVISION,

Respondent - Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

Before REAVLEY, JOLLY, and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Edward Michael Young was convicte d of murder and is now

serving a sixty-year sentence in the Texas prison system. He

appeals the district court’s denial of his petition for a writ of

h abeas corpus in which he alleges ineffective assistanc e of

counsel. He bases his claim on his attorney’s failure to move for

the dismissal of the prosecution under applic able Texas statutes

(that have subsequently been amended), which required dismissal of

the prosecution with prejudice if the indictment was untimely. The

indictment is conceded to have been untimely. The state habeas

court concluded that Young’s counsel had, indeed, rendered

deficient performance by failing to move for dismissal of the2

prosecution. It further concluded that there was a reasonable

probability that, but for that deficiency, Young never would have

been tried and, hence never convicted, of the crime for which he is

presently imprisoned. This conclusion was based on the court’s

interpretation of state law and its application to the facts of

this case. S ee T EX

. C ODE C RIM

. P. arts. 28.061, 32.01 (West 1989).

Yet, the state ha beas court ultimately denied relief, concluding

that, despite the deficient performance of counsel th at affected

the outcome, Young was not prejudiced. Under the state court’s

application of Strickland v. Washington , 466 U.S. 668 (1984), and

Lockhart v. Fretwell

, 506 U.S. 364 (1993)

, prejudice was to be

determined by reference to current law, rather than the law at the

time o f the deficient performance. This interpretation led the

state court to conclude that Young had suffered no prejudice (under

the second prong of Strickland ) because the Texas statute

subsequently had been amended to remove the b ar to further

prosecution following dismissal.

The determinant question on appeal is whether the state habeas

court’s conclusion that Young was not prejudiced by his counsel’s

deficient performance was contrary to, or an unreasonable

application of, federal law. Two cases will inform the court’s

application of Strickland in these circumstances: Lockhart v.

Fretwell

, supra , and Williams v. Taylor , 529 U.S. 362 (2000). In

Fretwell

, the Supre me Court stated that a S trickland prejudice

“analysis focusing solely on mere outcome determination, without

attention to whether the result of the proceeding was fundamentally3

unfair or unreliable, is defective” and “may grant the defendant a

windfall to which the law does not entitle him.” 529 U.S. at 369-

70. Such “[u]nreliability or unfairness does not result if the

ineffectiveness of counsel does not d eprive the defendant of any

substantive or procedural right to which the law entitles him.”

Id

. at 372. F retwell

, however, was further delineated by the Court

in Williams : F retwell does “not justify a departure from a

straightforward application of Strickland when the ineffectiveness

of couns el does deprive the defendant of a substantive or

procedural right to which the law entitles him.” 529 U.S. at 393

(emphasis in original). Accordingly, the question in this case is

whether the undisputed deficient performance of Young’s counsel

deprived Young of a substantive or procedural right to which he was

entitled. Fretwell , 506 U.S. at 372; Williams , 529 U.S. at 393.

The state habeas court concluded that, under Texas law, if

Young’s counsel had moved for dismissal, Young would have been

“entitled” to dismissal of the prosecution, and that the State

would have been barred from further prosecution. It is therefore

c lear that the state habeas court found that the defici ent

performance of Young’s counsel deprived him of substa ntive and

procedura l rights to which the law entitled him. Yet, the state

habeas court, without reference to Williams

, applied F retwell to

conclude that ultimately Young was not prejudiced because the

statute subsequently had been amended to allow reprosecution after

dismissal of the indictment. Because this holding fails to

properly distinguish Fretwell and disregards Williams ’4

interpretation of Fretwell

, it is both contrary to, a nd an

unreasonable application of, Supreme Court precedent. Because the

state habeas court concluded that there was a rea sonable

probability that Y oung would not have been prosecuted for the

murder of Tracy Ann Bering had his counsel moved for dismissal,

Young has established the requisite prejudice under Strickland

.

I

On September 20, 1991, Tracy Ann Bering was murdered. Young

was arrested, and Jaime Gandara was appointed t o represent him,

that same day. Young was released on bail, but he was not indicted

until February 16, 19 93, approximately seventeen months later,

which was the third term of court following his arrest and release

on bail. At the time of Young’s arrest, indictment and trial for

murder, article 32.01 of the Texas Code of Criminal Procedure

provided:

When a defendant has been detained in custody

or held to bail for his appearance to answer

any criminal accusation before the district

court, the prosecution

, unless otherwise

ordered by the court, for good cause shown,

supported by affidavit, shall be dismissed and

the bail discharged, if indictment or

information be not presented against such

defendant at the next term of the court which

is held after his commi tment or admission to

bail.

(Emphasis added.) During that time, article 28.061 of the Code of

Criminal Procedure provided, in relevant part,

A dischar ge under ... Article 32.01 of this

code is a bar to any furthe r prosecution for

the offense discharged and for any other

offense arising out of the same transaction,

o ther than an offense of a higher grade that

the attorney representing the state and5 prosecuting the offense that was discharged

does not have the primary duty to prosecute.

(Emphasis added.)

Thus, under the express terms of Article 32.01, by the first

Monday of July 1992, Young would have been entitled to have the

prosecution against him dismi ssed with prejudice under Article

28.061 because the State had not yet indicted him, unless the State

was able to demonstrate good cause for the delay. However, his

appointed counsel did not seek such a dismissal, and Young was

indicted for the murder of Tracy Ann Bering approximately seventeen

months after his arrest.

Young filed two pre-trial motio ns to dismiss the indictment

for speedy trial violations, which the trial court denied after a

hearing. Following a jury trial, Young was convicted of murder.

Young was sentenced to sixty years in prison, a sentence he is now

serving.

The conviction and sentence were affirmed on direct appeal to

the Court of Appeals, Eigh th District of Texas at El Paso, on

August 14, 1997 , in an unpublished opinion. Y oung v. State

, No.

08-95-00251-CR. On direct appeal, Young argued that the trial

court erred by denying his motions to dismiss for speedy trial

violations. In its brief on direct appeal, the State admitted that

the pre-ind ictment delay was clearly attributable to the State.

Although the state court of appeals rejected Young’s speedy trial

claim, it did so on the ground that Young had filed motions for

continuance in which he asserted that he would not be prejudiced by

a delay of the trial. The state court of appeals noted, however,1 Gandara completed an affidavit stating that this failure was

an oversight; the state habeas court made an explicit factual

determination that the failure was not the result of any strategic

or tactical c hoice. Deficient performance of counsel is not

contested.

6 that the State had not explained the twenty-seven month delay

between Young’s arrest and initial trial setting. Obviously, that

twenty-seven m onth period includes the seventeen months between

Young’s arrest and indictment. Thus, the state court of appeals

implicitly concluded that the State had failed to give any reasons

for the pre-indictment delay.

Young petitioned the Texas Court of Criminal Appeals for

discretionary review. Young argued that the court of appeals

incorrectly failed to app ly the provisions of articles 32.01 and

28.061 to reverse for the reason that the indictment was not

presented within the time prescri bed by law. The Texas Court of

Criminal Appeals refused the petition for discretionary review on

January 21, 1998. Young v. State , PDR No. 1566-97.

Young filed his post-conviction application for relief in

state court on February 23, 1999. He asserted various claims of

ineffective assistance of counsel and insufficiency of the

evidence. Pertinent to this appeal is Young’s claim that his Sixth

Am endment rights were violated by ineffective assistance of his

counsel, who failed to move for the dismissal of the prosecution

for failure to timely indict under Te xas law. 1 T he state habeas

trial court concluded that trial coun sel rendered deficient

performance by failing to move for dismissal of the prosecution and

that Young would have been entitled to a dismissal with prejudice7

under the Texas statutes then in effect. In pertinent part, the

court made the following “Conclusions of Law”:

1. Had Applicant’s attorney, Jaime

Gandara, moved for dismissal of the charges

and discharge of the bail against Applicant

for the offense for whi ch he was convicted

prior to the presentation of an indictment

against Applicant, Applicant would have been

legally entitled to such dismissal and

discharge under Texas Code of Criminal

Procedure, article 32.01.

2. Had the charges against Applicant

been dismissed and his bail discharged under

Texas Code of Criminal Procedure, article

32.01, the State would have been barred under

Texas Code of Criminal procedure, article

28.061, from any further prosecution of

A pplicant for the offense for which he was

convicted.

3. The failure of Applicant’s attorney ,

Jaime Gandara, to move, prior to indictment,

for dismissal of the charges for which

Applicant was convicted under Texas Code of

Criminal Procedure, article 32.01, fell below

a minimum objective standard of reasonable

representation by legal counsel of defendants

in Texas, as established by prevailing

professional norms.

4. But for the failure of Applicant’s

attorney, Jaime Gandara, to move, prior to

indictment, for dismissal of the charges for

which Applicant was convicted under Texas Code

of Criminal Procedure, article 32.01, there is

a reasonable probability that Applicant would

not have been convicted of any offense arising

out of the same transaction . . . because the

State would have been barred from indicting

him under all extant statutory law.

5. Because, under current statutory law,

t he State would be free to indict Applicant

for the same offense, were it dismissed under

Texas Code of Criminal Procedure 32.01,

Applicant has not been prejudiced within the

meaning of Strickland v. Washington , as

elaborated by Lockhart v. Fretwell

, 506 U.S.2 Articles 32.01 and 28.061 were amended effective May 26, 1997.

The amended version of article 32.01 allows the State at least six

months in which to present an indictment. Article 28.061 was

amended to delete the reference to article 32.01, thereby removing

the bar to further prosecution a fter dismissal for failure to

timely indict. S ee a lso T E X

. C ODE C RIM

. P. art. 15.14 (“If a prosecuti on of a defendant is dismissed under Article 32.01, the

defendant may be rearrested for the same criminal conduct alleged

in the dismissed prosecution only upon presentation of indictment

or information for the offense and the issuance of a capias

subsequent to the indictment or information.”) (effective May 26,

1997). The Texas Legislature provided, however, that all of these

amendments applied “only to the prosecution of a defendant arrested

for an offense on or a fter the effective date of this Act. The

prosecution of a defendan t arrested before the effective date of

this Act is covered by the law in effect when the arrest occurred,

and the former law is continued in effect for that purpose.” Acts

1997, 75th Leg., ch. 289, § 4.

8

364 (1993) and Ex parte Butler

, 884 S.W.2d 782

(Tex. Crim. App. 1994).

The court thus concluded, however, that Young was not prejudiced by

this deficiency under Strickland v. Washing ton , 466 U.S. 668

(1984), as applied in Lockhart v. Fretwell

, 506 U.S. 364 (1993) and

Ex parte Butler

, 884 S.W.2d 782 (Tex. Crim. App. 1994), because

prejudice was to be determined by the Texas law in effect at the

time of habeas review, which had been amended by the legislature in

1997 to permit re-indictment in the case of dismissal for untimely

indictment. 2 In October 2000, the Texas Court of Criminal Appeals

denied relief without a written order based on the findings of the

trial court.

Young filed the present federal habeas petition under 28

U.S.C. § 2254 in October 2000. He asserted that counsel rendered

ineffective assistance by failing to move for dismissal of the

indictment and by failing to request three jury instructions. In

July 2001, the magistrate judge recommended that Young’s jury3 Although there is some confusion in the briefs about the

sco pe of the COA, it is clear from review of the request for COA

that Young sought review only of the prejudice determination by the

district court. Thus, consistent with Muniz v. Johnson , 114 F.3d

43 (5th Cir. 1997) and Else v. Johnson , 104 F.3d 82, 83 (5th Cir.

1997), this court is not deprived of jurisdiction to hear this

appeal. 28 U.S.C. § 2253(c)(3).

9 instruction claims be denied. However, he recommended that a writ

of habeas corpus be granted on Young’s motion-to-di smiss claim

asserting that the state ha beas court had unreasonably applied

Fretwell

. On March 4, 2002, the district court adopted the

magistrat e’s recommendations on the jury instruction claims, but

declined to grant relief on the mot ion-to-dismiss claim. The

district court agreed with the magistrate judge that the state

habeas court had unreasonably applied Fretwell , but reasoned that

Young nonetheless failed to establish prejudice under S trickland

because Young failed to show that the State could not demonstrate

good cause for the delay in indicting him or that the trial court

would have dismissed the indictment.

Young filed a timely motion for reconsideration under Rule 59,

which was denied. On April 1, he filed a timely notice of appeal

and request for certificate of appealability (“COA”). The request

for the certificate focused on the district court’s prejudice

analysis, and in particular the district court’s reliance on the

existence of a good-cause defense by the State to Young’s motion to

dismiss under the relevant statute. The district court granted the

COA without specifying any particular issue on April 19, 2002. 3

II10

Young argues that the state habeas trial co urt unreasonably

applied clearly established federal law by holding that he was not

prejudiced by what all parties and all courts have agreed was

deficient performance by trial counsel. Young maintains that the

state court’s application of the Strickland ana lysis –- in

particular its application of Fretwell to the facts of this case

--

was objectively unreasonable. The State argues that the state

habeas cou rt did not unreasonably apply F retwell

, because Young

failed to establish that he would have been entitled to dismissal

of the prosecution with prejudice had his counsel moved for

dismissal. The State contends that Young failed to establish his

entitlement to dismissal for two reasons: (1) Young did not show

that the State would have been unable to demonstrate good cause for

the delay; an d (2) a majority of Texas courts have held that the

pre-1997 version of art. 28.061 is unconstitutional under state

law, and the likelihood of a different outcome attributable to an

unconstitutional statute should be regarded as a potential windfall

to Young under F retwell

, rather than legitimate prejudice under

Strickland

. Alternatively, the State argues that, even if the

state habeas court incorrectly applie d Fretwell , Young failed to

m eet his burden of affirmatively proving prejudice under

Strickland

. The State argues that, to establish S trickland

prejudice, Young was required to prove that the State would have

been unable to demonstrate good cause for the delayed indictment.

Although the state habeas court, applying Fretwell

, held that Young

was not prejudiced because he could be re-indicted under the 19974 As we have noted, the Texas Legislature provided that the

amendment to art. 28.061, which omits the reference to art. 32.01

and thus removes the bar to further prosecution after dismissal for

failure t o timely indict, does not apply to defendants arrested

prior to May 26, 1997, the effective date of the amendments. See

Ex parte Barnes , 959 S.W.2d 313, 315 n.1 (Tex. App. -- Fort Worth

1998).

11 amendment to art. 32.01, the State does not press that argument on

appeal. 4

III

Under the Anti-Terrorism and Effectiv e Death Penalty Act

(“AEDPA”), a federal court may not grant a writ of habeas corpus on

behalf of a state prisoner unless the adjudication of the

petitioner’s claim in state court “(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 based

on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.” 28 U.S.C. §

2254(d)(1)-(2). Before this court may grant habeas relief under

the unreasonable application clause, the state court’s application

of clearly established federal law must be more than merely

incorrect or erroneous, it must b e objectively unreasonable.

Williams

, 529 U.S. at 411 (O’Connor, J., writing for the Court).

A state court’s decision is an unreasonable application of clearly

established federal law whenever the st ate court identifies the

correct governing legal principle from the Supreme Court’s

decisions but applies that principle to the facts of the prisoner’s

case in an “objectively unreasonable” manner. S ee Caldwell v.12

Johnson

, 226 F.3d 367, 372 (5th Cir. 2000) (citing Williams

, 529

U.S. at 409). An unreasonable application may also occur if “the

state court either unreason ably extends a legal principle from

[Supreme Court] precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a new

context where it should apply.” W illiams

, 529 U.S. at 407. A

state court’s decision is contrary to Supreme Court precedent (1)

“if the state court arrives at a conclusion opposite to that

reached by [the Supreme C ourt] on a question of law”, or (2) “if

the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and

arrives at a result opposite to [that of the Supreme Court].” I d

.

at 405. A state court’s factual findings are presumed correct

unless rebutted by clear and convincing ev idence. 28 U.S.C. §

2254(e)(1). We review the state habeas court’s decision under the

same standard used by the district court. B eazley v. Johnson

, 242

F.3d 248, 255 (5th Cir.), cert. denied , 534 U.S. 945 (2001).

IV

As we have indicated, the question we must decide is whether

the state habeas court’s conclusion that Young was not prejudiced

by his cou nsel’s deficient performance was contrary to, or an

unreasonable application of, clearly established federal law as

determined by the Supreme Court. Although the state habeas court

concluded that Young would have been entitled to dismissal of the

prosecution with prejudice had his counsel moved for dismissal, it

nevertheless concluded that “[b]ecause, under current statutory13

law, the State would be free to indict Applicant for the same

offense, were it dismissed under Texas Code of Criminal Procedure

article 32.01, Applicant has not been prejudiced within the meaning

of Strickland v. Washington

, as elaborated by Lockhart v. Fretwell

,

506 U.S. 364 (1993) and Ex parte Butler

, 884 S.W.2d 782 (Tex. Crim.

App. 1994).”

The well-established two-prong analysis for ineffective

assistance claims requires that petitioners establish first, that

there was deficient perfo rmance by counsel and second, that this

deficiency prejudiced the defendant. Essentially, a petitioner

must show that there is “at least ‘a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” N eal v. Puckett

, 286 F.3d

230, 241 (5th Cir. 2002) (en banc) (quoting Strickland

, 466 U.S. at

694), cert. denie d , 537 U.S. 1104 (2003). Two cases have since

elaborated on Strickland ’ s prejudice analysis in ways that are

pertinent to our analysis today: L ockhart v. Fretwell

, 506 U.S.

364 (1993), and Williams v. Taylor , 529 U.S. 362 (2000). We will

address each in turn.

A

The state habeas court concluded that L ockhart v. Fretwell

refitted the traditional prejudice analysis u nder S trickland ; it

relied on Fretwell for the proposition that prejudice was to be

determined under the law in effect at the time of habeas review

rather than the law at the time of deficient performance.

Accordingly, the state court considered itself bound by the current5 Texas courts previously had relied on Fretwell to deny habeas

relief due to changes in the law. S ee Ex parte Butler

, 884 S.W.2d

782 (Tex. Crim. App. 1994); Easley v. State , 986 S.W.2d 264 (Tex.

App. -- San Antonio, 1998). While the Butler court appropriately

relied on Fretwell in the context of abrogated case law, it

int erpreted F retwell using broad language, holding that “the

prevailing law when applicant filed this writ must be applied in

our determination of whether counsel's failure to appeal the denial

of applicant's motion to quash caused counsel to be ineffective.”

Butler

, 884 S.W.2d at 784 (rely ing on F retwell ). In E asley

, the

court addressed claims under the Texas statutes at issue in this

case; Easley claimed ineffective assistance for counsel’s failure

to seek habeas relief on the basis of an untimely indictment. The

court relied on Butler ’s interpretation of F retwell to conclude

that Easley had not been prejudiced because the statutes at issue

had been amended to permit the State to refile charges once the

trial court dismissed the case. Easley , 986 S.W.2d at 270.

14 Texas statute, amended in 1997 to remove the bar to further

prosecution after a dismissal for failur e to timely indict, and

concluded that Young had suffered no prejudice because he could

simply be re-indicted under current Texas law. 5

In Fretwell , the Supreme Court considered whether “counsel’s

failure to make an objection in a state criminal sentencing

proceeding

-- an objection that would have been supported by a

decision that subsequently was overruled

-- constitutes ‘prejudice’

within the meaning of [its] decision in Strickland v. Washington .”

Fretwell , 506 U.S. at 366. Fretwell argued that his counsel was

ineffective because he had failed to object at sentencing to the

use of an aggravating factor that duplicated an element of the

underlying felony

-- murder in the course of a robbery; the

objection would have been specifically supp orted at the time of

trial by then-existing Eigh th Circuit precedent, C ollins v.

Lockhart

, 754 F.2d 258 ( 8th Cir. 1985) . However, between15

Fretwell’s trial and his habeas case, Collins had been overruled.

Under these circumstances, the Supreme Court conclu ded that to

p ermit Fretwell to benefit from this subsequently abrogated case

law was a “windfall” to which he was not entitled.

The Court’s opinion eschewed strict fidelity to a narrowly

focused approach that would determine prejudi ce by simply asking

whether the outcome would have been different; instead, it held

that even though the o utcome might have been favorable to

petitioner if counsel had properly objected, counsel’s failure to

object did not prejudice Fretwell, reasoning: “Our decisions have

emphasized that the Sixth Amendment right to counsel exists in

order to protect the fundamental right to a fair trial,” Fretwell

,

506 U.S. at 368; “[a]bsent some effect of the challenged conduct on

the reliability of the trial process, the Sixth Amendment guarantee

is generally not implicated,” id. at 369 (quoting United States v.

Cronic

, 466 U.S. 648, 658 (1984)); “an analysis focusing solely on

mere outcome determination, without attention to whether the result

of the proceeding was fundamentally unfair or unrelia ble, is

defective. To set aside a conviction or sentence solely because

the outcome would have been different but for counsel’s error may

grant the defendant a windfall to which the law does not entitle

him,” id. at 370; “[u]nreliability or unfairness does not result if

the ineffectivene ss of counsel does not deprive the defendant of

any substantive or procedural right to which the law entitles him,”

id

. at 372. In sum, because the case had been later overruled,

Fretwell was not entitled, under the Constitution, to the probable16

benefit of counsel’s objection. Consequently, counsel’s admitted

failures had not deprived Fretwell of any substantive or procedural

right to which the law entitled him and, therefore, he “suffered no

prejudice from his counsel’s deficient performance.” Id

.

Justice O’Connor concurred, no ting that “today we hold that

the court making the prejudice determination may not consider the

effect of an objection it knows to be meritless under current

governing law, even if the objection might have been considered

meritorious at the time of its omission.” Id. at 374.

B

We now turn to the second case that informs our prejudice

analysis under Strickland

-- W illiams v. Taylor

, 529 U.S. 362

(2000). Although W illiams was decided on April 18, 2000, the state

habeas court did not cite it in its findings of fact and

conclusions of law filed nearly four months later, on August 15,

2000.

In Williams

, the Virginia Supreme Court rejected the

petitioner’s claim of ineffective assistance of counsel, relying on

the Supreme Court’s opinion in Fretwell . The Virginia court held

that the trial judge, who had granted habeas relief, erred in

relying on mere outcome determination, rather than a review of

whether the result of the proceeding was fund amentally unfair or

unreliable. W illiams

, 529 U.S. at 371. The Supreme Court held

that the Virginia Supreme Court erred “in holding that our decision

in [ Fretwell ]

. . . modified or in some way supplanted the rule set

down in Strickland .” Williams , 529 U.S. at 391.17

In explaining why the Virginia Supreme Cour t had erred, the

Court quite c learly explained its reasoning in F retwell

, and

narrowly defined its limitations:

[W]hile the Strickland test provides

sufficient guidance for resolving virtually

all ineffective-assistance-of-counsel claims,

there are situations in which the overriding

focus on fundamental fairness may affect the

analysi s. Thus, on the one hand, as

Strickland itself explained, there are a few

situations in which prejudice may be presumed.

And, on the other hand, there are also

si t uations in which it would be unjust to

characterize the likelihood of a different

outcome as legitimate "prejudice." Even if a

defendant 's false testimony might have

persuaded the jury to acquit him, it is not

fundamentally unfair to conclude that he was not prejudiced by counsel's interference with

his intended perjury.

Similarly, in Lockhart

, we concluded

that, given the overriding interest in

fundamental fairness, the likelihood of a

different outcome attributable to an incorrect

interpretation of the law should be regarded

as a potential "windfall" to the defendant

r ather than the legitimate "prejudice"

contemplated by our opinion in Strickland

. The death sentence that Arkansas had imposed

on Bobby Ray Fretwell was base d on an

aggravating circumstance (murder committed for

pecuniary gain) that duplicated an element of

the underlying felony (murder in the course of

a robbery). Shortly before the trial, the

United States Court of Appeals for the Eighth

Circuit had held that such "double counting"

was impermiss ible, but Fretwell's lawyer

(presumably because he was unaware of the

Collins decision) failed to object to the use

of the pecuniary gain aggravator. Before

Fretwell's claim for federal habeas corpus

relief reached this Court, the Collins case

was overruled. Accordingly, even though the

Arkansas trial judge probably would have

sustained a timely objection to the double

counting, it had become clear that the State

had a right to rely on the disputed

aggravating circumstance. B ecause the18 ineffectiveness of Fretwell's counsel had not

deprived him of any substantive or procedural

right to which the la w entitled him, we held

that his claim did not satisfy the "prejudice"

component of the Strickland test

.

Willi ams , 529 U.S. at 391-93 (Stevens, J., writing for the

Court)(footnotes and citations omitted; emphasis added).

The Court went on to hold that the Virginia Supreme Court’s

decision was both “contrary to” and “involved an unreasonable

applicatio n of” S trickland

. I d

. at 391; see also id

. at 413-14

(O’Connor, J., concurring). To the extent “that the [Virginia]

court’s decision turned on its erroneous view that a ‘mere’

difference in outcome is not sufficient to establish

constitutionally ineffective assistance of counsel,” the court’s

analysis was “contrary to” Strickland

. Id . at 397. Furthermore,

because the Virginia Supreme Court “relied on the inapplicable

exception recognized in Lockhart ,” its decision was an unreasonable

application of Strickland and Fretwell

. Id .; see also id . at 407

(state court’s decision is an unreasonable application of federal

law if “the state court

... unreasonably extends a legal principle

from [Supreme Court] precedent to a new context where it should not

apply”).

Williams thus leaves no doubt that where deficient performance

denies the petitioner a substantive or procedural right to which he

is lawfully entitled, prejudice is to be determined, routinely,

under the second prong of Strickland

. See id . at 393 (“departure

from a straightforward application of Strickland [is not justified]

when the ineffectiveness of counsel does deprive the defendant of19

a substantive or procedural right to which the law entitles him”)

(emphasis in original).

C

Thus, the question whether the prejudice analysis of

Strickland or Fretwell applies in this case turns on whether the

deficient performance by Young’ s counsel deprived him of a

substantive or procedural right

-- here the right to have the

indictment dismissed with prejudice

-- to which the l aw entitled

him. We first distinguish the later overruled case law involved in

Fretwell from the later amended statutes in effect at the time of

Young’s trial. Next, we address whether the later amendments

somehow “disentitled” Young to the right and to the benefit of the

statutes in effect at the time of his trial.

1

Fretwell dealt with a right declared by a judicial decision,

a right which had achieved no recognition as a final statement of

the law. Restated, the rule relied on by Fretwell was proclaimed

by a single judicial decision and was n ot finally settled as a

binding legal principle. The case, and the rule it announced, had,

in fact, been overruled by the time F retwell raised the issue in

habeas. In short, Fretwell had no legal “entitlement” to a rule

that had never “vested” as a final statement of the law. Implicit

in this concept is that finality of a federal constitutional rule

is never established until the Supreme Court has spoken.

Statutes, as “final” stat ements of the law, are

distinguishable. Once a statute is duly enacted by the6 In Nix , the Court held that the defendant was not prejudiced

by his counsel’s failure to present perjured testimony. 475 U.S.

at 175-76.

20 legislature, it is a “final”, if not necess arily permanent,

statement of the law on that particular point. Although it may be

attacked in collateral proc eedings as unconstitutional, it has

achieved recognition as a final statement of the law by the

lawgiver, that is, the legislature and, indeed, the state, and the

statute confers benefits that the law recognizes and protects. For

example, a case that has been overruled is not authoritative in all

pending and subsequent litigation, whereas a duly-enacted statute

conferring procedural or substantive rights entitles its

beneficiaries to those rights for the period in which it is validly

operating. Unlike the benefit sought in F retwell

, a state statute

is not an error, misapprehension, or “right the law simply does not

recognize.” N ix v. Whiteside

, 475 U.S. 157, 186 (1986) (Blackmun,

J., concurring). 6 Thus Young was, at the time of his arrest,

indictment and trial, legally entitled to the final “vested” rights

conferred upon him by the duly enacted Texas statutes; Fretwell, on

the other hand, was not lawfully entitled to claim the benefit of

a judicial rule that had not become finally authoritative.

2

Notwithstanding the foregoing, the State argues

-- alth ough

for the first time in this appeal

-- that Young failed to establish

prejudice because the pre-1997 version of art . 28.061 is

unconstitutional under the Texas Constitution; thus, the same as7 Compare Nguyen v. State

, 882 S.W.2d 471 (Tex. App.

-- Houston

[1st Dist.] 1994) (art. 28.061 is constitutional) wit h H ixson v.

State

, 1 S.W.3d 160 (Tex. App.

-- Corpus Christi 1999) (art. 28.061

is unconstitutional); Frenzel v. State , 963 S.W.2d 911 (Tex. App.

-- Waco 199 8) (same); E x parte Barnes

, 959 S.W.2d 313, 320 (Tex.

App. -- Fort Worth 1997) (same); State v. Condran , 951 S.W.2d 178

(Tex. App. -- Dallas 1997) (same).

21 Fretwell, he was never entitled to the benefit of the statute at

issue.

The lowe r appellate courts of Texas are divided on this

issue. 7 On the one occasion that the issue reached the Texas Court

of Criminal Appeals, it declined to consider it because the State

failed to raise the issue before the trial co urt or the court of

appeals. Ex parte Martin , 6 S.W.3d 524, 525 n.5 (Tex. Crim. App.

1999)

. However, the state habeas court, by concluding that Young

would have been entitled to a dismissal with prejudice had his

counsel moved for dismissal, implicitly must necessarily have

concluded that Art. 28.061 is not unconstitutional under state law.

See Ex parte Barnes

, 959 S.W.2d 313, 316 n.5 (Tex. App.

-- Fort

Worth 1997) (when a trial court fails to make specific findings of

fact and conclusions of law, it is presumed that the court made the

necessary findings to support its decision). Furthermore, in our

role as a federal habeas court, we cannot review the correctness of

the state habeas court’s interpretation of state law. S ee Johnson

v. Cain , 215 F.3d 489, 494 (5th Cir. 2000); Gibbs v. Johnson , 154

F.3d 253, 259 (5th Cir. 1998). Accordingly, AEDPA requires that

we defer to this implicit conclusion and interpretation of state

law by the state habeas court.

38 The State notes that the trial court issued three sets of

findings of fact and conclusions of law in this case, which it

argues should collectively constitute the factual findings by the

state habe as court. The record reflects that Judge Guadalupe

Rivera, of the 168th district court, El Paso County, Texas, issued

three written documents that include or take the form of factfinding. The first two, filed February 22 and March 3, 2000,

respectively, are both entitled “Order on Application for Article

11.07 Post-Conviction Writ of Habeas Corpus” and contain virtually

identical contents. Both state that Young “assumes but does not

prove that the State would have been unable to establish good cause

for the delayed indictment” and, therefore, he had not demonstrated

that an attempt by trial counsel to dismiss the indictment would

have resulted in a dismissal of the prosecutio n with prejudice.

The third document is entitled “Findings of Fact and Conclusions of

22 The district court held, and the State argues, that Young

failed to carry his burden to prove that the indictment in fact

would have been dismissed with prejudice; that is, he failed to

show the absence of good cause for the State’s delay in indicting

him. S ee T EX

. C ODE C RIM

. P. art. 32.01 (We st 1989) (“prosecution,

unless otherwise ordered by the court, for good cause shown

,

supported by affidavit, shall be dismissed

. . . if indictment

. .

. be not presented

. . . at the next term of the court which is

held after [defendant’s] commitment or admission to bail”)

(emphasis added). The State, however, suggests no factual basis on

which “good cause” might have been found; it only argues that the

absence of good cause was an element for Young to prove in order to

establish his right to a dismissal with prejudice. As we have

stated, however, the state habeas court concluded that, had Young’s

counsel moved for dismissal , Young “would have been legally

entitled to such dismissal” and that, had the charges been

dismissed, “the State would have been barred under [art.] 28.061,

from any further prosecution of [Young].” 8 These conclusions makeLaw” and was filed on August 15, 2000. This document was

apparently adopted by the Court of Criminal Appeals on October 4,

2000. Because it is last in time, sharply conflicts with the

previous documents filed on Febru ary 22 and March 3, 2000,

explicitly purports to be “Findings of Fact and Conclusions of Law”

and not merely “Orders”, and was the basis of Young’s appeal to the

Court of Criminal Appeals, we accept this document as the relevant

state habeas decision, and the one to which deference is owed under

28 U.S.C. § 2254(e)(1).

23 clear an implicit factual determination by the state habeas court

that the State would not have been able to demonstrate good cause

f or the delay in indicting Young. As a federal habeas court, we

are bound by the state habeas cou rt’s factual findings, both

implicit and explicit. Under AEDPA, “a determination of a factual

issue made by a State court shall be presumed to be correct.” 28

U.S.C. § 2254(e)(1). “The presumption of correctness not only

applies to explicit findings of fact, but it also applies to those

unarticulated findings which are necessary to t he state court’s

conclusions of mixed law and fact.” Valdez v. Cockrell , 274 F.3d

941, 948 n.11 (5th Cir. 2001). See also Goodwin v. Johnson

, 132

F.3d 162, 183-84 (5th Cir. 1997) (findings of fact can be implied

from explicit conclusions of law). AEDPA requires that we defer to

the state hab eas court’s implicit factual determination that the

State would not have been able to demonstrate goo d cause for the

delay in indicting Young, especially when the State adduces no

counter evidence to challenge the finding.

C

Thus, in the light of our required deference to the state

habeas court’ s findings, both as to state law and to facts, the

question w h ether the deficient performance by Young’s counsel24

deprived him of a substantive or procedural right to which the law

entitled him is answered by the state habeas court’s conclusions of

law: Had Young’s counsel moved for dismissal, Young “would have

been legally entitled to such dismissal” and, had the charges been

dismissed, “the State would have been barred under [art.] 28.061,

from any further prosecution of [Young].” Accordingly, to the

extent that the state habeas cour t’s “decision turned on its

erroneous view that a ‘mere’ difference in outcome is not

sufficient to establish constitutionally ineffective assistance of

counsel,” the court’s analysis wa s “contrary to” S trickland

.

Williams , 529 U.S. at 397. Furthermore, because the state habeas

court “relied on the in applicable exception recognized in

[ Fretwell ],” its decision was an unreasonable application of

Strickland

, Fretwell , and Williams

. Id

.

V

For the reasons we have stated, we must conclude that Young’s

conviction cannot stand because it results specifi cally and

directly from the consequences of the State’s denying him the right

to effective counsel in violation of Young’s right to counsel under

the Sixth Amendment to the United State s Constitution. In

practical terms, a constitutionally effective counsel would have

moved to dismiss the indictment and the state court, on the record

before us, would have been required to dismiss the prosecution

against Young with prejudice. In short, if Young had been provided

effective counsel, as the State is required to do, Young would25

never have been prosecuted, convicted and sentenced, all for the

reason that the State failed to timely indict him.

Accordingly, the judgment of the district court is REVERSED,

and the case is REMANDED to the district court with instructions to

grant the Writ releasing Young from state custody.

REVERSED and REMANDED.JONES, Circuit Judge, concurring:

I concur in the persuasive panel opinion but write

separately to suggest that the State could ha ve better presented

its position in this case. Procedurally, this is a peculiar case

indeed. Independent research convinces me that under current Texas

law interpreting the old versions of T EX

. C ODE C RIM

. P ROC . §§ 28.061

and 32.01, Young is not “entitled” to relief. From this

standpoint, the case looks a lot like Fretwell

. On the other hand,

the State’s briefing pointed out none of the following points.

While the interests of federalism s trongly support finality in

convictions, and the habeas petitioner bears the burden of proof,

we are not author ized to litigate the State’s case if the State

does its job poorly.

The key legal quest ion, as the proposed opinion frames

it , “is whether the undisputed deficient performance of Young’s

counsel deprived Young of a substantive or procedural right to

which he was entitled.” The linchpin of this argument is the state

habeas trial court’s conclusion of law that: “Had Applicant’s

attorney, Jaime Gandara, moved for dismissal

. . . Appellant would

have been legally entitled to such dismissal and discharge under

Texas Code of Criminal Procedure, Article 32.01.” This conclusion

is almost surely wrong un der current Texas interpretation of the

relevant provisions.9 Remarkably, the parties failed to cite any of this controlling

case law. Instead, the government offered an argument concerning

the constitutionality of these articles. In its brief, the

government cited to Ex Parte Torres

, 966 S.W.2d 723, 728 (Ct. App.

Tex. - San Antonio 1998). However, the Court of Criminal Appeals

sub sequently vacated E x Parte Torres in light of Brooks

. S ee Ex

Parte Torres

, 993 S.W.2d 662, 662-63 (Tex. Crim. App. 1999). On

remand, the appellate court affirmed “the trial court’s order

denying Torres’ application for writ of habeas corpus” be cause

“ Brooks unambiguously holds that Article 32.01 has no application

once an indictment is returned.” E x Parte Torres

, 2000 WL 190544,

*1 (Ct. App. Tex. - San Antonio 2000).

27 First, it is important to place Articles 28.061 and 32.01

in the proper context. Under controlling Texas law, these code

p rovisions do not provide a basis for relief once the grand jury

has returned the indictment. In Brooks v. State , 990 S.W.2d 278,

285 (Tex. Crim. App. 1999)(en banc), the Court of Criminal Appeals

ruled that “Article 32.01 has no application once an indictment is

returned.” Thus, “the appellant waived his right to challenge the

indictment since he filed his writ of habeas corpus almost a year

and a half after the indi ctment was returned by the grand jury.”

Id

. Following B rooks

, the lower courts, in both habeas corpus

proceedings and on direct appeal, have uniformly denied postindictment relief under 28.061 a nd 32.01. S ee Blumenstetter v.

State

, 117 S.W.3d 541, 545 (Ct. App. Tex. - Texarkana 2003); E x

Parte Marti n , 33 S.W.3d 843, 846 (Ct. App. Tex - Austin 2001);

Smith v. State

, 998 S.W.2d 683, 694 (Ct. App. Tex.

- Corpus Christi

1999); State v. Weiblen

, 2 S.W.3d 375, 375-76 (Ct. App. Tex.

- San

Antonio 1999). 9 Hence, B rooks operat es as a bar to potential

sandbagging, since it prohibits defendants from waiting until after10 In fact, one court has found that since the defendant “first

raised the issue on appeal, the State did not have the opportunity

to present evidence on the good cause issue.” G arret t v. State

, 1999 WL 542577, *2 (Ct. App. Tex.

- San Antonio 1999).

Consequently, the record failed “to establish by a preponderance of

the evidence that Garrett suffered prejudice as a result of his

counsel’s allegedly deficient performance.” I d

. (citations

omitted).

28 an indictment is returned to seek relief under the old statutory

provisions.

Second, even if Young’s counsel had moved pre -indictment

for relief under the statutes, it is highly doubtful that Young has

overcome the “good cause” exception to Article 32.01. Texas courts

use a “ Barker -like totality-of-circumstances test for the

determination of good cause under Article 32.01.” I n re Martin

, 6

S.W.3d 524, 528 (Tex. Crim. App. 1999)(citing Barker v. Wingo

, 407

U.S. 514, 530 (1972)). Therefore, the habeas court should

consider, among other things: (1) the length of the delay; (2) the

State’s reason for the delay; (3) whether the delay was due to a

lack of diligence on the part of the State; and (4) whether the

delay caused harm to the accused. M artin

, 6 S.W.3d at 528. 10 We

need not engage in this inquiry ourselves. The state appellate

court actually undertook this precise analysis on direct appeal in

ruling on Young’s constitutional speedy trial claim, and holding,

after a thorough analysis, that Young “failed to make any showing

of prejudice.” The appellate decision, of course, concerned the

entire period of delay from arres t to trial, whereas Young’s

statutory argument would focus on the period from arrest to

indictment. I do not see a critical distinction. Thus, it is11 As the panel opinion notes, however, the State never

articulated good cause specifically for its preindictment delay.

29 difficult to see how “Young’s counsel deprived Young of a substantive or procedural right to which he was entitled.” This state

finding is against Young. 11

Third, these authorities raise the question, unexplored

by the State, why this court must be chained to the state trial

court’s conclusion in habeas, noted above, th at Young would have

been entitled to relief under the old statutes. Some years ago,

the state court might have been correct, but under current Texas

caselaw, Young would not be so entitled. The panel opinion

correctly criticizes the state habeas court for relying on the

current versions of Articles 28.0 61 and 32.01, even though these

provisions expressly applied prospectively beginning well after

Young was arrested. On the other hand, when the Texas Court of

Criminal Appeals ultimately denied Young’s habeas petition in 2000,

it had already de cided B rooks and Martin and, in my view, would

have been justified by these cases in its decision. Under N eal v.

Puckett

, 286 F.3d 230, 246 (5th Cir. 2002) (en banc), we are to

defer to the State’s ultimate decision, not its reasoning. The

S tate, unfortunately, has made no argument to the federal courts

based on the evolving interpretation of the old statutory

provisions.

For these reasons, a compelli ng argument exists that

Young was not prejudiced in light of the limited application of

Articles 28.061 and 32.01. To hold that the failure of Young’s30

counsel to bring a pre-indictment habeas claim, in and of itself,

constitutes prejudice under Strickland , seems to focus “solely on

mere outcome determination, without attention to whether the result

of the proceeding was fundamental ly unfair or unreliable[.]”

Lockhart v. Fretwell , 506 U.S. 364, 370 (1993). Young appears to

have reaped a windfall from the federal courts in habeas. As I

said at the beginning, however, we are not allowed to litigate for

the State. It is to be hoped that the State will be more

thoroughly prepared in the future. I therefore concur in the panel

opinion.