1 United States Court of Appeals,

Fifth Circuit.

No. 93-7660.

John S. JORDAN, Petitioner-Appellant,

v.

Edward HARGETT, Superintendent, Mississippi State Penitentiary,

et al., Respondents-Appellees.

Oct. 7, 1994.

Appeal from the United States District Co urt for the Northern

District of Mississippi.

Before REAVLEY, DeMOSS and STEWART, Circuit Judges.

REAVLEY, Circuit Judge:

John Jordan filed a petition for writ of habeas corpus

asse rting that his constitutional right to testify had been

violated in the course of his state court trial for rape. The

district court denied the petition. We reverse and remand.

BACKGROUND

In 1987 Jordan was tried and convicted in Mississi ppi state

court for the rape of G.R. After exhausting his state remedies, he

sought federal habeas corpus relief. He alleged that he was denied

his right to testify on his own behalf at trial. A magistrate

judge cond ucted an evidentiary hearing on this claim. Jordan

testified at the hearing that he informed his attorney prior to

trial and during each trial recess that he wished to testify. In

particular, he wished to testify that he was visiting relatives in

Dallas at the time of the rape. He further wanted to testify to

refute the victim's description of him as the rapist, to point out2

tha t the fingerprints taken from the scene were not his, and to

show that the jacket taken fr om his house in 1986 by the sheriff

was different from the jacket the victim described the rapist as

wearing. Jordan stated that his lawyer told him he could not

testify because such testimony might result in the jury learning of

Jordan's 1976 conviction for child molestation. Jordan's wife and

daughter corroborated his testimony. The magistrate found the

testimony of the witnesses believable and uncontradicted. Jordan's

attorne y from the state trial could not be located and did not

testify at the habeas hearing.

The magistrate recommended that habeas corpus relief be

granted. After hearing the testimony, the magistrate made factual

findings that Jordan repeatedly requested to testify at trial, that

his counsel's decision not to call him was made against his wishes,

that Jordan understood that he had a right to testify, and that he

never voluntarily and intentionally waived that right.

The district court rejected the magistrate's recommendation

and denied the request for habeas corpus relief. The court

concluded that Jordan had waived his right to testify by

voluntarily choosing not to testify on the advice of his attorney,

and by fa iling to assert his right to testify either through his

attorney or on his own during the state trial.

DISCUSSION

A criminal defendant has a fundamental constitutional right

to testify on his own behalf. Rock v. Arkansas, 483 U.S. 44, 49-

52, 107 S.Ct. 2704, 2708-10, 97 L.Ed.2d 37 (1987). This right is3

granted to the defendant personally and not to his counsel. I d. at

51, 107 S.Ct. at 2709. S ee also United States v. Teague, 953 F.2d

1525, 1532 (11th Cir.) (on rehearing en banc) ("We now reaffirm

that a criminal defendant has a fundamental constitutional right to

testify in his or her own behalf at trial. This right is personal

to the defendant and cannot be waived either by the trial court or

by defense counsel."), cert. denied,

--- U.S. ----, 113 S.Ct. 127,

121 L.Ed.2d 82 (1992).

A. Whether a Constitutional Violation Occurred

A defendant may of cours e waive his right to testify, and

frequently does so on the advice of counsel. We would find no

violation of the right to testify if Jordan acquiesced during trial

to his attorney's recommendation that he not testify and later

decided that he should have testified. Instead, a violation of

this right only occurred if the "final decision t hat [defendant]

would not testify was made against his will. In other words, we

must determine whether [defendant] made a knowing, volunt ary and

intelligent waiver of his right to testify." U nited States v.

Teague, 908 F.2d 752, 759 (11th Cir.1990), rehearing granted, 953

F.2d 1525 (11th Cir.), cert. denied,

--- U.S. ----, 113 S.Ct. 127,

121 L.Ed.2d 82 (1992).

Based on his report and recommendation we conclude that the

magistrate fully understood the relevant factual inquiry. He

concluded that Jordan had repeatedly asked to testify , had never

voluntari ly waived his right to testify, and that "the decision

that John Jordan would not testify was made against his wishes."1 E.g., Johnson v. Collins, 964 F.2d 1527, 1536 (5th Cir.),

cert. denied, --- U.S. ----, 113 S.Ct. 4, 120 L.Ed.2d 933 (1992);

McInerney v. Puckett, 919 F.2d 350, 352 (5th Cir.1990); Meyer v.

Estelle, 621 F.2d 769, 775 (5th Cir.1980); Parnell v.

Wainwright, 464 F.2d 735, 737 n. 1 (5th Cir.1972) ("The

magistrate's findings of fact receive the imprimatur of Rule

52(a) by the district court's adoption of those findings as its

own.").

4 These findings are findings of fact, and are based on the

magistrate's view of the credibility of the witnesses he observed.

The district court rejected the mag istrate's findings and

recommendation. It relied in part on testimony from Jordan in the

civil case G.R. brought against Jordan, which suggests that Jordan

chose not to testify in the prior criminal trial on the advice of

counsel. This evidence was offered by the State after the

magistrate issued his report and recommendation.

We have often stated, in cases where the district court

a dopts the fact findings of a magistrate who conduc ted an

evidentiary hearing, that on appeal we should defer to such

findings unless clearly erroneous. 1 The district court, however,

is not so limited it its review. Under 28 U.S.C. § 636(b)(1)(C),

which governs district court review of a magistrate's findings of

fact and recommendations for the disposition of a pplications for

post-conviction relief:

A judge of the court shall ma ke a de novo determination of

those portions of the report or specified proposed findings or

recommendations to which objection is made. A judge of the

court may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate. The judge

may also receive further evidence or recommit the matter to

the magistrate with instructions.

See also Louis v. Blackburn, 630 F.2d 1105, 1110 (5th Cir.1980)5

("The district judge, in his decision whether to reject or accept

the magistrate's recommendations, is not limited to a clearly

erroneous standard as we are in our appellate review of facts found

by the district courts."); T ijerina v. Estelle, 692 F.2d 3, 5 (5th

Cir.1982) ("Under the Federal Magistrate's Act, the district court

may give to the magistrate's pr oposed findings of fact and

recommendations "... such weight as [their] merit commands and the

sound disc retion of the judge warrants.' ") (quoting M athews v.

Weber, 423 U.S. 2 61, 273, 96 S.Ct. 549, 556, 46 L.Ed.2d 483

(1976)).

While the statute, by its terms, grants the district court

broad discretion to accept or reject a magistrate's fact findings,

we have placed some limits on that discretion. In particular, we

have limited district court discretion to reject a fact finding of

the magistrate where (1) the finding is based on the credibility of

the witnesses the magistrate heard, and (2) t he finding is

dispositive of an application for post-conviction relief involving

the constitutional rights of a criminal defendant. In B lackburn we

h eld that in such circumstances the district judge cannot reject

the finding without personally hearing live testimony from the

witnesses whose testimony is in issue. We explained:

One of the most important principles in our judicial system is

the deference given to the finder of fact who hears the live

testimony of witnesses because of his opportunity to judge the

credibili ty of those witnesses. The Supreme Court has

emphasized, in cases that involve the constitutional rights of

criminal defendants, that factual findings may not be made by

someone who decides on the basis of a cold record without the

opportunity to hear and observe the witnesses in order to

determine their credibility.2 The testimony from the civil trial can be read to suggest

that Jordan waived his right to testify on the advice of counsel,

but it is not conclusive. At one point in the civil trial he

testified as follows:

Q: Why didn't you testify a year ago [at the criminal

trial]?

A: I—It didn't seem necessary to—to testify. It—I—I

had my—the trial was by advisement of my

attorneys; and, they didn't think it was

necessary that I even testify.

Q: But you made that decision also; did you not?

A: Did I make the decision?

Q: Yes, sir.

A: I took advisement and made the decision.

6 * * * * * *

If the district judge doubts the credibility determination of

the magistrate, only by hearing the testimony himself does he

have an adequate basis on which to base his decision.

* * * * * *

In order to adequately determine the credibility of a witness

as to such constitutional issues, the fact finder must observe

the witness. This may be accomplished either by the district

judge accepting the de termination of the magistrate after

reading the record, or by rejecting the magistrates's decision

and coming to an independent decision after hearing the

testimony and viewing the witnesses.

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

We conclude that the district court erred in rejecting the

magistrate's credibility-based fact findings without conducting its

own evidentiary hearing. We believe that Jordan's testimony from

the civil trial was not sufficiently telling for the district court

to reject the magistrate's fact findings without conducting its own

hearing. 2 Further, as discussed below, we can find no alternativeHowever, shortly thereafter, he offered the following

testimony:

Q: Mr. Jordan, a year ago you exercised your right and

you chose not to testify in that case when you

were charged with rape in the criminal trial; is

that correct?

A: No. No. You said I chose.

Q: Yes, sir.

A: No, I didn't; I didn't choose. I was working, you

know, on the advisement of my attorneys.

3 E.g., United States v. Edwards, 897 F.2d 445, 447 (9th

Cir.), cert. denied, 498 U.S. 1000, 111 S.Ct. 560, 112 L.Ed.2d

567 (1990); United States v. Martinez, 883 F.2d 750, 760 (9th

Cir.1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.),

cert. denied, 501 U.S. 1249, 111 S.Ct. 2886, 115 L.Ed.2d 1052

(1991); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987);

United States v. Bernloehr, 833 F.2d 749, 752 (8th Cir.1987).

7 gro und for affirming the district court's decision. Consistent

with Blackburn, therefore, we remand the case for further

proceedings.

B. The Effect of Failure to Object

Neither Jordan nor his counsel made a record i n the state

trial of Jordan's desire to testify. In similar circumstances some

courts have concluded that the de fendant waived his right to

testify. 3 We do not believe that a defendant's failure to make a

record of his desire to testify against his counsel's wishes is

always fatal. Unlike many trial errors asserted in habeas

proceedings, this alleged error by its very nature is one where the

defendant and his lawyer are necessarily at odds with each other.

We think it unrealistic to expect that defense counsel will always

bring this at torney-client dispute to the attention of the trial4 The courts are not in uniform agreement on whether such a

colloquy from the trial court is advisable. State and federal

courts widely have held that such a colloquy is not required.

See Martinez, 883 F.2d at 757. The majority opinion in Martinez

argues that such a court inquiry not only is not required, but is

an inappropriate intrusion into the attorney-client relationship.

Id. See also Siciliano, 834 F.2d at 30 (Breyer, J.) ("To require

the trial court to follow a special procedure, explicitly telling

defendant about, and securing an explicit waiver of, a privilege

to testify (whether administered within or outside the jury's

8 court. Likewise, we believe that a rule requiring the defendant

personally to make such a record is inappropriate. We agree with

the reasoning of the panel opinion in Teague:

The defendant may not realize until after the jury has retired

to deliberate that the proper time for his testimony has

passed. Furthermore, once a defendant elects to take

advantage of his right to counsel, he is told that all further

communi cations with the court and the prosecutor should be

made through his attorney. Aside from any testimony he may

give at pre-trial hearings or during trial, a defendant is not

permitted to speak directly to the court. In fact, in the

interests of decorum and the smooth administration of justice,

defendants who speak out of turn at their own trials are quickly reprimanded, and sometimes banned from the courtroom,

by the court. It would be anomalous to consider the right to

counsel of fundamental importance because of the common lack

of understanding of th e trial process by defendants, and to

require a defendant to rely on his attorney to be his sole

spokesperson in the courtroom, while at the same time holding

that by failing to speak out at the proper time a defendant

has made a knowing, voluntary and intelligent waiver of a

personal right of fundamental importance such as the right to

testify.

Teague, 908 F.2d at 759-60 (footnote omitted). The uncertainty in

this area could be avoided if counsel would obtain a signed

statement from the defendant or if trial courts would conduct a

colloquy and obtain, outside of the jury's hearing, a statement on

the record from the non-testifying defendant that he is aware of

his right to testify and has chosen voluntarily to waive that

right. 4hearing), could inappropriately influence the defendant to waive

his constitutional right not to testify, thus threatening the

exercise of this other, converse, constitutionally explicit, and

more fragile right."). In contrast, the dissent in Teague would

require courts to establish on the trial record a waiver of the

defendant's right to testify. Teague, 953 F.2d at 1544 (Clark,

J., dissenting).

9 We do not mean to suggest that a defendant's failure to object

in the state court proceeding is entirely irrelevant. That silence

may itself be evidence of voluntary waiver of the right to testify.

In the absence of evidence in the state court re cord of the

defendant's wish to testify, we think it appropriate for the habeas

court to presume that the defendant acquiesced in his counsel's

advice or otherwise made a voluntary choice not to testify. We

hold only that such silence does not raise an irrebuttable

presumption of waiver. Here the magistrate as fact-finder

carefully considered the live evidence presented and the

credibility of the witnesses, and we cannot say on this record that

Jordan waived his right to testify.

C. Whether the Constitutional Error, if Any, Was Harmless

The State argues in the alternative that even if Jordan's

right to testify was denied, such a constitutiona l violation was

harmless error which does not justify habeas corpus relief. In

Brecht v. Abrahamson,

--- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d

353 (1993), the Supreme Court address ed the standard for

determining, in a federal habeas corpus proceeding, whether a

conviction must be set aside because of constitutional error. The

constitutional error in that case was a Doyle error which occurred

when the prosecution made reference to the defendant's post- Miranda10

silence. Id. at ----, 113 S.Ct. at 1713-14. The Court discussed

in general the distinctio n between "trial errors" which are

amenable to harmless-error analysis and "structural defects," such

as denial of the right to counsel, which require automatic reversal

of the conviction "because they infect the entire trial process."

Id. at ----, 113 S.Ct. at 1717. The Court held that the standard

for determining w hether habeas relief must be granted is whether

the D oyle error " "had substantial and injurious effect o r

influence in determining the jury's verdict.' " Id. at ----, 113

S.Ct. at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 66

S.Ct. 1239, 90 L.Ed. 1557 (1946)). This standard must now be

followed in habeas proceedings, in lieu of the "harmless beyond a

reasonable doubt" standard announced in Chapman v. California, 386

U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and applied in direct

appeals. Since B recht, our court and others have held generally

that the Brecht/Kotte akos standard applies in habeas proceedings

where the court must decide whether a constitutional tria l error

requires reversal of the conviction. E .g., Kyles v. Whitley, 5

F .3d 806, 807 (5th Cir.1993) (holding that in habeas proceedings

Brecht standard "controls all trial, as distinguished from

structural, errors"); S haw v. Collins, 5 F.3d 128, 132 (5th

Cir.1993); Lowery v. Collins, 996 F.2d 770, 772 (5th Cir.1993).

Justice Stevens, concurring in Brecht, e xplained that the

Kotteakos standard "places the burden on prosecutors to explain why

those errors were harmless" and "requires a habeas court to review

t he entire record d e novo in determining whether the error5 But see Wright v. Estelle, 572 F.2d 1071, 1080-82 (5th

Cir.) (en banc) (Godbold, J., dissenting) (suggesting that denial

of defendant's right to testify should be reversible per se),

cert. denied, 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978).

We also note that when the Eleventh Circuit decided the Teague

case en banc, it adopted an approach different from the one we

choose to follow. Although the Teague court held that "a

criminal defendant has a fundamental constitutional right to

testify on his behalf, that this right is personal to the

defendant, and that the right cannot be waived by defense

counsel," 953 F.2d at 1535, it concluded that a claim that the

defendant was denied his right to testify should be reviewed as

an ineffective assistance of counsel claim under Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

953 F.2d at 1534. We cannot agree with this approach. First, we

believe that the right of a defendant to testify on his own

behalf is a fundamental constitutional right entirely separate

from his right to counsel. Second, in our view, treating a

claimed denial of the defendant's right to testify as an

ineffective assistance of counsel claim ignores recognition of

the right as one personal to the defendant which can never be

waived by counsel, competent or not.

11 influenced the jury's deliberations." --- U.S. at ----, 113 S.Ct.

at 1723. As we noted in Lowery:

Justice Stevens, in his concurring opinion in Brecht, wrote to

explicate the Kotteakos standa rd and to "emphasize that the

standard is appropriately demanding." Under Kotteakos, "the

burden of sustaining a verdict by demonstrating that the error was harmless rests on the prosecution" unless that "error is

merely "technical' "—which a constitutional violation could

never be.

996 F.2d at 773 (footnote omitted) (quoting Brecht,

--- U.S. at

---

-, 113 S.Ct. at 1723-24 (Stevens, J., concurring)).

We conclude that this case involves a trial error and so the

Brecht standard should go vern. 5 If a constitutional error

occurred, we would hold based on the record before us that it "had

substantial or injurious effect or influence in determining the

jury's verdict." The burden was on the State to demonstrate

otherwise, and it did not meet this burden. This case in not one6 The magistrate observed: "If two jurors would vote in John

Jordan's favor under a preponderance of the evidence standard

while knowing of his conviction for rape, the undersigned cannot

conclude that the violation of his right to testify at his

criminal trial was harmless beyond a reasonable doubt."

12 whe re the evidence of guilt was so overwhelming that we can say

t hat the constitutional error, if any, was harmless under the

Brecht standard. Numerous witnesses (albeit relatives) testified

at trial in support of Jordan's alibi—that he was in or on his way

to Dallas at the time of the rape. G.R. did not identify Jordan as

the rapist until the summer of 1986, some two years after she had

been shown photographs of Jordan and other suspects on several

occasions. Jordan claims that her incentive for identifying him as

the rapist was financial. She obtained counsel to bring a civil

suit against Jordan in the summer or fall of 1986, and ultimately

won a large judgment against Jordan. Jordan testified at the civil

trial, and points out that even with the lower burden of proof in

that proceeding and even though the fact of his rape conviction was

brought out a t the civil trial, the jury was split ten to two on

the verdict. 6 Jordan offered plausible reasons that his own

testimony would have helped his case. Further, his lawyer's reason

for not calling him seems implausible . The child molestation

conviction was more than ten years old. Mississippi Rule of

Evidence 609(b) is the same as F ED .R.E VID

. 609(b), and provides that

evidence of a conviction more than ten years old is not admissible

unless "the probative value of the conviction supported by specific

facts and circumstances substantially outweighs its prejudicial

effect," and "the proponent gives to the adverse party sufficient13

advance written notice of intent to use such evidence...." Our

review of the state and federal court records indicate that these

requirements were not met.

CONCLUSION

We reverse the district court's order denying the habeas

corpus petition, and remand the case for further consideration

consistent with this opinion.

REVERSED and REMANDED.