Jordan v. Hargett

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-60627 Summary Calendar __________________

JOHN S. JORDAN,

Plaintiff-Appellant,

versus

MIKE MOORE, Attorney General of the State of Mississippi; RAYMOND ROBERTS, Superintendent, Mississippi State Penitentiary, Defendants-Appellees.

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Appeal from the United States District Court for the Northern District of Mississippi (1:91-CV-130-S-D) ______________________________________________

July 3, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

John S. Jordan appeals from the district court's denial of his

motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Jordan argues that his attorney denied him the right to testify

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. during his state court trial for rape.1 A defendant in a criminal

proceeding has a fundamental constitutional right to testify in his

or her own defense. Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.

Ct. 2704, 2708-10, 97 L. Ed.2d 37 (1987). During an evidentiary

hearing before the district court, Jordan's attorney, Donald

Steighner, testified that Jordan wanted to take the stand, but that

he advised against it and Jordan ultimately decided that it would

not be in his best interest to take the stand. Although Jordan,

his wife, and his daughter disputed this testimony, the district

court credited Steighner's testimony that Jordan accepted his

advice not to testify. We will not disturb that determination on

appeal. The assessment of the credibility of the witnesses is

peculiarly within the province of the district court, and will not

be lightly disturbed. See United States v. Casteneda, 951 F.2d 44,

48 (5th Cir. 1992). Because Steighner's testimony was not

unbelievable, we conclude that the district court did not clearly

err in finding that Jordan accepted his attorney's recommendation

that he not testify.

Having knowingly and voluntarily waived his right to testify,

Jordan will not be heard to complain on appeal that the trial court

or his defense counsel had to specifically establish in the trial-

court record his knowing and voluntary waiver. Although the

controversy over whether a defendant waived his right to testify

1 A more detailed procedural history may be found in this Court's earlier decision. See Jordan v. Hargett, 34 F.3d 310 (5th Cir. 1994), vacated and remanded, 53 F.3d 94 (5th Cir. 1995).

2 could be easily avoided if counsel would obtain a signed waiver

from the defendant or the trial court would procure the defendant's

waiver on the record, this practice is not currently required in

this circuit.

Jordan also asserts that even if he did waive his

constitutional right to testify, such waiver was not voluntary

because it was based upon his attorney's erroneous legal advice.

See Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir. 1994) (waiver of

the right to testify must be knowing, voluntary, and intelligent).

He asserts that one of the considerations in his decision not to

testify was based on the possibility that a conviction more than

ten years old would be received into evidence. He argues that his

attorney, Steighner was unaware that Mississippi law requires that

"the proponent give[] to the adverse party sufficient advance

written notice of intent to use such evidence to provide the

adverse party with a fair opportunity to contest the use of such

evidence." Miss. R. Evid. 609(b).

Contrary to Jordan's assertion that his consent was not

informed and voluntary based on Steighner's unawareness of the Rule

609(b) written notice requirement,2 a review of the record reveals

that the conviction was only one of several concerns that prompted

2 It is obvious that Steighner was aware of the conviction and that a fair opportunity to contest its use was afforded to Jordan because Steighner filed a motion in limine that prevented the prosecution from introducing evidence of the conviction. The district court granted the motion in part, but noted that at some point the conviction might become relevant.

3 Steighner to advise Jordan against testifying. Steighner testified

during the evidentiary hearing that he was worried if Jordan

testified, "his forcefulness in denying this incident and anything

like it in his life would open doors to the prosecution of far-

ranging potential for damage." Specifically, Steighner was

concerned that Jordan might testify about extraneous offenses or

other matters that would make the conviction admissible.

Furthermore, Jordan wanted to deny pending charges that he molested

his granddaughter. Steighner was also concerned that if Jordan

testified, the State would offer his daughter as a rebuttal

witness. His daughter, the mother of the child he was accused of

molesting in another county, was a "voracious opponent" of

Jordan's, and would have presented damaging testimony not only

about Jordan's sexual assault of his granddaughter, but also about

the sexual molestation she had suffered at the hands of Jordan.

Steighner communicated all of these various concerns with Jordan in

advising him not to testify.

Given that Steighner offered several valid reasons for his

decision to advise Jordan against testifying, we conclude that the

district court did not err in finding that Jordan's waiver of his

constitutional right to testify was knowing and voluntary.

AFFIRMED.