Filed: Jul. 11, 1996
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ 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. _ 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 distr
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ 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. _ 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 distri..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
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.
______________________________________________
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. ยง 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this opinion should not be published and is not precedent except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.
4
