                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                        F I L E D
                                                                                       November 14, 2003
                             United States Court of Appeals
                                  for the Fifth Circuit                           Charles R. Fulbruge III
                        _____________________________________                             Clerk

                                     No. 02-20289
                        _____________________________________


                                 CEDRICK JEROME BASS,

                                                     Petitioner-Appellant

                                            VERSUS

              DOUGLAS DRETKE, DIRECTOR, TEXAS DEPARTMENT
               OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                                     Respondent-Appellee,


               __________________________________________________

                      Appeal from the United States District Court
                          For the Southern District of Texas
               __________________________________________________



Before DAVIS and EMILIO M. GARZA, Circuit Judges, and F. A. LITTLE, JR.*
District Judge.

PER CURIAM:**

       Petitioner, Cedric Jerome Bass (“Bass”), challenges the district court’s order



       *
        District Judge of the Western District of Louisiana, sitting by designation.
       **
         Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
denying federal habeas corpus relief based on ineffective assistance of counsel under 28

U.S.C. § 2254. We granted COA to consider whether the district court correctly deferred

to the state habeas court findings which were made without the benefit of an evidentiary

hearing. This appeal on the merits ensued.



                                             I

       On August 31, 1995 Bass was stopped for speeding by Texas constables. During

the traffic stop officers discovered crack cocaine and arrested Bass. Petitioner was

indicted for possession of more than four grams but less than 200 grams of cocaine, and

scheduled for trial in Texas District Court for the 221st Judicial District, Montgomery

County, Texas. Bass alleges that in January 1997, several months before the trial, the

prosecutor offered him a plea bargain with a sentence of probation. Bass declined the

offer and instead he and his lawyer James Dyer (“Dyer”) proceeded with trial

preparations. In August 1997, Bass allegedly received a phone call from Dyer explaining

that Nancy Neff (“Neff”) had offered two years incarceration in exchange for a guilty

plea. Bass avers that in a three way conversation between Dyer, Bass, and Bass’s wife,

he told Dyer to accept the two year offer. According to Bass, Dyer never communicated

the acceptance to the prosecution. The day of trial, September 2, 1997, the prosecution

offered Bass a final deal of four years incarceration. Bass rejected the offer and

proceeded with trial, which resulted in a guilty verdict and an eighteen year sentence.



                                             2
       Bass did not pursue a direct discretionary appeal in the Texas state courts but

instead filed a state habeas application claiming, inter alia, ineffective assistance of

counsel for the failure to communicate the acceptance of the two year offer. The habeas

application was filed in the same court where Bass was convicted but was heard by a

different judge. Bass submitted sworn affidavits with his application for habeas relief

from his wife, his aunt, and a friend, in addition to his own affidavit, to support his

contention that he was offered and accepted a two year plea bargain. Bass’s wife stated

she heard the August 1997 conversation between Dyer and Bass, and Bass’s aunt and

friend stated that they were told by Bass they were no longer needed as witnesses since

he had accepted a plea offer of two years. Respondent submitted an affidavit from the

prosecutor Neff in support of its proposed findings of fact and conclusions of law. She

stated in her affidavit that in January 1997 she offered to allow Bass to plead to a term of

probation. That summer when she discovered that other state and federal drug charges

were pending she revoked that offer. Neff stated that she “then conveyed an offer of

incarceration. On the morning of trial, September 2, 1997, [she] offered to allow the

defendant to plead to four years in [the Texas Department of Criminal Justice].” St. Hab.

R. at 167. She stated that Bass rejected that offer of four years incarceration and never

expressed interest in any of her plea offers.

       The state court further ordered submission of an affidavit from Dyer regarding the

plea bargaining and his investigation. Dyer acknowledged generally that plea bargaining



                                                3
occurred during the course of the proceeding, and that any acceptance of any plea offer

would have been communicated to the prosecutor.

       Based on these affidavits the state habeas court determined that there was no

failure to communicate acceptance of plea offers to the prosecution because Bass never

agreed to accept any plea bargain offer. The court found Neff and Dyer’s affidavits

credible since they were consistent with each other and the record:

       8. The Court finds the affidavits of James Dyer to be credible because they
       are supported by the record, and because they are supported by the affidavit
       of the prosecutor, Nancy Neff.

       9. Based on the credible affidavits of James H. Dyer and Nancy Neff, Dyer
       did not fail to communicate [Petitioner’s] acceptance of a plea bargain offer
       because [Petitioner] never agreed to accept any plea bargain offer extended
       by the State.

St. Hab. Findings of Fact & Concl. of Law, at 4. Based upon this factual finding the state

habeas court held that there was no ineffective assistance of counsel. The Texas Court of

Criminal Appeals upheld the state district court’s habeas determination without a written

opinion.

       Petitioner then filed a § 2254 petition in federal district court. There the district

court granted a summary judgment motion filed by Respondent without allowing

discovery or an evidentiary hearing. It deferred to the state habeas court’s factual

findings. Bass filed a notice of appeal and requested COA on the district court’s denial

of discovery, the failure to conduct an evidentiary hearing, and problems regarding

deference to the state court determination. A judge of this Court found that “Bass . . .


                                              4
demonstrated that the issue whether the district court was correct in affording the state

habeas court’s findings a presumption of correctness is adequate to deserve

encouragement to proceed further,” and granted COA on that issue only. This appeal on

the merits followed.



                                              II

       In a federal habeas appeal, this court reviews the district court's grant of summary

judgment de novo, Williams v. Scott, 35 F.3d 159, 161 (5th Cir.1994), “applying the same

standard of review to the state court's decision as the district court.” Beazley v. Johnson,

242 F.3d 248, 255 (5th Cir.2001) (quoting Thompson v. Cain, 161 F.3d 802, 805 (5th

Cir.1998)). Because Bass filed his habeas petition after the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254,

that statute supplies the appropriate standard of review of the state court's order.

       AEDPA requires that strong deference be given to factual determinations made by

the state habeas courts:

       (d)An application for a writ of habeas corpus on behalf of a person in
       custody pursuant to the judgment of a State court shall not be granted with
       respect to any claim that was adjudicated on the merits in State court
       proceedings unless the adjudication of the claim–

       ***

       (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.



                                              5
       (e)(1) In a proceeding instituted by an application for a writ of habeas
       corpus by a person in custody pursuant to the judgment of a State court, a
       determination of a factual issue made by a State court shall be presumed to
       be correct. The applicant shall have the burden of rebutting the
       presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(d)-(e)(1).

       The law in this circuit is clear that, in contrast to the pre-AEDPA law,1 deference

to a state habeas court’s factual determinations is not dependent upon the quality of the

state court’s evidentiary hearing. See Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001). In

Valdez v. Cockrell, we deferred to the state habeas factual findings even where exhibits

were lost and thus ignored by the state court. The Valdez Court held that “a full and fair

hearing is not a precondition to according § 2254(e)(1)’s presumption of correctness to

state habeas court findings of fact nor to applying § 2254(d)’s standards of review.” Id.

at 951. We concluded that deference was owed unless the findings were rebutted by

clear and convincing evidence to the contrary. Simply put, deference is not dependent

upon the existence of a full and fair hearing in the state habeas proceeding.2


       1
         See e.g. Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir. 1996) (holding that full and fair
hearing is a prerequisite to deference, but that paper hearing can under circumstances be a full and
fair hearing).
       2
         We are aware of a small number of post-AEDPA cases with language suggesting that the
sufficiency of the hearing in the state habeas court could impact the degree of deference owed.
See, e.g., Rudd v. Johnson, 256 F.3d 317, 319 (5th Cir. 2001) (pre-Valdez case suggesting even
stronger deference to a paper hearing where the state trial judge and the habeas judge are the
same, and thus better able to evaluate veracity); Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir.
2000) (pre-Valdez case finding that a full and fair hearing has not always required live testimony);
Galvan v. Cockrell, 293 F.3d 760, 764 (5th Cir. 2002) (upholding the district court judgment that
deferred to state court habeas factual findings even though based upon paper hearing). These
cases have relied entirely upon pre-AEDPA precedent. E.g., Nethery v. Collins, 993 F.2d 1154,

                                                 6
       The federal district court properly paid deference to the state habeas findings when

it held that “based on the factual findings and the credibility choices of the state court,

which are presumed correct under 28 U.S.C. § 2254(e)(1), Bass did not actually accept

any plea bargain offer prior to his trial. It follows that Bass cannot show that his attorney

was deficient under Strickland, as a matter of law, because there was no acceptance to

communicate.”3 Bass v. Cockrell, No. H-00-3925, slip op. at 17 (S.D. Tex. Feb. 7,

2002). This finding by the district court is fully supported by the state court finding that

“Dyer did not fail to communicate [Bass’s] acceptance of a plea bargain offer because

[Bass] never agreed to accept any plea bargain offer extended by the State.” St. Hab.

Findings of Fact & Concl. of Law, at 4. The finding that Dyer made no error precludes an

ineffective assistance claim under Strickland.

       The district court correctly deferred to the state habeas court factual findings and

properly denied habeas relief.



1157 n.8 (5th Cir. 1993) (pre-AEDPA case cited by post-AEDPA courts when attempting to
acknowledge the relevance of the sufficiency of the state habeas proceeding). Valdez, however, is
the first and only case that has directly addressed the question whether federal courts owe
deference even absent a full and fair hearing in state court. It is the law of this circuit.
       3
         Bass argues that the district court erred when it found that no plea offer carrying a
sentence of two years had been made. See Bass v. Cockrell, No. H-00-3925, slip op. at 17 (S.D.
Tex. Feb. 7, 2002) (“[O]nly two plea bargains were made, one for probation and another for four
years of imprisonment.”). He avers that this federal court finding is not properly deferential since
it contradicts an implicit factual finding in state court. Petitioner asserts that when the state court
found that “Dyer did not fail to communicate . . . acceptance of a plea bargain offer” it implicitly
acknowledged the existence of a two-year plea offer. Because the district court’s holding
properly denies habeas relief on independent grounds there is no need to address this issue raised
by the petitioner.

                                                   7
AFFIRMED.




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