                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                      F I L E D
                                   REVISED AUGUST 16, 2005
                                                                                         July 6, 2005

                                                                                  Charles R. Fulbruge III
                                              In the                                      Clerk

                 United States Court of Appeals
                                for the Fifth Circuit
                                         _______________

                                           m 04-10651
                                         _______________




                                           KEITH JORDAN,

                                                             Petitioner-Appellee,

                                              VERSUS

                                  DOUG DRETKE,
 DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                             Respondent-Appellant.


                                   _________________________

                            Appeal from the United States District Court
                                for the Northern District of Texas

                                   _________________________



Before DAVIS, SMITH, and DEMOSS,                     the basis of pretrial ineffective assistance of
  Circuit Judges.                                    counsel. Concluding that the district court
                                                     was in error, we reverse the grant of habeas
JERRY E. SMITH, Circuit Judge:                       corpus relief and remand so the balance of
                                                     Jordan’s claims can be considered.
   In this habeas corpus proceeding we con-
sider whether the district court erred in grant-                           I.
ing relief to Texas prisoner Keith Jordan on                               A.
    Jordan was indicted in November 1996 for             (i.e., that she was 18 years old) was a valid
aggravated sexual assault of a child. The state          defense to aggravated sexual assault of a child;
offered a plea bargain of ten years’ deferred            (2) failed to challenge either the factual basis
adjudication probation and a fine of $500. For           or reliability of expert testimony of a police
reasons we will discuss, Jordan failed to enter          officer presented by the state; (3) did not
a timely plea, and the state ultimately withdrew         object to allegedly improper bolstering of the
the plea offer in September 1997. A month                complaining witness’s testimony at trial; and
later Jordan was indicted for aggravated kid-            (4) failed to object to allegedly prejudicial jury
naping arising from the same incident as the             instructions at the punishment phase regarding
aggravated sexual assault charge.                        the amount of time Jordan would have to serve
                                                         before being eligible for release. Jordan fur-
   Jordan pleaded not guilty on both counts              ther claimed that the state had withheld im-
and was convicted by a jury, which assessed              peachment evidence in contravention of its due
thirty years’ imprisonment for aggravated sex-           process obligation under Brady v. Maryland,
ual assault of a child and twenty years for ag-          373 U.S. 83 (1963), and its progeny.
gravated kidnaping. Both convictions were af-
firmed on direct appeal, see Jordan v. State,               After an evidentiary hearing before the
Nos. 05-97-02030-CR, 05-97-02031-CR                      same judge who had presided over the trial,
(Tex. App.—Dallas, 1999, no pet.).                       the state habeas trial court entered two sepa-
                                                         rate orders containing identical findings of fact
    Jordan filed two petitions for habeas corpus         and conclusions of law, see Ex Parte Jordan,
relief in state court, one challenging the legal-        No. W96-78296-P(A) (203rd Dist. Ct., Dallas
ity of his conviction for aggravated sexual as-          County, Tex., June 28, 2001) (aggravated
sault of a child; the other challenging his cus-         sexual assault of a child); Ex Parte Jordan,
tody under his conviction of aggravated kid-             No. W97-03223-P(A) (203rd Dist. Ct., Dallas
naping. Both petitions contained the same                County, Tex., June 28, 2001) (aggravated
substantive claims, which center on the con-             kidnaping). The court made the following
tention that Jordan’s counsel provided ineffec-          findings regarding the plea-bargaining process:
tive assistance under the Sixth Amendment                The prosecutor initially responsible for han-
during the plea bargaining process and at trial.         dling the aggravated sexual assault of a child
Jordan alleged that counsel’s representation             charge against Jordan had made a plea offer of
was constitutionally deficient in five respects,         ten years’ deferred adjudication probation in
the first being the failure to inform him that the       exchange for a guilty plea. When a new prose-
state’s plea bargain offer on the aggravated             cutor was assigned to the case in May 1997,
sexual assault charge would be withdrawn if he           this plea offer had been on the table for more
did not complete a pre-sentence investigation            than three months. Defense counsel told the
and formally enter his plea by the state’s dead-         new prosecutor that Jordan would accept the
line.                                                    plea but did not want to register as a sex
                                                         offender; the prosecutor agreed that they could
   Jordan also maintained that counsel (1) had           leave that condition for the court to decide.
erroneously advised him and argued to the jury
that under Texas law his alleged mistake of                 The offer then remained on the table for
fact concerning the complaining witness’s age            another four months, but Jordan failed to com-


                                                     2
plete the necessary pre-sentence investigation          ing the plea process. The court stated:
required by the probation department. At that
point, the prosecutor informed counsel that                  Applicant contends, inter alia, that his at-
Jordan had three weeks to accept the plea,                 torney failed to inform him of the deadline
and thus complete the requisite investigatory              for accepting the State’s plea offer of ten
report, or the offer would be withdrawn.                   years deferred adjudication probation, and
Counsel did not communicate to Jordan that                 a $500 fine.
there was a deadline within which he had to
complete the pre-sentence investigation and                   In the instant cause, the record reflects
enter his plea; Jordan failed to complete the              that the State made an offer of ten years de-
report and enter a plea, and the prosecutor                ferred adjudication probation, in return for
withdrew the offer.1 The prosecutor later ob-              a plea of guilty to aggravated sexual as-
tained an additional indictment for aggravated             sault. The trial court found that Applicant
kidnaping arising from the same episode as the             accepted the plea offer, but counsel failed
aggravated sexual assault charge.                          to inform Applicant that he needed to com-
                                                           plete the PSI by the State’s deadline, or the
   Based on these facts, the state habeas trial            offer would be withdrawn. The trial court
court determined that “counsel was ineffective             has recommended that relief be granted.
for failing to fully communicate the limits of             We agree with this recommendation.
the plea bargain agreement with [Jordan] and
due to her actions, the State withdrew the fa-          Ex Parte Jordan, No. 74, 201 (Tex. Crim.
vorable plea offer and indicted [Jordan] for an         App. Oct. 24, 2001) (per curiam) (unpub-
additional offense.” In addition, the court sus-        lished). Accordingly, the court granted habeas
tained each of Jordan’s other specific ineffec-         relief and vacated Jordan’s conviction of ag-
tive assistance claims and his Brady claim con-         gravated sexual assault of a child.2 The court
cerning the criminal history of the complaining         did not, however, accept the habeas trial
witness. As a result, the court recommended             court’s recommendation as to the aggravated
to the Texas Court of Criminal Appeals that             kidnaping conviction; the same day it issued its
Jordan be granted habeas relief on his convic-          opinion granting relief on the aggravated
tions of aggravated sexual assault of a child           sexual assault conviction, it denied without
and aggravated kidnaping.                               written order habeas relief on the conviction of
                                                        aggravated kidnaping.3
   The Court of Criminal Appeals accepted
the state habeas trial court’s recommendation
that Jordan was entitled to habeas relief on his
conviction of aggravated sexual assault of a               2
child on the basis of ineffective assistance dur-           Having granted relief on this ground, the court
                                                        dismissed as moot the balance of Jordan’s claims.
                                                           3
                                                             The record on appeal contains a photocopy of
   1
     The court also found that “[w]hen [Jordan]         the notice sent to Jordan by the Court of Criminal
was told the offer was withdrawn, he asked his          Appeals, which bears Cause No. 49, 872-02 and
attorney to ‘get it back.’ He would have accepted       provides in full: “This is to advise that the Court
the offer even if it required sexual offender           has denied without written order the application for
registration.”                                          writ of habeas corpus.”

                                                    3
                        B.                               naping. The federal district court overruled
   Jordan then filed a petition for writ of ha-          the state’s objections and adopted the findings
beas corpus in federal district court, pursuant          and conclusions of the magistrate judge’s re-
to 28 U.S.C. § 2254, challenging the legality            port. In doing so, the court acknowledged
of his custody under the conviction of aggra-            that “no direct evidence on this issue was pre-
vated kidnaping. He sought relief on each of             sented” at the state habeas hearing but never-
the ineffective assistance grounds and the Bra-          theless found that “the record as a whole”
dy claim raised in his state writ. Relying on            supported the conclusion that the aggravated
the facts as found by the state habeas trial             kidnaping charge was itself part of the pre-
court, the magistrate judge determined that              judice flowing from counsel’s ineffective as-
“but for counsel’s ineffective pretrial perfor-          sistance on the plea to the aggravated sexual
mance, Petitioner would have accepted the                assault charge. The district court therefore en-
plea bargain, would have received only a ten             tered judgment granting Jordan federal habeas
year probated sentence and would not have                relief from his conviction of aggravated kid-
been charged with, or convicted of, aggravated           naping.
kidnaping.”
                                                                                 II.
   Convinced of this causal link, the magis-                                     A.
trate judge determined that Jordan had proven,              Jordan sought federal habeas relief in the
by a preponderance of the evidence, deficient            district court from a state-court judgment of
performance and prejudice related to counsel’s           conviction; hence our review is highly circum-
pretrial representation. The magistrate judge            scribed by the Anti-Terrorism and Effective
thus concluded that the Court of Criminal Ap-            Death Penalty Act of 1996 (“AEDPA”), 110
peals’ denial of habeas relief on Jordan’s ag-           Stat. 1214. Under AEDPA, a petition for writ
gravated kidnaping conviction was factually              of habeas corpus shall not be granted with re-
unreasonable, as well as directly contrary to            spect to any claim that was adjudicated on the
and an unreasonable application of Strickland            merits in state court unless the petitioner can
v. Washington, 466 U.S. 668 (1984). Accord-              demonstrate that the state court resolution of
ingly, the magistrate judge recommended that             his case was “contrary to, or involved an un-
the district court grant habeas relief on the            reasonable application of, clearly established
conviction of aggravated kidnaping.4                     Federal law, as determined by the Supreme
                                                         Court of the United States,” 28 U.S.C.
   The state filed written objections to the             § 2254(d)(1), or “resulted in a decision that
magistrate judge’s report, central among them            was based on an unreasonable determination
being the contention that the state habeas rec-          of the facts in light of the evidence presented
ord does not support the finding that had Jor-           in the State court proceeding,” 28 U.S.C. §
dan timely accepted the plea bargain offer on            2254(d)(2). See Miller-El v. Dretke, 125 S.
the aggravated sexual assault charge, he would           Ct. 2317, 2325 (2005).5
not have been charged with aggravated kid-

                                                            5
                                                              Neither party disputes that Jordan’s claim for
   4
     The magistrate judge did not consider whether       ineffective assistance of counsel during the pretrial
counsel’s performance at trial or Jordan’s Brady         process was adjudicated on the merits by the
claim otherwise provided a basis for relief.                                                   (continued...)

                                                     4
    As we have explained, “[b]ecause a federal              cient and that this deficient performance re-
habeas court only reviews the reasonableness                sulted in prejudice. Id. at 687. Stated gener-
of the state court’s ultimate decision, the                 ally, the prejudice prong requires a petitioner
AEDPA inquiry is not altered when, as in this               to demonstrate that “but for counsel’s unpro-
case, state habeas relief is denied without an              fessional errors, the result would have been
opinion.” Schaetzle v. Cockrell, 343 F.3d 440,              different.” Id. at 694. Insofar as ineffective
443 (5th Cir. 2003).6 Rather, in such a situa-              assistance claims arising from the pretrial pro-
tion, “our court: (1) assumes that the state                cess are concerned, this general prejudice
court applied the proper ‘clearly established               showing includes two specific lines of cases:
Federal law’; and (2) then determines whether               First, there are claims that, but for counsel’s
its decision was ‘contrary to’ or ‘an objectively           pretrial errors, the petitioner would not have
unreasonable application of’ that law.” Id.                 pleaded guilty and would have insisted on
(citing Catalan v. Cockrell, 315 F.3d 491, 493              going to trial, see, e.g., Hill v. Lockhart, 474
& n.3 (5th Cir. 2002)).                                     U.S. 52, 59 (1985); and second, there are
                                                            claims that, but for counsel’s pretrial errors,
                       B.                                   the petitioner would have pleaded guilty and
   Because Jordan seeks relief on the basis of              received a lesser sentence, see, e.g., Teague v.
ineffective assistance of counsel, the “clearly             Scott, 60 F.3d 1167, 1170 & n.13 (5th Cir.
established Federal law” against which we                   1995) (collecting cases).
measure the state court’s denial of relief is the
standard set forth in Washington. To establish                  Jordan’s claim of pretrial ineffective assis-
ineffective assistance, a petitioner must dem-              tance of counsel with respect to his conviction
onstrate that counsel’s performance was defi-               of aggravated sexual assault is in the second
                                                            category; his claim was that but for counsel’s
                                                            failure to inform him of the deadline for com-
   5
    (...continued)                                          pleting the pre-sentence report, he would have
Court of Criminal Appeals. Our cases recognize              accepted the plea and received ten years de-
that, under Texas law, a denial of relief, as distin-       ferred adjudication, rather than the thirty-year
guished from a dismissal, by that court constitutes         sentence imposed at trial. But the claim on
an adjudication on the merits. See, e.g., McCall v.         which Jordan now seeks relief with respect to
Dretke, 390 F.3d 358, 362 n.12 (5th Cir. 2004);             his conviction of aggravated kidnaping is dif-
Bledsue v. Johnson, 188 F.3d 250, 256-57 & n.12             ferent in kind: He maintains that, but for
(5th Cir. 1999); see also Ex Parte Torres, 943              counsel’s deficient representation, he would
S.W.2d 469, 472 (Tex. Crim. App. 1997) (“In our             have accepted the state’s plea to the aggravat-
writ jurisprudence, a ‘denial’ signifies that we ad-        ed sexual assault charge and would not have
dressed and rejected the merits of a particular claim       been charged with the additional offense.
while a ‘dismissal’ means that we declined to               Though we have not been directed to (nor has
consider the claim for reasons unrelated to the
                                                            our own research revealed) any case in which
claim’s merits.”).
                                                            the prejudice alleged is the state’s discretion-
   6
     See also Neal v Puckett, 286 F.3d 230, 246             ary decision to charge a defendant with an
(5th Cir. 2002) (en banc) (“It seems clear to us that       additional offense, we assume for present
a federal habeas court is authorized . . . to review        purposes that such a claim affords a cognizable
only a state court’s ‘decision,’ and not the written        basis for an ineffective assistance claim, one to
opinion explaining that decision.”).

                                                        5
be measured against the general prejudice                     the district court’s conclusion that the state
requirement (i.e., but for counsel’s errors, “the             court’s denial of relief was “contrary to” clear-
result would have been different.”). We thus                  ly established federal law.
turn to the merits and consider whether the
district court erred in granting habeas relief.                                      B.
                                                                  Therefore, we turn our attention to the dis-
                        III.                                  trict court’s conclusion that the Court of Crim-
                        A.                                    inal Appeals’ denial of relief amounted to an
   As we indicated, the magistrate judge’s re-                unreasonable application of the Washington
port, which was adopted by the district court,                standard to the facts at hand. In doing so, we
concluded that the Court of Criminal Appeals’                 must bear in mind that, as a federal court
denial of relief was contrary to and an unrea-                bound by AEDPA, “we have no authority to
sonable application of clearly established fed-               grant habeas corpus relief simply because we
eral law, and was based on an unreasonable                    conclude, in our independent judgment, that a
determination of the facts. Under the “con-                   state supreme court’s application of [Washing-
trary to” clause of 28 U.S.C. § 2254(d)(1),                   ton] is erroneous or incorrect.” Neal, 286
however, a federal court’s power to grant ha-                 F.3d at 236. Rather, when a state court’s ap-
beas relief is limited to instances in which “the             plication of federal law is challenged, “it must
state court arrives at a conclusion opposite to               be shown to be not only erroneous, but objec-
that reached by [the Supreme Court] on a                      tively unreasonable.” Yarborough v. Gentry,
question of law or if the state court decides a               540 U.S. 1, 5 (2003) (per curiam).
case differently than [the Supreme Court] has
on a set of materially indistinguishable facts.”                                      1.
Williams v. Taylor, 529 U.S. 362, 412-13                          The state does not appear to contest that
(2000).                                                       Jordan’s counsel was constitutionally deficient
                                                              in failing to inform him of the deadline for ac-
    Jordan does not suggest that the Court of                 cepting the state’s plea on the charge of ag-
Criminal Appeals’ denial of relief on his pre-                gravated sexual assault of a child. Indeed, as
trial ineffective assistance claim was “contrary              Jordan emphasizes, the Court of Criminal Ap-
to” clearly established federal law under this                peals granted relief on account of the same de-
standard. Nor did the magistrate judge or dis-                ficient performance on his conviction of ag-
trict judge identify a direct conflict between                gravated sexual assault of a child. Logic sug-
the state court’s denial of relief and controlling            gests, therefore, that a rejection of Jordan’s
Supreme Court authority on materially in-                     showing of deficient performance does not ac-
distinguishable facts.7 Accordingly, we reject                count for that court’s denial of relief on Jor-
                                                              dan’s pretrial ineffective assistance claim as it
                                                              relates to his kidnaping conviction.

   7
     Indeed, in light of the heteroclite nature of this
case and the specific ineffective assistance claim
being advancedSSwhere the prejudice alleged is the
state’s discretionary decision to indict a defendant
for an additional offenseSSit is little surprise that            7
                                                                  (...continued)
there is no Supreme Court precedent directly on               point.

                                                          6
                        2.                             granted; that it agreed with that recommenda-
    Thus, our focus narrows to the prejudice           tion; and that the balance of Jordan’s claims
prong; we must consider whether, to the ex-            were thus rendered moot.
tent the Court of Criminal Appeals denied re-
lief on account of its rejection of Jordan’s               No fair reading of this opinion suggests that
showing of prejudice, that denial of relief was        the Court of Criminal Appeals necessarily
reasonable. Jordan argues it was unreasonable          adopted the habeas trial court’s determination
because, in granting relief on his aggravated          of prejudice as it relates to the kidnaping
sexual assault conviction, the Court of Crimi-         charge. Rather, because the Court of Criminal
nal Appeals adopted the findings of the state          Appeals specifically identified the record facts
habeas trial court; and, as we noted, one of           on which it based its grant of relief on the
those determinations was that “due to [coun-           sexual assault conviction, and because the ha-
sel’s] actions, the State withdrew the favorable       beas trial court’s determination of prejudice as
plea offer and indicted [Jordan] for an addi-          it relates to his kidnaping charge was not a
tional offense.” Therefore, Jordan reasons, the        necessary premise for that grant of relief but is
state habeas trial court foundSSand the Court          instead ultimately inconsistent with the denial
of Criminal Appeals acceptedSS that the ag-            of relief on the kidnaping conviction, the Court
gravated kidnaping charge was part of the              of Criminal Appeals did not adopt this
prejudice flowing from counsel’s deficient             finding.8
performance.
                                                           Thus, we agree with the state’s contention
   Contrary to Jordan’s assertion, the Court of        that the district court erred to the extent it re-
Criminal Appeals did not adopt the state ha-           lied on the state habeas trial court’s determina-
beas trial court’s determination of prejudice in       tion of prejudice as a sufficient basis for con-
granting relief on his conviction of aggravated        cluding that Jordan had made the requisite
sexual assault of a child. In its opinion grant-       showing of prejudice. In any event, the preju-
ing relief, the Court of Criminal Appeals noted        dice inquiry is a mixed question of law and fact
that                                                   on which federal courts do not ultimately defer
                                                       to state court findings.9 Accordingly, we must
   [i]n the instant cause, the record reflects
   that the State made an offer of ten years de-
                                                          8
   ferred adjudication probation, in return for              Cf. Micheaux v. Collins, 944 F.2d 231, 232
   a plea of guilty to aggravated sexual as-           (5th Cir. 1991) (en banc) (per curiam) (“Not only
   sault. The trial court found that Applicant         were the ‘proposed findings’ [of the state habeas
   accepted the plea offer, but counsel failed         trial court] not adopted or incorporated in the ac-
   to inform Applicant that he needed to com-          tion of the Texas Court of Criminal Appeals, they
   plete the PSI by the State’s deadline, or the       are directly inconsistent with that court’s peremp-
                                                       tory denial of relief. We conclude that the pro-
   offer would be withdrawn.
                                                       posed findings did not survive scrutiny by the Tex-
                                                       as Court of Criminal Appeals, the final decision-
Beyond these specific factual findings based on        maker in Texas habeas cases.”).
the record developed in the habeas trial court,
the Court of Criminal Appeals observed that               9
                                                           See, e.g., Westley v. Johnson, 83 F.3d 714,
the trial court had recommended relief be              720-21 (5th Cir. 1996); Motley v. Collins, 18 F.3d
                                                                                           (continued...)

                                                   7
determine whether, given the evidence pre-             dependsSSnamely, that he would not have
sented in the state habeas proceeding, the             otherwise been charged with aggravated
district court properly found that the Court of        kidnaping. On this score, the district court
Criminal Appeals’ denial of relief was objec-          noted only that the state had not demonstrated
tively unreasonable.                                   that the prosecutor would have sought the ad-
                                                       ditional charge. In doing so, however, the
                      3.                               court improperly placed on the state the bur-
   As we noted, in granting relief and overrul-        den of disproving prejudice, when then burden
ing the state’s objection to the magistrate            of affirmatively proving prejudice properly
judge’s report that Jordan had not sufficiently        rests with Jordan.10
demonstrated prejudice, and therefore that the
denial of relief was reasonable, the district             So, although Jordan maintains that, as he
court correctly acknowledged that no direct            puts it, it “blinks reality”11 to suggest that the
evidence of prejudice was presented at the             prosecutor would have in any event sought the
state habeas hearing. Yet, the district court          kidnaping conviction, and the district court hy-
concluded that “the record as a whole” sup-            pothesized about what was the “more likely
ports Jordan’s claim of prejudice.                     occurrence,” we cannot merely assume preju-
                                                       dice. This is especially so where the record
   We do not share the district court’s view of        from the state habeas hearing does contain
the record. Indeed, we note that neither the           some testimony indicating that the prosecutor
district court nor the magistrate judge identi-        may well have obtained the kidnaping indict-
fied any testimony from the state habeas hear-         ment regardless of the status of the aggravated
ing, at which the prosecutor who withdrew the          sexual assault plea.
offer and obtained the kidnaping indictment
testified, that supports Jordan’s claim that he           In fact, the prosecutor testified that he was
would not have been charged with aggravated            not the first prosecutor on the case and that in
kidnaping but for counsel’s deficient perfor-          light of the “seriousness of the offense,” he did
mance. Rather, the district court focused on           not think this was “a probation case.” More-
the fact that the prosecutor testified that he         over, he believed the only reason the plea offer
withdrew the plea offer, in part, because Jor-         was initially made “was because the complain-
dan did not complete the pre-sentence investi-         ant was scared to testify,” but that he had
gation, as well as the fact that the aggravated        gained her confidence and she was prepared to
kidnaping charge was obtained after the plea           testify against Jordan.
was withdrawn and concerned the same con-
duct as the aggravated sexual assault charge.            We cannot say with any degree of certainty
                                                       whether the prosecutor would have obtained
   But none of these observations truly sub-
stantiates the further proposition on which Jor-
dan’s entitlement to habeas relief ultimately             10
                                                            See, e.g., Montoya v. Johnson, 226 F.3d 399,
                                                       408 (5th Cir. 2000); Martin v. Maggio, 711 F.2d
                                                       1273, 1279 (5th Cir. 1983).
   9
    (...continued)
                                                          11
1223, 1226 & n.2 (5th Cir. 1994); see also Wash-            See Miller-El, 125 S. Ct. at 2340 (also using
ington, 466 U.S. at 698.                               the phrase “blinks reality”).

                                                   8
the aggravated kidnaping indictment had Jor-               opinion on the merit vel non of those other
dan’s counsel informed him of the plea dead-               claims.
line on the aggravated sexual assault charge
and thus enabled him to accept that plea. But
this is so because Jordan never asked at the
state habeas hearing. It is his burden affirma-
tively to demonstrate prejudice, and we reject,
as somehow coextensive with the prejudice
requirement under the Sixth Amendment, the
post hoc ergo propter hoc logic that animates
much of Jordan’s argument and the district
court’s grant of relief.

    In any event, even if this sparse record evi-
dence could be said to be sufficient for Jordan
to demonstrate prejudice, it is certainly not
such that the Court of Criminal Appeals’ de-
nial of relief can be said to have been not just
erroneous but objectively unreasonable. Thus,
in light of the evidence presented in the state
court proceedings, the Court of Criminal Ap-
peals reasonably could have concluded that,
even though Jordan’s counsel was constitu-
tionally ineffective, Jordan did not sufficiently
demonstrate prejudice as it relates to his con-
viction of aggravated kidnaping.12

   Therefore, we REVERSE the district
court’s judgment granting Jordan’s petition for
a writ of habeas corpus on the basis of pretrial
ineffective assistance of counsel. Because,
however, that court did not consider whether
Jordan’s claims regarding counsel’s represen-
tation at trial or his Brady claim otherwise
entitle him to relief, we REMAND so these
claims may be considered. We express no


   12
      Relatedly, given our view of the record, we
likewise reject the district court’s conclusion that
the Court of Criminal Appeals’ denial of relief was
factually unreasonable in light of the evidence pre-
sented in the state habeas proceedings. See 28
U.S.C. § 2254(d)(2).

                                                       9
