     Case: 11-31121   Document: 00512182754     Page: 1   Date Filed: 03/21/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                                March 21, 2013

                                 No. 11-31121                   Lyle W. Cayce
                                                                     Clerk

JAMAAL R. JOHNSON,

             Petitioner - Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

             Respondent - Appellee



                 Appeal from the United States District Court
                     for the Middle District of Louisiana


Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Federal habeas petitioner Jamaal R. Johnson argues on appeal that his
trial attorney interfered with his federal constitutional right to testify at his
state trial for armed robbery and felon in possession of a firearm. Because
Johnson disclaimed that argument during state habeas proceedings, we
AFFIRM the district court’s dismissal of his § 2254 petition as unexhausted.
                          FACTS AND PROCEEDINGS
      Johnson was found guilty after a jury trial in Louisiana court of three
counts of armed robbery and one count of felon in possession of a firearm. He
was sentenced as a habitual offender to life imprisonment on the first armed
    Case: 11-31121     Document: 00512182754       Page: 2   Date Filed: 03/21/2013



                                   No. 11-31121

robbery count, concurrent terms of 65 years’ hard labor on the remaining two
armed robbery counts, and a concurrent term of 15 years’ hard labor on the
felon-in-possession count. State v. Johnson, 951 So. 2d 294, 297 (La. Ct. App.
2006). His convictions and sentences were affirmed on direct appeal. Id. at 304.
      In his state habeas petition, Johnson argued that his trial counsel
interfered with his right to testify at trial. Nineteenth Judicial District Court
Commissioner John M. Smart, Jr. recommended that the state habeas court
grant Johnson a new trial on that basis. In response, the State of Louisiana filed
a traversal1 to the commissioner’s recommendation requesting that the state
habeas court summarily dismiss Johnson’s habeas petition, or, in the
alternative, conduct an evidentiary hearing on his right-to-testify claim. After
conducting an evidentiary hearing on that issue, the state habeas court denied
Johnson relief on his Louisiana right-to-testify claim, concluding that he failed
to make the showing required under State v. Hampton, 818 So. 2d 720 (La.
2002). The state habeas court did not evaluate whether Johnson was deprived
of his federal constitutional right to testify. The Louisiana Court of Appeal for
the First Circuit and Louisiana Supreme Court denied supervisory writs.
      In his federal habeas petition, filed pursuant to 28 U.S.C. § 2254, Johnson
re-asserted his right-to-testify claim. The State of Louisiana moved to dismiss
Johnson’s habeas petition on the grounds that the district court lacked
jurisdiction to hear the claim because it was based on an alleged violation of
state law, and reasoned, in the alternative, that even if Johnson’s right-to-testify
claim were based on an alleged violation of federal law, it was unexhausted, and
thus procedurally defaulted, because it was not fairly presented to the Louisiana
courts. On referral from the district court, Magistrate Judge Christine Noland


      1
       Under Louisiana law, any party may “traverse” the findings and recommendations
of a commissioner within ten days after transmittal of the proposed findings and
recommendations. LA. REV. STAT. § 13:713(C)(3).

                                         2
    Case: 11-31121     Document: 00512182754       Page: 3    Date Filed: 03/21/2013



                                   No. 11-31121

issued a report and recommendation recommending that Johnson’s federal
habeas petition be dismissed with prejudice for failure to exhaust the federal
claim in Louisiana courts. Over Johnson’s objections, the district court adopted
the report and recommendation, and dismissed the habeas petition with
prejudice.    Johnson timely appealed, and we granted him a certificate of
appealability on the issue of whether the district court erred in concluding that
his federal right-to-testify claim was unexhausted and procedurally defaulted.
                           STANDARD OF REVIEW
         Whether a federal habeas applicant has exhausted state remedies is a
question of law we review de novo. Morris v. Dretke, 413 F.3d 484, 491 (5th Cir.
2005).
                                  DISCUSSION
      A federal habeas petition filed by a state prisoner shall not be granted
unless the prisoner exhausts available state remedies. 28 U.S.C. § 2254(b)(1)(A);
Morris, 413 F.3d at 490. The exhaustion requirement is satisfied when the
substance of the federal claim is “fairly presented” to the highest state court on
direct appeal or in state post-conviction proceedings, “even if the state court fails
to address the federal claim,” Soffar v. Dretke, 368 F.3d 441, 467 (5th Cir. 2004),
or, if the federal claim is not fairly presented but the state court addresses it sua
sponte, Jones v. Dretke, 375 F.3d 352, 355 (5th Cir. 2004).
      A claim is fairly presented when the petitioner “asserts the claim in terms
so particular as to call to mind a specific right protected by the Constitution or
alleges a pattern of facts that is well within the mainstream of constitutional
litigation.” Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005) (per curiam)
(internal quotation marks omitted). “It is not enough that all the facts necessary
to support the federal claim were before the state courts or that a somewhat
similar state-law claim was made.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir.
2001) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)); see also Duncan v.

                                         3
     Case: 11-31121        Document: 00512182754           Page: 4     Date Filed: 03/21/2013



                                        No. 11-31121

Henry, 513 U.S. 364, 366 (1995) (per curiam) (holding that petitioner did not fairly
present federal due process claim by bringing a “somewhat similar” but doctrinally
distinct “miscarriage of justice” claim under the California Constitution); Gartrell
v. Lynaugh, 833 F.2d 527, 529 (5th Cir. 1987) (holding that petition presenting
state-law sufficiency challenge fairly presented a federal sufficiency challenge
because “the federal and state standards applicable to [petitioner]’s claims are
identical, not merely ‘somewhat similar’ ”). “Rather, the petitioner must afford the
state court a ‘fair opportunity to apply controlling legal principles to the facts
bearing upon his constitutional claim.’ ” Bagwell v. Dretke, 372 F.3d 748, 755 (5th
Cir. 2004) (quoting Anderson, 459 U.S. at 6).
       In his pro se state habeas petition, Johnson characterizes his first claim
as a “denial of the right to testify” protected by the Louisiana and United States
Constitutions. In an opening section entitled “The Constitutional Right to
Testify In One’s Own Behalf,” he derives the federal right to testify from the
Fifth Amendment’s privilege against self-incrimination; the Sixth Amendment’s
right to compulsory process; and the Fourteenth Amendment’s right to due
process, citing as authority Rock v. Arkansas, 483 U.S. 44 (1987). He goes on to
explain that the federal right to testify is violated when defense counsel compels
a criminal defendant to remain silent, citing as authority United States v.
Teague, 953 F.2d 1525 (11th Cir. 1992) (en banc). In the next section entitled
“The Standard for Louisiana,” he turns to the Louisiana right to testify, which
is guaranteed under Article I, Section 16 of the Louisiana Constitution and
governed by the framework announced in State v. Hampton, 818 So. 2d 720 (La.
2002).2    Johnson concludes this section by noting, incorrectly, that “[t]he


       2
         Under Hampton, a defendant’s silence at trial creates a presumption that he
voluntarily waived the right to testify, which can be rebutted by (1) alleging specific facts from
which the court could reasonably find that trial counsel told the defendant that he was legally
forbidden to testify or otherwise compelled him to remain silent, and (2) demonstrating from
the record that those specific factual allegations would be credible. 818 So. 2d at 729–30. By

                                                4
     Case: 11-31121        Document: 00512182754          Page: 5     Date Filed: 03/21/2013



                                        No. 11-31121

jurisprudence of both the U.S. Supreme Court and the La. Supreme Court is well-
settled in that the denial of a fundamental rights is not amendable to harmless
error.”3 In the ensuing section entitled “Argument,” Johnson maintains that he
unequivocally communicated his desire to testify to defense counsel, who refused
to allow him to take the stand and mislead him into believing that the decision
was counsel’s to make.          Such facts, he contends, “rebut[] the presumption
[established in Hampton] that he waived his right to testify” and entitle him to
relief. Johnson concludes by specifying that his petition “relies on the Louisiana
Supreme Court’s holding in State v. Hampton, 818 So.2d 720 and State v. Dauzart,
769 So.2d 1210”—Louisiana cases articulating the standard governing the
Louisiana right to testify—“for a reversal of his conviction and sentence.” In
summary, it appears as though Johnson initially intended to bring both federal
and state claims for denial of the right to testify; erroneously assumed that the
two rights were co-extensive; and, proceeding under that assumption, applied his
facts under the Louisiana standard only.
       Although precedent suggests that Johnson fairly presented his federal
right-to-testify claim in his state habeas petition,4 we need not resolve that issue

contrast, claims of attorney interference with the federal right to testify are governed by the
standard announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). United States v.
Mullins, 315 F.3d 449, 452–53 (5th Cir. 2002). To prevail under Strickland, a petitioner must
establish that his counsel’s performance was deficient, and the deficient performance
prejudiced his defense. Id. at 453. It is deficient performance as a matter of law for defense
counsel “to override the ultimate decision of a defendant to testify contrary to his advice.” Id.
Conversely, “when the record is simply that the defendant knew of his right to testify and
wanted to do so but counsel was opposed, [and the] defendant acquiesced in his lawyer’s
advice, . . . the only inquiry is whether that advice was sound trial strategy.” Id. at 453–54.
       3
          Although the United States Supreme Court has characterized the federal right to
testify as “fundamental,” Rock, 483 U.S. at 53 n.10, claims involving attorney interference with
that right are subject to harmless error review, Mullins, 315 F.3d at 452–53. Conversely, the
denial of the Louisiana right to testify is structural error. Hampton, 818 So. 2d at 729.
       4
         The Supreme Court has instructed, albeit in dictum, that labeling a claim as federal,
citing the federal source of that claim, or referencing a case deciding such a claim on federal
grounds—all of which Johnson did here—is enough to satisfy the fair presentment

                                               5
     Case: 11-31121        Document: 00512182754          Page: 6     Date Filed: 03/21/2013



                                        No. 11-31121

because even if he did so, the record reflects that he twice disclaimed that
argument, first at the state evidentiary hearing and, later, in his application for
supervisory writs to Louisiana’s First Circuit Court of Appeal.                         At the
evidentiary hearing, Johnson’s counsel reiterated that Johnson’s right-to-testify
claim was based on Hampton, and Hampton alone: “The law on this is pretty
clear, Hampton. Okay?” Specifically commenting on the State’s recitation, in its
traversal, of the Strickland standard governing the federal right to testify,
counsel underscored that Johnson’s right-to-testify claim “has nothing to do with
the federal jurisprudence that the state has disclosed in their various papers
they have filed.” Likewise, in his application for supervisory writs to the First
Circuit Court of Appeal, Johnson again emphasized, “The application at bar is
not based upon a claim of ineffective assistance of counsel nor is it subject to a
harmless error analysis. The propriety of [trial counsel]’s trial tactics therefore
has no bearing on the required analysis in this matter.”
       We were presented with a similar set of facts in Daniel v. Cockrell, 283
F.3d 697 (5th Cir. 2002), abrogated on other grounds by Glover v. United States,
531 U.S. 198 (2001). There, a Texas prisoner brought an ineffective assistance
claim in his state habeas petition. Id. at 701. At the time, Texas did not require
a showing of prejudice to establish ineffective assistance of counsel, so the state


requirement of AEDPA’s exhaustion bar:
       A litigant wishing to raise a federal issue can easily indicate the federal law basis
       for his claim in a state-court petition or brief, for example, by citing in conjunction
       with the claim the federal source of law on which he relies or a case deciding such
       a claim on federal grounds, or by simply labeling the claim “federal.”
Baldwin v. Reese, 541 U.S. 27, 32 (2004). Following Baldwin, we have demanded less of state
habeas petitioners seeking to raise a federal claim, exemplified by Taylor v. Cain, 545 F.3d 327
(5th Cir. 2008), where we deemed a claim fair writ and presented although the petitioner “did
not label his claim as a federal constitutional one,” because “his brief made the type of
arguments that support a Confrontation Clause claim” and he cited two Louisiana cases
mentioning the federal confrontation right. Id. at 333–34; see also Kittelson v. Dretke, 426 F.3d
306, 316–17 (5th Cir. 2005) (holding that petitioner fairly presented federal confrontation and
due process claims by invoking those concepts and citing the Sixth and Fourteenth
Amendments).

                                               6
    Case: 11-31121     Document: 00512182754      Page: 7   Date Filed: 03/21/2013



                                   No. 11-31121

and federal rights, though parallel, were not co-extensive. Id. Although it
appears that nothing prevented the petitioner from bringing state and federal
ineffective assistance claims, he asserted only the state claim and “specifically
disclaimed reliance on the federal ineffective assistance of counsel standard.” Id.
After his state habeas petition was denied on the merits, petitioner sought to
bring a federal ineffective assistance claim on federal habeas review. Id. The
district court dismissed his habeas petition as unexhausted, and we affirmed, on
the ground that petitioner never fairly presented a federal ineffective assistance
claim to the Texas courts. Id.
      We held in Daniel, and now reiterate, that a state habeas petitioner’s
disclaimer of an argument has the same effect as his failure to raise it in the
first place. Id. The exhaustion requirement “reflects a policy of federal-state
comity . . . designed to give the State an initial opportunity to pass upon and
correct alleged violations of its prisoners’ federal rights.” Anderson v. Johnson,
338 F.3d 382, 386 (5th Cir. 2003) (quoting Picard v. Connor, 404 U.S. 270, 275
(1971)). By disclaiming reliance on a potential ground for habeas relief, a state
habeas petitioner signals to the state courts that they need not pass judgment
upon it. Allowing the petitioner to revive that claim in a federal habeas petition,
without giving the state courts the initial opportunity to review it, would be
inconsistent with comity interests and would subvert the primary purpose of the
exhaustion requirement. Daniel, 283 F.3d at 697.
      Johnson argues that it would be unfair to require a state habeas petitioner
to bring a Strickland claim during state habeas proceedings to preserve that
claim for federal habeas review:
      A defendant denied the right to testify by his trial counsel would
      have to raise the lesser Strickland argument to preserve the right
      to federal relief and forgo the greater Louisiana protection of
      Hampton, or, argue for the greater protection of Hampton and then
      face, as Johnson, the claim of unexhaustion and procedural default.


                                        7
     Case: 11-31121       Document: 00512182754           Page: 8    Date Filed: 03/21/2013



                                       No. 11-31121

But, as the State of Louisiana points out, it is not an either-or proposition.
Nothing prevented Johnson from asserting that his trial counsel’s conduct
violated the Louisiana Constitution, under Hampton, and the Sixth Amendment
to the United States Constitution, under Strickland. Post-conviction relief is
available under Louisiana law when “[t]he conviction was obtained in violation
of the constitution of the United States or the state of Louisiana.” LA. CODE
CRIM. PROC. art. 930.3(1) (emphasis added).
       Where, as here, “a prisoner fails to exhaust state remedies and the court
to which the prisoner would be required to present his claims in order to meet
the exhaustion requirement would now find the claims procedurally barred due
to the prisoner’s own procedural default,”5 we are barred from reviewing those
claims unless the petitioner “demonstrate[s] cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate[s]
that failure to consider the claims will result in a fundamental miscarriage of
justice.” Woodfox v. Cain, 609 F.3d 774, 793 (5th Cir. 2010) (citing Coleman v.
Thompson, 501 U.S. 722, 750 (1991)) (internal quotation marks omitted); see also
Hughes v. Dretke, 412 F.3d 582, 592 (5th Cir. 2005) (clarifying that not just any
cause will excuse default; a petitioner must show “good cause”).
       Johnson lacks good cause for the default because the record reflects that
he and his state habeas counsel were on notice that the federal and state rights
to testify had different scopes and were governed by different standards, but
elected to bring a state ineffective assistance claim and to forgo a federal
ineffective assistance claim in order to focus the court’s attention on the more



       5
         Absent certain exceptions not available here, an application for post-conviction relief
may not be considered by a Louisiana court if it is filed more than two years after the
judgment of conviction and sentence has become final. LA. CODE CRIM. PROC. art. 930.8(A).
Because Johnson’s convictions and sentences became final in January 2007, he is barred from
now filing a successive state habeas petition asserting a federal right-to-testify claim.

                                               8
     Case: 11-31121       Document: 00512182754          Page: 9     Date Filed: 03/21/2013



                                       No. 11-31121

expansive state right and the easier-to-satisfy Hampton standard.6 See Wiley v.
Puckett, 969 F.2d 86, 102 (5th Cir. 1992).                   Johnson likewise has not
demonstrated that failure to consider his federal ineffective assistance claim
would result in a fundamental miscarriage of justice: he does not disclose the
subject of his proposed testimony and gives us no reason to believe that such
testimony would have changed the trial’s outcome. And, as Johnson’s trial
attorney stated under oath at the state evidentiary hearing, he advised Johnson
not to testify because he perceived that they had a strong case without Johnson’s
testimony and surmised that Johnson would “absolutely not” have made a good
witness in light of his inculpatory statements to the police and his three prior
felony convictions for armed robbery. Taking everything into consideration, our
confidence in the jury’s verdict against him remains intact.
                                     CONCLUSION
       For the foregoing reasons, we conclude that Johnson’s federal habeas
petition is unexhausted and procedurally barred, and that Johnson has failed to
demonstrate good cause for the default or that failure to consider his federal
ineffective assistance claim would result in a fundamental miscarriage of justice.
AFFIRMED.




       6
         The Nineteenth Judicial District Court of Texas denied Johnson post-conviction relief
on his Hampton claim on the basis of its factual finding that Johnson initially wanted to
testify and anticipated doing so, but, after being advised against it by his attorney, deferred
to his attorney’s judgment; and its corresponding legal conclusion that the record did not
disclose “sufficient credible proof that the petitioner was forbidden or prohibited from
testifying.”

                                              9
