Jordan v. Hepp
2016 U.S. App. LEXIS 14111
7th Cir.2016Background
- Joseph Jordan was convicted in Wisconsin of first-degree reckless homicide and related counts after a shooting; the prosecution relied heavily on a written confession and conflicting eyewitness testimony.
- Jordan is nearly illiterate (self-reported fourth-grade reading level) and claimed his confession was obtained after lengthy interrogation and that he signed a written statement he did not understand.
- Jordan initially moved to waive counsel and represent himself; the trial court briefly granted Faretta waiver but then rescinded it, concluding his limited literacy would prevent him from meaningfully using written discovery and effectively conducting trial.
- Court-appointed counsel Russell Bohach represented Jordan at trial. During the prosecutor’s closing, the prosecutor vouched for a detective’s credibility (arguing she had more to lose than Jordan), and Bohach did not object.
- Jordan raised two federal habeas claims: (1) denial of his Faretta right to self-representation; and (2) ineffective assistance of counsel based on Bohach’s failure to object to prosecutorial vouching. The district court denied relief; the Seventh Circuit affirmed as to Faretta but reversed and remanded for an evidentiary hearing on the Strickland claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Jordan improperly denied Faretta self-representation? | Jordan: court improperly revoked his valid waiver despite competence to waive counsel. | Warden: court acted within state standard (Klessig/Pickens) given Jordan’s near-illiteracy and inability to handle written evidence. | Denied relief — state court’s decision not an unreasonable application of Faretta/Godinez/Edwards under AEDPA. |
| Did Bohach render constitutionally ineffective assistance by failing to object to prosecutorial vouching? | Jordan: silence was not explained; failure to object to blatant vouching was objectively unreasonable and prejudicial. | Warden: silence could be strategic (avoid highlighting prosecutor’s remarks); state court presumed no prejudice. | Court found state court unreasonably applied Strickland as to prejudice and remanded for a §2254(e)(2) evidentiary hearing to determine counsel’s reasons. |
| Was the prosecutor’s closing argument improper vouching violating due process? | Jordan: prosecutor vouched for detective (arguing she’d lose her career), inviting jury to rely on evidence outside the record. | Warden: (implicit) argument was permissible advocacy; generic jury instruction sufficed. | The court held the argument was textbook improper vouching likely to prejudice where credibility was central. |
| Was a §2254(e)(2) hearing permitted after Cullen v. Pinholster? | Jordan: state record lacks facts on counsel’s strategy; Machner hearing never held, so an evidentiary hearing is required. | Warden: Cullen limits new evidence to state-court record on AEDPA review. | Held that an evidentiary hearing is appropriate to resolve whether counsel had a strategic reason; Cullen does not bar §2254(e)(2) in this circumstance. |
Key Cases Cited
- Faretta v. California, 422 U.S. 806 (recognition of Sixth Amendment right to self-representation)
- Godinez v. United States, 509 U.S. 389 (competency to waive counsel equals competency to stand trial; states may adopt more elaborate standards)
- Indiana v. Edwards, 554 U.S. 164 (states may deny self-representation to defendants lacking mental capacity to conduct trial)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel: deficient performance and prejudice)
- Berger v. United States, 295 U.S. 78 (prosecutorial use of evidence outside the record and vouching violates due process)
- United States v. Young, 470 U.S. 1 (prosecutorial vouching and limits on argument; curative instructions may be insufficient)
- Wiggins v. Smith, 539 U.S. 510 (deference to strategic decisions depends on adequacy of investigation)
- Cullen v. Pinholster, 563 U.S. 170 (AEDPA review ordinarily confined to state-court record; evidentiary hearings still possible in limited §2254(e) circumstances)
- Imani v. Pollard, 826 F.3d 939 (7th Cir.) (companion case addressing limits on denying Faretta rights under Wisconsin standards)