*3 REAVLEY, Before JOLLY and JONES, Judges. Circuit JOLLY, Judge: E. GRADY Circuit Edward Michael was convicted of serving sixty-year murder and is now system. prison sentence the Texas He district court’s appeals the denial his petition corpus for writ alleges ineffective assistance of which counsel. He bases his claim on his attor- ney’s failure to move for the dismissal of prosecution applicable under (that subsequently statutes been amended), required dismissal of the if with the indict- untimely. ment was The indictment is unreliable, untimely. conceded to have been or is defective” “may grant court concluded that state habeas the defendant a windfall to which the law had, indeed, counsel rendered deficient does not entitle him.” 369-70, at performance failing move for dis 120 S.Ct. 1495. “[ujnreliability Such prosecution. missal of the It further con unfairness does not result the ineffec- cluded that there was a proba reasonable tiveness of counsel does not deprive the that, bility for that deficiency, Young but defendant of or procedural substantive and, never would have been tried hence right to which the law entitles him.” Id. convicted, never crime which he 372, however, S.Ct. 1495. presently imprisoned. This conclusion was further delineated the Court on the interpretation based court’s of Williams: Fretwell “not justify does a de- *4 state and application law its to the facts of from parture straightforward application this case. See Tex.Code Crim. P. arts. of Strickland when the of ineffectiveness (West 1989). Yet, 32.01 the state deprive counsel does the defendant aof relief, court ultimately habeas denied con procedural substantive to which that, cluding despite the perform deficient 393, law entitles him.” 529 U.S. at 120 outcome, ance counsel that affected the 1495 (emphasis S.Ct. in original). Accord- Young prejudiced. Under ingly, question in this case is whether application state court’s of Strickland v. undisputed performance deficient Washington, 466 U.S. 104 S.Ct. Young’s Young counsel deprived of a sub- (1984), 80 L.Ed.2d 674 and Lockhart v. or procedural right stantive to which he Fretwell, 506 U.S. 113 S.Ct. Fretwell, entitled. was 506 U.S. at (1993), L.Ed.2d was to be 838; Williams, 529 U.S. at law, determined reference to current 120 S.Ct. 1495. rather than the law at the time of the performance. that, The state deficient This habeas court interpretation concluded led the state court to Young Young’s that under Texas conclude counsel had (under dismissal, had no suffered the sec Young moved would have Strickland) ond prong of the Tex because “entitled” to prosecu- been dismissal of the subsequently statute had tion, been amended and that the would have been remove the bar to further from prosecution. barred further It is following dismissal. therefore clear that the state habeas court found that performance deficient

The determinant question appeal Young’s counsel him deprived of substan- the state whether habeas court’s conclu- and procedural rights tive to which the law sion Young that was not prejudiced by his Yet, court, him. entitled the state habeas performance counsel’s deficient was con- Williams, without reference to applied trary to, of, or an application unreasonable ultimately Fretwell to Young conclude federal law. Two cases inform will prejudiced not was because the court’s statute Strickland in these subsequently Fretwell, had amended to circumstances: Lockhart v. been allow su- pra, reprosecution after Taylor, Williams v. dismissal of the indict- 1495,146 (2000). holding ment. Because prop- S.Ct. L.Ed.2d 389 fails to Fretwell, erly distinguish the Supreme disregards stated that Fretwell and Court ’ prejudice “analysis focusing interpretation Strickland Williams it is solely determination, to, contrary on mere outcome and an ap- both unreasonable of, without attention to Supreme whether the result of plication precedent. Court proceeding fundamentally was unfair Because the state court concluded to have probability Young would have been entitled a reasonable there was prosecut- not have been him with Young prosecution against would dismissed Tracy Bering Ann for the murder of ed Article 28.061 because the prejudice under dismissal, counsel moved had his him, yet indicted unless the State had requisite preju- has Young established able to demonstrate State was dice under Strickland. However, delay. appointed his for the dismissal, counsel did not seek such a I Tra- Young was indicted for the murder of 20, 1991, Tracy Ann Ber- September On cy Bering approximately Ann seventeen arrested, Young was ing was murdered. months after his arrest. rep- appointed was and Jaime Gandara pre-trial motions to dis- Young filed two him, day. Young resent that same speedy the indictment for trial viola- miss bail, not indicted but he was released tions, after a which the trial court denied February approximately until trial, jury hearing. Following later, was the months seventeen was convicted of murder. was sen- following his arrest and third term of sixty years prison, a sentence tenced At time of release on bail. serving. he is now *5 murder, arrest, for indictment and trial of the Texas Code of Criminal article 32.01 The conviction and sentence were af- provided: Procedure appeal firmed on direct to the Court of in has been detained When defendant Eighth of at El Appeals, District Texas appear- for his custody or held to bail Paso, August unpub- in an accusation any ance to answer criminal State, No. opinion. Young lished 08-95- court, prosecu- before the district ar- appeal, Young 00251-CR. On direct tion, by ordered unless otherwise by gued denying that the trial court erred shown, court, supported for speedy his motions to dismiss for trial affidavit, and the by shall be dismissed appeal, violations. its brief on direct discharged, indictment or bail infor- pre-indictment admitted that the State against such presented mation be not delay clearly was attributable to the State. at the next term the court defendant of reject- Although appeals the state court of which is held after his commitment or claim, Young’s speedy ed it did so on admission to bail. ground that had filed motions added.) time, (Emphasis During that arti- for continuance which asserted of Proce- cle 28.061 of the Code Criminal prejudiced by delay he would not be of provided, part, dure in relevant noted, the trial. The appeals state court of A ... Article 32.01 of discharge under however, explained that the had not any prose- this code a bar to is further twenty-seven delay month between discharged cution for the offense Young’s initial trial setting. arrest and any arising for of other offense out Obviously, twenty-seven month period transaction, same than an offense other includes the seventeen months between attorney of a higher grade rep- that the Thus, Young’s arrest and indictment. resenting prosecuting the state appeals state court of concluded implicitly offense that does not discharged give any that the State had failed to rea- primary duty prosecute. have the to pre-indictment delay. for the sons added.) (Emphasis Thus, Young petitioned the Texas Court of express under the terms of Article 32.01, by Monday July Appeals discretionary for review. the first Criminal Young argued appeals the court of prosecution further Applicant for the incorrectly apply provisions failed to offense for which he was convicted. articles and 28.061 to 32.01 reverse for the 3. The failure of Applicant’s attor- pre- reason that the indictment was not Gandara, ney, move, Jaime prior to prescribed sented the time by within law. indictment, for charges dismissal of the Appeals The Texas Court of Criminal re- for Applicant which was convicted under petition discretionary fused the review Procedure, Code Criminal arti- 21,1998. State, January Young v. PDR 32.01, cle objective fell below a minimum No. 1566-97. standard representation of reasonable by legal Texas, counsel of defendants post-conviction filed his applica- as established prevailing professional tion for February relief state court on norms. 23, 1999. He asserted various claims of 4. But for the failure of Applicant’s

ineffective assistance counsel and insuf- attorney, Gandara, move, Jaime prior ficiency of the evidence. Pertinent to this indictment, appeal dismissal of the claim that his Sixth charges for Applicant Amendment was convict- rights were violated inef- ed under Texas Code counsel, of Criminal fective assistance of his Proce- who failed dure, article there is a to move for reasonable prosecu- the dismissal of the probability that Applicant tion would timely for failure to indict under Tex- have been convicted of offense aris- law.1 state habeas trial court con- out ing of the same transaction ... cluded that trial counsel be- rendered deficient cause the State would performance have been barred by failing to move for dis- from him indicting under all missal extant stat- and that Young utory law. would have been entitled to a dismissal *6 with Because, under the Texas statutes 5. under current statutory then in effect. In pertinent part, the court the State would be free to indict made the following “Conclusions of Applicant offense, Law”: for the same were it dismissed under Texas of

1. Had Code Criminal Applicant’s attorney, Jaime 32.01, Gandara, Procedure Applicant has not been moved for dismissal of the prejudiced meaning within the charges and Strick discharge against of the bail v. Washington, land as Applicant by elaborated for the for offense which he Fretwell, 364, Lockhart v. 506 U.S. prior was convicted presentation to the 838, (1993) S.Ct. of an L.Ed.2d 180 and against indictment Applicant, Ap- Butler, (Tex. parte Ex plicant S.W.2d 782 would have been legally entitled Crim.App.1994). to such dismissal and discharge under Procedure, Texas Code of Criminal arti- concluded, however, The court thus that cle 32.01. Young prejudiced by this deficien-

2. Had the charges against Applicant cy under Strickland v. Washington, 466 668, been dismissed discharged and his bail 104 S.Ct. 80 L.Ed.2d 674 (1984), under Texas Fretwell, Code Criminal Proce- in applied Lockhart v. dure, 32.01, article the State would have 506 U.S. 122 L.Ed.2d (1993) been barred Butler, under Texas Code of Crimi- 180 and parte Ex nal procedure, article any from (Tex.Crim.App.1994), S.W.2d 782 because completed 1. stating Gandara an affidavit that any that the failure was not the result of oversight; this failure strategic was an the state per habeas or tactical choice. Deficient explicit court made an factual determination formance of counsel is not contested. could not failed to show that the State by the to be determined prejudice was delay in at the time habeas cause for the law effect demonstrate by review, amended the had been which trial court would indicting him or that the permit to re-indictment in 1997 legislature indictment. have dismissed the untimely for indict- dismissal case of the timely for re Young filed a motion 2000, the Texas Court In October ment.2 Rule consideration under without a Appeals denied relief of Criminal timely filed a no April denied. On findings of the based on order written request and appeal tice of certificate trial court. (“COA”). request appealability The habeas Young present filed the federal on the district the certificate focused § 2254 in October 28 U.S.C. petition under analysis, particular court’s that rendered He asserted counsel exis district court’s reliance on the by failing to move for assistance ineffective by defense good-cause tence of by failing of the indictment and dismissal Young’s to motion to dismiss under jury July three instructions. request grant The district relevant statute. court judge magistrate recommended specifying partic ed the without jury claims be COA that instruction However, that a 2002.3 April denied. he recommended ular issue corpus granted be writ habeas asserting claim

Young’s motion-to-dismiss II court unreason- that state habeas had Young argues that the state trial Fretwell. On ably applied March unreasonably applied clearly court estab- magistrate’s adopted court district by holding lished federal law that he was jury on the instruction recommendations all prejudiced parties what all claims, grant relief on the but declined agreed perform- courts have was deficient claim. motion-to-dismiss The district ance counsel. maintains magistrate judge agreed court with the state court’s unreason- state habeas had analysis particular appli- Strickland its ably but reasoned applied —in cation of Fretwell to the facts of this prej- nonetheless failed establish objectively Young case—was udice under Strickland because unreasonable. *7 an on or after the effective 2. 32.01 and 28.061 were amended rested for offense Articles 26,May 1997. The amended version effective prosecution date of Act. The of a defen- allows the at least six of article 32.01 State dant arrested before the effective date of this present to indictment. in which an months by Act is the law in effect covered when was amended to delete the Article 28.061 occurred, arrest and the former law contin- 32.01, thereby removing reference to article purpose.” ued in for that Acts effect prosecution the bar to further after dismissal Leg., § 75th ch. 4. timely See also Tex.Code to indict. failure ("If prosecution a P. art. 15.14 Crim. Although there is in the some confusion 32.01, is dismissed under defendant Article COA, scope briefs of the it is clear about may the defendant be rearrested for the same request from review of the for COA that alleged in conduct the dismissed criminal Young sought only review of the presentation prosecution only upon of indict- Thus, by the district court. determination information for the and the ment or offense Johnson, 43 consistent with 114 F.3d Muniz capias subsequent issuance of to the indict- Johnson, (5th Cir.1997) and Else v. F.3d 104 information.”) (effective May or ment (5th Cir.1997), 1997). 83 this court is not de- Legislature provided, how- The Texas ever, prived jurisdiction appeal. to hear this 28 applied that all of these amendments 2253(c)(3). § "only to the of a ar- U.S.C. defendant argues to, State that the state habeas court contrary sion that was or involved an Fretwell, unreasonably apply of, did not application clearly be- unreasonable estab- law, lished failed to Federal establish that he determined Supreme States; Court of would have to the United been entitled dismissal of or (2) resulted in a decision that was based on prosecution with had his an unreasonable determination of the facts counsel moved dismissal. The State light presented evidence in the contends that Young failed to establish his state court proceeding.” 28 U.S.C. entitlement to dismissal for two reasons: 2254(d)(l)-(2). § Before this (1) may court Young did not show that the State grant habeas relief under the unreasonable would have been unable to demonstrate clause, appli- the state court’s (2) good delay; majori- cause for the clearly cation of established federal law ty of Texas courts have held that pre- must merely be more than incorrect or 1997 version of art. 28.061 is unconstitu- erroneous, it must be objectively unreason- tional under state and the likelihood Williams, able. 529 U.S. at of a different outcome attributable to an (O’Connor, J., Court). writing for the unconstitutional statute should be regard- A state court’s decision is an unreasonable potential ed as a windfall to Young under application of clearly established federal Fretwell, rather than legitimate prejudice law whenever the state court identifies the under Alternatively, Strickland. the State correct governing legal principle from the that, argues even the state Supreme Court’s applies decisions but Fretwell, incorrectly applied Young failed to principle prisoner’s the facts of the case affirmatively meet his burden of proving “objectively in an unreasonable” manner. prejudice under Strickland. The ar- Johnson, See Caldwell v. 226 F.3d that, gues to establish preju- Strickland (5th Cir.2000) Williams, (citing dice, Young required prove that the 1495). 409, 120 S.Ct. An unreasonable State would have been unable to demon- application may also occur if “the state strate delayed cause for the indict- unreasonably court either legal extends a court, ment. Although the state habeas principle from [Supreme precedent Court] applying held that to a new context where it should not apply prejudiced because he could be re-indicted unreasonably refuses to extend that under the 1997 amendment to art. principle to a new context where should press the State does not that argument Williams, apply.” 529 U.S. at appeal.4 A S.Ct. 1495. state court’s decision is (1) contrary Supreme precedent Court Ill “if the state court arrives at a conclusion Under the Anti-Terrorism and opposite to that Supreme reached [the *8 (“AEDPA”), Effective Penalty Death Act (2) law”, question on a “if Court] may federal grant court a writ of state court confronts facts that are materi- corpus on behalf of a prisoner state ally indistinguishable from a relevant Su- adjudication unless the petitioner’s of the preme precedent Court and arrives at a “(1) claim in state court in resulted a deci- result opposite Supreme of the [that noted, 4. we Legislature As have apply prior Texas does not to defendants arrested provided that the amendment to art. May the effective date of the amend which omits the reference to art. 32.01 and Barnes, 313, parte ments. See Ex 959 S.W.2d thus prosecution removes the bar to further 1998). (Tex.App. 315 n. 1 Worth - Fort indict, timely after dismissal for failure to 624 first, there petitioners A that establish that 120 S.Ct. 1495. Id. at

Court].” by counsel and performance was deficient findings presumed are court’s factual state second, deficiency prejudiced the that this con by clear and correct unless rebutted 2254(e)(1). Essentially, petitioner must defendant. § vincing evidence. 28 U.S.C. that “at ‘a reasonable show there is least court’s deci the state habeas We review that, probability unpro for counsel’s but by the under the same standard used sion errors, proceed fessional the result Johnson, v. 242 Beazley court. district different.’-” Neal v. ing would have been (5th denied, Cir.), cert. F.3d Cir.2002) (5th Puckett, 230, 241 286 F.3d L.Ed.2d 243 S.Ct. (en banc) Strickland, at (quoting 466 U.S. (2001). 2052), denied, 694, 104 cert. 537 U.S. S.Ct. 963, 154 L.Ed.2d 772 123 S.Ct. IV (2003). Two cases have since elaborated indicated, question As we ways prejudice analysis on Strickland’s we must decide is whether the state habe- analysis today: to our pertinent that are Young conclusion that as court’s Fretwell, 364, 113 Lockhart v. 506 U.S. prejudiced by per his counsel’s deficient (1993), and S.Ct. 122 L.Ed.2d 180 to, contrary or an unreason formance 362, 120 Taylor, Williams v. 529 U.S. S.Ct. of, clearly able established fed (2000). 1495, 146 L.Ed.2d 389 We will by Supreme determined eral law as each in turn. address court Although Court. state habeas that would have been concluded A prosecution to dismissal of the entitled The state habeas court concluded had his counsel moved for with Lockhart v. Fretwell refitted the tradition- dismissal, it nevertheless concluded Strickland; analysis al under “[bjecause, statutory under current proposition relied on Fretwell for the Applicant would be free to indict prejudice was to be determined under the offense, for the same were it dismissed law effect the time of habeas review under Texas Code of Criminal Procedure rather than the law at the time of deficient 32.01,Applicant preju article has not been performance. Accordingly, state meaning v. diced within Strickland considered itself bound the current Washington, as elaborated Lockhart v. statute, amended in 1997 to remove 838, 122 506 U.S. after a the bar to further dis- (1993) Butler, parte L.Ed.2d 180 and Ex indict, timely missal for failure to and con- (Tex.Crim.App.1994).” 884 S.W.2d 782 preju- cluded that had suffered no two-prong analysis simply The well-established dice because he could be re-indicted requires for ineffective assistance claims under current Texas law.5 previously appeal applicant's had the denial of motion to Texas courts relied on Fret- deny changes quash well to due caused counsel to be ineffective.” But- habeas relief Butler, ler, FretwelT). (relying parte the law. See Ex 884 S.W.2d 782 884 S.W.2d at 784 State, (Tex.Crim.App.1994); Easley Easley, the court addressed claims under Antonio, case; 1998). Easley (Tex.App. S.W.2d 264 the Texas statutes at issue in this - San appropriately While the Butler court relied on claimed ineffective assistance for counsel’s *9 law, abrogated Fretwell the context case failure to seek habeas relief on the basis of an untimely interpreted using language, it The court relied on Fretwell broad indictment. holding appli interpretation to prevailing that "the law when Butler's of Fretwell conclude prejudiced applied Easley had not been because cant filed this writ must be in our at issue had been amended to determination of whether counsel's failure to the statutes Fretwell, Cronic, Supreme Court consid v. 466 U.S. 104 S.Ct. 2039, (1984)); ered whether “counsel’s failure make an 80 L.Ed.2d 657 “an analysis objection in a state criminal sentencing focusing solely on mere outcome determi- objection nation, proceeding that would have without attention to whether the —an by a supported been decision that subse result proceeding of the was fundamental- quently was ‘preju ly unreliable, overruled —constitutes unfair or is defective. To meaning dice’within the of [its] decision in set aside conviction or solely sentence Fretwell, Washington.” Strickland v. 506 because the outcome would have been dif- 366, at U.S. 113 S.Ct. 838. Fretwell ar ferent but for may counsel’s error grant gued that his counsel was ineffective be the defendant a windfall to which the law object cause he had failed to at sentencing him,” not 370, does entitle id. at 113 S.Ct. aggravating 838; the use of an factor that “[ujnreliability or unfairness does not duplicated an underlying element of the if result the ineffectiveness of counsel does felony in the course of robbery; not deprive the any defendant of substan- —murder objection would have been specifically procedural tive or right to which the law supported him,” at the time of trial then- entitles at id. 113 S.Ct. 838. In existing Eighth sum, precedent, Circuit Collins because the case had been later Lockhart, (8th Cir.1985). overruled, entitled, 754 F.2d 258 Fretwell was not un- However, Constitution, der between probable Fretwell’s and his to the bene- case, fit of objection. Collins had been counsel’s overruled. Consequently, circumstances, counsel’s Under these admitted Supreme failures had not de- prived Court concluded that to Fretwell of permit pro- Fretwell to substantive or cedural right benefit from to which subsequently abrogated the law entitled him and, therefore, case law was a “windfall” prejudice to which he “suffered no not entitled. from his performance.” counsel’s deficient Id. opinion Court’s eschewed strict fi- delity concurred, Justice narrowly noting O’Connor approach focused “today prejudice would determine we hold that by simply making ask- the court ing whether the determination may outcome would been not consider different; instead, objection the effect of an it held that knows to even be though might governing the outcome meritless under current have been fa- objection if petitioner might vorable to even prop- counsel had have been con objected, erly sidered meritorious at the time object counsel’s failure to of its omis 374, 113 sion.” did not Id. at S.Ct. 838. reasoning: “Our decisions have emphasized that B right Sixth Amendment to counsel exists protect order to fundamental We now turn to the second case that trial,” Fretwell, to a fair informs our prejudice analysis under “[ajbsent 838; 113 S.Ct. some effect of the Taylor, Strickland - Williams v. 529 U.S. challenged conduct on reliability 146 L.Ed.2d 389 (2000). trial process, guar- the Sixth Although Amendment Williams was decided generally implicated,” antee is April id. at the state habeas court (quoting 113 S.Ct. 838 United States did not it in findings cite its of fact and permit charges the State to refile once the S.W.2d at 270. Easley, trial court dismissed the case. *10 a to nearly regarded potential four months be of law filed

conclusions “windfall” later, legitimate rather than the August on the defendant “prejudice” contemplated by opin- our Williams, Supreme Virginia In the ion in Strickland. The death sentence claim of rejected petitioner’s the Court Bobby imposed that Arkansas had counsel, relying of assistance ineffective Ray aggrava- Fretwell based on an was opinion in Fretwell. Supreme the Court’s (murder committed ting circumstance held that the trial Virginia gain) duplicated an pecuniary for relief, granted had habeas judge, who (mur- felony underlying element of the relying in on mere outcome determi- erred robbery). Shortly in the course of a der nation, rather than a review of whether the trial, before the the United States Court fundamentally proceeding result of the was Eighth had Appeals for the Circuit Williams, 529 unfair or unreliable. counting” held that such “double Supreme 120 S.Ct. 1495. The lawyer impermissible, but Fretwell’s Supreme Virginia Court held that the unaware of (presumably because was holding “in that our decision Court erred decision) object failed to to Collins way ... in in modified or some [Fretwell] gain pecuniary aggrava- the use of the in supplanted the rule set down Strick- tor. Fretwell’s claim for federal Before Williams, land.” 529 U.S. at Court, corpus relief reached this S.Ct. 1495. the Collins case was overruled. Accord- explaining why Virginia Supreme ingly, though even the Arkansas trial erred, quite clearly had Court Court judge probably would have sustained a in explained reasoning its objection timely counting, to the double narrowly defined its limitations: it had become clear that the State had [Wjhile provides the Strickland test rely right disputed aggravating to on the guidance resolving sufficient virtual- circumstance. Because ineffective- ly all ineffective-assistance-of-counsel Fretwell’s had de- ness counsel not claims, in there are situations which prived proce- substantive or him of on fundamental fairness overriding focus dural to which the law entitled Thus, may analysis. affect the on the him, we held that his claim did not hand, explained, one as Strickland itself satisfy component “prejudice” prej- there are a few in situations which Strickland test. And, may presumed. udice be on the Williams, 391-93, 529 U.S. at hand, other in there are also situations (Stevens, J., writing unjust it would characterize be Court)(footnotes omitted; and citations the likelihood of a different outcome as added). emphasis legitimate “prejudice.” Even if a defen- testimony dant’s might per- false The Court went on to hold that him, jury acquit suaded the Virginia Supreme Court’s decision was fundamentally unfair to conclude that he “contrary an both to” and “involved unrea- prejudiced by counsel’s interfer- application of’ Id. at sonable Strickland. perjury. ence with his intended 1495; 413-14, see id. at S.Ct. also Lockhart, (O’Connor, J., Similarly, concurring). we concluded 120 S.Ct. that, given overriding [Virginia] interest To the extent “that the court’s fairness, fundamental the likelihood decision turned on its view that erroneous in- outcome attributable to an ‘mere’ difference outcome is not suffi- different constitutionally correct ineffec- interpretation the law should cient establish

627 counsel,” tive assistance of right the court’s to the and to the benefit of the analysis “contrary to” statutes in Strickland. Id. effect at the time of his trial. Furthermore, at 120 S.Ct. 1495. be 1 Virginia Supreme the Court “relied inapplicable exception recognized the in Fretwell dealt with a right by declared a Lockhart,” judicial decision, a right its decision was an unreason which had achieved no recognition as a able of Strickland and final state- application Fret Restated, ment of Id.; the law. the rule well. see also id. at relied S.Ct. (state by proclaimed Fretwell was by single a court’s decision is an unreason judicial finally decision and was not settled able of federal law “the state binding legal case, as a principle. The and ... unreasonably legal extends a announced, had, fact, the rule it in been principle [Supreme from precedent Court] by overruled the time Fretwell the raised to a new context where it ap should not short, in issue habeas. In Fretwell had no ply”). legal “entitlement” to a rule that had never “vested” as a final statement of the law. Williams thus leaves no doubt Implicit in concept this that finality of a performance where pe deficient denies the federal constitutional rule is never estab- titioner a procedural right substantive or lished until the Supreme Court spo- has entitled, lawfully which he is ken. determined, routinely, is to be under the prong second of Strickland. id. at See Statutes, as “final” statements of (“departure 120 S.Ct. 1495 from a distinguishable. the are Once a stat straightforward application of Strickland duly ute is legislature, enacted the it is justified] [is when the ineffectiveness “final”, a if not necessarily permanent, deprive counsel does the of a defendant statement the particular law on that procedural or right substantive to which point. Although may it in be attacked him”) entitles in (emphasis origi law unconstitutional, collateral proceedings as nal). recognition has a achieved final state is,

ment of the lawgiver, law legislature and, indeed, state, and C the statute confers benefits that the law Thus, question preju- whether the recognizes protects. example, For analysis dice of Strickland or ap- Fretwell case that been overruled is not has author plies in case turns on whether the itative all pending subsequent litiga performance by deficient Young’s counsel tion, duly-enacted whereas statute con deprived him of a procedur- substantive or ferring procedural or rights substantive right al to have indict- entitles its rights beneficiaries to those —here ment dismissed with period validly in which it is operating. —to the law distinguish entitled him. We first sought Unlike the benefit overruled later case law involved in error, state statute is not an misapprehen Fretwell from the later sion, amended statutes simply the law does not “right at Whiteside, effect the time of trial. recognize.” Nix v. 475 Next, we address whether the later 89 L.Ed.2d 123 (1986) (Blackmun, J., amendments somehow concurring).6 “disentitled” Thus Nix, 6. present perjured testimony. the Court held that the defendant U.S. at 175- prejudiced by his counsel’s failure S.Ct. arrest, court, in- cannot was, the time of his federal habeas we review *12 trial, to the in- legally and entitled correctness of the state habeas court’s dictment him rights upon conferred v. terpretation final “vested” of state law. See Johnson statutes; (5th Cain, Cir.2000); Fret- by duly enacted 215 F.3d 494 hand, (5th well, lawfully Johnson, on the other Gibbs v. 154 F.3d 259 judicial Cir.1998). of a to claim the benefit Accordingly, requires entitled AEDPA finally authorita- rule that had not become implicit that we defer to this conclusion tive. interpretation by of state law the state habeas court.

2 Notwithstanding foregoing, argues although for the first time State — held, The district court and the appeal Young failed to estab- —that Young carry that argues, failed pre-1997 lish because the ver- prove his burden to that the indictment unconstitutional under sion of art. 28.061 is preju fact would have been dismissed with Constitution; thus, the Texas the same as dice; is, that he failed to show the absence never entitled to the ben- he was delay in good cause for the State’s efit of the statute issue. P. indicting him. See Tex.Code Ckim. art. (West 1989) (“prosecution, 32.01 unless appellate

The lower courts of court, by good otherwise ordered Texas are divided this issue.7 On for shown, affidavit, supported by cause shall reached the one occasion issue ... ... be dismissed indictment be not it Appeals, Texas Court of Criminal de presented ... at the next term of the clined to consider it because the State held after [defendant’s] failed to raise the issue before the bail”) (empha commitment or admission to appeals. parte court or the court of Ex (Tex.Crim. added). Martin, State, however, suggests 525 n. 5 sis 6 S.W.3d However, App.1999). “good the state habeas no factual basis on which cause” court, found; by concluding Young might only argues would have been prej good have been entitled to dismissal with the absence of cause was an element dismissal, prove udice had his counsel moved for in order to establish his necessarily implicitly prejudice. must have concluded to a dismissal with As we stated, however, that Art. is not unconstitutional un have 28.061 the state habeas Barnes, that, parte Young’s der state law. See Ex 959 court concluded had counsel dismissal, n. 5 (TexApp. S.W.2d moved for “would have - Fort 1997) (when legally a trial court fails to been Worth entitled to such dismissal” and that, dismissed, specific findings charges make of fact and conclu had the been “the presumed sions of it is that the court State would been barred under [art.] 28.061, necessary findings support made the its from further decision). Furthermore, [Young].”8 our role as a These conclusions make clear State, Condran, Compare Nguyen (Tex.App.- v. 882 S.W.2d 471 State v. 951 S.W.2d 178 1994) (art. 1997) (same). (Tex.App. [1st Dallas Dist.] - Houston State, constitutional) 28.061 is with Hixson v. (Tex.App. Corpus 8. The State notes that the trial court issued S.W.3d 160 Christi - 1999) (art. unconstitutional); findings fact and 28.061 is Frenzel three sets of conclusions State, case, (Tex.App. argues 963 S.W.2d 911 of law in this which it should - Waco 1998) Barnes, (same); collectively findings parte by Ex 959 S.W.2d constitute factual 1997) (same); (Tex.App. Worth the state habeas court. The record reflects - Fort implicit an factual determination by the the law him entitled is answered court that state habeas the State would not state habeas court’s conclusions of law: have been able to demonstrate Had dismissal, counsel moved for delay in indicting Young. aAs Young “would have been legally entitled to court, federal habeas we are bound and, such dismissal” charges had the been habeas court’s factual findings, state both dismissed, “the State would have been implicit explicit. AEDPA, Under “a barred under [art.] from any fur- *13 determination of a factual issue by a made prosecution ther [Young].” of According- presumed State court shall be to cor- be ly, to the extent that the state habeas 2254(e)(1). § rect.” 28 U.S.C. pre- “The court’s “decision turned on its erroneous sumption only of correctness not applies to view that a ‘mere’ difference outcome is fact, explicit findings of but it also applies not sufficient to constitutionally establish to those findings unarticulated which are ineffective counsel,” assistance of necessary to the state court’s conclusions analysis court’s was “contrary to” Strick- of Cockrell, mixed law and fact.” Valdez v. Williams, land. (5th Cir.2001). 274 F.3d n. See Furthermore, 1495. because the state ha- Johnson, also Goodwin v. 132 F.3d beas court “relied on the inapplicable ex- (5th Cir.1997) 183-84 (findings of can fact ception recognized in ],” [.Fretwell its deci- implied be from explicit conclusions of sion an was unreasonable law). AEDPA requires that defer to we Strickland, Fretwell, and Williams. Id. the state habeas implicit court’s factual determination that the State would not V been able to good have demonstrate delay for the in indicting Young, For especially stated, the reasons we have we when the State adduces no must counter evi- conclude that conviction can- to challenge dence the finding. not stand because it specifically results and directly from the consequences of the

D State’s him denying right to effective Thus, in light required of our counsel in violation Young’s right defer- to ence to the state counsel findings, habeas court’s under the Sixth Amendment to the facts, both as to state and to law the United practical States Constitution. In question terms, whether perform- the deficient a constitutionally effective counsel ance Young’s counsel deprived him of a would have moved to dismiss the indict- substantive or procedural right court, to which ment and the state on the record Rivera, Judge that Guadalupe of the 168th The "Findings third document is entitled court, Texas, district County, El Paso issued Fact and Conclusions of and was Law” filed three written that documents include take August or document ap- This two, fact-finding. the form of The adopted by first filed' parently the Court of Criminal 3, 2000, February 22 and respectively, Appeals March on October 2000. Because it is time, Application are both entitled "Order on sharply last in previ- with conflicts Article 11.07 Post-Conviction Writ of February Habeas ous filed documents Corpus" virtually and contain identical con- March explicitly purports to be Young Both state "Findings tents. but "assumes of Fact and Conclusions of Law” prove “Orders”, does not merely the State would been have and not and was the basis delayed

unable to establish Young's appeal cause for the to Court of Criminal and, therefore, Appeals, indictment" accept had not dem- we this document as the rele- attempt decision, onstrated that an to counsel vant habeas state and the one to dismiss would have indictment resulted deference is owed under 28 U.S.C. prosecution 2254(e)(1). of the prejudice. § dismissal with Young of a substantive deprived counsel to us, required been would before he was entitled.” to which against procedural dismiss is the state short, argument linchpin had prejudice. with counsel, of law as the conclusion that: trial court’s effective provided been Gandara, do, attorney, never Young would Jaime Applicant’s to required “Had State and sen- Appellant convicted ... would prosecuted, dismissal have been moved for tenced, the reason such dismissal legally all for entitled to have been him. timely indict of Crimi- discharge failed under Texas Code Procedure, This conclu- Article 32.01.” nal of the district judgment Accordingly, wrong under current surely sion is almost RE- REVERSED, case is and the court is provi- relevant interpretation in- court with the district MANDED to sions. releasing grant Writ structions custody.

Young from state First, place Articles important it is *14 proper in the context. and 32.01 and REMANDED. 28.061 REVERSED controlling Texas these code Under JONES, Judge, H. Circuit EDITH a for relief provide basis provisions do concurring: the jury has returned in grand the once State, panel opinion 990 Brooks v. S.W.2d persuasive I in the dictment. concur banc), that the suggest 278, (Tex.Crim.App.1999)(en separately but write 285 posi- its presented better ruled that Appeals could have State Criminal the Court of Procedurally, this is in this case. application tion no once an “Article 32.01 has re- Independent Thus, indeed. peculiar ap case “the is returned.” indictment under current me that search convinces challenge the his pellant waived the old versions of interpreting Texas law habe- filed his writ of indictment since 32.01, §§ and 28.061 Tex.Code CRiM. a half after year and Proc. corpus as almost to relief. From “entitled” Young is not grand returned the was the indictment a lot like case the looks standpoint, this Brooks, lower Following jury.” Id hand, the State’s other On the Fretwell. courts, corpus proceedings in both habeas following none of the pointed out briefing uniformly de appeal, direct of federalism the interests points. While under 28.061 post-indictment nied relief convictions, finality in strongly support State, v. and 32.01. See Blumenstetter bears the burden petitioner and the habeas 541, (Ct.App. Tex. —Tex 545 117 S.W.3d litigate not authorized proof, of we are Martin, 2003); Ex Parte 33 arkana job does its if the State the State’s case 843, (Ct.App. Tex - Austin 846 S.W.3d poorly. 683, State, 2000); v. 998 S.W.2d Smith 1999); Corpus Christi (Ct.App. proposed key question, The legal Tex. - Weiblen, 2 375-76 S.W.3d it, the undis- “is whether opinion frames 1999).1 Tex. - San Antonio Young’s (Ct.App. puted performance deficient (Tex.Crim.App.1999). 662-63 S.W.2d to cite parties Remarkably, failed Instead, remand, gov appellate court affirmed "the controlling law. this case On concerning the argument denying ernment an offered order Torres' trial court's brief, In its constitutionality these articles. corpus" “Brooks because for writ Torres, 966 government to Ex cited Parte unambiguously that Article 32.01 has holds (Ct.App. Antonio Tex. - San S.W.2d an indictment is re application once no However, 1998). Ap Court of Criminal Torres, WL Parte turned.” Ex subsequently Torres peals vacated Parte Ex 2000). (Ct.App. Tex. - San Antonio *1 Torres, 993 light See Ex Parte of Brooks. Hence, Third, operates poten- Brooks as bar to these authorities ques- raise the tion, sandbagging, prohibits tial unexplored by State, since defen- why waiting dants from until after an indict- court must be to the state chained ment is returned to habeas, seek relief under the above, court’s conclusion in noted statutory provisions. old that Young would have been entitled to relief under the old years statutes. Some Second, if Young’s even counsel had ago, the might state court have been cor- pre-indictment moved for relief under the rect, but caselaw, under current Texas statutes, highly it is doubtful that Young would not be so entitled. pan- “good has overcome the cause” exception el opinion correctly criticizes the state ha- to Article 32.01. Texas courts use a relying beas court for on the current ver- totality-of-circumstances “Barfcer-like test sions of Articles 28.061 even the determination of cause under though provisions these expressly applied Martin, Article 32.01.” In re 6 S.W.3d prospectively beginning well after (Tex.Crim.App.1999)(citing Bark hand, arrested. theOn other when er v. Wingo, 407 U.S. the Texas Court of Appeals Criminal ulti- (1972)). Therefore, 33 L.Ed.2d 101 mately denied habeas petition in consider, the habeas court among should already it had decided Brooks and (1) things: length other delay; and, view, Martin in my would have been (2) (3) the State’s delay; reason for the justified by these cases its decision. delay whether the was due to a lack of *15 Puckett, Under Neal v. 286 F.3d (4) State; diligence on the part of the (5th Cir.2002) (en banc), we are to defer to delay whether harm caused to the decision, the State’s ultimate not its rea- Martin, accused. at S.W.3d 528.2. We State, soning. The unfortunately, has need not in engage this inquiry ourselves. argument made no to the federal courts The appellate actually state under evolving interpretation based on the took this precise on direct analysis appeal statutory provisions. old ruling Young’s speedy constitutional claim, holding, reasons, after a thorough For these compelling a argu- analysis, that Young “failed to make ment prejudiced exists Young showing of prejudice.” appellate light deci the limited of Arti- sion, course, period concerned the entire cles 28.061 and 32.01. To hold that delay trial, from arrest whereas of bring pre- failure counsel to Young’s statutory argument claim, itself, would focus indictment habeas in and of period from arrest to I Strickland, indictment. constitutes under Thus, do not see a critical distinction. is seems to focus “solely on mere outcome difficult “Young’s determination, to see how counsel de without attention to wheth- prived procedur substantive er the result of proceeding was funda- al to which he mentally was entitled.” This unfair or unreliable[.]” Lockhart finding state against Young.3 v. 506 U.S. fact, one court has found that since allegedly as a result his counsel's defendant appeal, "first the issue on (citations raised performance.” deficient Id. omit- the State did opportunity not have the ted). present good evidence on the cause issue.” State, Garrett v. (Ct.App. *2 WL notes, however, panel opinion 3. As the 1999). Consequently, Tex. - San Antonio specifically State never articulated record failed preponder "to establish preindictment delay. for its ance of the evidence that Garrett suffered (1993). ap- 122 L.Ed.2d from a windfall reaped

pears to I As said habeas. courts

federal however, are not allowed to we

beginning, hoped It is be the State.

litigate for thoroughly more will the State be I therefore concur future. in the

prepared opinion. panel

in the ROBERTS,

Douglas Alan

Petitioner-Appellant, Director, Depart- DRETKE,

Doug Justice, Institution-

ment of Criminal Division, Respondent-Appellee.

No. 02-51339. Appeals, Court of

United States

Fifth Circuit.

Jan.