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Jackson v. United States

United States District Court, E.D. Tennessee, Greeneville

July 5, 2017

DAVID JACKSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         David Jackson, (“Jackson” or “petitioner”) a federal prisoner, has filed a “Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence By A Person In Federal Custody, ” [Docs. 161], [1] Jackson subsequently filed a supplemental motion, [Doc. 169], a second supplemental motion, [Doc. 170], and the government has responded, [Doc. 185]. Also pending before the Court are Jackson's “Request for Enlargement of Time to File Reply to government's response to petitioner's motion, ” [Doc. 191], and “petitioner's Request for Enlargement of Time to File Supplemental Motion znd Memorandum of Law relating back to motion to vacate, set aside, or correct sentence, ” [Doc. 194], seeking to make a claim based on Welch v. United States and Johnson v. United States. These matters are now ripe for disposition.

         The Court has determined that the files and records in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing or the appointment of counsel is necessary. For the reasons which follow, the petitioner's § 2255 motion lacks merit, the motion will be DENIED, and the § 2255 case DISMISSED WITH PREJUDICE. Also for the reasons expressed herein, Jackson's request for enlargement of time to file a reply will be DENIED and his motion to add a claim based on Welch v. United States and Johnson v. United States will be DENIED as futile.

         I. Factual and Procedural Background

         A criminal complaint was filed on July 12, 2010 charging David Jackson, Brooke Collins Stumbo and Ashlea Melynda Laughlin with carjacking (Jackson) and kidnapping (Stumbo and Laughlin) of Jackson's eight month old child, [Doc. 2]. The federal grand jury returned a two count indictment on July 13, 2010 charging, Jackson, in Count One, with carjacking in violation of 18 U.S.C. § 2119 and, in Count Two, Stumbo and Laughlin with kidnapping in violation of 18 U.S.C. § 1201 [Doc. 3]. A superseding indictment was returned on December 21, 2010 which added a third count against Jackson for transporting a stolen vehicle in interstate commerce in violation of 18 U.S.C. § 2312, [Doc. 43]. On January 13 and 14, 2011, plea agreements were filed wherein Laughlin and Stumbo agreed to plead guilty to the kidnapping and agreed to cooperate with the government and testify against Jackson, [Docs. 50, 52].

         Jackson's case proceeded to a two day trial on March 15-16, 2011, [Docs. 76, 78]. On March 16, 2011, the jury returned guilty verdicts against Jackson as to Counts One and Three, [Doc. 81]. On August 29, 2011, Jackson was sentenced to a term of 180 months imprisonment on Count One and 82 months imprisonment on Count Three, consecutively, for a net effective sentence of 262 months. [Doc. 121]. Judgment was entered on September 7, 2011, [Doc. 122]. Jackson filed a notice of appeal on September 8, 2011, [Doc. 123], and on November 14, 2013, the Sixth Circuit Court of Appeals affirmed the court's judgment, [Doc. 156]. On March 18, 2014, Jackson filed a pro se motion for new trial, [Doc. 159], along with the affidavit of Anne Boyd. The motion for new trial was denied by order on July 28, 2016, [Doc. 193]. Jackson's pro se § 2255 motion was timely filed on November 10, 2014, [Doc. 161].

         The trial of this case resulted in a lengthy transcript of testimony which has been reviewed by the government in its response to petitioner's motion. The Court has reviewed the government's statement of the facts as set forth at pages 1 - 4 of the government's response, as well as the transcripts of the trial, and the Court will adopt the statement of facts set forth in the government's response, [Doc. 185 at 1-4].

         II. Standard of Review

         This Court must vacate and set aside petitioner's sentence if it finds that “the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . .” 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.

         When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6thCir. 1961). “Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing.” O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996).

         To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).

         III. Analysis

         In Jackson's second supplemental motion, which the Court will consider to be the operative one, petitioner appears to raise, although in a confusing and difficult to decipher manner, eight separate grounds for relief, which the Court summarizes as follows:

1. GROUND ONE: (a) ineffective assistance of counsel for failure to investigate; (b) erroneous admission of “prior assault evidence” under Rule 404(b); and (c) ineffective assistance of counsel for improper cross-examination of witnesses, or to object to the use of perjured testimony.
2. GROUND TWO: Prosecutorial Misconduct.[2]
3. GROUND THREE: Judicial Bias.
4. GROUND FOUR: (a) Actual innocence of charge; (b) selective and/or vindictive prosecution, and (c) insufficient evidence to sustain conviction.
5. GROUND FIVE: Crawford violation.
6. GROUND SIX: (a) Erroneous admission of 404(b) evidence, and (b) false evidence used to convict.
7. GROUND SEVEN: Cumulative errors
8. GROUND EIGHT: (a) Ineffective assistance of counsel at sentencing; and (b) failure to attack witness credibility.

         The Court will address each claim in turn, although in a different order.

         A. Issues Previously Litigated (Ground One, Subpart b; Ground Four, Subparts a and c; Ground Six)

         When Jackson appealed his judgment of conviction and sentence to the Sixth Circuit, he raised three issues: The sufficiency of the evidence to support his conviction; error in the admission of Jackson's prior bad acts under Federal Rules of Evidence 403 and 404(b); and substantive reasonableness of his sentence. With respect to the sufficiency of the evidence as to the carjacking, Jackson contested “the sufficiency of the evidence with respect to intent, ” arguing “that the evidence was insufficient to establish a ‘nexus' between the evidence of intent to harm Boyd and the taking of the vehicle.” With respect to his conviction for interstate transportation of a stolen vehicle, “Jackson argue[d] that a reasonable juror could not have found that he knew the Dodge was stolen because there was evidence that he had reason to believe he was the owner.” United States v. Jackson, 543 F. Appx . 525, 528-29 (6th Cir. 2013). Jackson claimed error in the admission of “evidence of his past assaults of Boyd, Laughlin and Stumbo, as well as evidence of the threats he directed toward those women.” Id. at 529. The Sixth Circuit found each claim to be without merit.

         The government correctly states that the law-of-the-case doctrine “dictates that issues, once decided, should be reopened only in extraordinary circumstances.” United States v. Oglesby, 55 F.Appx. 353 (6th Cir. 2003). “A § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances.” Holmes v. United States, 281 F.Appx. 474, 482 n. 3 (quoting Dupont v. United States, 76 F.3d 108, 110 (6th Cir.1996)). The issues raised here are precisely the issues raised in the Sixth Circuit, they were decided adversely to Jackson, and he may not use this § 2255 proceeding to relitigate them. As the government notes, Jackson has not even alleged any exceptional circumstances, much less any “highly exceptional” ones.

         B. Procedural Default (Ground Two; Ground Three; Ground Four, Subpart b; Ground Five; Ground Seven.

         A petitioner must raise his claims on direct appeal, “[o]therwise, the claim is procedurally defaulted” for purposes of § 2255 review. Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 621 (1998)). “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in [a § 2255 motion] only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley, 523 U.S. at 622 (quotation marks omitted).

         Each of these claims, i.e., prosecutorial misconduct, judicial bias, vindictive and/or selective prosecution, the Crawford violation, and cumulative errors, could have been raised, but was not raised, on appeal. Thus, Jackson has procedurally defaulted them unless he can “demonstrate either cause and actual prejudice, or that he is actually innocent.” It appears Jackson relies on a claim of actual innocence to excuse his default. But “claims of actual innocence are rarely successful.” Schlup v. Delo, 513 U.S. 298, 324 (1995). “[P]risoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'” House v. Bell, 547 U.S. 518, 536 (2006) (quoting Schlup, 513 U.S. at 327). A careful reading of petitioner's “actual innocence” claim reveals that he is simply rearguing his claim that the evidence was insufficient to sustain his convictions. He has not pointed to any “new” evidence which makes “it more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Petitioner cannot excuse his procedural default on the basis of actual innocence.

         Although not explicitly argued, petitioner may be suggesting that his procedural default should be excused because of his appellate attorney's ineffectiveness. Appellate counsel, however, “has no obligation to raise any possible claim and the decision of which among the possible claims to pursue [on appeal] is ordinarily entrusted to counsel's professional judgment, ” and “[c]ounsel's performance is strongly presumed to be effective.” Sullivan v. United States, 587 F.Appx. 935 (6th Cir. 2014) (quoting McFarland v. Yukins, 356 F.3d 688, 710 (6th Cir. 2004)). “[O]nly when ignored issues are clearly stronger than those presented will the presumption of effective assistance of [appellate] counsel be overcome.” Id. (quoting Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003)).

         Jackson cannot excuse his procedural default on this basis. He cannot show that any of these issues were clearly stronger than the issues actually presented on appeal. Indeed, it affirmatively appears that the issues presented on appeal were actually stronger than any of the defaulted claims, claims which, for the reasons set forth below, lack merit. Although it is not necessary for the Court to do so, the Court will briefly address these claims on the merits.

         1. Prosecutorial Misconduct

         The government appears to correctly note that petitioner claims five separate instances of alleged prosecutorial misconduct. First, he argues that the United States knowingly presented perjured testimony, i.e., that of the victim, Anne Boyd, who recanted her prior grand jury testimony about whether or not Jackson “hit or assaulted her in any way.” [Doc. 170-3 at Page ID # 1127]. Jackson argues that, because Boyd had stated “on at least three occasions prior to Sentencing, . . . that Jackson did not physically attack her, when he stole her car, ” the Court should have “restrict[ed] such language from the record, or to admonish the jury that even though such a statement had been made by one of the witnesses, it was not to be held as a true fact.” [Id.].

         This claim is easily disposed of. To prevail on a claim that the prosecutor engaged in misconduct by offering perjured testimony, the petitioner must show that the statements were actually false and material, and that the prosecutor knew the statements to be false. United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989). Petitioner falls far short of meeting that standard here. It is beyond dispute that Boyd offered contradictory statements and testimony more than once; however, it is clear that, immediately after the incident, she told law enforcement officers that her car had been stolen, that she had been assaulted, and that her infant son had been taken. [Doc. 185 at 11 (citing Trial Tr. at 149-50)]. That statement was corroborated by other evidence and Boyd admitted making the statement during her trial testimony. Although she “recanted” her earlier statements and testimony, that does not establish that the government knowingly offered perjured testimony, nor does it establish that her testimony was “facially insubstantial or incredible.” See United States v. Welch, 97 F.3d 142, 151 (6th Cir. 1996). Determining credibility of witnesses under these circumstances “is exclusively the province of the jury.” United States v. Bond, 22 F.3d 662, 667 (6th Cir. 1994). As the government has argued “[e]ven if ‘a witness contradicts herself or changes her story, ' that does not ‘create an inference, let alone prove, that the prosecutor knowingly presented perjured testimony, ' Bucci v. United States, 662 F.3d 18, 40 (1st Cir. 2011), and ‘[m]ere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony.' Lochmondy, 890 F.2d at 822.” [Doc. 185 at 12-13].

         Second, petitioner alleges that he was singled out for prosecution because he is a “very dark skinned African-American” and his co-defendants are “young white/Caucasian women.” [Doc. 170-5 at 1]. Jackson claims the prosecutor “allowed [her] personal feelings and bigotries to guide [her] motives in the prosecution of petitioner, knowing that the charge was false and concocted.” [Id.]. As proof of this assertion, Jackson “points to Judge Greer's[3] outward display of outrage and dismay, upon learning that petitioner's co-defendant's [sic] were charged with crimes that could conceivably garner them longer sentences than [Jackson] was facing.” [Id.]. After the statement was made at Jackson's arraignment, a superseding indictment was returned adding a charge of interstate transportation of a stolen vehicle. ...


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