United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE
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],
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
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.
Factual and Procedural Background
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].
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].
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].
Standard of Review
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.
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.
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
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
2. GROUND TWO: Prosecutorial Misconduct.
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.
Court will address each claim in turn, although in a
Issues Previously Litigated (Ground One, Subpart b; Ground
Four, Subparts a and c; Ground Six)
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
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.
Procedural Default (Ground Two; Ground Three; Ground Four,
Subpart b; Ground Five; Ground Seven.
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).
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.
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)).
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.
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
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
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 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.