United States District Court, D. Nebraska
DENNIS C. JACKSON, Petitioner,
SCOTT FRAKES, Director, Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
C. Jackson (Jackson or Petitioner) has filed a petition for
writ of habeas corpus under the provisions of 28 U.S.C.
§ 2254. The Respondent has answered and filed the
relevant state-court records. The parties have now fully
briefed the case. I deny the petition with prejudice for the
reasons set forth below.
had three lawyers in the state courts. He had trial counsel.
He had separate counsel at sentencing and on direct appeal.
And, he had yet a third lawyer in his state post-conviction
action when it was litigated before the state district court,
but he appealed the decision denying relief pro
Jackson needed three lawyers because he was in big trouble.
February 22, 2008, in the District Court of Douglas County,
Nebraska, a jury found Petitioner guilty of three counts of
first-degree assault, three counts of use of a deadly weapon
to commit a felony, and one count of possession of a deadly
weapon by a felon.
evidence against him was overwhelming. As a prohibited
person, he shot three individuals at a residence. They were
seriously injured-the injuries were life-threatening and each
required surgery. They survived and testified against him. An
eyewitness to the shooting also testified against him. She
had driven Jackson to the site of the shooting and entered
the residence with him. Basically, she confirmed the accounts
of the victims. During a search by the police of the
victims' residence, no guns were found. Jackson fled to
Michigan with the gun he used. The shell casings found at the
scene matched the gun found at the hotel in Michigan where
Jackson was captured.
offered a self-defense at trial. Essentially, he claimed that
he was trying to buy drugs from the three victims, two pulled
guns, and the three sought to rob him. He claimed he acted in
self-defense, and he only shot them after wresting one of the
guns from one of the shooting victims who had pointed the
weapon at him. The jury didn't buy it.
state district court sentenced Petitioner to consecutive
prison terms of 15 to 20 years for each count of first-degree
assault and use of a deadly weapon to commit a felony and 10
years for possession of a deadly weapon by a felon. The
convictions and sentences were affirmed on direct appeal by
the Nebraska Court of Appeals on February 17, 2009. The
Nebraska Supreme Court denied Petitioner's request for
further review on May 14, 2009.
March 1, 2010, Petitioner filed for post-conviction relief in
the state district court, which was denied in October of 2014
following an evidentiary hearing. Petitioner promptly
appealed. The Nebraska Court of Appeals affirmed the state
district court's denial of post-conviction relief on
September 15, 2015. The Nebraska Supreme Court denied
Petitioner's request for further review on October 28,
2015, and the mandate was issued on November 18, 2015.
filed his timely habeas petition on December 14, 2015. After
initial review, I found that Jackson was asserting the
Claim One: Petitioner was deprived effective assistance of
counsel in violation of the Sixth and Fourteenth Amendments
because Petitioner's appellate counsel (1) failed to file
a motion for rehearing in the Nebraska Court of Appeals; (2)
failed to raise the issue of prosecutorial misconduct; (3)
failed to assert that trial counsel was ineffective by
failing to object to, request a curative instruction, or move
for mistrial due to prosecutorial misconduct; (4) failed to
allege that trial counsel was ineffective by not adequately
preparing for trial, not conducting a thorough investigation,
and by failing to interview and locate certain witnesses; (5)
failed to allege that trial counsel was ineffective by not
arguing that a witness was incompetent to testify; (6) failed
to raise trial counsel's failure to interview Petitioner
regarding his trial testimony; (7) failed to raise trial
counsel's failure to obtain telephone records; (8)
represented Petitioner despite having a conflict of interest;
(9) failed to assert that the evidence was insufficient to
convict Petitioner; (10) failed to argue that the jury
instructions were improper; (12) failed to argue that the
order on Petitioner's motion in limine was violated; and
(13) failed to raise nine issues on petition for further
review in the proper format and constitutional context.
Claim Two: Petitioner was denied effective assistance of
trial counsel in violation of the Sixth and Fourteenth
Amendments because trial counsel (1) failed to object to,
request a curative instruction, or move for mistrial due to
prosecutorial misconduct; (2) failed to adequately prepare
for trial, investigate, interview, examine, locate, and
subpoena certain witnesses; (3) failed to argue that a
witness was not competent to testify at trial; (4) failed to
fully interview Petitioner in relation to his testimony at
trial; and (5) failed to obtain telephone records.
Claim Three: Petitioner was denied a fair trial due to
Claim Four: The cumulative effect of the prosecutorial
misconduct, ineffective assistance of trial counsel, and
ineffective assistance of appellate counsel denied Petitioner
Claim Five: Petitioner was denied effective assistance of
counsel at sentencing because counsel (1) failed to review
the pre-sentence report and discuss the report with
Petitioner; (2) failed to investigate whether the information
in the pre-sentence investigation report regarding
Petitioner's prior criminal convictions was accurate; and
(3) failed to raise the inaccuracies of Petitioner's
prior criminal history and request an evidentiary hearing to
correct the errors as requested by Petitioner.
Claim Six: Petitioner was denied due process when the trial
court failed to inquire if Petitioner had the opportunity to
read the pre-sentence investigation report and sentenced him
based on an inaccurate criminal history.
Claim Seven: Petitioner was convicted based on insufficient
(Filing no. 5 (on initial review condensing and
summarizing for clarity Petitioner's claims).)
direct appeal may be found at filing no. 8-3, and it
is reported at State v. Jackson, No. A-08-579, 2009
WL 416066 (Neb.App. Feb. 17, 2009) (“Jackson I”).
The state district court denied post-conviction relief in a
written order on October 6, 2014. (Filing no. 8-13
at CM/ECF pp. 165-69.) The post-conviction appeal may be
found at filing no. 8-13 and filing no.
8-4, and that decision is reported at State v.
Jackson, No. A-14-954, 2015 WL 5440234 (Neb.App. Sept.
15, 2015) (“Jack son II”).
brief is 313 pages in length. (Filing no. 18.) It
was so long the Clerk had to break it into two parts to file
it. The length of the brief is inversely related to the
persuasiveness of it. In contrast, the Respondent's
briefs are direct and to the point while also being
sufficiently detailed. (Filing no. 14; filing no.
18.) In this vein, Respondent has filed all of the
relevant state-court records. (Filing no. 8; filing
no. 9; filing no. 21.)
of Direct Appeal
filed a direct appeal to the Nebraska Court of Appeals,
alleging that the district court erred because (1) the State
presented insufficient evidence to overcome Jackson's
motion to dismiss or for a directed verdict and for the jury
to find Jackson guilty, (2) it allowed testimony regarding a
bulletproof vest after granting a motion in limine relative
thereto, (3) Jackson received ineffective assistance of
counsel, (4) it presented an incorrect jury instruction to
the jury, (5) it imposed sentences disproportionate to the
crimes, (6) it imposed sentences that were cruel and unusual,
(7) it imposed excessive sentences, (8) it failed to consider
the case-law factors in imposing the sentence, and (9) it
imposed all consecutive sentences. (Filing no. 8-3 at
CM/ECF p. 2); Jackson I, supra at *1.
his claim of ineffective assistance of counsel, Jackson
alleged that trial counsel was ineffective for failing to (1)
raise any resistance to the violation of the motion in
limine, (2) make a motion to dismiss at the close of all the
evidence, and (3) perform several acts contained in a letter
written by Jackson, including witnesses to be called,
testimony to be elicited, and motions to be filed on
Jackson's behalf. (Filing no. 8-3 at CM/ECF pp.
4-5); Jackson I, supra at *3-4. The
Court of Appeals found (1) Jackson's first two claims of
ineffective assistance of trial counsel to be without merit,
and (2) the record on direct appeal to be insufficient to
address his third claim of ineffective assistance of counsel
because it involved knowledge of trial counsel's reasons
for acting or not acting on Jackson's requests. (Filing
no. 8-3 at CM/ECF pp. 4-5); Jack son I,
supra at *3-4.
Court of Appeals also found the remainder of Jackson's
direct-appeal claims to be without merit. Accordingly, his
conviction and sentence were affirmed.
of Post-Conviction Appeal
the evidentiary hearing on Jackson's post-conviction
motion and the state district court's denial of the
motion, Jackson appealed to the Nebraska Court of Appeals
alleging that the district court erred in seven different
respects. (Filing no. 8-4 at CM/ECF p. 2);
Jackson II, supra at *1. On September 15,
2015, the Nebraska Court of Appeals entered an unpublished
opinion affirming the state district court's denial of
post-conviction relief. (Filing no. 8-4); Jack
son II, supra.
opinion, the Nebraska Court of Appeals rejected Jackson's
seven assignments of error. As a condensed summary, this is
what the court decided:
(1) Jackson's claims of prosecutorial misconduct and
ineffective assistance of trial counsel concerning those
alleged instances of misconduct were procedurally barred, and
his claim of ineffective assistance of appellate counsel for
not challenging the alleged instances of prosecutorial
misconduct was without merit. (Filing no. 8-4 at CM/ECF
pp. 3-8); Jack son II, supra at *2-6.
(2) Portions of Jackson's claim that his trial counsel
provided ineffective assistance concerning a variety of
potential witnesses and evidence were procedurally barred,
and the remainder of Jackson's allegations of ineffective
assistance of trial counsel under this claim, along with his
claim that his appellate counsel provided ineffective
assistance concerning those instances of trial counsel's
alleged ineffectiveness, were without merit. (Filing no.
8-4 at CM/ECF pp. 8-11); Jack son II,
supra at *7-9.
(3) Jackson's various claims of ineffective assistance of
appellate counsel were without merit. (Filing no. 8-4 at
CM/ECF pp. 11-15); ...