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Jackson v. Frakes

United States District Court, D. Nebraska

October 26, 2016

DENNIS C. JACKSON, Petitioner,
v.
SCOTT FRAKES, Director, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         Dennis 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.

         Background and Claims

         Jackson 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 se.[1] Jackson needed three lawyers because he was in big trouble.

         On 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.

         The 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.

         Jackson 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.

         The 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.

         On 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.

         Petitioner filed his timely habeas petition on December 14, 2015. After initial review, I found that Jackson was asserting the following claims:

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 prosecutorial misconduct.
Claim Four: The cumulative effect of the prosecutorial misconduct, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel denied Petitioner due process.
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 evidence.

(Filing no. 5 (on initial review condensing and summarizing for clarity Petitioner's claims).)

         The 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”).

         Petitioner's 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.)

         Specifics of Direct Appeal

         Jackson 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.

         Regarding 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.

         The Court of Appeals also found the remainder of Jackson's direct-appeal claims to be without merit. Accordingly, his conviction and sentence were affirmed.

         Specifics of Post-Conviction Appeal

         Following 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.

         In its 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); ...

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