U.S. v. Jackson

Full title: UNITED STATES v. JULIUS JACKSON

Court: United States District Court, W.D. Louisiana, Alexandria Division

Date published: Jul 28, 2008

DOCKET NO. 04-cr-10019-02 (W.D. La. Jul. 28, 2008)

Opinion

DOCKET NO. 04-cr-10019-02.

July 28, 2008

REPORT AND RECOMMENDATION

JAMES KIRK, Magistrate Judge

Before the court is a motion to vacate sentence filed on March 24, 2008, pursuant to 28 U.S.C. § 2255 by petitioner, Julius Jackson ("Jackson") (Doc. Item 139). Jackson is contesting his 2006 conviction by a jury in the United States District Court in the Western District of Louisiana, Alexandria Division on one count of assault resulting in serious bodily injury. Jackson was sentenced to 120 months in the custody of the Bureau of Prisons as well as three years supervised release. Additionally, he was ordered to pay a fine in the amount of $10,000 and a criminal victim fund assessment in the amount of $100.

Jackson filed a timely notice of appeal on May 16, 2006 (Doc. Item 116). On June 6, 2007, the Fifth Circuit Court of Appeals issued its mandate ordering the judgment of the District Court affirmed (Doc. Item 136).

In the instant motion to vacate, Jackson raises several grounds for relief all in the context of a claim for ineffective assistance of counsel.

RULE 8(a) Resolution

The court is able to resolve the merits of this Section 2255 application without the necessity of an evidentiary hearing because there is no genuine issue of material fact that is relevant to the claims of the petitioner, and the court records provide the required and adequate factual basis necessary to the resolution of the Section 2255 application. U.S. v. Green, 882 F.2d 999, 1008 (5^th Cir. 1989), 28 U.S.C. § 2255, Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts.

Law and Analysis

There are four grounds upon which a federal prisoner may move to vacate, set aside or correct his sentence: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or, (4) the sentence is "otherwise subject to collateral attack". 28 U.S.C. § 2255; United States v. Cates, 952 F.2d 149, 151 (5^th Cir. 1992), cert. denied 504 U.S. 962, 112 S.Ct. 2319, 119 L.Ed.2d 238 (1992). The scope of relief under Section 2255 is consistent with that of the writ of habeas corpus. Cates, 952 F.2d at 151. Also, U.S. v. Placente, 81 F.3d 555, 558 (5^th Cir. 1996).

Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. Nonconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding. U.S. v. Vaughn, 955 F.2d 367, 368 (5^th Cir, 1992). Also, U.S. v. Ressler, 54 F.3d 257, 259 (5^th Cir. 1995). A collateral challenge may not do service for an appeal. After conviction, exhaustion and waiver of any right to appeal, the federal courts are entitled to presume that the defendant stands fairly and finally convicted.U.S. v. Shaid, 937 F.2d 228, 231-32 (5^th Cir. 1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). Even if a defendant raises a constitutional error, he may not raise an issue for the first time on collateral review without showing both cause for his procedural default and actual prejudice resulting from the error. U.S. v. Mimms, 43 F.3d 217, 219 (5^th Cir. 1995), and cases cited therein.

A claim may not be reviewed under § 2255 absent a showing of cause and prejudice or actual innocence. U.S. v. Hicks, 945 F.2d 107, 108 (5^th Cir. 1991). Moreover, a prisoner who shows the possibility of prejudice may not obtain collateral relief under § 2255 without demonstrating cause for his failure to raise the error at trial or on direct appeal. Shaid, 937 F.2d at 229.

Cause is demonstrated by showing objective external factors which prevented the petitioner from having raised the instant claim previously, and actual prejudice resulting from the error. If the petitioner cannot show cause, the failure to raise the claim in an earlier proceeding may nonetheless be excused if the petitioner can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e. the petitioner must make a colorable showing of actual innocence. U.S. v. Flores, 981 F.2d 231, 235-36 (5^th Cir. 1993). Also, McCleskey v. Zant, 499 U.S. 467, 495, 111 S.Ct. 1454, 1471, 113 L.Ed.2d 517 (1991), rehearing denied, 501 U.S. 1224, 111 S.Ct. 2841, 115 L.Ed.2d 1010 (1991). Absent exceptional circumstances, establishment of ineffective assistance of counsel satisfies cause and prejudice.U.S. v. Acklen, 47 F.3d 739, 742 (5^th Cir. 1995), cert. denied, 519 U.S. 1142, 117 S.Ct. 1017, 136 L.Ed.2d 893 (1997).

The cause and prejudice test, however, does not apply to claims of ineffective assistance of counsel which are ordinarily brought for the first time on collateral review. U.S. v. Gaudet, 81 F.3d 585, 589 n. 5, (5^th Cir. 1996), citing U.S. v. Pierce, 959 F.2d 1297, 1301 (5^th Cir. 1992). Also, Acklen, 47 F.3d at 742.

Ineffective Assistance of Counsel

Jackson raises three distinct issues in the context of his ineffective assistance of counsel claim.¹ These issues are:

1 Jackson sets forth a fourth issue which he phrases as an ineffective assistance of counsel claim against his appellate attorney for failing to raise on appeal issues regarding the miscalculation of his sentence and prosecutorial misconduct. As the argument in support is nothing more than additional argument in support of these grounds previously set forth in the motion, each will be addressed under the appropriate subheading.

(1) failure to adequately investigate and object to the sentence imposed in excess of the maximum sentence available under the United States Sentencing Guidelines;

(2) failure to object to selective prosecution; and

(3) failure to object to prosecutorial misconduct.

The Law

Failure to object to the sentence imposed

Strickland v. Washington466 U.S. 668104 S.Ct. 2052 80 L.Ed.2d 674Anderson v. Collins18 F.3d 12081215^th U.S. v. Segler 37 F.3d 11311136^th 32² U.S. v. Weintraub 871 F.2d 12571266^th U.S. v. Prince 868 F.2d 13791386^th493 U.S. 932 110 S.Ct. 321107 L.Ed.2d 312Grant v. U.S.72 F.3d 503505-06^th 517 U.S. 1200116 S.Ct. 1701134 L.Ed.2d 800U.S. v. Vaughn 955 F.2d 367368^th U.S. v. Payne 99 F.3d 12731281^th

2 Federal Rule of Criminal Procedure provides for: the time of sentencing, the presentence investigation, the presentence report, the contents of the presentence report, the sentencing hearing, the imposition of sentence, the notification of right to appeal, the judgment and the plea withdrawal.

In showing he was rendered ineffective assistance of counsel in regard to his sentence, Jackson must additionally show there was a reasonable probability that but for counsel's errors, the defendant's non-capital sentence would have been significantly less harsh. Relevant factors are the defendant's actual sentence, the potential minimum and maximum sentences that could have been received, the placement of the actual sentence within the range of potential sentences and any relevant mitigating or aggravating circumstances. Segler, 37 F.3d at 1136.

Jackson contends that the sentence imposed exceeded the maximum sentence available under the United States Sentencing Guidelines ("the Guidelines"). The Guideline for a violation of 18 U.S.C. § 113(a)(6) is found at Section 2A2.2, and according to Section 2A2.2(a), the base offense level for assault is 14. Pursuant to Section 2A2.2(b)(2)(B), if a dangerous weapon is used, the base level increases a defendant's offense level by four levels.³

3 Of course the Sentencing Guidelines are now advisory only. Gall v. U.S., ?? U.S. ??, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Rita v. U.S., ?? U.S. ??, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Jackson argues that the district judge erred by finding facts which led him to conclude the four level enhancement was warranted. Jackson relies upon Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007) and U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) to support his position that either he must admit or the jury must find that he used a dangerous weapon for the enhancement to apply. However, pursuant to United States v. Mares, a sentencing judge is still allowed to make factual findings which relate to sentencing.United States v. Mares, 402 F.3d 511, 519 (5^th Cir.), cert. denied, 546 U.S. 828, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). "Booker contemplates that, with the mandatory use of the Guidelines excised, the Sixth Amendment will not impede a sentencing judge from finding all facts relevant to sentencing. The sentencing judge is entitled to find by a preponderance of the evidence all the facts relevant to the determination of a Guideline sentencing range and all facts relevant to the determination of a non-Guidelines sentence." Id., citing, Booker, 543 U.S. 220, 233, 258-59, 125 S.Ct. 738, 750,764. See also, United States v. Alonzo, 435 F.3d 551, 553 (5^th Cir. 2006); United States v. Williams, 520 F.3d 414, 422 (5^th Cir. 2008); United States v. High Elk, 442 F.3d 622, 626 (8^th Cir. 2006).

Accordingly, the district judge was correct in finding, by a preponderance of the evidence, facts relevant to whether or not Jackson used a dangerous weapon. In so deciding, the district judge relied upon the fact a fury found Jackson guilty of assault resulting in bodily injury. Additionally, the district judge found Jackson to be a principal to the assault in which dangerous weapon was used and, thus, increased the base offense level by four levels under Guideline 2A2.2(b)(2)(B) the four level enhancement was appropriate.⁴

4 Jackson was convicted of the same count to which his two co-defendants pled guilty, and Ronald Walker admitted during Jackson's trial that he (Walker) used a razor to cut Reginald Hollins during the assault (Tr. Vol. 1, p. 193).

Though Jackson asserts both his trial and appellate counsel rendered ineffective assistance of counsel for failing to object to, argue against and/or appeal the 120 month sentence, the contention is without merit.

Jackson's trial counsel performed to the best of his ability at sentencing by objecting to inclusion of the four point enhancement for the use of a dangerous weapon in the presentence report. Therefore, his performance was not deficient. Additionally, though Jackson's counsel did not appeal the issue (because the calculation was correct and there was no error to appeal), there was no "reasonable probability" that the sentence would have been different. Even if the four step increase for use of a dangerous weapon had not been used, the sentencing range would have only dropped to a range of 70 to 87 months, not the 37 to 46 months as Jackson contends.⁵ As it cannot be said that a sentence within the 70 to 87 month range would have been "significantly less harsh", Jackson has failed to prove an ineffective assistance of counsel claim against either his trial or appellate counsel.

5 Jackson contends that the Guideline range for his sentence should be 37 to 46 months because the base offense level is fourteen and his criminal history category is a VI. Even if it were true that the four point enhancement for use of a dangerous weapon was applied in error, Jackson's offense level would be a 20, not a fourteen, as other enhancement (to which he does not object) increased the offense level from 14 to 20. The Guideline range for a offense level of 20 and a criminal history category of VI is 70 to 87 months.

Accordingly, this ground for relief is meritless.

Selective Prosecution

Jackson also claims he was prosecuted simply because he was black and because he was affiliated with a gang but his counsel failed to raise any objections. In general, the decision to prosecute an individual "rests entirely" within the discretion of the prosecutor. United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). "In the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." Id., quoting, United States v. Chemical Found, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 7, 71 L.Ed. 131 (1926).

Though prosecutors are entitled to discretion, there are still constitutional constraints which prohibit prosecutors from basing their decision on "an unjustifiable standard such as race, religion, or other arbitrary classification." Id. "In order to prevail, a defendant must show a discriminatory effect and motive behind the decision. First, he must make a prima facie showing that he has been singled out for prosecution although others similarly situated who have committed the same acts have not been prosecuted. Second, having made the first showing, he must then demonstrate that the government's selective prosecution of him has been constitutionally invidious. The showing of invidiousness is made if a defendant demonstrates that the government's selective prosecution is actuated by constitutionally impermissible motives on its part, such as racial or religious discrimination."United States v. Ramirez, 765 F.2d 438, 439-40 (5^th Cir. 1985) (alterations in original) (citations omitted).

Jackson improperly asserts conclusory allegations and fails to meet the burden of proof. He has not shown he was singled out nor has he shown that he was prosecuted "because" he was black and/or "because" he was in a gang. See United States v. Jennings, 724 F.2d 436, 446 (5^th Cir. 1984) (rejecting a selective prosecution claim, in part because the defendant "offered nothing but bare general allegations that the selectivity was motivated by racial considerations."). As there is no obligation for counsel to raise, either at trial or on appeal, that which has no merit, counsel was not ineffective in rendering assistance because he did not raise objections at the trial and/or appellate levels for selective prosecution.

Accordingly, Jackson is not entitled to any relief under 28 U.S.C. § 2255 based on his selective prosecution claim.

Prosecutorial Misconduct

Jackson's final contention is that counsel failed to object to the prosecutor's intentional introduction of false evidence during trial and closing arguments. Jackson argues that a witness by the name of Reginald Arline ("Arline") provided false testimony at trial and counsel failed to object.

Jackson's trial attorney effectively cross examined Arline. He thoroughly questioned him regarding his testimony that he was on the same tier and within close enough proximity to hear what was being said during the assault. Though counsel did not cause Arline to change his testimony, he was successful in raising doubt as to whether Arline's statements were true (Tr. Vol. 2, p. 231-340).

Although the issue of false testimony was not raised upon appeal, Jackson has neither proven that prosecutorial misconduct did in fact exist and/or that he was prejudiced by his counsel's failure to raise the issue on appeal. To prove a claim for prosecutorial misconduct, Jackson must show that the conduct complained of so infected the trial with unfairness as to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). As previously stated, Jackson's attorney was successful into calling Arline's testimony into doubt. It is likely that a jury would have found Arline lacked credibility because prison records indicated he was locked in a cell on a completely different tier than Jackson. However, even if the appellate attorney erred in failing to raise the issue on appeal, Jackson has not articulated how he was prejudiced. Testimony from other witnesses, including the victim, was sufficient evidence to find Jackson guilty of assault resulting in bodily injury.

Therefore, Jackson's claim is without merit.

Conclusion

Based on the foregoing discussion, IT IS RECOMMENDED that Jackson's motion to vacate sentence (Doc. Item 139) be DENIED.

Having found no genuine issues of material fact with respect to Jackson's motion to vacate his sentence, IT IS FURTHER RECOMMENDED that Jackson's motion for an evidentiary hearing (Doc. Item 140) be DENIED as moot.

Under the provisions of 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b), the parties have ten (10) business days from the service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections with ten (10) days after being served with a copy thereof. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. Timely objections will be considered by the district judge before he makes a final ruling.

A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON THE GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.

THUS DONE AND SIGNED at Alexandria, Louisiana