Jackson v. Kelly

650 F.3d 477

Jerry Terrell JACKSON, Petitioner–Appellee,

v.Loretta K. KELLY, Warden, Sussex I State Prison, Respondent–Appellant.Jerry Terrell Jackson, Petitioner–Appellant,

v.Loretta K. Kelly, Warden, Sussex I State Prison, Respondent–Appellee.

Nos. 10–1

10–3.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 26, 2011.Decided: April 25, 2011.

ARGUED: Matthew P. Dullaghan, Office of the Attorney General of Virginia, Richmond, Virginia, for Loretta K. Kelly, Warden, Sussex I State Prison. Michele Jill Brace, Washington, D.C., for Jerry Terrell Jackson. ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General of Virginia, Richmond, Virginia, for Loretta K. Kelly, Warden, Sussex I State Prison. Philip E. Holladay, Jr., Taryn Koball, King & Spalding LLP, Atlanta, Georgia, for Jerry Terrell Jackson.Before DUNCAN, DAVIS, and WYNN, Circuit Judges.Reversed by published opinion. Judge DUNCAN wrote the opinion, in which Judge DAVIS and Judge WYNN joined.DUNCAN, Circuit Judge:

In the fall of 2002, a jury found petitioner Jerry Jackson guilty of breaking into 88–year–old Ruth Phillips's home, raping her, and smothering her to death with a pillow from her bed. Jackson was sentenced to death. Jackson's direct and collateral appeals were denied by the Supreme Court of Virginia. Jackson sought federal habeas relief, which the district court granted as to his penalty-phase claims following an evidentiary hearing.

The government appealed, urging that the district court abused its discretion by holding the evidentiary hearing and that relief was erroneously granted on Jackson's claims that counsel's development and presentation of mitigation evidence, as well as his failure to object to alleged instructional error, were constitutionally deficient. Jackson has cross-appealed, asserting additional claims arising out of alleged instructional error.

We assess the merits of Jackson's petition under the deferential standards spelled out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254 (“AEDPA”). Our review is informed by the Supreme Court's recent guidance in Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). For the reasons described below, we conclude that, based on the record available to the state court that adjudicated Jackson's claims on the merits, the writ was improvidently granted.

I.

A.

On Sunday, August 26, 2001, 88–year–old Ruth Phillips did not show up to church. Jackson v. Commonwealth, 267 Va. 178, 590 S.E.2d 520, 524 (2004) ( “ Jackson I ”). Concerned by her absence, Mrs. Phillips's son tried reaching her by telephone. Id. When there was no answer, he went to her Williamsburg, Virginia, apartment to check on her. Id. After letting himself in, he found his mother's body “lying ‘twisted and exposed’ on a bed in her bedroom.” Id. As he later described it, her “leg was twisted around, and her pubic region was exposed[; h]er breast was exposed[; and h]er nightgown was up around her neck.” Id. (alterations in original).

Mrs. Phillips's autopsy showed that she had died of asphyxia, which “occurs when the brain is without a supply of oxygen for four to six minutes.” Id. The autopsy also found a bruise on her nose and lacerations on the exterior and interior of her vagina. Id. A crime scene investigator recovered a hair from Mrs. Phillips's chest and another from the bed underneath her stomach; more hairs were found in the vicinity of her left thigh. Id. Forensic analysis revealed that several of the hairs were pubic hair that was inconsistent with samples taken from Mrs. Phillips. Id. These hairs were later found “to be consistent with [Jackson's] mtDNA to the exclusion of 99.998% of the population with a 95% degree of confidence.” Jackson v. Warden of the Sussex I State Prison, 271 Va. 434, 627 S.E.2d 776, 783 (2006) ( “ Jackson II ”).

In December 2001, investigators conducted a videotaped interview with Jackson. Jackson I, 590 S.E.2d at 524. After waiving his Miranda rights, he “admitted entering Mrs. Phillips' apartment, searching through and taking money out of her purse.” Id. Jackson claimed he did not know Mrs. Phillips was home when he flipped on the light and began to sift through her purse. Id. As a result, he was “scared” when Mrs. Phillips, who had been lying in bed, exclaimed: “What do you want? I'll give you whatever, just get out.” Id.

Jackson acknowledged that when he realized Mrs. Phillips had seen him, “he held a pillow over her face for two or three minutes and tried to make her ‘pass out’ so she could not identify him” and further “admitted that he inserted his penis into her vagina while he was holding the pillow over her face.” Id. at 524–25. Jackson added that after exiting through a back window, he drove away in Mrs. Phillips's car, which he ultimately abandoned. Id. at 524–25. He also reported that he used the sixty dollars he stole from Mrs. Phillips's purse to buy marijuana. Id. at 525. Jackson repeatedly insisted that he had not intended to kill Mrs. Phillips. Id.

A Virginia grand jury indicted Jackson in March 2002 and charged him, inter alia, with two counts of capital murder for the premeditated killing of Phillips in the commission of rape or attempted rape and in the commission of robbery or attempted robbery. Id. at 523.

Jackson's trial was bifurcated into a guilt and a penalty phase. During the guilt phase, Jackson retreated from his earlier statement to law enforcement, testifying that he had confessed to investigators because he believed “that was what [they] wanted to hear” and that an accomplice had in fact smothered Phillips. Id. at 525. Jackson further “denied having any knowledge about who raped Mrs. Phillips or about how his pubic hairs got on her body.” Id.

The jury found Jackson guilty of both capital counts and of various other state crimes. Id. at 523. Following penalty-phase proceedings—which we discuss in greater detail below—the jury found a “probability that [Jackson] would commit criminal acts of violence that would constitute a continuing threat to society” and recommended a death sentence on both capital counts. J.A. 983–85. In April 2003 the state circuit court accepted the jury's recommendation and imposed a death sentence.

Jackson appealed his convictions. The Supreme Court of Virginia affirmed in January 2004. See Jackson I, 590 S.E.2d at 520. The United States Supreme Court declined review. Jackson v. Virginia, 543 U.S. 891, 125 S.Ct. 168, 160 L.Ed.2d 155 (2004).

B.

On December 3, 2004, Jackson “filed an oversized habeas petition with the [Supreme Court of Virginia] along with a motion for leave to exceed the court's 50–page limit.” J.A. 2384. The Supreme Court of Virginia denied the motion for extra pages and directed Jackson to file a “corrected petition.” Id. at 1140. Jackson filed an amended petition on January 4, 2005, alleging fourteen distinct claims of constitutional error.

The Supreme Court of Virginia rejected each of Jackson's habeas arguments and denied his petition on its merits on March 24, 2006. See Jackson II, 627 S.E.2d at 780. We briefly review the state court's analysis of Jackson's claims at issue in this appeal: (1) that defense counsel ¹ provided constitutionally deficient representation by failing to interview Jackson's siblings and by failing to present evidence of Jackson's positive traits; ² and (2) that the participation of two jurors who indicated they would not consider certain mitigating factors unless instructed to do so—coupled with the absence of a specific mitigation instruction—constituted constitutional error on the part of the prosecutor, defense counsel, and the trial court.

The Supreme Court of Virginia rejected Jackson's argument that counsel's failure to interview his brother and sister, Damien and Chandal Jackson, constituted ineffective assistance of counsel. The court reasoned that Jackson's claim did not satisfy the “prejudice” prong of the Supreme Court's two-part Strickland test for constitutionally deficient representation. Jackson II, 627 S.E.2d at 786 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). It did not address whether his claim satisfied the first prong of the test, i.e., whether “counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052; see also McHone v. Polk, 392 F.3d 691, 704 (4th Cir.2004) (noting that when a defendant “fails to demonstrate sufficient prejudice from certain acts or omissions” a court “need not decide whether counsel's performance in those respects was, in fact, deficient under Strickland ”).

The court anchored its determination in two related findings. First, it concluded that counsel had presented ample mitigation evidence in the form of seventeen mitigation witnesses. The court noted that the jury had heard “the testimony of physicians, psychologists, social workers, and a pastor who had treated, evaluated, and/or counseled [Jackson] and his family, to substantiate that [he] was the victim of child abuse.” ³ Jackson II, 627 S.E.2d at 786. The court also cited counsel's elicitation of testimony from “the police officer who investigated the charges of child abuse against petitioner's stepfather and from several of petitioner's neighbors, friends, and family members, including his mother, father, and stepfather.” Id. at 786–87. In light of this mitigating evidence of Jackson's traumatic childhood, the court deemed the testimony that would have been offered by Jackson's siblings “largely cumulative,” ⁴ reasoning that it amounted to mere “anecdotal evidence of specific instances of the abuse from the perspective of [the] siblings.” Id. at 787.

As a second, related basis for its holding, the court found that talking to Jackson's siblings would not have altered counsel's trial strategy. The court cited counsel's “strategic decision not to call ... Damien [ ]...