Jackson v. Payne

ANDREW LEE JACKSON PETITIONER v. DEXTER PAYNE, Director, Arkansas Department of Correction RESPONDENT

Case No. 6:19-cv-06049

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS HOT SPRINGS DIVISION

March 25, 2021

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Petitioner is Andrew Lee Jackson ("Jackson"). On April 16, 2019, Jackson filed the current Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent Payne filed a response on July 31, 2019. ECF No. 12. The Court held a hearing on this Petition via Zoom on October 22, 2020. ECF No. 47. After this hearing, the Parties supplied post-hearing findings of fact and conclusions of law. This matter is now ripe for consideration.

This Petition was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. The Court has reviewed the Petition, Response, and all exhibits submitted and finds this Petition should be DENIED.

A. Procedural Background:¹

Jackson is an inmate incarcerated at the East Arkansas Regional Unit. ECF No. 1. The facts surrounding this case arise from 2014 when Jackson repeatedly had sex with teenaged sisters I.S. and M.S. while he was their neighbor and youth pastor. He was convicted by a jury in Garland County, Arkansas of two counts of rape and was sentenced to consecutive terms of 40 years' imprisonment for each count. See Jackson v. State, 2018 Ark. App. 222, at 1, 547 S.W.3d 753, 755 (2018) (Jackson I). Jackson appealed that conviction and raised two claims as a part of his appeal: (1) the circuit courterred by denying his request for a non-model jury instruction and (2) the circuit court erred by improperly limiting his cross-examination of Sergeant Michael Wright. The Arkansas Court of Appeals affirmed his conviction, finding he did not preserve the issue regarding the non-model instruction for appeal and finding the limitation of Sergeant Wright's cross-examination was proper. See id.

Thereafter, Jackson filed a motion for postconviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure. See Jackson v. State, 2019 Ark. App. 104, at 3-5, 572 S.W. 3d 458, 459-60 (2019) (Jackson II). This motion was denied because the postconviction petition failed to comply with a procedural rule requiring a verification by Jackson. Instead, his attorney improperly verified this petition.² The Arkansas Court of Appeals affirmed that denial. See Jackson II.

On April 16, 2019, Jackson filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Thereafter, Jackson was appointed counsel, Travis Morrissey, who filed a supplement to Jackson's Petition. ECF No. 8. Respondent Payne filed a response on July 31, 2019. ECF No. 12. The Court held a video conference hearing on this matter on October 22, 2020. The Court heard testimony from Jackson's trial and appellate counsel, Mr. Shane Etheridge, and several employees of the Arkansas Division of Corrections. Additionally, Jackson and Mr. Benjamin Motal, his post-conviction counsel, also testified at the hearing.³ The Parties have now submitted post-hearing findings of fact and conclusions of law. This is Petition is currently before this Court, and it is now ripe for consideration.

B. Instant Motion:

Jackson raises six different grounds (with the first ground having thirteen subclaims) in his Petition:

1. Ground #1: His counsel was ineffective in the following particulars:

a. Claim #1: His trial counsel was ineffective for failing to challenge the sufficiency of the evidence on appeal. ECF No. 1 at 16.

b. Claim #2: His trial counsel was ineffective for failing to make a contemporaneous objection to the testimony of an expert witness, forensic examiner Tracy Childress, in which she stated that she believed that the victims' experience of the trauma cause by Jackson's rapes was credible. ECF No. 1 at 16.

c. Claim #3: His trial counsel was ineffective for failing to preserve the argument that the circuit court erred by refusing to issue a non-model jury instruction limiting the testimony of Childress's allegedly "bolstering" testimony described above. ECF No. 1 at 16.

d. Claim #4: His trial counsel was ineffective on appeal in pursuing his claim on appeal "that Sergeant Wright was biased against Jackson and others whom Sergeant Wright had arrested for child sex-abuse offenses in separate, unrelated cases." ECF No. 1 at 16-17.

e. Claim #5: His trial counsel was ineffective for failing to move to admit, under an exception to the rape-shield statute, Ark. Code Ann. § 16-42-101, evidence of prior sexual abuse claims of one of his victims. ECF No. 1 at 17.

f. Claim #6: His trial counsel was ineffective for failing to communicate with him "before, during, and after the trial." ECF No. 1 at 17.

g. Claim #7: His trial counsel was ineffective for moving to consolidate the case involving his rape of I.S. with the case involving the rape of M.S. ECF No. 1 at 17.

h. Claim #8: His trial counsel was ineffective for failing to move for a change of venue because of the "widespread media coverage" of his case. ECF No. 1 at 17.i. Claim #9: His trial counsel was ineffective in his use of peremptory strikes. ECF No. 1 at 17.

j. Claim #10: His trial counsel was ineffective in his opening statement. ECF No. 1 at 17-18.

k. Claim #11: His trial counsel was ineffective for failing to call expert witnesses. ECF No. 1 at 18.

l. Claim #12: His trial counsel was ineffective in cross-examining the state witnesses. ECF No. 1 at 18.

m. Claim #13: His trial counsel was ineffective a the sentencing phase of the trial because he did not challenge the 80-year sentence. ECF No. 12 at 11.

2. Ground #2: The evidence admitted at trial was insufficient to support his conviction because there was no physical evidence of rape and the testimony of the victims changed between the filing of the original information and the trial. ECF No. 1 at 7.

3. Ground #3: His speedy trial rights were violated. ECF No. 1 at 8.

4. Ground #4: The state court violated his due process rights (for a number of reasons). ECF No. 1 at 10, 20.

5. Ground #5: The Arkansas courts erred in dismissing his petition for Rule 37 postconviction relief for the reasons expressed by Judge Virden's concurrence in Jackson II. ECF No. 1 at 21.

6. Ground #6: His sentence of 40 years for rape, and the state trial court's imposition of consecutive sentences, violates the Eighth Amendment ban on cruel and usual punishment. ECF No. 1 at 22-23.

Respondent has addressed each of these issues and claims Jackson is not entitled to relief on any of these claims. ECF No. 12.

C. Applicable Law:

Jackson seeks habeas review of a state-court conviction in this Court pursuant to 28 U.S.C. § 2254. ECF No. 1. In the interests of finality and federalism, a federal habeas court is constrained by statute to exercise only a "limited and deferential review of underlying state-court decisions." See, e.g., Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003). The "AEDPA erects a formidablebarrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 134 S. Ct. 10, 16 (2013).

A federal court reviewing a state-court merits ruling of a federal question may grant habeas-corpus relief only if the state's adjudication "(1) resulted in a decision that was contrary to, or an unreasonable application of, clearly stablished Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2).

Review under 28 U.S.C. § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Under § 2254(d)(2), a decision adjudicated on the merits in a state court based on a factual determination will not be overturned on factual grounds unless it is objectively unreasonable in light of the evidence presented in the state court proceeding. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). In making this determination, factual findings by the state courts are presumed correct absent clear and convincing evidence to the contrary. Id.; 28 U.S.C. § 2254(e)(1).

D. Discussion:

The Court will address each of Jackson's six grounds for relief.

1. Ineffective Assistance of Counsel

Jackson raises thirteen different claims of ineffective assistance of counsel. The Court will address each of these issues separately. As an initial matter, however, the Court will first consider the standard for demonstrating ineffective assistance of counsel.

In order to prevail on a claim for ineffective assistance of counsel, Jackson must show his attorney's performance was "deficient," and that the deficient performance was "prejudicial." Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective assistance of counselwithin the context of Section 2254, a petitioner faces a heavy burden. See United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). The burden of proving ineffective assistance of counsel is on the petitioner. See United States v. Chronic, 466 U.S. 648, 658 (1984). Accordingly, Jackson has the burden of establishing both his counsel's deficient performance and his resulting prejudice to be entitled to relief. See, e.g., Davis v. Norris, 423 F.3d 868, 877 (8th Cir. 2005).

A. Claim #1: Sufficiency of the Evidence

First, Jackson claims his trial counsel was ineffective for failing to challenge the sufficiency of the evidence on appeal. ECF No. 1 at 5. Jackson argues the Arkansas Court of Appeals found "the failings of [his] counsel were a substantial factor in the outcome of the case." ECF No. 1 at 16. Jackson also stated the Arkansas Court of Appeals "noted that the attorney [Jackson's attorney] failed to challenge the sufficiency of the evidence" as a part of the appeal. Id.

In reviewing the direct...