Jackson v. Warden, Lebanon Corr. Inst.

DENNIS D. JACKSON, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 3:13-cv-347

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

March 25, 2014

District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is an action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. Petitioner Dennis Jackson seeks release from a sentence of twenty-eight years to life imprisonment imposed on him in the Montgomery County Common Pleas Court upon his conviction on three counts of murder, two counts of aggravated robbery, and counts of aggravated burglary and felonious assault with firearm specifications (Petition, Doc. No. 1, ¶¶ 3, 5, PageID 4.)

On the Court's Order (Doc. No. 3), the Respondent has filed the state court record (Doc. No. 6) and a Return of Writ (Doc. No. 7). Petitioner has responded with a Reply (Doc. No. 9) and a Motion to Expand the Record (Doc. No. 8). These last filings make the case ripe for decision.

Jackson pleads the following grounds for relief:

GROUND ONE: The State's own witnesses, on the day of the crime informed police officers that the person responsible was wearing a "Dark" or "Black" jacket or hoodie, yet even though the Kroger video proved Petitioner was wearing a multiple colors anddesign jacket, and the fact that no forensic evidence connects him to the crime, and the fact that he is actually innocent.

GROUND TWO: The State's case against Petitioner was the product of the prosecutor's intent to obtain a conviction at any costs, guilt or innocence meant nothing once the State placed their evil eye on your Petitioner guilt or innocence did not matter, by any means necessary a conviction would be had.

GROUND THREE: Thomas Horn was no more than [a] guilty person, who used the State as a "Get Out Of Jail Card" as long as he would do whatever the State ask[ed] to help them obtain a conviction against someone the State knew was innocent, Petitioner should have been able to confront Mr. Horn.

GROUND FOUR: Horn and Carl were present when the shooting occurred, and both said the person who shot West had on all black, and Carl even said a black sweatshirt hoodie, not once during either trial did anyone say Petitioner wore all black or a hoodie, it is clear in the record Petitioner had on a multiple color jacket.

GROUND FIVE: Even viewing the evidence in a light most favorable to the prosecution, no rational trier of fact should have found the essential elements of the crime proven beyond a reasonable doubt, because everything and the actual evidence pointed to someone other than the Petitioner.

GROUND SIX: Appellant was wrongfully convicted of entering an apartment to commit a theft offenses and in the course of those events is alleged to have shot and killed Antoine West in a single course of conduct, which your Petitioner had no knowledge that such a theft offense because he was not in that part of town when the crime occurred.

GROUND SEVEN: Petitioner was arrested on April 5, 2010 and remained in custody at all times, and states that his rights to a speedy trial was violated.

GROUND EIGHT: Petitioner asserts that tainted evidence was placed before the jury that prejudiced my case without first being properly authenticated.

GROUND NINE: Petitioner asserts that if there has ever been a clearer case of "Ineffective Assistance of Counsel," there can be none greater than the one sub judice, if counsel's actions in the misrepresentation of your Petitioner is to go without sanctions orsome form of punishment, effective assistance of counsel is just meaningless words.

GROUND TEN: Petitioner assert that the State's star witness "Thomas Horn" repeatedly informed the 911 operator several times that he did not know the shooter, and all of the State's witnesses gave physical descriptions of the shooter which is inconsistent with your petitioner.

GROUND ELEVEN: Petitioner asserts that any time the State knows they can do anything without any fear about their misconduct, which in the case sub judice was deliberate and intentional.

(Petition, Doc. No. 1.)

Cognizability in Federal Habeas Corpus

The Warden asserts that each of Jackson's Grounds for Relief fails to state a claim upon which habeas corpus relief can be granted (Return of Writ, Doc. No. 7, PageID 1928-39).

Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13, 178 L. Ed. 2d 276 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

At the same time, it must be noted that Petitioner Jackson is proceeding pro se and litigants in that position are entitled to a liberal construction of their pleadings. Williams v. CSX Transportation Co., Inc., 643 F.3d 502, 510 (6^th Cir. 2011), citing Federal Exp. Corp. V.Holowecki, 552 US. 389, 402 (1998); see also, Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976); McNeil v. United States, 508 U.S. 106, 113 (1993).

When read together, Jackson's First, Fourth, Fifth, Sixth, and Tenth Grounds for Relief, considered together, state a claim that the convictions in this case are not supported by sufficient evidence. As a matter of constitutional law, the Fourteenth Amendment requires that a criminal conviction be obtained on proof sufficient to persuade a rational trier of the facts of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6^th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6^th Cir. 1990)(en banc).

The Warden is correct that Jackson has not pled that Grounds One, Four, Five, Six, and Ten come within a particular constitutional guarantee, but they read easily on the case law cited in the preceding paragraph. Indeed, Jackson quotes the governing standard from Jackson v. Virginia, 443 U.S. 307 (1979), in the Fifth Ground for Relief. The Magistrate Judge concludes these five Grounds for Relief, taken together, state a claim that the convictions are not supported by sufficient evidence.

The Court however agrees with Respondent that insofar as Jackson is making a claim that he is entitled to habeas relief because he is actually innocent, he has failed to state a claim. The Supreme Court of the United States has never recognized actual innocence as a freestanding claim under the Constitution. A claim of actual innocence alone is insufficient to warrant habeas relief. Herrera v. Collins, 506 U.S. 390 (1993).

Case law in the Sixth Circuit establishes that the Supreme Court of the United States has never recognized a free-standing or substantive actual innocence claim. Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007), citing Zuern v. Tate, 336 F.3d 478, 482, n.1 (6th Cir. 2003), and Staley v. Jones, 239 F.3d 769, 780, n.12 (6th Cir. 2001). The Supreme Court has twice suggested that a "trulypersuasive demonstration" of actual innocence would render a petitioner's execution unconstitutional. Herrera v Collins, 506 U.S. 390, 417 (1993); House v. Bell, 547 U.S. 518 (2006).

Raymond v. Sheets, 2012 U.S. Dist. LEXIS 160374, *26-27 (S.D. Ohio Nov. 8, 2012).

Actual innocence may, however, be relevant to excuse a procedural default on another ground of habeas relief.

[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U. S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U. S., at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. Schlup, 513 U. S., at 332, 115 S. Ct. 851, 130 L. Ed. 2d. 808.

* * *

[A] federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner's part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown.

McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924, 1928, 185 L. Ed. 2d 1019, 1035 (2013).

For proof of his actual innocence, Jackson relies on the nine exhibits he wishes to add to the record with his Motion to Supplement (Doc. No. 8).

Exhibit A¹ (PageID 1985-89) Trotwood Police Incident Report on March 19, 2010, of an assault on Shevonda Leslie by Antione West with attachments

Exhibit B (PageID 1990-91) Trotwood Police Report by Officer Troy Dexter regarding a March 20, 2010, interviews with Brandon Harris and Phil LNU.

Exhibit C (PageID 1992) Trotwood Police Report by Officer David Yaney dated March 21, 2010, of a conversation with a confidential informant.

Exhibit D (PageID 1993) Trotwood Police Report by Officer Michael Pigman dated March 23, 2010, of conversations with Thomas Horn.

Exhibit E (PageID 1994) March 20, 2010, written statement of Thomas Horn.

Exhibit F (PageID 1995-96) Trotwood Police Report by Officer Troy Dexter dated March 22, 2010, concerning statements made by Donna Hayden, the victim's mother.

Exhibit G (PageID 1997) Trotwood police

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