United States v. Jackson

UNITED STATES OF AMERICA, Plaintiff, v. JEREMIAH JACKSON, Defendant.

CV 15-264 MCA/WPL

CR 10-1374 MCA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

August 28, 2015

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

Jeremiah Jackson filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (CV Doc. 1; CR Doc. 190.)¹ Jackson advances five arguments in support of his request to retry the case with a change in venue, grant a mistrial, or offer him the option of a plea agreement. The United States responds that none of Jackson's arguments entitle him to any of the relief requested. (Doc. 196.) Despite requesting and being granted an extension of time to reply, Jackson did not file a reply. Since Jackson's claims may be resolved on the record alone, I have not conducted an evidentiary hearing. I recommend that the motion be denied.

BACKGROUND

On April 6, 2010, Jackson robbed a bank in Albuquerque, New Mexico. United States v. Jackson, 736 F.3d 953, 955 (10th Cir. 2013). Jackson fled in a minivan. The police gave chase. During the police chase, Jackson's minivan crashed into another car. The crash killed the two women riding in the other car. Jackson later confessed. Id.

Jackson pleaded not guilty to a three-count indictment alleging bank robbery, in violation of 18 U.S.C. § 2113(a), and two counts of killing a person while attempting to avoid apprehension for bank robbery, in violation of 18 U.S.C. § 2113(e). (Doc. 22.) Jackson offered to plead guilty in exchange for a maximum term of incarceration ranging from twenty to fifty years. (Doc. 190 at 9.) The United States did not accept Jackson's offers and did not offer a plea agreement of its own. (Id.; Doc. 196 at 33.)

In rebuttal to defense counsel's closing argument, the prosecutor "suggested that . . . Jackson should 'man up' and 'accept responsibility' for his actions." Jackson, 736 F.3d at 957. A jury found Jackson guilty on all counts on August 24, 2011. (Doc. 121.) The trial court then vacated the bank robbery count as a lesser-included offense of § 2113(e). (Doc. 148.) On September 24, 2012, the court sentenced Jackson to life imprisonment on each count of killing a person while attempting to avoid apprehension for bank robbery, with the two terms to run concurrently. (Doc. 150.)

Jackson appealed, arguing that he should only have been charged with one count of bank robbery resulting in death and that the district erred by 1) denying his post-trial motion to vacate one of the two remaining counts because sentencing on both violates double jeopardy and the counts are multiplicitous, 2) denying his motion for mistrial after the prosecutor commented on Jackson's silence and election not to testify, and 3) failing to instruct the jury that a conviction under § 2113(e) requires a mens rea element. Jackson, 736 F.3d at 955.

The Tenth Circuit agreed that Jackson's sentence for two violations of § 2113(e) violated double jeopardy because they arose out of one car accident that happened while fleeing from one bank robbery. Id. at 956. The Jackson court then found that the prosecutor's statements during closing arguments were directed toward Jackson's lack of responsibility, rather than toward hisdecision to remain silent and not testify. Id. at 957 (citing United States v. Montgomery, 802 F.2d 1225, 1227 (10th Cir. 1986)). Furthermore, the court found that any problem that could have arisen from the prosecutor's statements was cured by a limiting instruction from the trial court. Id. Finally, the Tenth Circuit agreed with other circuits and concluded that the mens rea requirements for § 2113(e) came from "'knowingly' committing the underlying bank robbery." Id. at 958 (citing United States v. Parks, 583 F.3d 923, 928-29 (6th Cir. 2009) (White, J. concurring; Cook, J. concurring in part and dissenting part); United States v. Allen, 247 F.3d 741, 782-83 (8th Cir. 2001) judgment vacated on other grounds, Allen v. U.S., 536 U.S. 953 (2002); United States v. Poindexter, 44 F.3d 406, 408-09 (6th Cir. 1995)). The court affirmed in part and remanded the case to the trial court with instructions to resentence Jackson. Id. at 959.

At resentencing, the district court vacated one count of bank robbery resulting in death and resentenced Jackson to life imprisonment on the remaining count. (Doc. 178.)

Jackson, proceeding pro se, now brings five claims in support of his request for a new trial with a change of venue, a mistrial based on the prosecutor's comments during rebuttal to closing arguments, or the option to accept a plea agreement.

STANDARD OF REVIEW

Because Jackson is a pro se litigant, I must construe his pleadings liberally and hold them to a less stringent standard than is required of a party represented by counsel. See Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1029 (10th Cir. 2008) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Liberal construction requires courts to make some allowance for a pro se litigant's "failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall, 935 F.2d at1110) (alterations omitted). However, "the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Id.

DISCUSSION

Jackson brings five claims, each relating to either prosecutorial misconduct, ineffective assistance of counsel, or both. Jackson claims that he received constitutionally ineffective assistance of counsel because his counsel "fail[ed] to summons [sic] a key witness from the case" and "fail[ed] to argue and petition the separation between events that took place that resulted in [§] 2113(e) [violations], which should have been vehicular homicide, and bank robbery." (Doc. 190 at 6, 9.) And finally, Jackson argues both prosecutorial misconduct and ineffective assistance of counsel for not granting or obtaining a change in venue due to media coverage of the case.

The parties agree, and I concur, that Jackson timely filed this motion. 28 U.S.C. § 2255(f). I further find that Jackson's arguments are all without merit, and recommend that the Court deny Jackson's motion, dismiss this case with prejudice, and deny a certificate of appealability.

I. Evidentiary Hearing

A court must conduct a hearing on a § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996). Under this standard, "the petitioner bears the burden of 'alleging facts which, if proved, would entitle him to relief.'" Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) (citations omitted), overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001) (en banc). Accordingly, if the prisoner alleges facts, which, if believed, cannot be grounds for relief,there is no need for a hearing. See id. Additionally, the petitioner's "allegations must be specific and particularized; conclusory allegations will not suffice to warrant a hearing." Id. (citations and internal punctuation omitted). If the claims relate to occurrences in the courtroom or evidence in the record, then the Court need not conduct a hearing. Machibroda v. United States, 368 U.S. 487, 494-95 (1962).

Because the record alone establishes that Jackson's § 2255 motion should be denied, I did not hold an evidentiary hearing in this matter.

II. Prosecutorial Misconduct

Jackson makes two arguments of pure prosecutorial misconduct. Jackson argues that the prosecutor behaved inappropriately and violated his Fifth Amendment right to remain silent by commenting on his silence at trial, and that the prosecutor impermissibly denied all of Jackson's attempts to enter a guilty plea and deprived him the two-point reduction in offense-level for taking responsibility for his actions. Both arguments fail as a matter of law.

A. Statements During Closing Argument

On direct appeal, Jackson argued that the prosecutor violated his Fifth Amendment rights during closing arguments by impermissibly commenting on his silence at trial. Jackson, 736 F.3d at 957. The Tenth Circuit determined that the prosecutor's statements "were not of the type that might influence a jury to decide a case based upon the failure of a defendant to testify" and that any problem created by the comments was cured by the court's limiting instruction. Id. Jackson advances the same argument here.

The law of the case doctrine states that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983). The mandate rule, a corollary to the law of thecase doctrine, requires that a district court "comply strictly with the mandate rendered by the reviewing court." Huffman v. Saul Holdings Ltd. P'ship, 262 F. 3d 1128, 1132 (10th Cir. 2001). Exceptions exist. Exceptions to the mandate rule include: 1) a material change in controlling legal authority; 2) new material evidence that was previously unobtainable; and 3) blatant error in the previous decision that would result in manifest injustice if not corrected. United States v. Webb, 98 F.3d 585, 587 (10th Cir. 1996). Exceptions to the law of the case doctrine are substantially the same as those for the mandate rule. See McIlravy v. Kerr-McGee Coal Corp., 204 F.3d 1031, 1035 (10th Cir. 2000).

Here, the Tenth Circuit has already determined that the prosecutor's statements during closing arguments did not violate Jackson's Fifth Amendment right to remain silent and that any error was cured by the district court's limiting instruction. Jackson, 736 F.3d at 957. Jackson has not produced any evidence that was...