143 F.3d 1313 (10th Cir. 1998), 97-2063, Jackson v. Shanks

Docket Nº:97-2063.
Citation:143 F.3d 1313
Party Name:Feldon JACKSON, Jr., Petitioner-Appellant, v. John SHANKS, Respondent-Appellee.
Case Date:May 05, 1998
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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143 F.3d 1313 (10th Cir. 1998)

Feldon JACKSON, Jr., Petitioner-Appellant,


John SHANKS, Respondent-Appellee.

No. 97-2063.

United States Court of Appeals, Tenth Circuit

May 5, 1998

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Judith A. Rosenstein, Assistant Federal Public Defender, Albuquerque, NM, for Petitioner-Appellant.

Patricia A. Gandert (Tom Udall with her on the brief), Assistant Attorney General for the State of New Mexico, Santa Fe, NM, for Respondent-Appellee.

Before TACHA, KELLY, and LUCERO, Circuit Judges.


This matter is before the court on petitioner-appellant's petition for rehearing. Section VII. of the court's opinion filed on April 9, 1998, has been amended in response to the rehearing petition. The petition for rehearing is denied in all other respects. The amended opinion is attached to this order.

PAUL KELLY, Jr., Circuit Judge.

Petitioner-appellant Feldon Jackson Jr. appeals from the district court's denial of habeas corpus relief. 28 U.S.C. § 2254. Upon recommendation of the magistrate, the district court refused to grant Mr. Jackson a certificate of appealability and dismissed his petition. On appeal, Mr. Jackson advances numerous issues: (1) the death qualification of the jury pool prior to the selection of a panel for the guilt phase violated due process; (2) the admission of two autopsy photos, a victim's blood-covered clothing, and the prosecutor's inquiry "You did not happen to ask someone ... how it felt to kill somebody?" individually and cumulatively deprived Mr. Jackson of a fair trial; (3) the inadvertent submission to the jury of a hearing transcript not admitted into evidence deprived Mr. Jackson of an impartial jury and due process; (4) Mr. Jackson's trial and appellate counsel rendered ineffective assistance; (5) several instances of alleged prosecutorial misconduct deprived Mr. Jackson of a fair trial and impartial jury; (6) the trial court failed to submit an instruction on diminished capacity to the jury in violation of due process; (7) Mr. Jackson was deprived of due process and an impartial jury when a juror and two witnesses were exposed to television coverage of the trial and the trial court refused to allow the jury to review transcripts of witness testimony; (8) the trial court lacked jurisdiction to try Mr. Jackson because he had not been served with a signed copy of the indictment; and (9) Mr. Jackson's convictions for felony murder and the underlying offense of armed robbery violated the double jeopardy clause. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253. We construe Mr. Jackson's request for a certificate of appealability as a request for a certificate of probable cause, 1 grant it, and affirm the district court's dismissal of his petition.


Mr. Jackson was convicted of first degree felony murder, attempted murder, and armed robbery by a jury and sentenced to life imprisonment plus 26 years. See N.M. Stat. Ann. §§ 30-2-1(A)(2), 30-16-2, 30-17-2 & 31-18-16 (Michie 1978). In his direct criminal appeal, Mr. Jackson raised issues (1), (2) and (3), and the New Mexico Supreme Court affirmed his convictions. See I R. doc. 9 ex. H (State v. Jackson, No. 14,454 unpub. decision (Mar. 8, 1993)). In 1989, Mr. Jackson

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raised issue (8) in his first petition for state post-conviction relief, which the district court summarily dismissed. See id. exs. R, S. The Supreme Court then denied Mr. Jackson's timely petition for certiorari. See id. ex. T, U. In 1992, Mr. Jackson raised issues (4), (5), (6) and (7) in his second state petition for post-conviction relief. Again, the district court summarily dismissed his petition, noting that all issues presented by Mr. Jackson could and should have been raised in his direct appeal. See id. ex. W. Mr. Jackson's petition for certiorari to the New Mexico Supreme Court was denied. See id. ex. Y.

On October 21, 1992, Mr. Jackson filed the federal habeas petition on which this appeal is based, raising nine claims for relief. The state conceded Mr. Jackson exhausted state remedies, I R. doc. 9 at p 3, but asserted that issues (4), (5), (6) and (7) were procedurally barred. 2 The magistrate recommended dismissal of those grounds, rejecting Mr. Jackson's position that issues (5) and (6) were implicitly raised in his cumulative error argument on direct appeal and that his default of issues (4) and (7) was excused due to ineffective assistance of counsel. See I R. doc. 20 at 6-8. The magistrate also recommended the denial of the petition, finding the remaining issues without merit. See I R. doc. 68 at 21. The district court adopted the magistrate's recommendations and dismissed the action with prejudice. See I R. doc. 21, 71. Mr. Jackson appealed.


Our scope of review in federal habeas proceedings is limited; we may grant habeas relief to a state prisoner only if state court error "deprived him of fundamental rights guaranteed by the Constitution of the United States." Brinlee v. Crisp, 608 F.2d 839, 843 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). Because this case was filed before the enactment of the AEDPA, we apply pre-amendment standards of review. See Lindh v. Murphy, --- U.S. ----, ----, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Richmond v. Embry, 122 F.3d 866, 870 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1065, 140 L.Ed.2d 126 (1998). Though we review the legal bases for the district court's dismissal of Mr. Jackson's petition de novo, see Sena v. New Mexico State Prison, 109 F.3d 652, 653 (10th Cir.1997), we afford deference to the state court's construction of state law, see Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1886, 44 L.Ed.2d 508 (1975). We review the federal district court's factual findings for clear error, and presume the state court's factual findings are correct. See 28 U.S.C. § 2254 (pre-amendment); Nguyen v. Reynolds, 131 F.3d 1340, 1359 (10th Cir.1997). We are not empowered to correct errors of state law. See King v. Champion, 55 F.3d 522, 527 (10th Cir.1995).

I. Procedural Default of Issues (4), (5), (6), and (7)

Before examining the merits of Mr. Jackson's claims, we must examine whether the district court properly dismissed issues (4), (5), (6), and (7) on grounds of procedural default. See Watson v. State of New Mexico, 45 F.3d 385, 387 (10th Cir.1995). Where a state has raised and preserved the issue of procedural default, federal courts generally do not review issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the default is excused through a showing of cause and actual prejudice or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); Steele v. Young, 11 F.3d 1518, 1521 (10th Cir.1993). Procedural default is grounded in concerns of comity and federalism; it is not jurisdictional. See Coleman, 501 U.S. at 730, 111 S.Ct. at 2554; Lambrix v. Singletary, 520 U.S. 518, ----, 117 S.Ct. 1517, 1522, 137 L.Ed.2d 771 (1997).

Relying on the magistrate's recommendations, the district court dismissed issues (4), (5), (6) and (7) as procedurally barred, noting the state court determined that "all matters

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complained of [in Mr. Jackson's second post conviction petition] could and should have been raised in the appeal of the trial jury's verdict and may not be raised at this time." See I R. doc. 20 at 5; I R. doc. 9 ex. W at 2. Mr. Jackson contends that the state court's finding of procedural default is not an adequate state ground. He argues New Mexico does not strictly or regularly apply the rule that issues not raised on direct appeal may not be raised in a habeas petition because state law specifically provides for exceptions to this general rule, allowing state courts discretion to hear defaulted claims in habeas review. See, e.g., Clark v. Tansy, 118 N.M. 486, 882 P.2d 527, 531 (1994); Swafford v. State, 112 N.M. 3, 810 P.2d 1223, 1226 n. 1 (1991); State v. Gillihan, 86 N.M. 439, 524 P.2d 1335, 1337 (1974). Mr. Jackson also contends that the arguments he presents to this court in issue (5) and (6) were effectively presented to and decided by the state court when that court considered the cumulative error argument he raised in his direct criminal appeal, which he also presents to this court as issue (2). We address these arguments in turn.

First, we agree with the district court's conclusion that claims (5), (6) and (7) were procedurally defaulted. As the state trial court implied in its dismissal of Mr. Jackson's second state post-conviction petition, New Mexico law provides that the failure to raise issues in a direct criminal appeal results in waiver of those claims for purposes of state post-conviction relief. See Gillihan, 524 P.2d at 1336. This rule is "adequate" for purposes of federal habeas procedural default doctrine if "the [state] court's actual application of the ... rule to all 'similar' claims has been evenhanded 'in the vast majority' of cases." See Maes v. Thomas, 46 F.3d 979, 986 (10th Cir.) (citing Andrews v. Deland, 943 F.2d 1162, 1190 (10th Cir.1991), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992)), cert. denied, 514 U.S. 1115, 115 S.Ct. 1972, 131 L.Ed.2d 861 (1995).

Our review of New Mexico cases indicates that New Mexico courts have consistently and even handedly applied the rule waiving issues not raised on direct appeal for purposes of post-conviction relief. See, e.g., Duncan v. Kerby, 115 N.M. 344, 851 P.2d 466, 468 (1993); State v. Cranford, 92 N.M. 5, 582 P.2d 382, 384 (1978); State v. Wildenstein, 91 N.M. 550, 577 P.2d 448, 450 (App.1978). The fact that New Mexico provides exceptions to this general rule does not indicate that New Mexico courts "have unfettered discretion" to consider the...

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