Jackson v. Leonardo

• Citation: 162 F.3d 81
• Decision Date: 03 December 1998
• Docket Number: Docket No. 96-2984
• Parties: Erwin JACKSON, Petitioner-Appellant, v. Arthur LEONARDO, Superintendent of Great Meadow Correctional Facility, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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162 F.3d 81

Erwin JACKSON, Petitioner-Appellant, v. Arthur LEONARDO, Superintendent of Great Meadow Correctional Facility, Respondent-Appellee.

Docket No. 96-2984.

United States Court of Appeals Second Circuit.

Argued Sept. 25, 1998.

Decided Dec. 3, 1998.

Mark Diamond, New York, NY, for Petitioner-Appellant.

Lawrence J. Schwartz, Assistant District Attorney, on behalf of Denis Dillon, District Attorney of Nassau County, New York (Tammy J. Smiley, Assistant District Attorney, on the brief), for Respondent-Appellee.

Before: WINTER, Chief Judge, MESKILL and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

Erwin Jackson appeals from a decision of the United States District Court for the Eastern District of New York (Jacob Mishler, Judge ) denying his 28 U.S.C. § 2254 habeas corpus petition. We reverse.

FACTS AND PROCEDURAL HISTORY

Jackson was convicted by a Nassau County jury in 1985 of robbery in the first degree, in violation of N.Y. Penal Law § 160.15, and criminal use of a firearm in the first degree, in violation of N.Y. Penal Law § 265.09(2), each of which stemmed from a 1984 robbery of a jewelry store. Jackson was sentenced by the state court to concurrent indeterminate terms of imprisonment of ten to twenty years on each count, and is now serving his sentence. The two crimes for which he was indicted--robbery in the first degree and criminal use of a firearm in the first degree--each rested on the same factual predicate: during the robbery, Jackson apparently brandished, though he did not otherwise employ, a firearm. Jackson's trial attorney, however, did not object, on double jeopardy grounds, to the indictment.

In bringing Jackson's direct appeal, Jackson's new attorney raised only two issues--she argued to the Appellate Division that Jackson's guilt was not proven beyond a reasonable doubt and that the trial court improperly admitted into evidence both line-up and in-court identifications of Jackson. ¹ Jackson's appellate counsel did not, on direct appeal, raise a double jeopardy challenge to the two counts on which Jackson had been indicted. Jackson filed a pro se supplemental brief in the Appellate Division, arguing, among other things, that his speedy trial rights (protected under state law) were violated, that improper jury instructions were given at trial, and that he was wrongly sentenced as a prior felony offender. ²

The Appellate Division affirmed Jackson's conviction. See People v. Jackson, 145 A.D.2d 646, 536 N.Y.S.2d 482 (1988). And Jackson's appellate attorney did not seek a certificate for leave to appeal his conviction to the New York Court of Appeals.

In 1989 and 1991, Jackson moved pro se to reargue his appeal before the Appellate Division and in his 1991 motion, for the first time, raised a double jeopardy claim. ³ The Appellate Division denied the 1991 motion in 1992. Jackson contemporaneously filed a series of pro se motions in the Supreme Court of Nassau County under N.Y. Criminal Procedure Law § 440.10 and § 440.20 to vacate or set aside his conviction and to permit him to reargue his case in that court. Each of these motions was denied, and the denials were summarily affirmed by the Appellate Division.

Jackson subsequently filed several petitions for a writ of error coram nobis with the Appellate Division. In two of these petitions, Jackson claimed that his appellate counsel was ineffective on a number of grounds, including her failure to contest Jackson's firearm conviction on double jeopardy grounds. These petitions were also summarily denied by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied.

In 1993, Jackson sought a writ of habeas corpus in the United States District Court for the Eastern District of New York. His petition raised a number of claims, including the argument that his convictions on both first-degree robbery and first-degree criminal use of a firearm violated the Double Jeopardy Clause and that he had been denied effective assistance of counsel on appeal. ⁴ The district court dismissed his petition, concluding that Jackson had not been deprived of effective assistance of counsel, as his lawyer had "filed a brief [on appeal] challenging several aspects of his trial and conviction including the sufficiency of the evidence to support the jury's guilty verdict, the suggestiveness of his lineup identification and the presentation of photographic and lineup evidence at trial." ⁵

The district court, nonetheless, issued a certificate of appealability to Jackson. We remanded the case to the district court to enable that court to set forth with particularity the issues warranting such a certificate, as required by 28 U.S.C. § 2253(c)(3). Finding no issues, the district court declined to grant another certificate. Jackson then petitioned this Court and, on February 11, 1998, we granted a certificate of appealability on two issues: whether Jackson's convictions for robbery and criminal use of a firearm violated the Double Jeopardy Clause and whether Jackson was denied effective assistance of counsel based on his appellate counsel's failure to raise the double jeopardy issue on direct appeal.

DISCUSSION

I

Because Jackson did not raise the double jeopardy claim in his original appeal, the claim is procedurally barred and we may not reach it as such. See 28 U.S.C. § 2254(b), (c) (Supp.1997) (requiring exhaustion of state remedies) ⁶; Coleman v. Thompson, 501 U.S. 722, 752-57, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding that the failure to raise a claim on direct appeal is not excusable). ⁷

Jackson cannot argue that his double jeopardy claim was so "novel" that, under Reed v. Ross, 468 U.S. 1, 16-20, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), and Engle v. Isaac, 456 U.S. 107, 131-34, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), he did not have the requisite tools to make the claim at the time of his direct appeal--the Supreme Court's standard, prior to passage of the AEDPA, for excusing procedural default. ⁸ The argument that Jackson now raises--that he may not be prosecuted for two crimes when each of the crimes turns on the same factual predicate--was established long ago by the Supreme Court, see Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and has been reaffirmed on numerous occasions, see, e.g., Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). Similarly, after trial but before Jackson filed his first appeal, the New York Court of Appeals decided People v. Brown, 67 N.Y.2d 555, 496 N.E.2d 663, 505 N.Y.S.2d 574 (1986) (per curiam). In Brown, a case involving facts very similar to those in the case before us, the New York Court held that "[w]hen use of or display of a firearm is an element of ... [robbery in the first degree], the use or display of that same firearm cannot also be the predicate for criminal [use] of a firearm in the first degree." Id. at 560, 505 N.Y.S.2d at 576, 496 N.E.2d at 665. Under the circumstances, it cannot be argued that Jackson, or rather his appellate attorney, lacked the relevant tools with which to raise his double jeopardy claim on direct appeal. That claim, therefore, is procedurally defaulted and cannot be made directly in federal court through a habeas petition.

II

Jackson contends, however, that his appellate attorney's failure timely to raise the double jeopardy claim was sufficiently egregious to constitute constitutionally ineffective assistance of counsel under Strickland v Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Since he was deprived of his Sixth Amendment right to counsel, Jackson maintains, he is entitled to a decision on the merits of his double jeopardy claim in his habeas petition. See, e.g., Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (holding that a habeas petitioner may avoid procedural default by showing that counsel's performance was constitutionally ineffective).

"To prevail on [a] Sixth Amendment claim, [a] defendant must prove that counsel's representation 'fell below an objective standard of reasonableness' judged by 'prevailing professional norms.' He must also show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " United States v. Alli-Balogun, 72 F.3d 9, 11 (2d Cir.1995) (per curiam) (citation omitted) (quoting Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052). ⁹

A.

In reviewing Strickland claims, courts are instructed to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and that counsel's conduct was not the result of error but derived instead from trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. We are also instructed, when reviewing decisions by counsel, not to "second-guess reasonable professional judgments and impose on ... counsel a duty to raise every 'colorable' claim" on appeal. Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). ¹⁰

Despite the rigorous Strickland standard, this Court has previously noted that "a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994). Moreover, relief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy. See Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

In the instant case, we believe that appellate counsel's failure to raise a well-established, straightforward, and obvious double jeopardy claim constitutes ineffective performance. On the face of the indictment, it was apparent that Jackson's two charges--first-degree robbery and criminal use of a firearm in the first degree--rested on precisely the...