Jackson v. Conway

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Citation448 F.Supp.2d 484
Docket NumberNo. 03-CV-0337(VEB).,03-CV-0337(VEB).
PartiesNorbert JACKSON, Petitioner, v. James CONWAY, Superintendent Attica Correctional Facility, Respondent.
Decision Date12 September 2006

Norbert Jackson, Attica, NY, pro se.


BIANCHINI, United States Magistrate Judge.


Petitioner, Norbert Jackson ("Jackson"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1998 conviction in Monroe County Court on charges of burglary, robbery and criminal possession of a weapon. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


At about 1:00 a.m. on July 18, 1997, Linda Noble was returning to her home at 206 Frost Avenue from her job. As she was bringing bags of groceries up onto the porch, several armed and masked men forced their way into her home. The first intruder placed a gun to Linda's head and repeatedly asked "where was the money?" The men forced Linda at gunpoint into the basement and onto the basement floor, repeatedly inquiring where the money was located. The men also forced Jerald Noble, Linda's brother; Lula Noble, Linda's seventy-six year-old mother; and a oneyear-old niece into the basement. One perpetrator threatened, "All you bitches is going to die, kill all of you [sic]." The burglary came to an end when one of the perpetrators went upstairs, noticed the presence of police officers outside, and yelled, "Heat!" The gunmen then exited the house and fled in various directions.

As he responded to the scene of the crime, Officer Ward yelled for the men fleeing the building to stop, but they ignored him. Ward chased one of the men across Frost Avenue and westbound up Ruff Alley; at that time, Ward estimated that he was about fifteen to eighteen feet from the suspect, a male black wearing black clothing and holding a medium-sized silver handgun in his right hand. After about a minute, the suspect (Jackson) stopped running because he was out of breath. The police apprehended him without incident, and Jackson stated that he would show the officers where he had discarded his gun. Jackson was then immediately returned to 206 Frost Avenue where a show-up was conducted. Linda Noble told the police, "That's him. I recognize his pants and I recognize his cap." Lula Noble similarly identified Jackson, stating, "That's him, that's him. I recognize his clothes."

Following the identification procedure, Jackson was transported to the public safety building where he was advised of his Miranda rights. Jackson agreed to waive his rights and speak to the police, relating to them his involvement in the home invasion at 206 Frost Avenue. Jackson's statement was reduced to writing and he read it; however, he refused to initial or sign it. Jackson subsequently was charged with one count of first degree burglary (N.Y. Penal Law § 140.30(1)); two counts of first degree robbery (N.Y. Penal Law § 160.15(4)); one count of second degree criminal possession of a weapon (N.Y. Penal Law § 265.03); and one count of third degree criminal possession of a weapon (N.Y. Penal Law § 265.02(4)). After a jury trial held in Monroe County Court (Bristol, J.), Jackson was convicted on February 2, 1998, as charged in the indictment. He was sentenced as a second felony offender to concurrent terms of imprisonment, the longest of which was twenty-five years.

The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed Jackson's conviction on direct appeal. People v. Jackson, 281 A.D.2d 906, 723 N.Y.S.2d 771 (App.Div. 4th Dept.2001). The New York Court of Appeals denied leave to appeal. People v. Jackson, 96 N.Y.2d 920, 758 N.E.2d 662, 732 N.Y.S.2d 636 (N.Y.2001). Jackson collaterally attacked his conviction by means of an application for a writ of error coram nobis; this was summarily denied by the Appellate Division. People v. Jackson, 296 A.D.2d 873, 745 N.Y.S.2d 736 (App.Div. 4th Dept.2002), lv. denied, 99 N.Y.2d 655, 790 N.E.2d 293, 760 N.Y.S.2d 119 (N.Y.2003).

Jackson has filed the instant habeas petition in which he asserts the following grounds for habeas relief: (1) trial counsel was ineffective in failing to object to the court's jury instruction on reasonable doubt; (2) trial counsel was ineffective in failing to object to prosecutorial misconduct; (3) trial counsel was ineffective in failing to request a circumstantial evidence charge; (4) the evidence was legally insufficient to support the conviction; and (5) appellate counsel was ineffective in failing to argue trial counsel's ineffectiveness on direct appeal.

For the reasons set forth below, the petition is dismissed.

Standard of Review

To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Merits of the Petition
1. Ineffective assistance of trial counsel

a. Legal standard

To obtain habeas relief based on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a petitioner must satisfy a two-part test. First, the petitioner must demonstrate that counsel's performance was so deficient that counsel was not functioning as "counsel" within the meaning of the Sixth Amendment to the Constitution. Id. at 688, 104 S.Ct. 2052. In other words, the petitioner must show that his attorney's performance "fell below an objective standard of reasonableness." Id. Second, the petitioner must show that counsel's deficient performance prejudiced him. Id. at 694, 104 S.Ct. 2052. To establish the "prejudice" prong of the Strickland test, the petitioner must show that a "reasonable probability" exists that, but for counsel's error, the outcome of the trial would have been different. Id. at 694, 104 S.Ct. 2052. The issue of prejudice need not be addressed, however, if the petitioner is unable to demonstrate first that his counsel's performance was inadequate. "[T]here is no reason for a court deciding an ineffective assistance claim to ... address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. 2052.

b. Alleged grounds of ineffectiveness

i. Failure to object to the trial court's instruction on reasonable doubt

The Due Process Clause of the Fourteenth Amendment portects state-court defendants from conviction unless the prosecution "persuade[s] the factfinder `beyond a reasonable doubt' of the facts necessary to establish" each element of the offense charged. Vargas v. Keane, 86 F.3d 1273, 1276 (2d Cir.1996) (quoting Sullivan v. Louisiana, 508 U.S. 275, 278, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (citations omitted) and citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). As the Second Circuit has explained, a jury instruction that permits conviction on a lesser standard, such as by shifting the burden of proof from the prosecution to the defendant, or by suggesting that a higher degree of doubt than "reasonable doubt" is necessary for acquittal, is constitutionally deficient. Id. However, "not every unhelpful, unwise, or even erroneous formulation of the concept of reasonable doubt in a jury charge renders the instruction constitutionally deficient." Id. Rather, the reviewing court must examine the jury instruction "as a whole," and "assess `whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet' the standard of proof beyond a reasonable doubt[.]" Id. (quoting Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) and citing Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir.1996) ("Sometimes, erroneous portions of the jury instructions are offset when considered in context or explained by the trial court in later sections of the insturction. [At][o]ther times, a seemingly innocuous incorrect statement becomes extremely damaging when coupled with other sections of the jury instructions or with improper conduct by counsel during the trial.") (citations omitted in original) (alterations in original)).

Jackson contends that trial counsel was ineffective in failing to object to the trial court's instruction on reasonable doubt, which he contends was erroneous in two aspects: (1) it "improperly impl[ied] that each Juror should be able to articulate the reasons for any doubt to their fellow Jurors as well as to their-selves [sic]" and (2) it "further mislead the Jury to believe that a reasonable doubt can be based, and have its genesis in a feeling, as long as it gives rise to a fruitful thought." Petitioner's Memorandum of Law at 5 (Docket # 1). Jackson quotes the trial transcript as follows:

Reasonable doubts may not be based on emotional feeling or gut reaction or intuition or hunches, what ever [sic] terms you apply to guess work or subconscious feelings give rise to some thoughtful, some articulable, reasonable reflection on an evaluation of the evidence or lack of evidence in the case.

Memorandum of Law, Statement of Facts,1 attached to Petition (Docket # 1) (quoting T.723).2

Turning first to the trial court's alleged direction that a juror should be able to "articulate" his or her "reasonable doubt," this statement is a variation on New York's pattern jury instructions, which define reasonable...

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  • Parker v. Ercole
    • United States
    • U.S. District Court — Northern District of New York
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    ...reasonably likely to instruct the jury to apply that standard in a way that violates the Constitution"); Jackson v. Conway, 448 F. Supp. 2d 484, 490-91 (W.D.N.Y. 2006) (Bianchini, J.) (upholding a reasonable doubt charge when the instructions, "considered as a whole, leave no doubt that the......
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    ...that, but for counsel's failure to object, the outcome of petitioner's trial would have been different. See, e.g., Jackson v. Conway, 448 F.Supp.2d 484, 492 (W.D.N.Y. 2006).e. Defense Witness Camille Morrison Finally, petitioner alleges that the testimony of petitioner's wife, Camille Moris......

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