Jackson v. Fortner
| Decision Date | 02 July 2014 |
| Docket Number | No. 3:09-cv-00962,3:09-cv-00962 |
| Court | U.S. District Court — Middle District of Tennessee |
| Parties | KEITH JACKSON, Petitioner, v. JAMES FORTNER, Warden, Respondent. |
MEMORANDUM
Petitioner, Keith Jackson, a state inmate, filed this pro se action under 28 U.S.C. § 2254, seeking the writ of habeas corpus to set aside his state convictions for possession with intent to sell twenty-six grams or more of cocaine within 1,000 feet of a school, and possession of a firearm with intent to use it in an offense, for which Petitioner received an effective sentence of 36 years at one hundred percent (100%). After a review of the pro se petition, the Court granted Petitioner's motion to appoint counsel and appointed the Federal Public Defender to represent Petitioner. (Docket Entry No. 6). In his amended petition1 prepared by his counsel, (Docket Entry No. 16), Petitioner asserts the following claims: (1) a sentencing in violation of Blakely v. Washington, 542 U.S. 296 (2004); (2) denial of effective assistance of trial counsel on multiple grounds; (3) improper jury instructions; (4) insufficient evidence at trial to support his conviction; and (5) his actual innocence. (DocketEntry No. 16).
Respondent filed an answer containing portions of the state record. (Docket Entry No. 27). In his answer, Respondent contends, in sum: (1) that the state courts' denial of Petitioner's Blakely sentencing violation claim is neither contrary to nor an unreasonable application of clearly established federal law; (2) that some of Petitioner's ineffective assistance of counsel claims are procedurally defaulted; (3) that Petitioner's improper jury instructions claim is procedurally defaulted; (4) that the state courts' denial of Petitioner's insufficient evidence claim is neither contrary to nor an unreasonable application of clearly established federal law; and (5) that Petitioner's actual innocence claim is not a ground for relief under the facts in this action. Id.
After a review of the record, the Court determined that the record was ripe for disposition. Based upon a review of the state record, the Court concluded that Petitioner is not entitled to habeas relief as the state courts made reasonable determinations under federal law of his exhausted claims and that Petitioner's unexhausted claims were procedurally defaulted without a showing of cause or prejudice.(Docket Entry Nos. 30 and 31 Memorandum and Order).
Before the Court is Petitioner's motion to alter or amend (Docket Entry No. 33) the Order denying Petitioner's petition for the writ of habeas corpus. (Docket Entry No. 31). In his motion, Petitioner contends, in sum, that the Court treated the Respondent's answer as a motion; that the Court did not fix a date for a reply; and that Petitioner is entitled to an evidentiary hearing. In his motion, Petitioner seeks relief on his claims that "(1) he is entitled to habeas relief on the merits of his Blakely claim; (2) his procedural defaults of two ineffective-assistance-of-trial-counsel claims - one alleging ineffectiveness in litigating the motion to suppress and the other allegingineffectiveness in advising him about the state's plea offer -should be excused under Martinez v. Ryan; (3) he is entitled to relief on the merits of his claim that trial counsel was ineffective for failing to adequately litigate the motion to suppress; and (4) he is entitled to an evidentiary hearing to develop a record to support his claim of ineffective assistance of counsel at the plea bargaining stage" (Docket Entry No. 34, Petitioner's Memorandum at 1)
A review of the record reflects that the Court appointed counsel for Petitioner and his counsel filed an amended petition on April 16, 2010. (Docket Entry No. 16). Thereafter Petitioner's counsel did not pursue any matters on Petitioner's behalf. Upon review of the record, the Court ordered Respondent to file a response to the petition. (Docket Entry No. 21). Respondent filed an answer. (Docket Entry No. 27). Petitioner's amended petition and Respondent's answer both contained legal analyses and supporting precedents on their respective claims and defenses. Since the filing of the Respondent's answer, Petitioner did not move for leave to file a reply or for discovery or for an evidentiary hearing. Given the passage of more than a reasonable amount of time for such motions, the Court treated the record as sufficient for a decision on Petitioner's claims.
A motion to alter or amend a judgment under Rule 59(e)2 "is extraordinary and is seldom granted because it contradicts notions of finality and repose." Waiters v. City of Cleveland, No. 1:08-CV-2006, 2009 WL 3063384, at * 1 (N. D. Ohio Sept. 24, 2009). For relief, there must be "(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice." Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir.2005) ). Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367,374 (6th Cir. 1998) (emphasis in original) (quoting FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992)).
As to Petitioner's contention that the Court improperly construed Respondent's answer (Docket Entry No. 27) as a motion to dismiss, the word "motion" is not in the Court's Memorandum. Longstanding precedent reflects that the Court properly ruled on the the petition under the "normal" procedure in a habeas action:
Ukawabutu v. Morton, 997 F. Supp. 605,608 (D. N. J. 1998) (quoting United States ex rel. Martin v. Chrans, 1986 WL 7076 (N. D. Ill. June 11, 1986) (emphasis added and citations omitted).
In his motion, Petitioner notes that the Court did not set a time for a reply. To be sure, Rule 5(e) of the Rules Governing Section 2254 Cases provides that "[t]he Petitioner may submit a reply to the Respondent's answer or other pleading within a time fixed by the judge." The AdvisoryCommittee Notes reflect that the word "reply" was substituted for the earlier word "traverse". As the committee notes to Rule 5 further explain that: "Rule 5 () does not contemplate a traverse" and that "[i]n actual practice, the traverse tends to be a mere pro forma refutation of the return (answer)" and "it is not required except in those instances it will serve a truly useful purpose." Petitioner's counsel has not made any showing under Rule 5(e) that the reply would have served a "truly useful purpose".
As to whether a reply would serve a useful purpose, the habeas statutes create a statutory presumption of the correctness of the state courts' findings, 28 U.S.C.§ 2254(e)(1). Petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence". Id. For this burden, if the State answer or record is incomplete, Petitioner can move for discovery under Rule 6 of the Rules Governing Section 2254 Cases. Chrans, 1986 WL 7076 at *2. Petitioner's counsel can also file a motion to expand the record under Rule 7 of the Rules Governing Section 2254 Cases for an assessment of whether an evidentiary hearing under Rule 8 of the Rules Governing Section 2254 Cases. Here, despite the pendency of this action for more than two years after Petitioner's counsel's entry of appearance and the filing of the state record, Petitioner's counsel did not request discovery nor move to expand the record filed by the Respondent. Absent such actions by Petitioner's counsel, the Court is unaware if there is any challenge to the state court record filed by the Respondent.
In his motion, Petitioner cites Martinez v Ryan, 132 S. Ct. 1309 (2012) that was decided on March 20, 2012, but Petitioner's counsel never presented this authority for almost a year prior to the Court's earlier ruling. In any event, in the interests of justice, the Court granted Petitioner an evidentiary hearing on his claims and contentions in his motion to alter or amend. This Memorandum includes the Court's prior analyses of Petitioner's claims and Respondent'scontentions.
On August 19, 2003, a Davidson County jury found Petitioner guilty of possession with intent to sell twenty-six grams or more of cocaine within 1,000 feet of a school, and possession of a firearm with intent to use it in an offense. State v. Jackson, No. M2004-00562-CCA-R3-CD, 2005 WL 839299 at *1 (Tenn. Ct. Crim. App. Apr. 12, 2005). The state trial court imposed a 36 year sentence for the drug offense at one hundred percent (100%) and a three year sentence for the firearm offense, to run concurrently. Id. On direct appeal, the Tennessee Court of Criminal Appeals vacated the firearm conviction for insufficient evidence, but affirmed the other conviction. Id. at * 15. On October 17, 2005, the Tennessee Supreme Court ...
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