Jackson v. Gammon, 99-1330

• Decision Date: 14 September 1999
• Docket Number: No. 99-1330,99-1330
• Parties: (8th Cir. 1999) Terrance E. Jackson, Appellant, v. James A. Gammon, Superintendent, Moberly Correctional Center; Jeremiah Nixon, Attorney General, Appellees. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 349

195 F.3d 349 (8th Cir. 1999)

Terrance E. Jackson, Appellant, v. James A. Gammon, Superintendent, Moberly Correctional Center; Jeremiah Nixon, Attorney General, Appellees.

No. 99-1330

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: September 14, 1999

Filed: October 28, 1999

Appeal from the United States District Court for the Western District of Missouri State of Missouri Before McMILLIAN, FAGG and MURPHY, Circuit Judges.

McMILLIAN, Circuit Judge.

Terrence Jackson (petitioner) appeals from a final order entered in the United States District Court ¹ for the Western District of Missouri denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Jackson v. Gammon, No. 96-126- CV-W-1 (W.D. Mo. Oct. 23, 1996) (order) (hereinafter "slip op."). For reversal, petitioner argues that the district court erred in denying relief on his claims of ineffective assistance of trial and appellate counsel in light of their failure to challenge the admissibility of certain eyewitness identification testimony. Petitioner additionally argues that, because he filed his 2254 petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), he should not be limited to appealing only those claims for which a certificate of appealability was granted. For the reasons stated below, we affirm the order of the district court.

Jurisdiction

Jurisdiction was proper in the district court based upon 28 U.S.C. 1331, 2254. Jurisdiction is proper in this court based upon 28 U.S.C. 1291, 2253(a). The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).

Background

On September 13, 1988, at approximately 1:00 a.m., a drive-by shooting occurred at a park at 35th and Wabash in Kansas City, Missouri. As a result of the shooting, one individual died and another was severely injured. Based upon that incident, petitioner was tried before a jury in Missouri state court.

Witnesses for the state testified at petitioner's trial that, on the night in question, they saw a blue van drive slowly past the park while several individuals fired shots through the van's open side door. Eric Dunlap identified petitioner in court and testified that he saw petitioner sitting in the back of the van (around the middle of the van), apparently holding something in his hands, while the shots were being fired. See Trial Transcript, Vol. II, at 216-18. Dunlap testified that he had known petitioner for approximately three years prior to the shooting. See id. at 202-03. Dunlap also testified that, after the shooting occurred, he went to the hospital and then, from there, went to the police station to give a statement about the shooting. See id. at 222-23. Regarding the events at the police station, Dunlap testified at trial to the following sequence of events. See id. at 224-26.

At the police station, an officer showed Dunlap an array of photographs and asked him to identify the individuals he had seen in the blue van. Dunlap selected one photograph, identifying the individual as Michael Hamilton and stating that Hamilton had been in the van during the shooting. Dunlap indicated that he could not make any other identifications from the photographs. The officer then left the room, telling Dunlap to keep looking at the pictures. While the officer was out of the room, Dunlap looked at the backs of the photographs and saw the names "Terrance Jackson" and "Leroy Hudson" written on two separate photographs. After the officer returned, Dunlap picked out those two photographs, stating that he picked them out because of the names on the backs, even though -- as he testified at trial -- the picture marked "Leroy Hudson" did not look like Leroy Hudson and the picture marked "Terrance Jackson" looked like petitioner "just a little bit." Id. at 226. After being informed that the pictures were not photographs of Terrance Jackson and Leroy Hudson, Dunlap was shown a different photographic array and, this time, selected actual photographs of petitioner and Hudson.

Petitioner's trial counsel did not object to the admission of Dunlap's in-court identification of petitioner or to his testimony about the photographic identification procedures used at the police station. Another witness for the state, Arlvelt Bruster, also identified petitioner, among others, as having been in the back of the blue van at the time of the shooting. Bruster testified that petitioner was sitting in the middle part of the van and appeared to be holding something in his hands while the shots were being fired. See id. at 352-56. After the shooting, Bruster went to the hospital and, from there, went to the police station where he was shown a photographic array. Bruster identified petitioner's photograph as depicting one of the individuals whom he had seen in the blue van at the time of the shooting. See id. 356-60. Bruster testified that he had known petitioner approximately three years prior to the shooting. See id. 359.

Petitioner was found guilty on one count of second degree murder, two counts of armed criminal action, and one count of first degree assault. Petitioner was sentenced in Missouri state court to four consecutive life sentences. Petitioner appealed his conviction. Petitioner did not raise, in the direct criminal appeal, a claim of plain error based upon the admission of Dunlap's in-court identification or testimony concerning Dunlap's pretrial photographic identification of petitioner at the police station.

Petitioner also separately filed a motion for post-conviction relief in Missouri state court pursuant to Missouri Supreme Court Rule 29.15. Petitioner's counsel in the Rule 29.15 proceeding argued, among other things, that Dunlap's photographic identification of petitioner was unreliable and that trial counsel had been ineffective in failing to file a pretrial motion to suppress evidence related to that identification or to object during trial to the admission of such evidence, particularly where petitioner's theory of defense was based upon alibi and unreliable identification. See Appellant's Appendix, Vol. I, at 94-95 (transcript of hearing on Rule 29.15 motion). The state court denied petitioner's motion for post-conviction relief on the ground that prejudice had not been demonstrated. See id. at 44-45 (unpublished state court order denying post-conviction relief). Petitioner appealed the denial of his motion for post-conviction relief.

The state court of appeals consolidated petitioner's two appeals - the direct appeal from his conviction and his appeal from the denial of post-conviction relief. Both state court judgments were summarily affirmed. See State v. Jackson, 834 S.W.2d 802 (Mo. Ct. App. 1992).

Petitioner, represented by his present counsel, filed a petition for writ of habeas corpus in federal district court on January 30, 1996. ² Petitioner asserted, among other things, that he was denied due process and received ineffective assistance of counsel because of his appellate counsel's failure to challenge the admission of Dunlap's eyewitness identification testimony, which had been obtained through unconstitutionally suggestive means.³ The district court construed these assertions as "claim[ing] that the state court allowed, and Petitioner's trial and appellate counsel should have objected to, the admission of improper eyewitness identification testimony." Slip op. at 6. In addressing these grounds for relief, the district court stated: "[f]or the sake of judicial economy, the Court proceeds to the merits without regard to the procedural posture." Id. at 7. ⁴ The district court considered whether the photographic identification procedures used at the police station were so suggestive as to render the subsequent admission of Dunlap's identification testimony at trial a violation of petitioner's right to due process under the standard set forth in Trevino v. Dahm, 2 F.3d 829, 833 (8th Cir. 1993). See slip op. at 6.

The district court opined that the question of whether the photographic identification procedures actually prejudiced petitioner "could go either way." Id. at 7. However, based upon the totality of the circumstances - including Dunlap's familiarity with petitioner prior to the shooting, the fact that the van was moving slowly with the side door open, and Dunlap's "high degree of attention during the crime" - the district court concluded that Dunlap's in-court identification was reliable despite any suggestive or inappropriate pretrial identification procedures used at the police station. Id. at 7-8.

The district court denied relief under 28 U.S.C. 2254 on "all grounds presented," id. at 10, and entered judgment for respondents on October 23, 1996.Petitioner filed a timely notice of appeal from the judgment.⁵.

Petitioner thereafter filed an application for a certificate of appealability in the district court. The district court granted the application "on the issue of whether [petitioner's] appellate counsel was ineffective in failing to object to the admission of the eyewitness identification testimony at trial," and denied it "as to all other issues." Jackson v. Gammon, No. 96-0126-CV-W-1 (W.D. Mo. Dec. 30, 1998) (order granting in part and denying in part application for certificate of appealability). Petitioner then filed a notice of appeal from the partial denial of the application for a certificate of appealability and also applied for a broader certificate of appealability from this court. This court entered an order stating that "[t]he appeal will proceed on the issues on which the District Court granted the certificate." Id., No. 99-1330 (8th Cir. Mar. 9, 1999) (order issued by the Clerk for the Eighth Circuit at the direction of the Court).

Discussion

Certificate of appealability requirement

As a preliminary matter, we address petitioner's argument that he should be permitted to raise on appeal claims for which no certificate of appealability was...