Jackson v. Norman

• Decision Date: 23 August 2011
• Docket Number: Case No. 4:10CV1009MLM
• Parties: TIMMY JACKSON, Petitioner, v. JEFF NORMAN, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

TIMMY JACKSON, Petitioner, v. JEFF NORMAN, Respondent.

Case No. 4:10CV1009MLM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: August 23, 2011

MEMORANDUM OPINION

This matter is before the court on the Petition for Writ of Habeas Corpus filed by Petitioner Timmy Jackson ("Petitioner") pursuant to 28 U.S.C. § 2254. Doc. 1. Respondent filed a Response to Order to Show Cause Why a Writ of Habeas Corpus Should Not Be Granted. Doc. 8. Petitioner filed a Reply to Respondent's Response and an Amended Reply. Docs. 10, 13. Also before the court is the Motion for Appointment of Counsel filed by Petitioner. Doc. 18. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U. S.C. § 636(c). Doc. 7.

I.APPOINTMENT OF COUNSEL

In the pending Motion for Appointment of Counsel Petitioner states that he is unable to pay a "reasonable attorney fee"; that he has made diligent efforts to obtain legal counsel but because of [his] poverty] is unable to secure" counsel; and that he is aware of an attorney who would accept an appointment to represent Petitioner before this court.¹ Doc. 18.

Although there is no constitutional right to appointment of counsel in habeas corpus proceedings. Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994), the Eighth Circuit Court of Appeals has thoroughly discussed those circumstances in which the appointment of counsel is appropriate. Specifically, in Abdullah v. Norris, 18 F.3d 571 (8th Cir. 1994), the Eighth Circuit offered the following guidance:

A magistrate judge or district judge may appoint counsel for a habeas petitioner if "the interests of justice so require." 18 U.S.C.A. § 3006A(a)(2), (a)(2)(B) (West Supp. 1993). If a district court conducts an evidentiary hearing on the petition, the interests of justice require that the court appoint counsel for the petitioner. See Rule 8(c), Rules Governing Section 2254 Cases in the United States District Courts (hereinafter "Habeas Rules"). If no evidentiary hearing is necessary, the appointment of counsel is discretionary.

When exercising its discretion, a district court should first determine whether a pro se habeas petitioner has presented a nonfrivolous claim. Battle [v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990)]. If the petitioner has presented only claims that are frivolous or clearly without merit, the district court should dismiss the case on the merits without appointing counsel. See Habeas Rule 4. If the petitioner has presented a nonfrivolous claim, the district court should then determine whether, given the particular circumstances of the case, the appointment of counsel would benefit the petitioner and the court to such an extent that "the interests of justice so require" it. 18 U.S.C. § 3006A(a)(2); see also Battle, 902 F.2d at 702. To determine whether appointment of counsel is required for habeas petitioners with nonfrivolous claims, a district court should consider the legal complexity of the case, the factual complexity of the case, the petitioner's ability to investigate and present his claim, and any other relevant factors. See Battle, 902 F.2d at 702; Johnson v. Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986).

Id.

First, Petitioner in the matter under consideration has filed a Reply to Respondent's Response and an Amended Reply. Upon doing so, Petitioner has clearly addressed the issues before this court and demonstrated that he is able to present his claim in a clear and concise fashion. Second, the §2254 Petition filed by Petitioner contains claims that are not legally complex or factually complex.As such, considering all of the above standards in conjunction with the claims raised by Petitioner in his petition, the court finds that the appointment of counsel would not benefit Petitioner and the court to such an extent that the interests of justice require the appointment of counsel.

II.BACKGROUND

On March 18, 2003, Petitioner was charged, by Information, as follows: Count I, Murder in the First Degree, in that, on November 30, 2002, Petitioner, after deliberation, knowingly caused the death of Jimmy Grills, by shooting him; Count II, Armed Criminal Action , with regard to Count I; Count III, Robbery in the First Degree, in that on November 30, 2002, Petitioner forcibly stole a wallet owned by Jimmy Grills, and in the course thereof, Petitioner was armed with a deadly weapon; and Count IV, Armed Criminal Action, with regard to Count III. Resp. Ex. D at 9-11. On June 12, 2003, the State filed a Notice of Intent to Seek Death Penalty. Resp. Ex. D at 18-19. On October 21, 2003, the State and Petitioner filed a Withdrawal of Notice of Aggravating Circumstances and Waiver of Jury Trial. Resp. Ex. D at 39. Additionally, the State dismissed Counts II-IV. Resp. Ex. D at 7.

A bench trial was held on June 17, 2004. Resp. Ex. E. The Missouri appellate court described the testimony at Petitioner's trial was as follows:²

In the late evening of November 29, 2002, Hudson stopped by [Petitioner]'s home. Hudson asked [Petitioner] to help him pick up some money from someone. As Hudson and [Petitioner] drove to the home of Jimmy Grills, Hudson handed [Petitioner] a .22 revolver. Hudson told [Petitioner] that, if anything happened, he should pull the gun out and get the money. [Petitioner] placed the gun in his pocket, and he also was armed with a hunting knife. When they arrived at Grills' home, Hudson asked to borrow some money. Grills said he had none. Hudson demanded all of Grills' money, and [Petitioner] pulled out the revolver. Grills moved toward [Petitioner] and was shot by him. As Hudson and Grills fought, [Petitioner] shot Grills again. The gun malfunctioned after the second shot, so [Petitioner] removed the knife from his pocket. [Petitioner] used the knife to stab Grills and strike him in the head and side. Hudson then took the knife from [Petitioner] and started choking and stabbing Grills. [Petitioner] found Grills' wallet, which had money in it, and placed it in his pocket. While Hudson continued to struggle with Grills, [Petitioner] wandered around the home looking for something else to steal. When he was unable to locate anything else of value, he returned to the living room. Hudson was still on top of Grills, choking and stabbing him. Hudson walked to the bathroom to wash his hands. Still alive, Grills got up and started heading for the door. [Petitioner] knocked Grills back down. Grills reached for the phone, but [Petitioner] ripped the cord from the wall. When Hudson came out of the bathroom, he began stabbing Grills again because he was still alive. [Petitioner] and Hudson then left.

In the early morning hours of November 30, 2002, Shirley Miller (Miller) arrived home to find Grills, who was her boyfriend, lying dead on the floor in a pool of blood. The cause of death was exsanguination due to multiple stab wounds to Grills' head, neck and chest. He also had been shot in the face and right forearm. Additional facts necessary to the disposition of the case are included below as we address [Petitioner]'s three points of error.

State v. Jackson, 248 S.W.3d 117, 120-21 (Mo. Ct. App. 2008).

The court found Petitioner guilty of murder in the first degree for killing Jimmy Grills and sentenced him to imprisonment for life, without the possibility of probation or parole. Resp. Ex. Dat 58-60. Petitioner filed a direct appeal. Resp. Ex. A. By decision, dated February 20, 2008, the Missouri appellate court affirmed the judgment of the trial court. Jackson, 248 S.W.3d at 126.

Petitioner filed a pro se post-conviction relief motion. Resp. Ex. I at 4-30. Counsel was appointed and filed an amended motion, which the motion court denied. Resp. Ex. I at 31-42. Petitioner then filed an appeal of the motion court's denial of his post-conviction relief motion. Resp. Ex. G. By decision dated, December 29, 2009, the Missouri appellate court affirmed the decision of the motion court. Resp. Ex. L.

On May 28, 2010, Petitioner filed his § 2254 Petition, in which he raises the following issues:

(1) Petitioner received ineffective assistance of trial counsel because counsel offered an excerpt from a state crime lab report into evidence, as opposed to the full report; and

(2) Petitioner received ineffective assistance of trial counsel because trial counsel failed to call Petitioner to testify on his own behalf.

Doc. 1.

III.EXHAUSTION, PROCEDURAL DEFAULT AND TIMELINESS ANALYSIS

To preserve issues for federal habeas review, a state prisoner must fairly present his or her claims to state courts during direct appeal or in post-conviction proceedings. Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997). Failure to raise a claim in a post-conviction appeal is an abandonment of a claim. Id. at 1150 (citing Reese v. Delo, 94 F.3d 1177, 1181 (8th Cir. 1996)). A state prisoner who fails "'to follow applicable state procedural rules [for] raising the claims' (citation omitted) . . . , is procedurally barred from raising them in a federal habeas action, regardless of whether he has exhausted his state-court remedies." Id. at 1151 (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). "[A] prisoner must 'fairly present' not only the facts, but also the substance of his federal habeas corpus claim." Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc) (citationomitted). "[F]airly present" means that state prisoners are "required to 'refer to a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue.'" Id. at 411-12.

The United States Supreme Court holds that a state prisoner can overcome procedural default if he or she can demonstrate cause and prejudice for the procedural default. Dretke v. Haley, 541 U.S. 386, 388-89 (2004). It has been held that "novel circumstances and arguments" may constitute cause to excuse procedural default. McKinnon v. Lockhart, 921...