Jackson v. United States

• Citation: 956 F.3d 1001
• Decision Date: 20 April 2020
• Docket Number: No. 19-1131,19-1131
• Parties: Alfred Latrell JACKSON, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

956 F.3d 1001

Alfred Latrell JACKSON, Petitioner - Appellant

v.UNITED STATES of America, Respondent - Appellee

No. 19-1131

United States Court of Appeals, Eighth Circuit.

Submitted: January 17, 2020

Filed: April 20, 2020

Counsel who represented the appellant was Krisanne Corl Weimer of Council Bluffs, IA.

Counsel who represented the appellee was Clifford R. Cronk, AUSA, of Davenport, IA.

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

SMITH, Chief Judge.

Alfred Latrell Jackson was convicted of one count of conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. After we affirmed his conviction on appeal, United States v. Jackson , 856 F.3d 1187 (8th Cir. 2017), Jackson moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Specifically, he argued that both of his attorneys, David Treimer and Stephen Swift, provided ineffective assistance of counsel. The district court¹ denied the motion without holding an evidentiary hearing, and Jackson appeals. We affirm.

I. Background

Beginning in 2012, Iowa City law enforcement noticed an increase in the use of heroin in the area. In July 2014, officers identified Jason Dawson as a local source of heroin and eventually executed a search of his vehicle during a traffic stop. The officer who executed the search discovered a small amount of heroin; $1,097; and two cell phones. Dawson frequently sent text messages to two numbers found on the cell phone. The messages discussed heroin and large amounts of money. The same day, officers searched Dawson’s house and found additional evidence of a heroin distribution scheme. Dawson then agreed to cooperate with authorities and identified Jackson as his heroin source.

On May 7, 2015, the officers set up a recorded phone call between Dawson and Jackson, and the two discussed a pending heroin transaction. After the phone call, officers searched Jackson’s residence and found further evidence consistent with heroin distribution. This evidence included: a digital scale, plastic baggies, and $4,160 in United States currency—$120 of which was pre-serialized currency that Jackson received from Dawson during a heroin transaction just three days earlier. In addition, officers discovered a cell phone that matched the number to which Dawson frequently sent text messages about heroin transactions. Officers later conducted another search of Jackson’s residence and eventually arrested Jackson.

On July 21, 2015, a grand jury charged Jackson with conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. On July 24, 2015, the district court appointed David R. Treimer to represent Jackson. Treimer met with Jackson about five times over six months and encouraged Jackson to plead guilty and offer assistance in exchange for a lesser sentence. Jackson then filed an ethical complaint against Treimer. Shortly thereafter, Treimer moved to withdraw as counsel for Jackson because of a break down in their attorney-client relationship. The district court granted the motion and appointed Stephen Swift as Jackson’s new counsel.

On April 7, 2016, Jackson’s jury trial began, and over the course of a few days, Swift challenged nearly all of the government’s witnesses and evidence. Prior to presenting his case, Jackson told the district court he planned to testify in his own defense. But, the next morning, Jackson advised the district court that he had changed his mind and did not want to testify.

Swift planned to call two witnesses: Juanita Jamison, Jackson’s mother, and Geneva Hudson. Jamison attended a majority of the trial, but the day that Jamison and Hudson were expected to testify, neither came. Swift explained that he had been in frequent contact with both and spoke to both on the phone the night before but did not subpoena either witness. Swift requested additional time for the two witnesses to appear, but the district court denied the request.

Swift then gave a summary of the two witnesses’ expected testimonies. Swift stated that Jamison would have testified that she provided Jackson with the $4,160 to purchase a food truck. In addition, she would have testified about her knowledge of an individual named Yeoman McKenzie. She would have explained that McKenzie was a good friend of Jackson and that McKenzie passed away in December 2014. Swift planned for this testimony to help establish that McKenzie, and not Jackson, used the phone to contact Dawson. Further, Swift explained that Hudson would have testified about her relationship with Dawson and that she would have stated that Dawson asked her to get a phone number from Jackson. Finally, Hudson would have testified as to her general knowledge of McKenzie.

After summarizing the testimony, Swift stated that there was no further evidence to present; the defense rested. The district court gave the jury its final jury instructions, and the jury began deliberating. Jury Instruction No. 22 stated: "Your verdicts, whether not guilty or guilty, must be unanimous." Final Jury Instrs. at 32, United States v. Jackson , No. 3:15-cr-00046-SMR (S.D. Iowa Apr. 12, 2016), ECF No. 260. During deliberations, the jury asked the district court a question: "Per your instruction No. 22 as we read it we can[n]ot have a hung jury and must agree on ... guilty or not guilty. Is this correct or are we misunderstanding this[?]" Jury Question #2 with Answer of the Ct. at 1, United States v. Jackson , No. 3:15-cr-00046-SMR (S.D. Iowa Apr. 12, 2016), ECF No. 264. After the district court discussed the appropriate response with the attorneys, the district court answered:

A jury is "hung" when it is unable to reach a verdict after exhausting all efforts to reach a unanimous verdict. A jury can "hang in part" as to a particular count or as to a particular defendant.

Please return to your deliberations. If you have not concluded your deliberations by 5:00 p.m. today, you will return tomorrow at 8:30 a.m. and will continue deliberating.

Id. at 2. Swift agreed with the court’s reply. Following additional deliberations, the jury found Jackson guilty of the crime of conspiracy to distribute heroin. At sentencing, the district court determined that Jackson was a career offender and sentenced him to 188 months’ imprisonment. Jackson appealed his conviction, but we affirmed. See Jackson, 856 F.3d at 1189. Jackson moved to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing that both Treimer and Swift provided him ineffective assistance of counsel. Specifically, Jackson challenged Treimer’s pretrial assistance, Swift’s failure to have the two witnesses testify, Swift’s advice for Jackson not to testify, Swift’s failure to challenge the district court’s answer to the jury question about a hung jury, and Swift’s failure to challenge the district court’s determination that Jackson was a career offender.

The district court denied Jackson’s motion without an evidentiary hearing. The district court emphasized the strength of the case against Jackson and his failure to show prejudice from counsels’ actions at trial. The district court issued a certificate of appealability, and Jackson now appeals.

II. Discussion

Jackson argues that the district court abused its discretion in denying an evidentiary hearing on his § 2255 claims that Treimer and Swift were ineffective. Jackson is entitled to an evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that [he] is entitled to no relief." 28 U.S.C. § 2255(b). "No hearing is required where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Sinisterra v. United States , 600 F.3d 900, 906 (8th Cir. 2010) (quoting Watson v. United States , 493 F.3d 960, 963 (8th Cir. 2007) ). Therefore, we must consider the merits of Jackson’s claims for relief in order to determine whether the district court abused its discretion in denying Jackson an evidentiary hearing. See id. "We review de novo the district court’s rejection of the substantive claims." Id.

In order for Jackson to prevail on his ineffective-assistance-of-counsel claims, he must satisfy the two-part test established by the Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, under Strickland , Jackson must show that his "trial counsel’s performance was so deficient as to fall below an objective standard of reasonable competence." Toledo v. United States , 581 F.3d 678, 680 (8th Cir. 2009) (quoting Nave v. Delo , 62 F.3d 1024, 1035 (8th Cir. 1995) ). "[T]here is a strong presumption that counsel’s conduct falls within the wide range of professionally reasonable assistance and sound trial strategy." Id. (internal quotation omitted).

Second, even assuming that Jackson meets the first part of the Strickland test, Jackson must still show that counsel’s deficient performance prejudiced him. United States v. Orr , 636 F.3d 944, 950 (8th Cir. 2011). "Prejudice is established if there is a reasonable probability that, but for counsel’s errors, the result would have been different." Id. (internal quotations omitted).

A. Treimer’s Pretrial Representation

Jackson alleges that Treimer failed to engage in any pretrial investigation, including failing to secure defense witnesses and documentary evidence that could have challenged aspects of the government’s case. However, Jackson does not identify any specific witnesses or evidence that Treimer failed to uncover.

Further, our job as a reviewing court "is not to consider the attorney error in isolation, but instead to assess how the error fits into the big picture of what happened at trial." Holder v. United States , 721 F.3d 979, 987 (8th Cir. 2013) (cleaned up). Treimer withdrew as counsel over two months before the trial, and Jackson even admitted that he and Swift had planned a sound trial defense strategy. Jackson "has not offered any alternative theory of the case...