Jackson v. Warden

• Decision Date: 11 August 2014
• Docket Number: Case No. 3:13-cv-347
• Parties: DENNIS D. JACKSON, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DENNIS D. JACKSON, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 3:13-cv-347

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

August 11, 2014

District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 14) to the Magistrate Judge's Report and Recommendations (the "Report," Doc. No. 10). Judge Rose has recommitted the case for reconsideration in light of the Objections (Recommittal Order, Doc. No. 16). On the same day he filed his Objections, Jackson also moved to expand the record (Doc. No. 13), a motion the Warden opposes (Doc. No. 17) and on which Jackson has filed a Reply in support (Doc. No. 18).

Motions to Expand the Record

In his First Motion to Expand the Record (Doc. No. 8), which was denied as part of the Report, Jackson sought to add the following documents:

Exhibit A¹ Trotwood Police Incident Report on March 19, 2010, of an assault onShevonda Leslie by Antione West with attachments (PageID 1985-89).

Exhibit B Trotwood Police Report by Officer Troy Dexter regarding a March 20, 2010, interviews with Brandon Harris and Phil Benson (PageID 1990-91).

Exhibit C) Trotwood Police Report by Officer David Yaney dated March 21, 2010, of a conversation with a confidential informant (PageID 1992).

Exhibit D Trotwood Police Report by Officer Michael Pigman dated March 23, 2010, of conversations with Thomas Horn (PageID 1993).

Exhibit E March 20, 2010, written statement of Thomas Horn (PageID 1994).

Exhibit F Trotwood Police Report by Officer Troy Dexter dated March 22, 2010, concerning statements made by Donna Hayden, the victim's mother (PageID 1995-96).

Exhibit G Trotwood Police Report by Officer Michael Richardson dated March 22, 2010, regarding March 18, 2010, call to 4360 Nevada regarding the domestic disturbance between Shevonda Leslie and Antione West (PageID 1997).

Exhibit H Trotwood Police Report by Officer Michael Pigman dated March 22, 2010, regarding attempts to locate Brandon Harris and an eventual interview with him (PageID 1998-2000).

Exhibit I Trotwood Police Report date March 27, 2010, by Officer Thomas Quigley relating additional information from the domestic violence call on March 19, 2010.

In his Second Motion to Expand the Record (Doc. No. 13), Jackson seeks to add the following documents to the record:

Exhibit J - Docket of the Montgomery County Common Pleas Court in State v. Jackson, Case No. 2010-CR-01126 (PageID 2061-72).

Exhibit K - Page 6 of a 7-page Trotwood Police Report by Police Officer Henry L. Crist dated April 2, 2010, regarding the underlying offense in this case ( PageID 2073).

Exhibit L - Page 5 of the same report ( PageID 2074).

Exhibit M - An email exchange between Trotwood Detective Mike Pigman and Brandon Henderson on March 26, 2010 ( PageID 2075).

Exhibit N - Pages 1 and 2 of a 3-page report of the Miami Valley Crime Laboratory to Detective Mike Pigman dated May 6, 2010 (PageID 2076).

Jackson argues that these documents show his actual innocence and a Brady violation in this case (Motion, Doc. No. 13, PageID 2059). The Warden opposes the Motion on the grounds consideration of these documents is precluded by Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011), and in any event they are not sufficient new evidence of actual innocence to satisfy the "gateway" innocence standard of Schlup v. Delo, 513 U.S. 298, 316 (1995). Because the ruling on the First Motion to Expand was made as part of the Report and the Report has now been recommitted, the Magistrate Judge considers all of these tendered exhibits together.

In his Reply, Jackson argues first that Pinholster does not preclude an evidentiary hearing on whether a petitioner has met the Schlup standard (Reply, Doc. No. 18, PageID 2141). The Court agrees; Pinholster only applies to the determination of whether the state court judgment is contrary to or an unreasonable application of clearly established Supreme Court precedent.

Jackson next argues that Pinholster does not limit a habeas court's authority under 28 U.S.C. § 2254(a) to release a prisoner being held in violation of the Constitution. Actually, a federal court's power to grant the writ is conferred by 28 U.S.C. § 2241. Section 2254(a) limits that power in cases where a person is confined on judgment of a state court to custody that is unconstitutional; the balance of § 2254 provides further procedural limitations on that power. In other words, § 2254(a) does not create authority to decide state prisoner habeas cases on evidence not before the court pursuant to all of § 2254.

Detrich v. Ryan, 677 F.3d 958 (9^th Cir. 2012), cited by Jackson in his Motion at PageID 2142, is not to the contrary.² It allows a federal evidentiary hearing on the prejudice prong of the cause and prejudice test for excusing procedural default. But that is not at issue with any of theexhibits Jackson seeks to add.

Jackson further argues, in opposition to the Warden's position, that his tendered exhibits are "new" within the meaning of Souter v. Jones, 395 F.3d 577, 596, n.9 (6^th Cir. 2005): evidence not seen by the jury at trial. The Court agrees with that reading of Souter. However, while these exhibits may be new in that sense, there is still a question whether Jackson's delay in presenting them is justified. The Supreme Court held in McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924, 185 L. Ed. 2d 1019 (2013):

[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of limitations. We caution, however, that tenable actual-innocence gateway pleas are rare: "[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup, 513 U.S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U.S., at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the Schlup standard is "demanding" and seldom met). And in making an assessment of the kind Schlup envisioned, "the timing of the [petition]" is a factor bearing on the "reliability of th[e] evidence" purporting to show actual innocence. Schlup, 513 U.S., at 332, 115 S. Ct. 851, 130 L. Ed. 2d. 808.

* * *

[A] federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner's part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown.

133 S. Ct. at 1928, 185 L. Ed. 2d at 1027.

The Warden argues that Jackson has not shown the tendered documents are part of the state court record. Respondent is incorrect as to Exhibit J. With the exception of the handwritten notations on this exhibit, which are minimal and which the Court will ignore, Exhibit J is the genuine docket of the Montgomery County Clerk of Courts on this case, at leastthrough the date on which it shows it was generated by the Clerk's online system, August 10, 2011 (available at www.clerk.co.montgomery.oh.us/pro).

As to the remaining tendered exhibits, while they were not part of the record before the jury, they appear to be authentic official documents and they are within the description of documents permitted to be used to expand the record under Rule 7(a) of the Rules Governing § 2254 Cases. Under Pinholster, they cannot be considered in deciding the question presented by 28 U.S.C. § 2254(d)(1), but the Court can consider them in determining whether Jackson has met the Schlup gateway innocence standard.³ Therefore, as to all of the tendered exhibits, both Motions to Expand the Record for that limited purpose are GRANTED.

Jackson's Claim of Actual Innocence

The question before the Court is whether the tendered exhibits, when considered with the record that was before the jury, satisfy the Schlup standard, reiterated in Souter, supra:

[I]f a habeas petitioner "presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims." Schlup v. Delo, 513 U.S. 298, 316 (1995)." Thus, the threshold inquiry is whether "new facts raise[] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial." Id. at 317. To establish actual innocence, "a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327. The Court has noted that "actual innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (1998). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence --whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial." Schlup, 513 U.S. at 324. The Court counseled however, that the actual innocence exception should "remain rare" and "only be applied in the 'extraordinary case.'" Id. at 321.

Id. at 590.

Jackson argues that these exhibits satisfy the Schlup standard as follows:

Petitioner contends that these exhibits not only show a misidentification of your petitioner, but also show that there was another suspect interviewed by detectives wearing the exact same clothing prosecutors attempted to dress your petitioner in, owning a gold car and identified to detectives by Thomas Horn. Petitioner claims he was prejudiced because clothes, and car of this other suspect that matched the

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