Filed: Dec. 20, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 12-20-2005 Jackson v. Carroll Precedential or Non-Precedential: Non-Precedential Docket No. 04-9012 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Jackson v. Carroll" (2005). 2005 Decisions. Paper 79. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/79 This decision is brought to you for free and open access by the Opinions of the Unit
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 12-20-2005 Jackson v. Carroll Precedential or Non-Precedential: Non-Precedential Docket No. 04-9012 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Jackson v. Carroll" (2005). 2005 Decisions. Paper 79. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/79 This decision is brought to you for free and open access by the Opinions of the Unite..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-20-2005
Jackson v. Carroll
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-9012
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Jackson v. Carroll" (2005). 2005 Decisions. Paper 79.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/79
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-9012
ROBERT W. JACKSON, III,
Appellant
v.
*THOMAS CARROLL, Warden
(*Amended - See Clerk's Order dated 1/6/05)
Appeal from the United States District Court
for the District of Delaware
(D.C. No. 01-cv-00552)
District Judge: Honorable Sue L. Robinson
Argued: October 28, 2005
Before: McKEE, RENDELL and GREENBERG, Circuit Judges.
(Filed: December 20, 2005)
THOMAS A. FOLEY, ESQ. (Argued)
1326 King Street
Wilmington, DE 19801
JOHN S. MALIK, ESQ. (Argued)
100 East 14th Street
Wilmington, DE 19801
Attorneys for Appellant
THOMAS E. BROWN (Argued)
Department of Justice
820 North French Street
Carvel Office Building
Wilmington, DE 19801
Attorney for Appellee
OPINION
McKEE, Circuit Judge
Robert W. Jackson appeals the District Court’s denial of his petition for habeas relief. He
argues that his attorneys were ineffective at trial because they did not have enough time to
adequately prepare a defense, and because they failed to object to certain trial testimony. He also
argues that he was denied a fair trial as a result of the prosecution’s failure to disclose an implicit
promise of immunity to a prosecution witness.
After denying relief, the District Court explained its grant of a Certificate of Appealability
(“COA”) as follows: “A certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) is granted,
the court finding that this is a capital case under 11 Del. C. § 4202 and that there are ambiguities
in the application of Ring v. Arizona,
536 U.S. 584 (2002), to the facts at bar.”1 However,
Jackson’s brief on appeal neither cites nor argues Ring. Moreover, in response to the defendant’s
request for clarification, the District Court stated: “The court did not identify specific issues for
appeal because of its understanding that, consistent with 28 U.S.C. § 2266(c)(1)(A), the Third
Circuit may review the entire decision of this Court, regardless of this Court’s determination
under 28 U.S.C. § 2253(c)(2).” Given the confusion surrounding this COA, we would normally
vacate the District Court’s order and remand for further consideration of the propriety of issuing
1
In Ring, the Supreme Court held that the Sixth Amendment right to trial by jury requires
that a jury find beyond a reasonable any fact that would subject the defendant to the death penalty
as opposed to life imprisonment. Ring, 536 U.S. at 589.
2
a COA. See Szuchon v. Lehman, 273 F.3d 399, 311 n.5 (3d Cir. 2001). However, inasmuch as
the death penalty is involved, we think it more prudent to vacate the COA and consider Jackson’s
Notice of Appeal as a request for a COA.
Id., see also L.A.R. 111.3 ©). Viewing Jackson’s
Notice of Appeal in that light, for the reasons set forth below, we will deny the request for a
COA.2
I.
Because we write primarily for the parties, we recite only the facts and procedural history
that are necessary for the disposition of this appeal. During post-conviction proceedings, the
state court held hearings on Jackson’s claims of ineffective assistance of counsel. At the August
21, 1998 hearing, David A. Ruhnke, a New Jersey attorney with extensive capital trial
experience, provided expert testimony pertaining to the conduct of trial counsel, and concluded
that it fell below that which is appropriate for a capital case. He opined that a reasonably
competent attorney would need at least six months to prepare in a capital case, should inspect the
physical evidence and verify any forensic results with independent experts, and should hire a
private investigator to assist with witness interviews. Ruhnke believed there had been multiple
failures on trial counsel’s part and stated that he did not think an attorney could provide effective
assistance in the time Jackson’s trial counsel had to prepare.
Defense attorney Levinson explained that he did not ask for a continuance because he felt
it was not necessary, particularly because O’Connell and other attorneys had been preparing the
case for trial. He also testified that he felt comfortable, in light of his trial experience, cross-
2
Our review is governed by 28 U.S.C. § 2253. Thus, Jackson is entitled to a COA
“only if [he] has made a substantial showing of the denial of a constitutional right[.]”
3
examining the state’s forensic experts even though he had not retained independent experts to
assist him. O’Connell testified that although he would have preferred additional time to prepare,
he had adequate time to do so.
II.
In order for us to issue a COA, Jackson must “make a substantial showing of the denial of
a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). He attempts to do so
by raising two issues on appeal. Each is considered separately.
A.
Jackson argues that his Sixth Amendment rights were violated as a result of his trial
counsel’s prejudicially ineffective assistance. He rests this argument on the time his attorneys
were given to prepare for trial, and on their failure to object to unresponsive testimony of a
prosecution witness.
Under Strickland v. Washington, 466 U.S. 668 (1984), counsel’s performance must fall
“below an objective standard of reasonableness.”
Id. at 688. However, Jackson must also show
that “there is a reasonable probability that, but for counsel’s unprofessional efforts, the result of
the proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.”
Id. at 694.
Relying on United States v. Cronic, 466 U.S. 648 (1984), Jackson argues that Levinson’s
appointment sixteen days before jury selection was per se unreasonable. According to Jackson,
the brief time afforded Levinson precluded him from thoroughly investigating this case and
obtaining independent forensic testing. Jackson claims that such testing would have created a
reasonable probability of a different result.
4
However, Jackson does not even try to tell us how anything would have been different if
Levinson had more time to prepare. In Cronic, the Court recognized that although a prisoner
alleging ineffective assistance of counsel usually has the burden of proving that counsel’s
performance was unreasonable and that prejudice resulted, “[t]here are . . . circumstances that are
so likely to prejudice the accused that the cost of litigating their effect in a particular case is
unjustified.” Cronic, 466 U.S. at 658. Prejudice will therefore be presumed
if the accused is denied counsel at a critical stage of his trial [or] ....
if counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing [or] ... when although counsel is
available to assist the accused during trial, the likelihood that any
lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is appropriate
without inquiry into the actual conduct of the trial.
Id. at 559-60.
However, before we will presume prejudice under Cronic, there must be a complete
failure of counsel. “Here, respondent’s argument is not that his counsel failed to oppose the
prosecution . . . as a whole, but that his counsel failed to do so at specific points. For purposes of
distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree
but of kind.” Bell v. Cone, 535 U.S. 685, 697 (2002). We therefore agree with the District
Court’s conclusion that Cronic does not apply here.
Thus, even if Jackson were able to show that counsel’s performance was lacking because
of insufficient time to prepare, he would not be entitled to relief under Strickland unless he could
demonstrate that things would likely have been different if counsel had additional time. He has
completely failed to satisfy that burden. As noted above, the core of his argument is that he was
prejudiced by counsel’s failure to conduct a complete and thorough investigation and
5
independently test all physical evidence. Appellant’s Br. at 31. He asserts that counsel could
have performed appropriate forensic tests if given more time, but he is not even able to allege
that the results of any such testing would have been favorable, and nothing on this record
suggests it would have been.
Moreover, Jackson’s defense counsel never requested a continuance, and both counsel
testified that they thought they had enough time to prepare. In fact, although he is
understandably not anxious to admit it here, before the Delaware Supreme Court, Jackson
conceded that he was “hard pressed to articulate what exactly trial counsel would have
discovered if they had requested and been granted funds for independent forensic tests of the
physical evidence and such tests had been conducted before trial.” Jackson v. State, 770 A.2d
506, 513 (Del. 1994).
The District Court did provide funds for Jackson to retain a forensic expert, but this
expert – Dr. Hubbard – did not reach any conclusion favorable to Jackson. Jackson v. Carroll,
2004 WL 1192650 at *14 (D. Del. 2000). Although he complains that the District Court’s
award of funds was “too little, too late,” he offers nothing else to satisfy the prejudice prong of
Strickland.
Although we are troubled by the brief amount of time afforded trial counsel and what
appears to be a rather rigid adherence to expediting a capital case at the risk of affording
inadequate time to prepare, there is nothing here to suggest that Jackson was prejudiced by the
process other than his protests and speculative argument to that effect. That is not enough to
meet the second prong of Strickland even if we assume that counsel was somehow derelict in
not performing independent testing.
6
B.
The second part of Jackson’s ineffective assistance argument centers on counsel’s failure
to object to a non-responsive answer of Anthony Lachette. When the prosecutor asked Lachette:
“What were your thoughts when you and the defendant were talking about doing a burglary, a
house burglary?” J.A. 181; Lachette answered: “I originally wasn’t going to do it. It was
something he did, I don’t want to say as a habit, but it was something that he often did.” J.A.
182. Jackson argues that trial counsel were ineffective for not requesting a mistrial because
Lachette’s “response” was tantamount to inadmissible character evidence.
In rejecting this claim, the District Court stated:
A showing of actual prejudice in this case would require a showing
that an objection would likely have resulted in the ordering of a
mistrial by the Superior Court. While evidence of petitioner's
alleged propensity to commit burglary should have been excluded,
where as here, it resulted from nonresponsive testimony and was
not further referenced to the jury, it is not probable that a mistrial
would have been ordered where at most a curative instruction
would have sufficed. Consequently, because the Delaware
Supreme Court found the absence of both unreasonable conduct by
petitioner's trial counsel and prejudice, the Delaware Supreme
Court's denial of petitioner's ineffective assistance of counsel claim
was not objectively unreasonable.
Jackson v. Carroll, 2004 WL 1192650 at *15. We agree.3 Thus, this claim fails to satisfy the
substantial showing required by §2253.
In addition, even if both instances of alleged ineffectiveness are viewed cumulatively as
3
We realize, of course, that skilled defense counsel may not have objected or requested a
curative instruction in order to avoid highlighting Lachette’s testimony. However, we can not
speculate that defense counsel was motivated by such tactical considerations in not requesting a
mistrial. Rather, we simply conclude that Lachette’s testimony did not warrant a mistrial, and
defense counsel can not be faulted for failing to make a request that was not likely to be granted.
7
discussed in Frey v. Fulcomer, 974 F.2d 348, 361 n.12 (3d Cir. 1992), we would still conclude
that Jackson can not establish the prejudice that is required under Strickland, or § 2253.
C.
Jackson’s second claim is that he was denied his Sixth Amendment right to a fair trial as
a result of the prosecution’s failure to disclose an implicit promise of immunity to Johnson under
Brady v. Maryland, 373 U.S. 83 (1963).
In order to show a Brady violation, Jackson must show 1) that the evidence was favorable
to him, 2) that the evidence was suppressed by the state and 3) that prejudice resulted. Strickler
v. Greene, 527 U.S. 263, 281-82 (1999). As the Supreme Court explained in Kyles v. Whitley,
514 U.S. 419, 434 (1995), “[t]he question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but whether in its absence he received a
fair trial, understood as a trial resulting in a verdict worthy of confidence.”
Given the totality of the evidence here, and the aggressive cross-examination Johnson
was subjected to, we do not believe that Jackson has demonstrated a “reasonable probability of a
different result” id., if the jury had known that Johnson was expecting favorable consideration
from the government in return for his testimony. Although the Delaware Supreme Court found
that there was an implicit promise which the prosecution should have revealed to Jackson and
that the failure to disclose it was “troubling,”and “offensive,” it did not find that this evidence
was sufficient to undermine confidence in the verdict. Jackson v.
State, 770 A.2d at 514-15. The
court so concluded because of the overwhelming evidence of Jackson’s guilt, not least of which
was the evidence corroborating Johnson’s testimony. The court explained that “[i]t is difficult to
imagine a more powerfully persuasive set of corroborating circumstances” than Jackson’s letter
8
to Johnson and the evidence indicating that Jackson sent it. Id. at 517. During oral argument on
appeal, defense counsel attempted to furnish an innocent explanation of the letter Jackson sent.
However, the same arguments could have been made to the jury even absent knowledge of
Johnson’s belief regarding favorable treatment. Moreover, the possibility that the jury may have
viewed Johnson though more jaundiced eyes if it had known of his belief, is speculative at best.4
Jackson also argues that the Delaware Supreme Court misapplied Kyles. He claims that
the court relied on improper factors outside the record, including Jackson’s lack of an alibi and
the shoe print expert’s report.5 He further claims that while there may be overwhelming evidence
of his involvement in the burglary/robbery, the evidence that he murdered Girardi is far more
tenuous and Johnson’s testimony was therefore more important than the Delaware Supreme
Court and District Court recognized. Jackson maintains that despite the evidence corroborating
Johnson’s testimony “there still exists the real possibility that Andre Johnson (a seasoned inmate)
fabricated the true import of the letter.” Appellant’s Br. at 46.
Omitting all consideration of the alibi and shoe print issues, and conceding arguendo the
importance of Johnson’s testimony, Jackson has nevertheless provided no support for his
contention that there is a “real possibility” that Johnson fabricated the import of the letter, and as
we have already suggested, any innocent explanations he now provides could have been argued
4
Given the common sense that we ask jurors to bring to their deliberations, it strains
credulity to suggest that the jury did not believe that Johnson thought he was going to get
something favorable for his testimony in the first place.
5
We are perplexed by the Delaware Supreme Court’s suggestion that the absence of an
alibi could somehow be relevant to Jackson’s guilt. It is axiomatic that a defendant does not have
to prove his innocense, and Jackson was therefore under no obligation to present an alibi.
Accordingly, we can infer nothing from his failure to introduce evidence of an alibi.
9
to the jury just as forcefully whether or not the jury knew of Johnson’s expectation of reward for
his testimony. The fact that Johnson had a motive to lie does not mean that he did lie. Jackson
has simply not satisfied his burden of showing that a different outcome would have been likely
had the jury had more information about his motive to lie. Thus, Jackson fails to make a
substantial showing that he was denied his Sixth amendment right to a fair trial.
IV. Conclusion
For the reasons given above, we find that Jackson has not made a substantial showing of
the denial of a constitutional right as required by 28 U.S.C. § 2253. As a result, we cannot issue
a certificate of appealability.
10
