Opinion
CIVIL ACTION NO. 06-10212-DPW.
January 5, 2007
MEMORANDUM AND ORDER
Petitioner Kevin Jackmon seeks habeas corpus relief from his Massachusetts state court convictions for second degree murder, armed robbery, use of a firearm while committing a felony, unlawful possession of a firearm, assault by means of a dangerous weapon, kidnapping, and stealing. He is serving a sentence of nine to ten years for the kidnapping conviction, three concurrent four to five year terms for the assault and firearm convictions (to be served after the kidnapping sentence), and three concurrent life sentences for the murder, armed robbery, and stealing convictions (to be served after the assault and firearm sentences).
I. BACKGROUND
Jackmon has raised three bases for relief:
First, that the Massachusetts Appeals Court erred in affirming the denial of his motion to suppress;
Second, that he was denied effective assistance of counsel when his attorney failed to object to the wording of a clarification of a jury instruction on the degrees of murder; and
Third, that the trial judge improperly considered in the sentencing process conduct for which he had not been convicted.
The Commonwealth contends that Jackmon's first claim is barred from habeas review by Stone v. Powell, 428 U.S. 465 (1976), that his second claim is meritless because the state court adjudication regarding effectiveness of counsel was not contrary to or an unreasonable application of clearly established federal law, and that his third claim is both unexhausted and without merit. I agree and will dismiss this petition.
A. Factual Background
When considering habeas corpus petitions made pursuant to 28 U.S.C. § 2254, findings of fact by the state court "shall be presumed to be correct" and the applicant for habeas relief "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Gunter v. Maloney, 291 F.3d 74, 76 (1st Cir. 2002); Coombs v. Maine, 202 F.3d 14, 18 (1st Cir. 2000).
The Appeals Court summarized the facts as follows:
On April 26, 1998, Jackmon and his accomplice, Demarco Traynum, entered a McDonald's restaurant in New Bedford and forced more than a dozen employees and customers, at gunpoint, into a small back office of the restaurant. They directed one McDonald's employee to bind the hands of some of the individuals held in the office and forced the assistant manager and another employee to empty the contents of the safe and the cash registers into a canvas sack. The robbery was interrupted by the arrival of two police officers, and a shootout ensued. In the course of the confrontation, Jackmon accidentally shot and killed Traynum. Subsequently, Jackmon seized two women, one of whom was six months pregnant, and escaped from the scene of the crime while holding the two women in headlocks and firing at the police. Jackmon later left the two women in a hotel in New York City and fled to North Carolina, where he was arrested nearly two months later after his photograph was aired on the television program "America's Most Wanted."Commonwealth v. Jackmon, 822 N.E.2d 754, 756 (Mass.App.Ct. 2005). Jackmon does not appear to dispute these factual findings, and I accept them for the purpose of this petition.
B. Procedural History
Jackmon was indicted by the Bristol County grand jury on July 30, 1998. On November 1, 1999, he filed a motion to suppress, arguing that evidence was seized as the result of an illegal search. After a hearing on November 8, 1999, this motion was denied, and a written memorandum regarding that denial was issued by the trial judge on December 1, 1999.
On November 9, 1999, a jury trial commenced. The jury found Jackmon guilty of most counts charged on November 24, 1999, and he was sentenced the same day. Jackmon filed a timely notice of appeal on December 22, 1999.
Jackmon was found not guilty of armed assault with intent to murder.
On January 17, 2003, Jackmon filed a motion for a new trial alleging ineffective assistance of counsel. This motion was denied in a thoughtful memorandum by a Superior Court judge other than the trial judge on June 24, 2003. On September 11, 2003, Jackmon obtained leave to file a late notice of appeal of the denial of the motion for a new trial. The Massachusetts Appeals Court affirmed Jackmon's convictions and the denial of his motion for a new trial on February 23, 2005. Commonwealth v. Jackmon, 822 N.E.2d 754 (Mass.App.Ct. 2005). The Supreme Judicial Court denied further appellate review on April 27, 2005. Commonwealth v. Jackmon, 826 N.E.2d 201 (Mass. 2005). This petition for habeas corpus was filed on January 30, 2006.
II. PETITION FOR A WRIT OF HABEAS CORPUS
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court may not grant an application for a writ of habeas corpus unless the state court decision below was (1) "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or (2) "based on an unreasonable determination of the facts in light of the evidence presented" during the state court proceeding. 28 U.S.C. § 2254(d).
A state court decision is "contrary to" clearly established federal law if it "`applies a rule that contradicts the governing law set forth in [Supreme Court] cases.'" James v. Marshall, 322 F.3d 103, 106 (1st Cir. 2003) (alteration in original) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). See generally, Carey v. Musladin, 127 S.Ct. 649 (2006). The state court has performed an "unreasonable application" of clearly established law if that court "`identifies the correct governing legal principle from [Supreme Court] cases but unreasonably applies it to the facts' of the petitioner's case, or if the state court either `unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'" James, 322 F.3d at 106 (alterations in original) (quoting Williams, 529 U.S. at 407). The "mere fact that there was some error or that the state decision was incorrect is not enough" to establish an unreasonable application of law. McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (en banc).
B. Discussion
I will address the three distinct grounds for relief Jackmon has advanced separately.
1. The Motion to Suppress
Jackmon's claim that the Massachusetts Appeals Court erred in affirming the denial of his motion to suppress by incorrectly interpreting and applying North Carolina law is plainly barred by Stone v. Powell, 428 U.S. 465 (1976). In Stone, the Supreme Court concluded that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 494 (footnote omitted). Jackmon had a full and fair opportunity to argue his motion to suppress before the Massachusetts state courts. The Massachusetts Superior Court held a hearing on the matter and issued a pertinent memorandum, and the issues were fully presented and carefully resolved before the Massachusetts Appeals Court. Consequently, I will deny relief on Jackmon's motion to suppress claim, without reaching the merits of his argument.
2. Ineffective Assistance of Counsel
To establish a violation of his right to effective assistance of counsel, Jackmon must show first that his counsel's performance was seriously deficient, and, if so, then that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Jackmon fails to satisfy the first element of the Strickland test.
Jackmon's ineffective assistance of counsel argument turns on his lawyer's failure to object to an answer the Court gave to a clarifying question posed by the jury. After deliberating for several hours, the jury asked the following: "Please restate the elements of the verdict for first degree, second degree, and not guilty. Please distinguish between the verdicts on the murder indictments." [Transcript of November 24, 1999, p. 4:15-18] The Court replied:
Well, Madame Forelady and members of the jury, first of all, you won't even consider the indictment charging this defendant with murder unless the Commonwealth has proven to you beyond a reasonable doubt that Mr. Jackmon fired the bullet which killed Mr. Traynham. [detailed explanation of elements of felony murder] The jury is also informed and must be instructed by me that accident is not a defense to a felony murder.
[Transcript of November 24, 1999, pp. 4:22-7:20] Jackmon argues that the "accident is not a defense to a felony murder" language was confusing and misleading to the jurors, and prejudiced the petitioner by eliminating his sole defense to murder, that his partner, Mr. Traynham, accidently or intentionally killed himself. [Jackmon Brief (#10), pp. 13-14]
Jackmon's contention is without merit. The trial judge's response to the jury's question correctly stated the law; an accident on Jackmon's part could not be the basis of a defense to felony murder. Commonwealth v. McCauley, 464 N.E.2d 50, 55 (Mass. 1984), cert. denied, 122 S.Ct. 1074 (2002). As the Court's answer makes clear, however, Jackmon could not be found guilty if he did not fire the shot that killed Traynham ("you won't even consider the indictment charging this defendant with murder unless the Commonwealth has proven to you beyond a reasonable doubt that Mr. Jackmon fired the bullet which killed Mr. Traynham"). Although the trial court used different language in the original jury instructions, which noted that Jackmon could only be found guilty if the Commonwealth proved beyond a reasonable doubt that "Demarco Traynham was killed by this defendant, and not by the police and not by his own accidental or unintentional shooting of the weapon," [Transcript of November 23, 1999, p. 126:16-19], the response to the jury's question was not confusing or misleading, and did not misstate the law. Jackmon, therefore, fails to satisfy the first element of the Strickland test for ineffective assistance of counsel because there was no deficiency, let alone a serious one, in defense counsel's failure to object to a correct instruction. Consequently, the decision of the Massachusetts Appeals Court was not unreasonable or contrary to the law, and relief will be denied on the ineffective assistance claim.
3. Sentencing
Finally, Jackmon has argued that the trial judge inappropriately sentenced him for acts of which he was acquitted, in violation of his Sixth and Fourteenth Amendment rights. The Commonwealth contends that this claim, to the extent it attempts to raise a federal constitutional issue, was not exhausted in state court and should be dismissed in this court on those grounds. Although I find the claim was not exhausted in the state court proceedings, I will, nevertheless, address the merits in order to put the claim entirely to rest. See 28 U.S.C. § 2254(b)(2).
Jackmon's contention is that he was improperly sentenced for assault with intent to murder two police officers, charges of which he was acquitted. However, as noted in the Massachusetts Appeals Court, "[a]lthough the defendant was acquitted of both counts charging him . . . with assault with intent to murder two police officers, the jury found him guilty of two counts of assault with a dangerous weapon against the same two police officers. The judge sentenced the defendant on these two counts of assault with a dangerous weapon." Commonwealth v. Jackmon, 822 N.E.2d 754, 762 (Mass.App.Ct. 2005).
The trial judge made his intentions clear, both in court before the sentence was imposed and afterwards in the sentencing memorandum. In court, the trial judge noted that he was sentencing based on three separate incidents, one of which was the "shots that were taken at Officer Ramos and Officer Fredericks." [Transcript of November 24, 1999, p. 45:10-24] In a sentencing memorandum, the trial judge specified that "the second sentence was on and after for 4-5 years for shooting at the police," [Ex. A (#10)] and the trial transcript makes clear that two 4-5 year sentences, running concurrently, were imposed for the shots fired at the police. [Transcript of November 24, 1999, pp. 46:20-47:19] There is no question in the record what this portion of the sentence was imposed for; it was the charges of assault by means of a dangerous weapon for which Jackmon was convicted. Because the record is so clear, and the trial judge unquestionably had the discretion to impose the sentence he did, I will deny relief on the merits on this ground, notwithstanding the failure of the petitioner to exhaust his state court remedies on this issue.
IV. CONCLUSION
For the reasons set forth more fully above, I hereby DENY all claims in Jackmon's petition for habeas corpus and direct the Clerk to DISMISS this matter.