Petition for Writ of Certiorari — Eddie Allen Jackson, Petitioner v. United States
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No. 17-2241
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Apr 12, 2018
DEBORAH S. HUNT, Clerk
EDDIE ALLEN JACKSON,
Petitioner-Appellant,
ORDER
V.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Eddie Allen Jackson, a pro se federal prisoner, appeals the district court's judgment
denying his motion to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C.
§ 2255. Jackson has filed an application for a certificate of appealability ("COA"). See Fed. R.
App. P. 22(b).
A federal jury convicted Jackson of three counts of child sex trafficking in violation of 18
U.S.C. § 1591(a)(1). The district court sentenced Jackson to a 360-month term of imprisonment.
On direct appeal, Jackson argued that the district court improperly excluded evidence of the
minor victims' prostitution history and that his sentence was both procedurally and substantively
unreasonable. This court affirmed Jackson's conviction and sentence. United States v. Jackson,.
627 F. App'x 460, 465 (6th Cir. 2015).
In 2017, Jackson filed a § 2255 motion, in which he raised the following eighteen
grounds and sub-grounds for relief: (1) the prosecution violated his constitutional rights by
withholding Jencks Act materials; (2) trial counsel was ineffective for: (a) failing to investigate
and interview the prosecution's witnesses, (b) failing to investigate the authenticity of hotel
No. 17-2241
-2receipts, (c) failing to call an expert to testify as to the validity of phone records, (d) failing to
call an expert to refute the testimony of the government's expert, (e) failing to file a suppression
motion, (f) failing to object to certain testimony from the government's expert, (g) requesting a
"needless" continuance, (h) making incorrect arguments concerning USSG § 2G1.3(b)(4)(A),
not objecting to the district court's inaccurate statement concerning his criminal history,
cumulative error, and (k) not challenging the presentence report's ("PSR") calculation of his
criminal history; (3) appellate counsel was ineffective for: (a) not challenging the sufficiency of
the evidence, (b) not amending his brief with additional arguments, (c) not challenging the
district court's denial of trial counsel's motion to exclude certain testimony from the
government's expert under Federal Rule of Evidence 702, and (d) not raising a prosecutorial
misconduct argument concerning the prosecutor introducing a witness under a false name;
(4) the district court violated his Sixth Amendment right to cross examination; and (5) he is
actually innocent. The district court denied Jackson's § 2255 motion and declined to issue a
COA. Jackson now seeks a COA on each of the claims raised in his § 2255 motion.
A COA may be issued "only if the applicant has made a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). In order to be entitled to a COA, the movant must show that reasonable jurists would•
find the district court's assessment of his constitutional claims debatable or wrong. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When the district court's denial is based on a procedural
ruling, the petitioner must demonstrate that "jurists of reason would find it debatable whether the
[motion] states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling." Id.
A. Jencks Act Claim
In his first ground for relief, Jackson argues that the government failed to provide defense
counsel with his written and oral statements, in violation of the Jencks Act, and Federal Rule of
Criminal Procedure 16. The district court concluded that Jackson procedurally defaulted this
claim, and reasonable jurists could not debate that determination. Jackson did not raise this
Ao
No. 17-2241
-3argument on direct appeal and he has therefore procedurally defaulted this claim for purposes of
942 (6th Cir. 2014) (citing
§ 2255 review. See Sullivan v. United States, 587 F. App'x 935,
Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001)). Nevertheless, a prisoner can
overcome a procedural default by establishing "either cause and actual prejudice, or that he is
actually innocent." Id. (quoting Bousley v. United States, 523 U.S. 614, 621 (1998)). In his
reply to the government's response to his § 2255 motion, Jackson argued that this issue was not
raised on direct appeal because of a breakdown in communication between him and his appellate
counsel. A claim of ineffective assistance of counsel can constitute cause to excuse a procedural
default. See Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley, 523 U.S. at 621-22.
However, Jackson failed to explain how the outcome of his direct appeal would have been
different had appellate counsel raised this issue. See Webb v. Mitchell, 586 F.3d 383, 399 (6th
Cir. 2009). Moreover, as discussed in greater detail below, Jackson failed to make a credible
showing of actual innocence.
B. Ineffective Assistance of Trial Counsel Claims
In his second ground for
..
.ef, Jackson raises sever instances where his trial counsel
To prove a claim of ineffective assistance of counsel, a
allegedly rendered ineffective ass
movant must show both that def, 'se counsel "mad errors so serious that counsel was not
functioning as the 'counsel' g ranted the def Jant by the Sixth Amendment" and that
-
counsel's deficient performance caused prejudice. Strickland v. Washington, 466 U.S. 668, 687
(1984). Prejudice requires a demonstration "that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different." Id. at
694.
Jackson first argues that his trial counsel was ineffective for failing to interview the minor
victims prior to trial. He asserts that had counsel interviewed the victims, "he would have known
what their testimony would be
-
rather than guess what they might testify." The district court
rejected Jackson's argument, concluding that he had failed to show prejudice and reasonable
jurists could not debate this determination. Jackson merely speculates that he would have
No. 17-2241
-4negotiated a plea deal, or otherwise been acquitted had trial counsel interviewed the victims prior
to trial. Jackson's speculation does not demonstrate a reasonable probability that the outcome of
his trial would have been different but for defense counsel's failure to interview the victims. See
Strickland, 466 U.S. at 694.
Jackson next asserts that trial counsel was ineffective for failing to investigate the
authenticity of the receipts for hotel rooms that he allegedly reserved in Grand Rapids. To that
end, he claims that he informed trial counsel that the receipt dated August 16, 2012, could not be
authentic because its signature was unlike the signatures on the other receipts, and also because
he was incarcerated on that day. Jackson further claims that "[h]ad counsel investigated this
issue and discovered the falsification of the hotel records, he could have presented reasonable
doubt as to the
.
.
.
jurisdictional element [of the offense]." See 18 U.S.C. § 1591(a)(1). The
district court concluded that Jackson failed to show prejudice because his driver's license was:
photocopied along with the receipts, and the government admitted other evidence at trial
establishing the jurisdictional element of § 1591(a). Reasonable jurists could not debate the
district court's conclusion on this point. The record reflects that Jackson stipulated prior to trial
that certain evidence satisfied the interstate and foreign commerce element of the offense.
In his next ground for relief, Jackson claims that his trial counsel was ineffective for
failing to call an expert witness to rebut the government's telephone records, which showed that
the victims frequently communicated with him. Jackson claims that an expert could have
discerned from the phone records that the victims' numerous phone calls concerned legitimate
business matters wholly unrelated to prostitution, thus discrediting the victims' trial testimony.
The district court rejected this claim, concluding that Jackson's claim of prejudice was "purely
speculative" because "[h]e does not explain what an expert would have found or why-an expert
was necessary." Reasonable jurists could not debate this determination. Not only did Jackson
fail to explain why an expert was necessary or what an expert would have discovered, but he also
failed to show how the outcome of his trial would have been different had a defense expert
testified on these matters. See Spencer v. Booker, 254 F. App'x 520, 525 (6th Cir. 2007).
No. 17-2241
-5Jackson next asserts that his trial counsel was ineffective for failing to call an expert
witness to refute the testimony of the government's expert, who testified about methods of child
sex trafficking. In rejecting this claim, the district court determined that defense counsel's
decision not to call a rebuttal expert witness was sound trial strategy. The district court further
determined that Jackson failed to show prejudice resulting from counsel's failure to call a
rebuttal expert. The district court's resolution of this claim is not debatable among reasonable
jurists. Jackson did not suggest any testimony that could have been provided by an expert that
would have been more effective than his counsel's cross-examination of the government's
expert. Accordingly, Jackson did not make a substantial showing that trial counsel rendered
deficient performance by not calling a rebuttal expert to testify. See Esparza v. Sheldon, 765
F.3d 615, 624 (6th Cir. 2014).
In his next ground for relief, Jackson argues that his trial counsel was ineffective for not
moving to suppress his statements to a law enforcement agent following his arrest. Reasonable
jurists, however, would not debate the district court's rejection of this claim. A defendant may ,
waive his Fifth Amendment right to remain silent if "the waiver is made voluntarily, knowingly
and intelligently." Miranda v. Arizona, 384 U.S. 436, 444 (1966). The record reflects that
Jackson voluntarily answered the agent's questions after first being advised of his Miranda rights
and signing an advice-of-rights form. Jackson does not argue that he involuntarily,
unknowingly, or unintelligently waived his Fifth Amendment rights. Thus, because a
suppression motion would have been meritless, Jackson has failed to make a substantial showing
of ineffective assistance. See Slagle v. Bagley, 457 F.3d 501, 528 (6th Cir. 2006).
Jackson next argues trial counsel should have objected to expert testimony that
purportedly exceeded the scope permitted by the district court. Prior to trial, the district court
permitted the government's expert on sex trafficking to testify about the methods that pimps use
to recruit and control prostitutes. Jackson asserts that the expert exceeded the scope of this
limitation when he testified, among other things, about pimps, protocol for avoiding detection by
law enforcement, and "how prostitution actually works." The district court rejected this claim,
I
No. 17-2241
-6concluding that Jackson had failed to satisfy either prong of the Strickland standard. Reasonable
jurists could not debate the district court's resolution of this claim. As the district court noted,
defense counsel lodged a successful objection to a question that he felt was "beyond the scope of
the expert's testimony." Moreover, Jackson failed to explain how the outcome of his trial would
have been different but for trial counsel's allegedly deficient performance. See Strickland, 466
U.S. at 694.
In his next ground for relief, Jackson contends that his trial counsel was ineffective for
requesting a "needless" continuance. Prior to trial, counsel moved for and obtained a forty-five
day continuance in order to conduct further investigation, which Jackson opposed. Jackson
claims that this continuance was prejudicial because the government was able to locate two
additional witnesses during this time period. In rejecting Jackson's claim, the district court
concluded that Jackson had failed to satisfy either prong of the Strickland standard. Reasonable
jurists could not debate the district court's conclusion that this claim lacks merit. Jackson
conceded that the government located its additional witnesses before the original trial date.
Therefore, Jackson cannot show that he was prejudiced by trial counsel obtaining a continuance.
Jackson also asserts that his trial counsel was ineffective "for arguing [the] USSG
§ 2G1.3(b)(4)(A) enhancement improperly." However, the district court found that this
argument was barred by the law-of-the-case doctrine. In Jackson's direct appeal, this court
explicitly held that Jackson was not prejudiced by the district court's application of this
enhancement because "[t]he record and our case law allow the [§ 2G1.3(b)(4)(A)]
enhancement." Jackson, 627 F. App'x at 465 (citing United States v. Willoughby, 742 F.3d 229,
241 (6th Cir. 2014)). Reasonable jurists could not debate the district court's resolution of this
claim.
hi his next ground for relief, Jackson argues that trial counsel should have objected at the
sentencing hearing when the district court misstated how many of his prior convictions were for
assault and firearm offenses. Jackson alleges that, had the district court accurately detailed his
criminal history, it "would have looked in [a] more favorable light into [his] Downward Variance
No. 17-2241
-7motion." The district court rejected this claim, determining that Jackson had failed to show that
he was prejudiced by the district judge's misstatements. Reasonable jurists could not debate the
district court's conclusion on this point. District courts are afforded broad discretion when ruling
upon a defendant's motion for a variance. See United States v. Preston, 579 F. App'x 495, 500
(6th Cir. 2014). The district court had the correct criminal history before it in the PSR and
sentencing memoranda. Thus, Jackson cannot show that the district court would have granted
his motion for a downward variance even if it had correctly described his criminal history.
Jackson next contends that he was prejudiced by the cumulative effect of trial counsel's
errors alleged in the previous grounds for relief. Reasonable jurists could not disagree with the
district court's determination that cumulative error does not provide an independent ground for
federal post-conviction relief. See Sheppardv. Bagley, 657 F.3d 338, 348 (6thCir. 2011).
Jackson further argues that his trial counsel was ineffective for failing to challenge his
receipt of criminal history points for his prior convictions set forth in paragraphs 78 (assault and
battery), 79 (use of marijuana and driving while unlicensed), and 82 (possession of cocaine) of
the PSR. He asserts that each of those convictions carries a maximum penalty of less than one
year, and that USSG § 4A1.2(c)(1)(A) "clearly state[s] that a conviction that carries a sentence of
less than one year receives no increase in criminal history points." Reasonable jurists could not
debate the district court's conclusion that Jackson's argument is without merit. Section 4A1.2(c)
states that "[s]entences for all felony offenses are counted," and "[s]entences for misdemeanor
and petty offenses are counted," with certain exceptions. One such exception is set forth in
section 4A1.2(c)(1), which provides that certain offenses listed in that subsection, "and offenses
similar to them, by whatever name they are known, are counted only if.
.
.
the sentence was a
term of probation of more than one year or a term of imprisonment of at least thirty days."
Neither assault and battery, nor possession of cocaine are enumerated in section 4A1.2(c)(1).
Although paragraph 79 of the PSR lists driving without a license, which is not counted under
section 4A1.2(c)(1), it also lists use of marijuana, which is not excluded under section
No. 17-2241
-84A1.2(c)(1). Accordingly, none of the prior convictions detailed in paragraphs 78, 79, and 82 of
the PSR were improperly counted.
C. Ineffective Assistance of Appellate Counsel Claims
Jackson's next four grounds for relief concern allegations that his appellate counsel
rendered ineffective assistance. The Strickland standard also applies to claims of ineffective
assistance of appellate counsel raised in a § 2255 motion. Ballard v. United States, 400 F.3d
404, 407 (6th Cir. 2005). To establish deficient performance in the appellate context, a petitioner
"must demonstrate his appellate counsel made an objectively unreasonable decision by choosing
to raise other issues instead of [the challenged] issue, meaning that issue 'was clearly stronger
than issues that counsel did present." Webb, 586 F.3d at 399 (6th Cir. 2009) (quoting Robbins,
528 U.S. at 285, 288). The "process of 'winnowing out weaker arguments on appeal and
focusing on' those more likely to prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting
Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). To establish prejudice in the appellate context, a
petitioner "must demonstrate 'a reasonable probability that, but for his counsel's unreasonable
failure to' raise [the challenged] issue on appeal, 'he would have prevailed." Webb, 586 F.3d at
399 (quoting Robbins, 528 U.S. at 285).
Jackson argued that his appellate counsel was ineffective for failing to challenge on direct
appeal the district court's denial of his Federal Rule of Criminal Procedure 29 motion for
judgment of acquittal. The district court concluded that this issue was without merit. Indeed,
Jackson conceded this point in his reply to the government's response to his § 2255 motion.
Accordingly, reasonable jurists could not debate the district court's resolution of this claim.
Jackson next argued that his appellate counsel was ineffective for not amending his
appellate brief to include additional issues that Jackson wished to pursue on direct appeal. In
support of this argument, Jackson cited to a letter that he sent his appellate counsel in February
2015, in which he asked that certain due process, and Fourth, Ninth, and Tenth Amendment
issues be added to the appellate brief. The district court rejected Jackson's argument, concluding
No. 17-2241
-9that he had failed to satisfy either prong of Strickland. Reasonable jurists could not debate the
district court's conclusion because Jackson has failed to show that there is a reasonable
probability that the result of the appeal would have been different had counsel raised his
requested issues. See Strickland, 466 U.S. at 694.
Jackson also claimed that his appellate counsel should have challenged the district court's
denial of trial counsel's objection to the admissibility of the government's expert witness.
Specifically, Jackson argued that the expert's testimony was inadmissible under Federal Rule of
Evidence 702 because the witness was not familiar with the facts of the case. In denying this
claim, the district court concluded that this claim was meritless because "Rule 702 does not
require an expert witness to have knowledge of the details of the case in order to give expert
testimony on a subject that is not familiar to the jury." Reasonable jurists could not debate the
district court's determination. Rule 702 permits a witness with "specialized knowledge" to
testify as an expert if his or her opinion "will assist the trier of fact to understand the evidence or
to determine a fact in issue." This rule does not require expert witnesses to be familiar with the
particular facts of the cases in which they testify.
In his next ground for relief, Jackson argued that his appellate counsel was ineffective for
not challenging the government's introduction of a witness under a false name. At trial, the
government introduced one of its witnesses as "Renee Holmes." Defense counsel asked Ms.
Holmes on cross-examination if her birth name was actually "Ricky Holmes," at which time the
government objected. Defense counsel abandoned this line of questioning following a sidebar
discussion. Jackson argues that appellate counsel should have raised this issue on direct appeal
because, had this information been presented to the jury, it would have demonstrated Ms.
Holmes's propensity to lie. The district court rejected this claim, concluding that: (1) defense
counsel's decision to abandon this line of questioning was sound trial strategy; (2) Jackson was
not prejudiced because defense counsel still impeached Ms. Holmes with her prior convictions;
(3) Jackson was not prejudiced because he failed to demonstrate how further impeachment of
Ms. Holmes would have altered the outcome of his trial; and (4) Jackson failed to preserve this
No. 17-2241
-10issue for appellate review and has not demonstrated plain error. Reasonable jurists would not
disagree with the district court's conclusions. For example, Jackson has failed to show that there
is a reasonable probability that the result of his direct appeal would have been different had
appellate counsel raised this issue. See Strickland, 466 U.S. at 694.
D. Confrontation Clause Claim
In his next ground for relief, Jackson asserted that his trial counsel's inability to cross
examine Ms. Holmes about her true name violated his Sixth Amendment right to confront
witnesses. Reasonable jurists would not debate the district court's determination that this claim
is procedurally defaulted. Jackson did not raise his Confrontation Clause claim on direct appeal.
See Sullivan, 587 F. App'x at 942 (citing Bousley, 523 U.S. at 621). A prisoner can avoid a
procedural default by establishing cause and prejudice resulting from the default or a credible
showing of actual innocence. Id. Ineffective assistance of counsel can constitute cause to excuse;
a procedural default. See Massaro, 538 U.S. at 504; see also Bousley, 523 U.S. at 621-22.
However, as noted earlier, Jackson's appellate counsel was not ineffective for failing to raise this
issue on direct appeal. See 'Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013). Additionally,
as addressed below, Jackson does not make a credible showing of actual innocence.
E. Actual Innocence Claim
In his final ground for relief, Jackson asserted that he is actually innocent. However,
Jackson's free-standing actual innocence claim is not cognizable in this non-capital habeas
corpus proceeding. See Herrera v. Collins, 506 U.S. 390, 400 (1993); see also Hodgson v.
Warren, 622 F.3d 591, 601 (6th Cir. 2010). Reasonable jurists would not debate the district
court's rejection of this claim in light of Herrera and this court's holding in Cress v. Palmer, 484
F.3d 844, 854-55 (6th Cir. 2007).
Nonetheless, an actual innocence claim may provide a "gateway" to allow review of
claims procedurally barred by an applicant's failure to raise them on direct appeal. See Bousley,
523 U.S. at 622-23; Peveler, 269 F.3d at 699-700. To establish a gateway claim of actual
innocence, "a petitioner must show that it is more likely than not that no reasonable juror would
LZ
No. 17-2241
-11have found petitioner guilty beyond a reasonable doubt." Schiup v. Delo, 513 U.S. 298, 327
(1995). "[T]he Schiup standard is demanding and permits review only in the 'extraordinary'case." House v. Bell, 547 U.S. 518, 538 (2006). A credible actual innocence claim "requires
[the] 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." Schiup, 513 U.S. at 324.
Here, Jackson submitted a letter that he claims is from one of his victims. In the letter,
the victim states that law enforcement forced her to testify against Jackson and that her
statements concerning Jackson were not true. However, "recanting affidavits are always viewed
with 'extreme suspicion." Williams v. Coyle, 260 F.3d 684, 708 (6th Cir. 200 1) (quoting United
States v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991)). Moreover, as the district court
observed, the statement from the victim was not even sworn. In light of the other evidence of his
guilt that was adduced at trial, see Jackson, 627 F. App'x at 462, the lone victim's unsworn
recantation is of little value, and reasonable jurists would not debate the district court's
determination that Jackson's claim of actual innocence is without merit.
Based on the foregoing, Jackson's COA application is DENIED.
ENTERED BY ORDER OF THE COURT
/a-.5;-aw
Deborah S. Hunt, Clerk
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Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1286 Page 1of 35
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Case No. 1:13-CR-246
Plaintiff-Respondent,
HON. JANET T. NEFF
V.
EDDIE ALLEN JACKSON,
Defendant-Movant.
OPINION AND ORDER
Pending before this Court is Defendant Eddie Jackson's pro se motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct the sentence imposed upon him. (ECF No. 109.) The
government responded to Defendant's motion (ECF No. 113), and Defendant filed a reply (ECF No.
115). For the reasons that follow, the Court denies Defendant's § 2255 motion, and a Judgment will
enter in accordance with this Opinion and Order. See Gillis v. Un ited States, 729 F.3d 641, 643 (6th
Cir. 2013) (requiring a separate judgment in habeas proceedings).
I. BACKGROUND
On April 19,2014, after a two-day trial before the Honorable Robert Holmes Bell, Defendant
was found guilty of three counts of child sex trafficking, in violation of 18 U.S.C. § 1591(a)( 1). At
trial, Attorneys Richard Stroba and Sean Tilton represented Defendant. After his conviction,
Defendant filed a pro se motion for new counsel, claiming that counsel had failed to interview
witnesses and that they had given him "information that was misguiding (sic) and false." (ECF No.
65, PagelD.373.) The Court denied the motion, and noted that "[a]t trial, after all of the proofs had
been closed, this Court inquired whether Defendant had any complaints with his attorneys and he
~X
-
-
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Case 1:13-cj-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1287 Page 2 of 35
responded that he had none. Nothing has happened since that time that would account for
Defendant's change of heart other thati the entry of the guilty verdict." (ECF No. 66, PagelD.375.)
Defendant then filed a motion for reconsideration where he acknowledged that "during trial I stated
that I was satisfied with trial counsel," but contends that he became aware of additional issues
through "studying and reading." (ECF No. 67, PagelD.377.) The Court denied Defendant's motion
to reconsider and motion to appoint new counsel. (ECF No. 69.) Afterward, counsel filed a motion
to withdraw, explaining that "there has been a breakdown in the attorney-client relationship that
would render further representation unreasonably difficult." (ECF No.71, PagelD.3 87.) The Court
granted the motion as to Mr. Tilton but ruled that "Attorney Richard Stroba will continue to
represent defendant through the sentencing process." (ECF No. 74.)
Each count of conviction carried a statutory penalty of at least 10 years up to life in prison.
18 U;S.C. § 195 1(b)(2). Defendant's offense level was 39 and his criminal history was category IV,
so his Guidelines range was 360 months to life. (Presentence Report ¶ 118, ECF No. 79,
PagelD.43 8.) Defendant's criminal history consisted of 16 prior adult convictions and three juvenile
adjudications, including carjacking, several drug violations, domestic assault, and assault with intent
to do great bodily harm. (Id. at IT 70-83, PagelD.430-34.) Before sentencing, counsel filed
objections to the Guidelines range and a motion for downward variance, which the Court denied.
During sentencing, the Court asked Defendant if he was satisfied with his counsel's representation,
and Defendant said that he was. (Sent. Tr., ECF Np. 99, PagelD. 1051.) After allocution, the Court
imposed a sentence of 360 months in custody on each count, to run concurrently. (Id. at
PageID.104748, 1059.)
2
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1288 Page 3 of 35
Defendant appealed his conviction and sentence to the Sixth Circuit. Attorney Gregory
Napolitano represented Defendant on appeal. On February 23, 2015, counsel filed a 43-page brief
raising two issues: whether the district court erred in prohibiting evidence that the minor victims had
prostituted themselves for otherpimps, and whether.the sentence wasprocedurally and substantively
unreasonable. Counsel challenged the two-level Guideline enhancement for obstruction ofjustice,
the counting of several prior convictions that Defendant alleged were uncounseled, and the
sufficiency of the Court's explanation for rejecting several other Guidelines objections. Defendant
wanted to raise additional issues, so on March 6, 2015, counsel filed a motion to allow the filing of
a 28-page supplemental pro se brief. The government moved to strike the supplemental brief, and
the Sixth Circuit granted the motion.
On September 28, 2015, the Sixth Circuit affirmed Defendant's conviction and sentence in
an unpublished opinion. United States v. Jackson, 627 F. App'x 460 (6th Cir. 2015). The Sixth
Circuit held the following: (i) the limit on evidence as to other sexual activity under Rule 412 of the
Federal Rules of Evidence did not violate Defendant's confrontation rights or deny him the
opportunity to present a complete defense; (ii) that the Court properly applied the obstruction-ofjustice enhancement; (iii) that Defendant failed to show that any of his prior convictions were
uncounseled; and (iv) that the Court had sufficiently explained its reasons for denying Defendant's
objections to other Guideline enhancements. Id. at 461. Defendant filed a petition for certiorari to
the Supreme Court of the United States, which was denied on May 16, 2016.
On March 13,2017, Defendant timely filed this prose motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255.
'A
3
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1289 Page 4 of 35
II. ANALYSIS
Motion Standard
A prisoner who moves to vacate his sentence under 28 U.S.C. § 2255 must show that the
sentence was imposed in violation of the Constittition or laws of the United States, that the court was
without jurisdiction to impose such sentence, that the sentence was in excess of the maximum
authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). To
prevail on a § 2255 motion, the movant must demonstrate "the existence of an error of constitutional
magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's
verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)).
The general rule is that claims not raised on direct appeal may not be raised on collateral
review unless the petitioner shows cause and prejudice. Massaro v. United States, 53KU. S. 500,
504(2003). Claims of ineffective assistance of counsel are an exception to this general rule. Claims
of ineffective assistance of counsel "are more properly available in a post-conviction proceeding
under 28 U.S.C. § 2255, after the parties have had the opportunity to develop an adequate record on
the issue from which the reviewing court is capable of arriving at an informed decision." United
States v. Williams, 612 F.3d 500, 508 (6th Cir. 2010) (quoting Un ited States v. Rahal, 191 F.3d 642,
645 (6th Cir. 1999)).
Discussion
1. Jencks Act Material
The Jencks Act, 18 U.S.C. § 3500, controls demands for productions of statements and
reports of witnesses in federal criminal cases. Defendant alleges that he was denied Jencks material
4
Case 1:13-cr-00246-JTN ECF No. .117 filed 08/24/17 PagelD.1290 Page 5 of 35
because the government did not provide trial counsel with his oral statements as required by Fed.
R. Crim. P. 16(a)(1)(A). (ECF No. 109, PagelD.1107.) The Rule provides that, "[u]pon a
defendant's request, the government must disclose to the defendant the substance of any relevant
oral statement made by the defendant, before or after arrest, in response to interrogation by a person
the defendant knew was a government agent if the government intends to use the statement at trial."
Fed. R. Crim. P. 16(a)(1)(A).
Counsel requested Defendant's statements on January 16, 2014. Although the government's
initial pretrial statement indicated that there were no oral statements by Defendant, the record shows
that the government discovered and provided copies of Defendant's oral statements to counsel
before trial. During the cross-examination of FBI Special Agent John McMurtrie, counsel
questioned the witness about an alleged discrepancy between his report and his .notes of the
interview with Defendant. (Trial Tr.H, ECF No. 96, PagelD.927-36.) During trial, counsel never
argued that he had not been provided with Defendant's statements to Special Agent McMurtrie nor
did he argue untimely production. Thus, his claim that the government withheld this information,
and that he went to trial "without the requisite knowledge to make an informed decision to proceed
to trial versus negotiating a plea deal," (ECF No. 109, PagelD. 1107), is not supported by the record.
Further, Defendant did not raise this argument on appeal. Therefore, he is barred from
raising the issue in his § 2255 petition absent a showing of good cause and actual prejudice.' United
States v. Frady, 456 U.S. 152, 167-68 (1982). In his reply, Defendant argues that failure to raise an
issue on appeal was due to the breakdown in communication between himself and appellate counsel,
Federal courts are not required to address a procedural-default issue before deciding against a
habeas petitioner on the merits. Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
5
-
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1291 Page 6 of 35
so Defendant was not part of the appeal process. Ineffective assistance of counsel may constitute
good cause for procedurally-defaulted claims. Murray v. Carrier, 477 U.S. 478, 488 (1986). As
discussed infra, appellate counsel did not provide constitutionally-deficient assistance. Further,
Defendant has not shown pre judice -for failure to raise this claim on appeal. Defendant argues that
he was prejudiced because the statement and testimony were introduced by the prosecution at trial,
but he does not explain how he was prejudiced from appellate counsel's failure to raise the claim
on appeal. The claim is not supported by the record and is meritless. Because Defendant has not
satisfied either requirement, it is also procedurally defaulted.
2. Ineffective Assistance of Counsel
Defendant raises several claims of ineffective assistance of trial counsel and appellate
counsel. To succeed on these claims, Defendant must establish- that (1) counsel's performance fell
below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for
counsel's deficient performance, the outcome of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694 (1984). A reasonable probability is one that is
"sufficient to undôrmine confidence in the outcome." id. Defendant bears the burden of proof for
each prong, and the Court may dismiss a claim of ineffective assistance of counsel if he fails to carry
his burden of proof on either one. Id at 687, 697. In other words, the Court need not address the
adequacy of counsel's performance if Defendant fails to make a sufficient showing of prejudice
Id. at 693.
A court considering a claim of ineffective assistance must "indulge a strong presumption that
-
counsel's conduct falls within the wide range of reasonable professional assistance." id at 689. The
purpose of this presumption is "to protect lawyers from having strategic decisions judged with 'the
Case 1:13-cr-00246-JT.N ECF No. 117 filed 08/24/17 PagelD.1292 Page 7 of 35
distorting effect of hindsight." Boria v. Keane, 99 F.3d 492, 498 (6th Cir. 1996) (quoting
Strickland, 466 U.S. at 689). A defendant bears the burden of overcoming the presumption that the
challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S.
91,101 (1955)); see also Campbell v. Coyle, 260 F.3d 531, 5.51 (6th.Cir. 2001) (when evaluating
the Strickland prongs, a court must afford "tremendous deference to trial counsel's decisions"); Nagi
v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel's strategic decisions were
hard to attack).
The Court must determine whether, in light of the circumstances as they existed at the time
of counsel's actions, "the identified acts or omissions were outside the wide range of professionally
competent assistance." Strickland, 466 U.S. at 690. Although strategic decisions by counsel are not
exempt from scrutiny, such decisions generally do not rise to the level of a Sixth Amendment
violation. See McMeans v. Brigano, 228 F.3d 674, 682 (6th :Cir. 2000) ("Strategic choices by
,
counsel, while not necessarily those a federal judge in hindsight might make, do not rise to the level
of a Sixth Amendment violation.") (citing Jones v. Barnes, 463 U.S. 745, 750-54 (1983))..
Even if the Court determines that counsel's performance fell outside the range of
professionally-competent assistance, Defendant is not entitled to relief if counsel's. error had no
effect on the judgment. Id. at 691. "Strickland's test for prejudice is- a demanding one. 'The
likelihood of a different result must be substantial, not just conceivable;" Storey V. .Vasbincier,, 657
F.3d 372, 379 (6th Cir. 2011) (quoting Harrington v. Richter, 562 U.S., 86,112 (2Q4)).:W,en
deciding whether counsel's errors prejudiced Defendant, the Court "must consider the totality, Of the
evidence before the. jury," on the assumption that "a verdict or conclusion only weakly, supported
. .
7
'
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1293 Page 8 of 35
by the record is more likely to have been affected by errors than one with overwhelming record
support." Strickland, 466 U.S. at 695.
a. Failure to interview minor victims
Defendant argues that trial counsel was ineffective-for failing to interview the minor victims.
He contends that counsel received permission from the government to interview the minors, as long
as the prosecutor was present, and that counsel and his investigator told him that they were not going
to do so. Defendant alleges prejudice because, if counsel had interviewed the victims, "he would
have known what their testimony would be—rather than guess what they might testify." (ECF No.
109, PagelD. 1108.) He argues that, "[h]ad counsel conducted this investigation he would have been
able to properly cross examine the victims and establish reasonable doubt as to whether the
Prosecution could satisfy each element of the crime, or if Jackson should proceed to trail (sic) or
negotiate a plea." (Id)
But this argument is speculative at best. Defendant assumes that the victims would have.;
agreed to be interviewed, and that Defendant would have learned of new information relating to the
victims' testimony. The government previously sent a letter to defense counsel on February 13,
2014, which stated that some of the victims "have expressed to me fear about being contacted about
this case by anyone. I wanted to make you aware that all three minors and/or their parents/guardians
have specifically expressed to me that they do not wish to be contacted by a defense investigator to
discuss the case." (ECF No. 109-3, PagelD.1 178.) In his reply, Defendant points to a letter dated
March 10, 2014, (ECF No. 115, PagelD. 1238) as evidence that the victims agreed to be interviewed
by the defense. But this letter was sent from defense counsel to the government as a formal request
to interview the victims. (ECF No. 109-3, PagelD. 1150.) Further, Defendant received Jencks
j
Case. 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1294 Page 9 of 35
material for the victims, including interview reports and grand jury testimony. Although Defendant
argues that these materials were incomplete and heavily redacted, he does not explain how
interviewing the minor victims would have provided any additional information than what he
already received before trial. Thus, Defendant has failed to show prejudice for counsel's alleged
failure to interview the minor victims.
b. Failure to investigate the authenticity of hotel receipts
Defendant alleges that trial counsel should have investigated the authenticity of the hotel
receipts that allegedly showed he reserved rooms at the America's Best Inn & Suites in Grand
Rapids several times in 2012. Defendant attaches copies of the hotel receipts to his motion. (ECF
No. 109-3, PagelD.1151-58.) He questions the receipts' authenticity based on alleged differences
in the signatures. But all of the receipts also include a photocopy of Defendant's license.
Defendant also argues that the receipt dated August 16, 2012, (id. at PagelD.1157), is not
valid because he was in custody from 11:55 p.m. on August 15, 2012, until 1:05 p.m. on August 16,
2012, so he could not have checked into the hotel at 12:24 a.m. on August 16; But the receipt shows
payment for one night, and checkout on August 17, 2012. The receipt states that the standard
checkout time is 11:00 am. A more reasonable reading of the receipt is that Defendant checked in
at 12:24 a.m. on August 17, even though the check-in date lists August 16.
Defendant argues that counsel's failure to investigate or challenge the. hotel receipts
prejudiced his case because "these records were used to establish the jurisdictional element of the
charges." (ECF No. 109, PagelD.1110.) An element of the charged offense was that Defendant's
actions had an effect on interstate or foreign commerce. 18 U.S.0 § 159 1(a)(1). But Defendant
signed a stipulation, which the government introduced into evidence, addressing this element. (ECF
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1295 Page 10 of 35
No. 45, PagelD.288-89.) Even if counsel had successfully challenged the hotel receipts, Defendant
stipulated to four other pieces of evidence that were in or affecting interstate or foreign commerce,
including cellular telephones, Ciroc vodka, a Ford Explorer, and Lifestyles condoms. (Id.)
Although Defendant argues that Victim #2 never testified as to the specific brand listed in
the stipulation for the vodka or condoms and testified that she did not use a cell phone, her testimony
included riding in the Ford Explorer from Muskegon to Grand Rapids. Defendant notes Victim #2's
change in the car's description from her grand jury testimony to her testimony at trial. But that does
not show a reasonable probability that, but for counsel's failure to challenge the hotel receipts, the
outcome of the proceeding would have been different. The jury could weigh Victim #2's credibility
to determine whether her testimony satisfied the jurisdictional element for Count 2. Therefore, he
has failed to show prejudice on this claim.
c. Failure to call an expert witness to challenge phone records
Next, Defendant argues that trial counsel was ineffective for failing to call an expert to rebut
the government's telephone records. At trial, the government presented evidence of several phone
numbers allegedly used by the victims to communicate with Defendant. Defendant contends that
counsel should have "hired an expert to review the records and determine if the calls were voice
mails versus actual calls and could have made testimony as to the time discrepancies between
testimony at trial and the phone records." (ECF No. 109, PagelD.l 112.) He asserts than an expert
"could have also shown that these alleged calls were just mass group test (sic) messages to drum up
business for tattooing," (id which "would have put doubt in to the jury's mind as to whether
Victim Ws testimony was truthful and whether the prosecution had proven the jurisdictional
element." (Id.)
10
Case 1:13-cr-00246-JTN• ECF No. 117. filed 08/24/17 PagelD.1296 Page 11 of 35
But Defendant's claim of prejudice is purely speculative. He does not explain what an expert
would have found or why an expert was necessary. In his reply, Defendant asserts that if counsel
had "called an expert to sort out the records, that was complete of Jackson's call-log (sic). It would
have showed that.Victim #1 was lying about the phones being linked to this alleged activity." (ECF
No. 115, PagelD.1245.) This, too, is speculative. "It is not enough for the defendant to show that
the errors had some conceivable effect on the outcome of the proceeding.
.
.
.
The defendant must
show that they actually had an adverse effect on the defense." Strickland, 466 U.S. at 693.
Further, the impeachment value is low because telephone-record evidence introduced by the
government was incomplete. The victims used several different phones to communicate with
Defendant, but the government only had access to the records for some of those phones. (Trial Tr.
H at PagelD.898-901.) Victim #1 testified that she used her mother's phone, a friend's phone, and
a cell phone the Defendant gave her. But she could not remember the phone numbers other than her
mother's, (Trial Tr. I, ECF No. 95, PagelD.687-89), so the government introduced only telephone
records for her mother's phone (Trial Tr. II at PagelD.900-02). Although Defendant argues that:
there was nothing in the phone records to go along with Victim #1's testimony, the records showed
42 calls or text messages between the mother's phone and Defendant from July 14, 2012 through
August 31, 2012. (Trial Tr. II at PagelD.900-04.) And as discussed supra, there was ample
evidence other than the phone calls to prove that Defendant's actions affected interstate and. foreign
commerce. Therefore, this claim is without merit.
..
d. Failure to call expert witness to refute the prosecution's sex trafficking expert
Defendant also alleges that counsel was ineffective for failing to, call an expert witness to
refute the government's expert on child sex trafficking, FBI Special Agent James Hardie. Agent
11
Case 1::13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1297 Page 12 of 35
Hardie testified about methods of child sex trafficking involving pimps, and admitted that he had
no personal knowledge of the specific facts of the case. Defendant acknowledges that, during crossexamination, counsel questioned Agent Hardie "as to his knowledge of the instant case, and elicited
testimony that the expert never conducted any independent investigation, never interviewed any
witnesses, never investigated Division Avenue in Grand Rapids, and never investigated the stores
or hotels in that area, or investigated anything in this case related to Muskegon (where the victims
lived)." (ECF No. 109, PagelD.i 114.) He also admits that, through cross-examination, counsel
showed that Agent Hardie was not knowledgeable about any studies on child sex trafficking. (Id.)
Yet Defendant argues that counsel should have presented expert testimony to refute Agent Hardie's
testimony because the agent's "opinions were taken as credible expert testimony despite his lack of
any knowledge of the details of this case (such as the individuals involved, the territory, the local
market, etc.)." (Id. at PagelD.l 115.)
Under Federal Rule of Evidence 702, an expert witness does not need personal knowledge
of the details of a case in order to give expert testimony about a subject unfamiliar to the jury. Fed
R. Evid. 702 advisory committee's note to 2000 amendment ("It might.. be important in some
.
cases for an expert to educate the fact finder about general principles, without ever attempting to
apply these principles to the specific facts of the case."). The Rule allows an expert to instruct the
factfinder on an subject "without ever knowing about or trying to tie their testimony into the facts
of the case" Id.
Generally, counsel's decision not to call an expert to rebut the prosecution's expert is
considered sound trial strategy. See, e.g., Harrington, 562 U.S. at 111 ("Strickland does not enact
Newton's third law for the presentation Of evidence, requiring for every prosecution expert an equal
12
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1298 Page 13 of 35
and opposite expert from the defense. In many instances cross-examination will be sufficient to
expose defects in an expert's presentation."); Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir.
2008) ("[D]ecision of which witnesses to call is quintessentially a matter of strategy for the trial
attorney."); Bower v. Quarterman, 497 F.3d 459,467(5th Cir. 2002) ("An early formulation of trial
strategy and a decision to attack the state's expert witnesses on cross examination rather than calling
additional experts can be part of a reasonable trial strategy."). Defendant has not overcome the
strong presumption that this decision "falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689.
In his reply, Defendant cites to a study that found 90% of child prostitutes in New York City
said that they did not have a pimp. He argues that a defense expert could have testified about this
study. But counsel had an opportunity to cross-examine the government's expert on the subject, so
any additional benefit from. a defense expert is purely speculative.. As such, he also fails to show
prejudice resulting from counsel's failure to call a rebuttal expert.
e. Failure to move to suppress Defendant's statement
Defendant argues that trial counsel was ineffective for failing to move to suppress
Defendant's oral statement to Agent McMurtrie. He claims that this evidence should have been
suppressed because, he "[n]ever signed the statement and there was no othçr indication that
McMurtrie's notes of Jackson's interview were accurate." (ECF No. 109, PagelD.,1116.)
On December 19, 2013, Defendant was arrested and interviewed by .AgentMcurtrie.
Before the interview, Agent McMurtrie advised Defendant of his Miranda rights, and. Defendant
signed an advice-of-rights form. (ECF No. 96, PagelD.928-32.) After signing the form, Defendant
voluntarily answered a series of questions. (Id.) During trial, counsel cross-examined Agent
13
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PageiD.1299 Page 14 of 35
McMurtrie on Defendant's statements and his personal interview notes. Through discovery, counsel
received copies of the interview report, the waiver-of-rights form, and Agent McMurtrie's interview
notes.
On cross
'A
Agent McMurtrie testified that, during the interview, Defendant
"asked if he was getting himself in trouble by continuing to answer questions, and [Agent
McMurtrie] reminded him that he was free to stop at any time." (Id. at PagelD.93 1.) But Defendant
"freely and voluntarily agreed to keep answering [Agent McMurtrie's] questions[.]" (Id. at
PagelD.932.) Agent McMurtrie also testified that Defendant had not been given an opportunity to
review the notes to see whether or not he agreed with the answers Agent McMurtrie attributed to
him.
In his reply, Defendant argues that there were a number of discrepancies between Agent
McMurtrië's testimony and his report, and that he gave three different answers for the same
question. Defendant points to Agent McMurtrie's answer that Defendant admitted that he had plenty
of women that stayed at the hotel with him. (Trial Tr. II, PagelD.932.) Defendant points to
McMurtrie's later testimony that Defendant stayed "with different women on a number of
occasions." (ECF No. 115, PagelD. 1248.) There is no discrepancy among the statements Defendant
cites in his reply. On cross-examination, counsel elicited the only true discrepancy between the
interview notes and the testimony—Agent McMurtrie's notes listed the hotel as "Amerixa's Inn,"
rather than "America's Inn," which was a typo. (Trial Tr. H, PagelD.933-34.)
The record shows that Defendant voluntarily waived his Miranda rights and answered the
agent's questions. There were no valid grounds to move to suppress Defendant's statement, so
counsel was not ineffective for failing to do so. See Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir.
14
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1300 Page 15 of 35
2010) (citing Girts v. Yanai, 501 F.3d 743, 753 (6th Cir. 2007) ("[C]ounsel cannot be ineffective for
a failure to raise an issue that lacks merit.")). Thus, this claim is without merit.
f Failure to object to testimony beyond the scope allowed by the Court
Defendant next argues that trial counsel was ineffective for failing to object to expert
-
testimony that allegedly exceeded the scope allowed by the Court. Before trial, the government gave
notice of its intent to call Agent Hardie as an expert witness "on various aspects of sex trafficking,"
including common sex-trafficking practices, the hierarchical structure within a commercial sextrafficking organization, recruitment, methods of control, methods of obtaining clients, site selection,
common characteristics in women recruited into commercial sex trafficking, and victim behavior
as it relates to prostitution. (ECF No. 29, PagelD. 130-31.) Defendant moved to exclude the•
testimony because the subject of sex trafficking is "not a specialized field outside the ken of a lay
person/juror." (ECF No. 32, PagelD.148-49.). The Court denied the motion, explaining that "[i]f
the government wishes to call this individual, this Court believes that any prejudice to the Defendant
would be lessened considerably if the expert's testimony is given following victims' testimony
rather than preceding the victims' testimony and is confined to the, issues of recruitment and
control." (ECF No. 43, PagelD.286-87.)
Defendant argues that Agent Hardie's testimony went beyond the scope of recruitment and
control, including, inter alia, questions about "how prostitution actually works," pimps, and protocol
for avoiding law enforcement detection. (ECF No. 109, PagelD. 1118-19.) But these.,questions
relate to recruitment and control, and fall within the scope of the Court's order. Further, during.trial,
counsel objected to a question that he felt was "outside the scope of the expert's testimony," and the
Court sustained the objection. (ECF No. 56, PagelD.336.)
15
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1301 Page 16 of 35
Experienced trial counsel know that objections to each potentially-objectionable event could
act to the client's detriment; "learned counsel[,] therefore[,] use objections in a tactical manner."
Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir. 2006). "In light of this, any single failure to
object usually cannot be said to have been error unless the evidence sought is so prejudicial to a
client that failure to object essentially defaults the case to the state." Id.; see also United States v.
Dado, 759 F.3d 550, 565-66 (6th Cir. 2014) (failure to object to expert testimony did not constitute
ineffective assistance because it "was not so prejudicial that it defaulted the case to the state").
Defense counsel must "so consistently fail to use objections, despite numerous and clear reasons for
doing so, that counsel's failure cannot reasonably have been said to have-been part of a trial strategy
or tactical choice." Id. (citing Hodge v. Hurley, 426 F.3d 368, 376 (6th Cir. 2005) ("[C]ounsel's
failure to object to any of the numerous improper statements in the prosecution's closing argument
is well outside [professional norms].") (emphasis in original)). Defendant has not shown counsel's
failure to object to this line of questioning "essentially default[ed] the case to the state." Id
In any event, Defendant also has not shown prejudice. See Engle v. Isaac, 456 U.S. 107,134
(1982) ("[T]he Constitution does not insure that defense counsel will recognize and raise every
conceivable constitutional claim."). Defendant argues that this allegedly-deficient performance
prejudiced him because "the jury was allowed to hear testimony that was otherwise not allowed."
(ECF No. 109, PagelD. 1119.) But this is speculative, and Defendant presents no argument in
support of prejudice beyond conclusory assertions. There was overwhelming evidence of
Defendant's guilt, and Defendant has not shown that, but for counsel's allegedly-deficient
performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694.
16
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Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1302 Page 17 of 35
g. Requesting a "needless" continuance
Defendant argues that counsel was ineffective for requesting a needless ends-of-justice
continuance. In the motion, counsel requested additional time for investigation, including
investigation into the minors' identification and statements. Counsel explained that, "an additional
45 days will allow enough time for counsel to conduct additional investigation and consult with the
defendant regarding his opinions in this matter." (ECF No. 14, PagelD.43.) Although Defendant
was "opposed to any adjournment of his trial date," counsel explained that "a continuance is
necessary." (Id. at PagelD.44.) The Court granted the motion, over Defendant's objection
Defendant argues that the continuance was not necessary because counsel already knew the
names of the alleged victims, and that he was prejudiced because the government found additional.
witnesses during the 45-day period to corroborate the victims' testimony. Yet in a previous claim,
Defendant alleges that counsel was ineffective for failing to investigate various maters. Courts
reject this sort of second-guessing of counsel in a § 2255 motion. See Strickland, 466 U.S. at 689.
("Judicial scrutiny of counsel's performance must be highly deferential. It is all top tempting for
a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all
too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that
a particular act or omission of counsel was unreasonable) (citing Engle, 456 . U.S. at 133-34);
Jackson v. Bradshaw, 681 F.3d 753, 760 (6th Cir. 2012). Defendant cannot overcome the strong
presumption that an ends-of-justice continuance was sound trial strategy.,
.-
Moreover, Defendant has not shown.prejudice. He alleges that counsel only filedthis motion
to benefit the government, but he does not support this conclusory statement. Although the two
additional witnesses corroborated the victims' testimony, the victims' testimony alone would have
17
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1303 Page 18 of 35
been enough for the jury to find Defendant guilty. The fact that the government obtained additional
witnesses during the continuance does not constitute prejudice under Strickland. See Stoia v. United
States, 109 F.3d 392, 398 (7th Cir. 1997) (fact that government obtained additional witness during
continuance was "completelyfôrtiiitous" and was not an "adverse effect" of counsel's request for
a continuance). Further, Defendant concedes that the government found the witnesses on March 17
and March 19, before the original March 24 trial date. Thus, this claim is meritless.
h. Ineffective objection to § 2G1.3(b)(4)(A) enhancement
Defendant next argues that counsel "was ineffective for arguing [the] U.S.S.G.
§ 2G 1 .3(b)(4)(A) enhancement improperly." (ECF No. 109, PagelD. 1123.) Defendant received two
points under § 2G1 .3(b)(4)(A) because Defendant "caused the minor to engage in a sex act,
prostitution, for money with adult men." (Presentence Report ¶ 56, ECF No. 79 PagelD.429.)
Counsel objected, arguing that this enhancement "double count[ed]" because the offense of
conviction already included such conduct; "[h]ad there not been sexual acts involved, the defendant
would not have been convicted of these crimes." (Response, ECF No. 87, PagelD.483-84.) But the
government maintained, and probation agreed, that "18 U.S.C. § 1591 does not require the
completion of a sex act for conviction of sex trafficking of a minor. Therefore, the actual
completion of a sex act is an enhancement that is correctly applied here." (ECF No. 79,
PagelD.442.) During the sentencing hearing, the Court overruled the objection and applied the
enhancement. (Sent. Tr. 7, ECF Nô 99, PagelD.1047.)
On appeal, the Sixth Circuit held that "[t]he record and our case law allow the enhancement."
Jackson, 627 F. App'x at 465 (citing UnitedStates v. Willoughby, 742 F.3d 229,241(6th Cir. 2014)
(affirming the enhancement because "a sex act does not have to occur to satisfy the elements of the
18
.
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1304 Page 19 of 35
child-sex-trafficking offense")). The court also held that Defendant "suffered no prejudice," id.,
which is the law of the case. See United States v. Charles, 843 F.3d 1142, 1145 (6th Cir. 2016)
(appellate court ruling "was binding on district court in later phases of the case"). Not only did
counsel object to the enhancement, but the Sixth Circuit found.that the enhancement was appropriate
and not prejudicial. Thus, this claim is meritless.
L Failure to object to Court's comments about criminal history
Defendant also argues that counsel was ineffective for failing to object to the Court's
comments during sentencing that Defendant had 14 prior convictions for firearms and assaults.
(ECF No. 99, PagelD. 1057.) Defendant contends that he has two firearm and two assault
convictions, and that he was prejudiced by counsel's failure to object to the Court's,
misrepresentation of his criminal history.
Defendant's presentence report shows. that he has 16 adult convictions and,.-three juvenile
adjudications; including three convictions for assaultive behavior, a juvenile adjudication for car
jacking, and four convictions for firearms-related offenses. (Presentence Report, ECF No. 79,.
PagelD.430-34.) Before sentencing, counsel filed a motion for downward variance and a sentencing
memorandum, which stated that Defendant "had a criminal history that, includes fourteen prior
convictions and juvenile adjudications." (ECF' No. 87, PágelD.480.) It appears that the Court
misstated or failed to complete its description of Defendant's criminal record during the sentencing
hearing. There is no indication that the Court attached any.undue weight to Defendant's criminal
history in denying his motion for downward variance and imposing a low-end Guidelines sentence
of 360 months. Rather, during sentencing, the Court focused on the nature of the.. crime and the
impact it had on the minor victims. (ECF No. 99, PagelD.1055-59.)
19
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Defendant argues that, if counsel had objected, "the aggravating circumstance could have
turned into a mitigating circumstance and the courts (sic) would have looked in more favorable light
into the Downward Variance Motion." (ECF No. 109, PagelD. 1125.) He contends that, "[s]ince
the court sentenced Jackson to the LOWER END of the Guidelines Range it is likely that the courts
(sic) would have accepted the Motion with more favor." (Id.) But the Court reviewed the
sentencing memoranda and presentence report before the hearing, so it was familiar with
Defendant's criminal history before sentencing. Defendant provides no support for this conclusory
argument, so he has not shown prejudice?
Further, Defendant did not raise this on direct appeal. Therefore; he is barred from raising
the issue in his § 2255 petition absent a showing of good cause and actual prejudice. Frady, 456
U.S. at 167-68. Defendant has not satisfied either requirement, so this claim is procedurally
defaulted
I. Cumulative effect
Defendant also argues that, if his previous individual claims are insufficient to show ,
prejudice, the "cumulative effect of these errors certainly resulted in ineffective assistance," and that
"he was convicted and sentenced based on the Court's impression of a situation tainted by the
cumulative errors." (ECF No. 109, PagelD. 1126.) In his reply, Defendant contends that each prior
claim had a substantial effect on violating his constitutional rights, and these errors cumulatively
2
In his reply, Defendant also argues that "this is a violation of Jackson's due process to be sentence
(sic) under the wrong pretense." (ECF No. 115, PagelD.1254.) To the extent that Defendant raises a new
claim, it is barred by the statute of limitations. Defendant's conviction became final on May 18, 2016, when
the Supreme Court denied his petition for writ of certiorari. Defendant filed his reply on June 30, 2017, more
than one year after his conviction became final. This claim does not relate back to the original § 2255 motion
because it "differ[s] in both time and type from those [claims] the original pleading set forth," so it is barred
by the statute of limitations. See Howard v. United States, 533 F.3d 472, 475-76 (6th Cir. 2008); see also
Mayle v. Felix, 545 U.S. 644, 649-50 (2005).
20
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 Pag6lD.I306 Page 21 of 35
present a complete miscarriage of justice. (ECF No. 115, PagelD.1255.) But "[p]ost-AEDPA, [a
cumulative] claim is not cognizable." Sheppardv. Bagley, 657 F.3d 338, 348 (6th Cir. 20J 1) (citing
Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). Thus, this claim is meritless.
k. Failure to challenge calculation of criminal history
Next, Defendant argues that counsel was ineffective for failing to challenge the calculation
of one criminal-history point for each of his convictions in paragraphs 78, 79, and 82 of the
presentence report, which include assault and battery, driving while unlicensed and use of marijuana,
and possession of cocaine. He asserts that those convictions carry a maximum penalty of less than
one year, and that "[t]he Sentencing Guidelines clearly state that a conviction that carries a sentence
of less than one year receives no increase in criminal history points," citing U.S.S.G.
§ 4A 1 .2(c)( l)(A). But § 4A 1.2(c) provides that "[s]entences for all felony offenses are counted,"•
and "[s]entences for misdemeanor and petty offenses are counted," with certain exceptions. Section
4A1 .2(c)(1)(A) provides a list of prior offenses and "offenses similar to them" that are counted only
if "the sentence was a term of probation of more than one year or a term of imprisonment of at least
thirty days[.]" § 4A1.2(c)(1)(A). Neither assault and battery nor possession of cocaine are listed.
in § 4A1 2(c)(l)(A).3 Although driving without a license is listed as an exception, paragraph 79 of
Defendant's presentence report includes two convictions, one for use of marijuana and, one for
driving while unlicensed. Use of marijuana is not excluded by § 4A1.2(c)(1)(A). The offenses
described in paragraphs 78, 79, and 82 were properly counted. Nothing in § 4A1 .2(c) provides that
offenses that carry a maximum penalty of less than one year do not receive criminal history points.
In his reply, Defendant argues that .there were no injuries or sign of any altercation with his
conviction for assault and battery. (ECF No. 115, PagelD.1256.) But this is not relevant for
§ 4A1.2(c)(1)(A). The crime for assault and battery, or a similar offense, are not listed as exceptions.
21
.
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1307 Page 22 of 35
Therefore, there was no basis for counsel to challenge the scoring of those convictions, and
Defendant has failed to show deficient performance or prejudice.
Further, Defendant did not raise this issue on direct appeal. He has not shown cause and
prejudice to bypass this procedural dèfaült, so the claim is barred.
1. Failure of appellate counsel to appeal denial of Rule 29 motion
Defendant argues that appellate counsel was ineffective for failing to appeal the Court's
denial of a Rule29 motion for judgment of acquittal made at the end of the trial. He asserts that
-
there were grounds to challenge the sufficiency of the evidence as to Count 3, which involved
Victim #3, but he does not challenge the ruling as to Counts 1 and 2. Defendant contends that
appellate counsel should have appealed the denial of the Rule 29 motion as to Count 3 because there
was insufficient evidence to show "that there was an exchange of value for prostitution or that there
was any agreement that Victim 3 intended to prostitute." (ECF No. 109, PagelD.1128.)
At the close of proofs, trial counsel made a Rule 29 motion as to all three counts. He argued
that Victim Ws testimony was inconsistent, that Victim #2 never actually identified Defendant in
court, and that the government failed to prove the interstate-commerce element as to Count 3, in part
because Victim #3 allegedly did not have the intent to engage in prostitution when she was riding
in the Ford Explorer. (Trial Tr. II, ECF No. 96, PagelD.942-43.) The government responded that
Any inconsistency in Victim #1's testimony was a question for the jury; that Victim #2 had
sufficiently identified a photo of Defendant; and that Victim #3's intent was not an element of the
offense. (Id. at PagelD.943-44.) The Court denied the Rule 29 motion, finding that "the essential
elements of this offense have been set forth." (Id. at PagelD.946.) Specifically, as to the
jurisdictional element, the Court found that all three victims testified that they were transported in
22
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a white Explorer that was manufactured in Missouri, that they traveled on an interstate highway, and
that "all of them at one time or another used cell phones," which are "governed by the interstate
communications statutes of the federal government." (Id. at Page[D.945.)
To succeed on a claim for ineffective assistance of appellate counsel, Defendant must show
"a reasonable probability that inclusion of the issue would have changed the result of the appeal."
Howard v. Bouchard, 405 F.3d 459, 485 (6th Cir. 2005). When a Rule 29 motion is based on
specific grounds, as it was here, "all grounds not specified [in the motion] are waived." United
States v. Dandy, 998 F.2d 1344, 1356-57 (6th Cir. 1993). Although trial counsel moved under Rule
29, he did not make the argument that Defendant advances now as to Count 3. Therefore, the
argument is waived and would have been reviewable on appeal only for a "manifest miscarriage -of
justice." United States v. Guadarrama, 591 F. App'x 347, 3.1-52 (6th Cir. 2014). (holding that,
under the manifest-miscarriage-of-justice standard, the court will only, reverse a conviction if the
record is devoid of evidence pointing to guilt) (collecting cases).
The elements of the charged offense were: (1) Defendant knowingly recruited, enticed,
harbored, transported, provided, obtained, or maintained a person by any means; (2) Defendant knew
or recklessly disregarded the fact that the person was under. 18 years of age and will be caused to
engage in a commercial sex act; and- (3) an effect on interstate or foreign commerce. (ECF No; 96,
PagelD.999.) The crime does not require an agreement or intent to engage in commercial sex on
behalf of the minor, nor does it require the completion of a commercial sex act. See Willoughby, 742
F.3d at 241. The focus is on Defendant's knowledge and intent. See id. .(fitiding the offense
completed when'the defendant acted with the requisite knowledge). Neither an exchange of
23
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 Page ID.1309 Page 24 of 35
something of value for prostitution nor an agreement by the minor to prostitute are elements of the
offense, so they cannot form grounds for a Rule 29 motion or appeal.
Likewise, appellate counsel is not required to raise frivolous issues on appeal. See Willis v.
Smith, 351 F.3d 741, 746 (6th Cir. 2003) (appellate càunsel's failure to raise nieritless claim on
appeal cannot be deemed deficient performance). Indeed, appellate counsel is not even required to
raise every possible meritorious issue. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (no
constitutional right to compel appointed counsel to press non-frivolous points required by client, if
counsel, as a matter of professional judgment, decides not to present those points). "Generally, only
when ignored issues are clearly stronger than those presented, will the presumption of effective
assistance of counsel be overcome." Smith v. Robbins, 528 U.S. 259, 288 (2000). The issues raised
on appeal—exclusion of Rule 412 evidence and sentencing issues—were better than the Rule 29
issue. Thus, Defendant has not overcome the presumption that counsel's decision not to raise this
issue on appeal was sound trial strategy.
Moreover, appellate counsel was not ineffective for failing to appeal the denial of the Rule
29 motion on the grounds presented in the district court. There was ample evidence of the effect on
interstate or foreign commerce presented at trial. Defendant is unable to show deficient performance
or that the outcome of the appeal would have been different if appellate counsel had raised the Rule
29 arguments. Therefore, this claim is without merit.4
in. Failure to include additional issues on appeal
Next, Defendant argués that appellate counsel was ineffective for failing to include the
various issues that Defendant wanted to raise on appeal in counsel's brief, rather than submitting
In his reply, Defendant concedes this argument. (ECF No. 115, PagelD. 1258.)
24
Case 1:13-cr-00246-jTN ECF No. 117 tiI.
.08/4I17 PagelD 1310, Pap
of 35
Defendant's pro se supplemental brief Appellate counsel's brief was due on February 23, 2015.
On February 17, 2015, Defendant sent a letter to counsel stating that he had several issues that he
wanted to raise in the brief, including the due process issue "as this issue has never been decided in
my circuit,.in addition the Fourth Amendment argument with respects (sic) to the Ninth Amendment
and the Tenth Amendment as in United States v. Bond, the Supreme Court has brought question to
the jurisdiction of the United States." (ECF No. 109, PagelD. 1165.) It is unclear when counsel
received this letter: On February 23, 2015, appellate counsel filed the opening brief raising two
issues: whether the district court erred in prohibiting evidence that the minor victims had prostituted
themselves for other pimps under Rule 412, and whether Defendant's sentence was procedurally and
substantively reasonable.
On March 13, 2015, counsel filed a motion to allow the filing of prose supplement brief
"to address issues [Defendant] wishes to raise that were not raised by his counsel in he principal
brief." (ECF No. 109-3, PagelD. 1167-68.) Counsel joined in the motion, submitting that "allowing
these issues to be passed upon by this court will avoid future habeas litigation on these matters,:and
will serve judicial economy concerns." (Id) Counsel attached Defendant's 28-page pro se brief
to the motion, which raised the following issues: (1) lack of judicial impartiality; (2) alleged
prosecutorial misconduct; (3) inconsistent testimony; (4) alleged due process violation for lack of
effect on interstate commerce; (5) Fourth and Ninth Amendment violation based on use of personal
possessions to prove interstate commerôe element; (6) Tenth Amendment violation by federalizing
activity that was reserved to the states. The government moved to strike the pro se brief, and the
Sixth Circuit granted the motion, citing United States v. Williams, 641 F.3d 758 (6th Cir. 2011).
(United States v. Jackson, No. 14-2208, Doc. 25-1 (6th Cir. Apr. 15, 2015).) The .court explained
25
Case 1:13-cr-00246-JTN ECF No, 117 filed 08/24/17 PagelD.1311 Page 26 of 35
that, because "counsel's brief employed less than the full word count,
.
.
.
[i]t remains counsel's
option to move for leave to file an amended appellant's brief in view of his apparent receipt of the
defendant's request to include these arguments after the counseled brief already had been filed."
(Id.) Counsel did not seek leave to file an amended brief.
As discussed supra, there is no constitutional right to compel counsel to press non-frivolous
issues requested by the client, if counsel, as a matter of professional judgment, decides not to address
those issues. Barnes, 463 U.S. at 751. Defendant has not shown that the issues he wanted to raise
on appeal were more meritorious than the issues raised by counsel. Nor has he shown "a reasonable
probability that inclusion of the issue would have changed the result of the appeal." Howard, 405
• •F.3d at 485. Defendant provides a conclusory statement that he was prejudiced because the
important issues were never considered, which is why the Sixth Circuit affirmed his conviction and
sentence. .Defendant asserts that "9 times out of 40 the Court of Appeals was going to affirm the
issues Jackson raised was more powerful (sic)." (ECF No. 115, PagelD.1260.) But conclusory
statements alone, without support facts, are insufficient to state a claim under § 2255. See Jefferson
v. United States, 730 F.3d 537, 547 (6th Cir. 2013) ("[C]onclusory allegations alone, without
supporting factual averments, are insufficient to state a valid claim under § 2255.") (citations
omitted); Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000) (conclusory statement in
V
defendant's § 2255 brief that his counsel's failure to raise an issue on appeal constitutes ineffective
assistance of counsel "is wholly insufficient to raise the issue of ineffective assistance").
n. Failure to appealexpert testimony
Defendant contends that appellate counsel was ineffective for failing to appeal the denial of
trial counsel's objection to the admissibility of the government's expert witness. Defendant argues
26
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1312 Page 27 of 35
that the expert's testimony was inadmissible because the witness was not familiar with the facts of
the case. As discussed supra, Rule 702 does not require an expert witness to have knowledge of the
details of the case in order to give expert testimony on a subject that is not familiar to the jury. The
argument is without merit, and appellate counsel is not required to raise friolous arguments on
appeal.
o. Failure to appeal witness's use of 'false" name
Defendant argues that appellate counsel was ineffective for failing to appeal the fact that the
prosecution introduced a witness under a false name. At trial, the government called a witness
identified as Renee Holmes, the aunt of Victim #1. Holmes testified that she was driving down
Division Street in Grand Rapids and spotted Victim #1 wearing tight clothes, a wig, and thigh-high
boots. (Trial Tr. I, ECF No. 95, PagelD.737.) Holmes was familiar with the area and thought
Victim #1 was prostituting herself, so when she saw her niece, she pulled into a parking lot to talk
with her. (Id. at PagelD.733, 737, 745.) Holmes saw a Cadillac pull into the same lot, and a black
male walked over to speak with someone in the vehicle. (Id. at PagelD.739.) Holmes later saw the
black male following Victim #1 and another young woman down the street. (Id at PagelD.742.)
Holmes also testified that she had prior convictions for shoplifting, prostitution, and possession of
controlled substances. (Id. at PagelD.745.) On cross-examination, counsel asked Holmes, "When
you were born, you were born as Ricky Holmes?" (Id at PagelD.747.) The government objected,
arguing that it was a "sensitive issue that either has to be discussed outside the presence Of the jury
because it's not relevant and for me to discuss its relevance touches on points that no one needs to
discuss." (Id) The Court held a side bar, and afterward, no further questioning about the witness's
name occurred. Counsel then established that Holmes had also been convicted of felony larceny in
27
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PágelD.1313 Page 28 of 35
a building. (Id.) Counsel made the decision to discontinue the line of questioning after the side bar,
so it is presumed that counsel made that decision as part of trial strategy.
Defendant argues that he was prejudiced because counsel was not allowed to cross the
witness as to her true identity, in violation of the Sixth Amendment. But counsel impeached Holmes
with her prior convictions. Defendant fails to show that the witness's name at birth was Ricky
Holmes. The witness's criminal history record shows "Ricky Holmes" with "Renee Holmes" listed
as an aka, but this is not dispositive; Defendant fails to account for a possible change of name or in
the witness's self-identification. In addition, Defendant fails to show how further impeachment
would have changed the outcome of the trial.
Further, counsel did not object during trial, so the issue was not preserved for appeal. On
appeal, the issue would have been subject to plain error review. Defendant has not shown plain error
here. Thus, appellate counsel was not ineffective for failing to appeal this issue.
3. Confrontation Clause Violation
As a corollary to the previous claim, Defendant argues that trial counsel's inability to crossexamine Holmes about her true name violated his Sixth Amendment right to confront witnesses.
Defendant did not appeal this issue, so it is procedurally barred absent a showing of good cause and
actual prejudice. Defendant argues ineffective assistance of appellate counsel to satisfy the goodcause requirement. As discussed supra, appellate counsel was not ineffective for failing to raise the
issue on appeal. In addition, Defendant has failed to show actual prejudice. Thus, the claim is
procedurally barred.
Defendant's claim is also meritless. The Sixth Amendment provides that "the accused shall
enjoy the right.
.
to be confronted with the witnesses against him." U.S. CONST. Amend. XI.
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1314 Page 29 of 35
Although this includes the right to cross-examine witnesses, Davis v. Alaska, 415 U.S. 308, 315-16
(1974), that right is not absolute. "[T]rial judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness's safety, or
interrogation that is repetitive or only marginally relevant." Delaware v. Van A rsdall, 475 U.S. 673,
679 (1986).
"{F]ederal courts have adhered to the fine line drawn in Davis and Van Arsdall finding crossexamination constitutionally compelled when it reveals witness bias or prejudice, but not when it
is aimed solely to diminish a witness's general credibility." Boggs v. Collins, 226 F.3d 728, 737 (6th
Cir. 2000). "Under Davis and its progeny, the Sixth Amendment only compels cross-examination
if that examination aims to reveal the motive, bias or prejudice of a witness/accuser." Id. at 740.
"[T]he Constitution does not require that a defendant be given the opportunity to wage a general
attack on credibility by pointing to individual instances of past conduct." Id. Thus, "Boggs clearly
holds that the Confrontation Clause does not give defendants the right to cross-examine witnesses
regarding allegedly false statements where the defendant's theory of admissibility is that 'if [the
witness] lied or fabricated once, [he or] she would do so again." Latimer v. Burt, 98 F. App'x 427,
431 (6th Cir. 2004). Defendant acknowledges that the attempted cross-examination about the
witness's birth name was to show that the witness had a propensity. to lie, rather than to show
motive, bias, or prejudice.
-
Although the Sixth Circuit questioned and distinguished Boggs in Vasquez v. Jones, 496 F.3d 564,
573-74 (6th Cir. 2007), that opinion was amended and superseded by Vasquez V. Jones, 496 F.3d 564 (6th
Cir. 2007). Further, the Sixth Circuit has continued to cite Boggs with approval. See, e.g., Fuller v. Woods,
528 F. App'x 566, 570 (6thCir. 2013); Jordan v. Warden, Lebanon Corr. Inst., 675 F.3d 586, 596 (6th Cir.
2012).
wt
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1315 Page 30 of 35
In Smith v. illinois, 390 U.S. 129(1968), the government's primary witness—who identified
himself on direct examination as 'James Jordan'—admitted on cross-examination that he had not
disclosed his real name. Id. at 131. When asked what his real name was and where he lived, the
court sustained the prosecutor's objections. Id The Supreme Court held that this violated the
defendant's right to confrontation. Id.
"Smith, however, did not mandate a per se rule requiring disclosure in open court of any
government witness's name and address." United States v. Alaniz, 726 F.3d 586, 610 (5th Cir.
2013). The purpose of Smith "is achieved if sufficient evidence is admitted to identify the witness
and locate him in his usual environment." United States v. Fife, 573 F.2d 369, 377 (6th Cir. 1976).
"Smith requires reversal only where the lack of a witness's name and address denies a defendant:an
opportunity to effectively cross-examine a witness." United States v. Spector, 793 F.2d 932, 937
(8th Cir. 1986). This case is distinguishable from Smith: Defendant knew Holmes's birth name and
criminal history. In his reply, Defendant argues that he should have been allowed to establish the
witness's "character for truthfulness by way of criminal history or questioning as it states a number
of alias! a.k.a. 's." (ECF No. 115, PageiD. 1266.) He was able to cross-examine the witness on other
grounds, including her prior convictions, so this limitation did not unduly hamper his ability to
attack the witness's credibility. Thus, Defendant has failed to show a Confrontation Clause
violation.
Even if Defendant could establish a Confrontation Clause violation, he did not preserve the
matter for appeal, so it would be subject to harmless-error analysis. Van Arsdall, 475 U.S. at 684;
see Brecht v. Abrahamson, 507 U.S. 619 (1993) (holding that the proper test on collateral review
was whether the alleged constitutional violation "had substantial and injurious effect or influence
30
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1316 Page 31 of 35
in determining the jury's verdict." Id. at 637-38; Jordan, 675 F.3d at 598 (applying Brecht standard
to alleged Confrontation Clause violation). Defendant impeached Holmes with her prior criminal
record, the only limitation on cross-examination was her birth name. This limitation did not have
a "substantial and injurious effect or influence in determining the jury's verdict." Therefore, any
Confrontation Clause violation would be harmless.
4. Actual Innocence
Lastly, Defendant argues that he is actually innocent of all three counts. To the extent that
Defendant argues this as a free-standing ground for relief, it fails as a matter of law. See Bowman
v.Haas, No. 15-1485, 2016 WL 612019, at *5 (6th Cir. 2016) (holding that an actual-innocence
claim was not cognizable as a matter of law); Muntaser v. Bradshaw, 429 F. App'x 515, 521 (6th
Cir. 2011) (same); flodgson v. Warren,.622 F.3d 591, 601 (6th Cir. 20 10) (noting that in a noncapital case, "a claim of 'actual innocence' is not itself a constitutional claim, but instead a gateway
through which a habeas petitioner must pass to have his otherwise barred constitutional claim
considered on the merits") (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)).
To the extent that Defendant uses this as a gateway to his otherwise barred claims, he must
show that "it is more likely than not that no reasonable juror would have convicted him in light of
the new evidence." Schiup v. Delo, 513 U.S. 298, 328 (1995). To succeed, Defendant must present
new facts that raise "sufficient doubt about [his] guilt [so as] to undermine confidence in the result
of the trial without the assurance that that trial was untainted by constitutional error[]" Id. at 317.
In other words, Defendant must present "evidence of innocence so compelling that it undermines
the Court's confidence in the criminal proceeding's outcome of conviction." United States v. Reid,
No. 6:11-7190-DCR, 2012 WL 1344985, at *5 (E.D. Ky. Mar. 27, 2012) (citing Schiup, 513 U.S.
31
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1317 Page 32 of 35
at 316).
In support of his actual-innocence argument, Defendant submits an unsworn letter
that he claims is from Victim #2. (ECF No. 109-3, PagelD.1183-84.) In the letter, she states that
she made false statements about Defendant to officers and at trial, but she does not contradict that
Defendant was guilty of the crime. She explains that Defendant "never made me do anything I did
not whant (sic) to do[.] [I]t was my choice to do what I did in Grand Rapids." (Id. at PagelD. 1183.)
This letter does not refute any of the elements of the crime. See United States v. Brooks, 610 F.3d
1186, 1199 (9th Cir. 2010) ("The victim's willingness to engage in sexual activity is irrelevant, in
much the same way that a minor's consent to sexual activity does not mitigate the offense of
statutory rape or child molestation.") (citing Un ited States v. Dhingra, 371 F.3d 557, 567-68 (9th
Cir. 2004)).
Further, unsworn recantations are "inherently suspect." See Freeman v. Trombley, 483F.
App'x 51, 64 (6th Cir. 2012) (collecting cases); see also cress v. Palmer, 484 F.3d 844, 855 (6th
Cir.. 2007) (rejecting actual-innocence claim that was based in part on.an unsworn statement from
a recanting witness). Even a sworn statement recanting testimony given under oath is "viewed with
extreme suspicion." United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991). This is
particularly true where, as here, there is no evidence concerning the letter's authenticity, the author's
motivation, the circumstances of the letter's execution, the timing of its submission, or its
consistency with other evidence in the trial record. See Giles v. Wolfenbarger, 239 F. App'x 145,
148 (6thCir. 2007).
As to Count 1, Defendant argues that Victim #2's letter shows that "there is a high
probability" that Victim #1 was coerced to testify against Defendant. (ECF No. 109-1,
PagelD. 1140.) He does not offer any new evidence to support this claim. Rather, Defendant cites
32
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Victim #1's trial testimony and interview notes from October 30, 2012. This evidence is not so
compelling that it undermines the Court's confidence in the outcome.
Lastly, as to Count 3, Defendant argues that Victim #2 and Victim #3 spoke before they went
to court, but concedes that he knew this fact before trial. (ECF No. 109-3, PagelD. 1139-40.) He
also cites a police report that states Victim #3 said that she would lie to exculpate Defendant if she
went to court. (Id. at PagelD. 1181.) He does not, however, claim that he did not have that
information at trial. Nor does this evidence show that he is actually innocent of the crime.
C.
Evidentiary Hearing
In an action to vacate or correct a sentence, a court is generally required to grant a hearing
to determine the issues and make findings of fact and conclusions of law "[u]nless the motion-and
the files and records of the case conclusively, show that the-prisoner is entitled to no relief." 28
U.S.C. § 2255(b). No evidentiary hearing is required if the movant's allegations "cannot be
accepted as true because they are contradicted by the record, inherently incredible, or conclusions
rather than statements of fact." Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007)
(quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Having decided that the
files and records in this case conclusively show that Defendant is not entitled to relief under 28
U.S.C. § 2255, no evidentiary hearing is required to resolve the merits of the pending motion.
M. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c)(1)(B), the Court must further determine whether to grant
a certificate of appealability as to the issues Defendant raises. Se RULES GOVERNING § 2255
PROCEEDINGS, Rule 11 (requiring the district court to "issue or deny a certificate of appealability
33
Case 1:13-cr-00246-JTN ECF No. 117 filed 08/24/17 PagelD.1319 Page 34 of 35
when it enters a final order"). The Court must review the issues individually. See Slack v.
McDaniel, 529 U.S. 473 (2000); Murphy v. Ohio, 263 F.3d 466, 466-67 (6th Cir. 2001).
Regarding Defendant's constitutional claims that this Court rejected on the merits, Defendant
"must demonstrate that reasonable jurists would find the district court's assessment of the
constitutional claims debatable or wrong." See Slack, 529 U.S. at 484. Upon review, this Court
finds that reasonable jurists would not find the Court's assessment of Defendant's claims debatable
or wrong. Thus, a certificate of appealability will therefore be denied as to these issues.
On the remaining issues, which this Court rejected on procedural grounds, a certificate of
appealability "should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.
.
.
.
Where a plain procedural bar is present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further." See Slack, 529
U.S. at 484. The Court holds that reasonable jurists could not find this Court's procedural ruling
debatable. Therefore, the Court also denies Defendant a certificate of appealability as to the
remaining issues presented.
IV. CONCLUSION
For the foregoing reasons, this Court denies Defendant's § 2255 motion and denies a
certificate of appealability as to each issue raised. Accordingly:
IT IS HEREBY ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255 (ECF No. 109) is DENIED.
34
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IT IS FURTHER ORDERED that a certificate of appealability is DENIED as to each issue
asserted.
Is! Janet T. Neff
JANET T. NEFF
United States District Judge
DATED: August 24, 2017
35
A
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.