Jackson v. United States of America

Filing 8

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/31/2015. (JLC)

FILED
2015 Aug-31 PM 01:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAWANA KESHUN JACKSON,
Petitioner,
v.
UNITED STATES OF
AMERICA,
Respondent.

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Case No.: 2:15 -CV-8000-VEH
(2:09-CR-453-VEH)

MEMORANDUM OPINION
PROCEDURAL BACKGROUND AND HISTORY
The movant, Jawana Keshun Jackson, was convicted in this court on
February 2, 2010, on her plea of guilty to one count of armed bank robbery, in
violation of 18 U.S.C. § 2113(a) and (d) (Count 1) and one count of discharging a
firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A)(iii) (Count 2). Pursuant to the plea agreement, Jackson waived her
right to appeal or to seek post-conviction relief.
Jackson was sentenced on November 4, 2010, to a term of imprisonment for
a total of 166 months, to be followed by a 60-month term of supervised release.
Judgment was entered on November 5, 2010. Jackson did not appeal the
conviction or sentence.

On March 28, 2012, Jackson filed a § 2255 motion to vacate, set aside, or
correct the sentence. Jackson v. United States, 2:12-cv-8014-VEH-RRA. The
motion to vacate was denied and dismissed on June 6, 2012, as being untimely
filed.
Jackson filed a second challenge to her conviction and sentence on August
2, 2012. Jackson v. United States, 2:12-cv-8030-VEH-RRA. Although she entitled
the challenge a “Motion for Sentence Reduction via Rule 60(b),” it was docketed
as a § 2255 motion to vacate because Jackson admitted in the motion that she
sought to challenge her conviction and sentence via Rule 60(b) because she was
barred by the statute of limitations from challenging it in a § 2255 motion to
vacate. The court denied the motion on April 18, 2013, finding that, to the extent
the motion was filed pursuant to Rule 60(b), it was due to be denied because this
court does not have jurisdiction in a criminal case to hear motions filed pursuant to
Rule 60(b), and, to the extent it was filed pursuant to § 2255, it was due to be
denied because this court does not have jurisdiction to consider a successive §
2255 motion in the absence of authorization from the Eleventh Circuit Court of
Appeals, as required by 28 U.S.C. § 2244(b)(3)(A). Jackson filed a notice of
appeal on May 10, 2013. The Eleventh Circuit Court of Appeals dismissed
Jackson’s appeal on August 21, 2013, for failure to prosecute.
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On September 19, 2013, Jackson filed a“Motion for Leave to File a
Supplement to the Motion to Proceed under a Habeas Corpus Based on a Claim of
Actual Innocence.” In that motion (as in the current motion), Jackson asked the
court to vacate her sentence in light of Alleyne v. United States, 133 S.Ct. 2151
(2013) and to resentence her to a lesser sentence. She also asked the court to set
aside her sentence imposed for Count Two, arguing that imposing a sentence for a
violation of 18 U.S.C. § 924(c) (using/carrying a firearm during and in relation to
a crime of violence) was impermissible "double counting" in light of the sentence
imposed under Count One (armed bank robbery). The court construed that motion
as a motion under § 2255, and it was, again, denied because Jackson once again
failed to secure a successive § 2255 petition, as required by statute. Jackson
sought a certificate of appealability from the Eleventh Circuit and that request was
denied on August 13, 2014.
On January 6, 2015, Jackson filed her latest post-conviction pleading, which
is now pending before this court. Jackson's pleading is styled "Motion to Obtain
Relief By Way of 2255(e)." She seeks to have her conviction under Count Two set
aside and her sentence under Count One reduced, this time using as a procedural
avenue the “savings clause” found at 28 U.S.C. § 2255(e) and 28 U.S.C. § 2241.
The Government has responded to Jackson's motion. Jackson has replied by filing
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a "Motion To Establish Cause and Prejudice" (doc. 5), which this court has said it
would treat as a response to the Government's opposition. (See docket entry 7). In
her latest motion referenced above, she asserts that her sentence as to Count Two
should be vacated "due to [her] being Actual innocence [sic] of discharging a
firearm." (Doc. 5 at 1). For the reasons set out below, Jackson is entitled to no
relief.
ANALYSIS
As explained above, this is Jackson's fourth postconviction motion which
asks the court to set aside her conviction and/or reduce her sentence. This time,
Jackson is proceeding under 28 U.S.C. § 2255(e) (the “savings clause”) and 28
U.S.C. § 2241. Jackson contends she is due this relief for two reasons: (1) because
the indictment did not charge her with discharging a firearm during a crime of
violence, and because that fact was not proven to a jury beyond a reasonable
doubt, she stands wrongly convicted under Count Two in light of the Supreme
Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013); and (2) the
Court erred in sentencing Jackson for both the armed bank robbery (Count One)
and the firearm charge (Count Two), as the total sentence amounts to “double
counting” under the guidelines. Finally, she argues that she is "actually innocent"
of Count Two.
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I.

The motion is procedurally barred under § 2255.
To the extent Jackson’s pleading is deemed a § 2255 habeas motion, it is

procedurally barred. These are the same arguments Jackson advanced in her third
motion, which the Court denied as being successive (2:13-cv-8045-VEH-JHE).
For Jackson to proceed again under this statutory provision, Jackson must first
obtain permission from the Eleventh Circuit. 28 U.S.C. §§ 2244(b)(3)(A)(“Before
a second or successive application permitted by this section is filed in the district
court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application”); see also Boyd v. United
States, 754 F.3d 1298, 1301(11th Cir. 2014). Nowhere in her motion does Jackson
indicate that the appeals court has granted her the requisite permission to proceed.
Accordingly, this court is without jurisdiction at this time to entertain relief under
§ 2255. See, e.g., Ellis v. United States, No. 14-10047, 2014 WL 6653035 at *2
(11th Cir. Nov. 25, 2014)(finding district court properly dismissed motion for lack
of jurisdiction where defendant filed a successive § 2255 motion and failed to
receive – or even argued that he qualified for – authorization from the appeals
court to file a successive motion under that provision).
II.

The motion fails under § 2241.
Perhaps anticipating the bar on successive § 2255 petitions, Jackson relies
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on 28 U.S.C. § 2241 as well as § 2255(e) in her pending motion. Her motion
nonetheless fails.
Under § 2255(e)’s “savings clause” – which is a jurisdictional provision - a
movant may file a collateral attack under § 2241 (thus avoiding the bar on
successive motions) if she can show that the remedy available under § 2255 “is
inadequate or ineffective to test the legality of [her] detention.” 28 U.S.C. §
2255(e)(emphasis supplied). To establish that her prior § 2255 motion has been
“inadequate or ineffective,” Jackson must make a five-part showing. Bryant v.
Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013); Herrera v.
Warden, FCC Coleman – USP I, No. 13-14862, 2015 WL 77404 at *1 (11th Cir.
Jan. 7, 2015). Among the matters she must show is that (1) her claim is based on a
Supreme Court decision that is retroactively applicable on collateral review, and
(2) that the circuit precedent foreclosed the claim raised in the § 2241 motion
throughout sentencing, direct appeal, and her first § 2255 proceeding. Id. at 1274.
Neither of Jackson’s two claims satisfies these requirements. In her first
claim, Jackson contends that her conviction under 18 U.S.C. § 924(c) is due to be
vacated in light of the Alleyne decision. That decision, however, has been
authoritatively held not to apply retroactively on collateral review. Jeanty v.
Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 2014). Because Alleyne is
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not retroactively applicable, Jackson cannot demonstrate that § 2255 was
“inadequate or ineffective” to test the legality of her detention. Accordingly, this
court is without jurisdiction to entertain her § 2241 motion brought under §
2255(e), and this claim is due to be denied.
The same result pertains to Jackson’s second claim. Here, she contends her
sentence is due to be vacated because the district court erroneously “double
counted” when it considered both her armed robbery conviction and her § 924(c)
conviction in imposing sentence. Contrary to her argument, the law permits a
defendant to be sentenced consecutively when convicted of armed bank robbery
and carrying/using a firearm during a crime of violence. See generally, United
States v. Pringle, 350 F.3d 1172 (11th Cir. 2003). What the law does not permit is
for the specific guidelines offense characteristic for possession, brandishing, use,
and discharge of a firearm to be applied when determining the sentence for the
underlying bank robbery if a sentence is also imposed for the accompanying §
924(c) charge. Id. at 1179. That did not occur in Jackson’s case. See PSR, ¶ 30.1

1

This paragraph states:
Specific Offense Characteristics: Other specific offense characteristics and
cross-references were examined and determined not to apply. Specifically,
U.S.S.G. § 2K2.4, comment. (n.4) states that if a sentence under § 2K2.4 is
imposed (count two) in conjunction with an underlying offense, do not apply
enhancements relating to the use of the firearm that is the basis of the 924(c)
conviction (count two).
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Her claim, therefore, has no substantive merit.
In any event, the issue Jackson raises is an issue that could have been
challenged at the time sentence was imposed or in Jackson’s first (and untimely)
habeas motion, but was not. Because Jackson has shown no legal impediment that
prevented her from pursuing this claim on those occasions, she cannot show that
the remedy available under § 2255 “is inadequate or ineffective to test the legality
of [her] detention.” Absent such showing, this court is without jurisdiction to
address this claim on collateral review under §§ 2255(e) and 2241. Accordingly,
the claim is due to be denied.
III.

Jackson has not shown "Actual Innocence."
Even if her motion were not procedurally barred, her claim of "actual

innocence" of Count Two fails on its merits. Jackson argues that "no reasonable
juror would have found her guilty of discharging [a firearm], given the facts of the
case." (Doc. 5 at 1). She states that "[n]either [sic] victims testified of seeing
Jackson with or in proximity of a gun or tobbery." (Id.). However, in making this
argument, Jackson ignores the facts that she, in her plea agreement, admitted were
substantially correct. In her written plea agreement, Jackson admits the following
facts.
Investigation by the F.B.I. and Bessemer Police reveals that on
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April 13, 2009, just prior to noon, the Bessemer, Alabama, branch of
the Royal Bank of Canada, a F.D.I.C. insured institution, was robbed
at gunpoint by a lone black male wearing a woman’s wig and carrying
a black shoulder purse. The robbery began when the suspect grabbed
the security guard, Henry Perry, who was standing outside the front
entrance to the bank, and pushed him back into the bank. As the two
entered the building, a single shot was discharged from a revolver the
suspect was brandishing.
Once inside the bank, the suspect instructed several customers
to get on the floor. He then approached the teller line, where he
confronted bank employee Lou Carmichael. While pointing his gun at
Ms. Carmichael, the suspect began shouting obscenities and
demanding money. Ms. Carmichael complied, giving the perpetrator
approximately $3,094 in the process. The man placed the money in
the shoulder purse and left the bank.
Moments after the robbery, a dye pack that had been secreted
in the money exploded. Police later discovered $1,694 in cash, a
black bag, and a .22 revolver laying on the ground across the street
from the bank. All were covered in red dye. While canvassing
potential witnesses that day, police learned that at the time of the
robbery, a tan or gold Ford Explorer had been seen going the wrong
way on 18th Street. The vehicle appeared to have been damaged and
was partially covered in plastic.
Because of similarities in the M.O., Bessemer detectives
quickly realized that the black male from the RBC robbery was
probably the same individual who had committed an armed robbery at
a Bessemer business called “Uncle Bob’s Storage” on March 16,
2009. During that robbery, the black male, wearing a woman’s wig,
entered the business and robbed an employee at gunpoint. Just prior
to the robbery, a black female, believed to be Jawana Jackson, had
entered the business and asked the employee questions about renting
a storage unit. Exterior video from the business captured a gold Ford
Explorer being driven by the black female. The vehicle had extensive
damage on the front passenger door. The video also captured the
robber exiting the same Ford Explorer near the business just prior to
the robbery.
Photos from the RBC surveillance system were released later
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that afternoon (April 13, 2009) to the media. The next day, a tipster
contacted the Bessemer Police and identified Andre Wallace as the
man who had robbed the RBC. Detectives developed an address for
Wallace at 1712 Cedar Avenue Southwest, Birmingham, Alabama.
There, they found a gold 1996 Ford Explorer with damage to the front
passenger door. Before police could make contact with anyone at that
residence, the SUV was driven away from the area. Vehicle
information was subsequently relayed to the Birmingham Police
Department in an effort to locate the SUV.
Later that night, at approximately 8:37 p.m., a Birmingham
police officer made a traffic stop on the suspects’ vehicle. Inside the
SUV were Andre Wallace and his girlfriend, Jawana Jackson.
Records reveal the vehicle is registered to Jawana Jackson’s mother,
Angela Jackson, of 1712 Cedar Avenue Southwest. FBI S/A Paul
Watson and Detective Perry Hurst responded to the scene. While
walking around the SUV, officers spotted in plain view a
reddish-colored wig lying in the cargo area of the vehicle.
Wallace and Jackson were arrested by Detective Hurst for the
robbery of Uncle Bob’s Storage. A post-arrest search of Jackson’s
purse revealed an additional amount of cash that appeared
dye-stained.
Wallace was subsequently taken to police headquarters and
given Miranda warnings. After acknowledging his rights and signing
a waiver form, he provided Detective Hurst and Agent Watson with a
tape-recorded statement in which he confessed to robbing both the
RBC and the storage facility.
That same night, Jackson, too, gave authorities a recorded
statement. After being advised of and waiving her Miranda rights,
Jackson admitted her involvement in both robberies. With respect to
the instant offense, the defendant stated that on the day of the
robbery, she and Wallace drove to three area financial institutions,
including the Royal Bank of Canada in Bessemer. Jackson indicated
that she entered all three institutions for the purpose of “casing” the
businesses. After entering the RBC, Jackson said that she talked to an
employee about opening an account. The defendant said that when
she left the RBC, she returned to Wallace, informed him that the bank
had a security guard, and told him that she didn’t feel good about
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robbing the bank.
(Doc. 31 at 3-6).
Because Jackson joined with her co-defendant, Wallace, in robbing a bank
by violence, under the admitted-to-be-correct facts set out in her plea agreement,
this court properly found Jackson guilty of Count Two, discharging a firearm
during and in relation to a crime of violence (the armed bank robbery charged in
Count One), and sentenced her to the statutorily mandated consecutive sentence
for that crime.
The facts of this case, which are challenged by Jackson as insufficient to
support her sentence under Count Two, are similar in all relevant respects to those
in United States v. Jackson, 534 F. App'x 917, 918-19 (11th Cir. 2013)
(unpublished). In that case, Clifford Deangelo Jackson appealed his convictions
and sentence in this consolidated appeal. In relevant part, Clifford Deangelo
Jackson pled guilty to one count of aiding and abetting an attempted armed bank
robbery, in violation of 18 U.S.C. §§ 2113(a), (d), and 2 (Bank Count 1), and one
count of aiding and abetting the discharge of a firearm during a crime of violence,
in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), and 2 (Bank Count 2). The district
court sentenced Clifford Deangelo Jackson to 74–months incarceration for Bank
Count 1, followed by a consecutive mandatory minimum 10–year sentence for
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Bank Count 2.2 Clifford Deangelo Jackson appealed. In relevant part, he asserted
that the district court erred in sentencing him to a ten-year mandatory minimum
sentence because he is not accountable for his codefendant's accidental discharge
of a firearm after they left the bank they had robbed. The Eleventh Circuit
affirmed the sentence, reasoning that the discharge of the firearm was reasonably
foreseeable and, accordingly, Clifford Deangelo Jackson was equally responsible
as his co-defendant.
Just as discharge of the firearm was reasonably foreseeably in U.S. v.
Jackson, so, too, was it reasonably foreseeable here. Because Jackson and her codefendant were carrying out a joint scheme to commit armed robbery, the
discharge of the firearm by her co-defendant is conduct properly attributable to
her. Just as a defendant who "aids and abets a § 924(c) offense is 'accountable for
the entirety of the conduct' relating to the § 924(c) offense" (id. at 920-921)
(internal citation omitted), a defendant such as Jackson who joins in a scheme to
commit armed bank robbery is accountable for not only her conduct but also that
of her co-defendant (Wallace).
CONCLUSION

2

Clifford Deangelo Jackson was convicted by a jury of other conduct. The undersigned
omits discussion of that conduct or the sentence imposed for that conduct as not necessary or
helpful to its analysis of the instant case.
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Having considered the pending motion both under 28 U.S.C. § 2255 and
under 28 U.S.C. § 2241 (by way of § 2255(e)), the court finds that Jackson’s latest
pleading warrants no relief. Accordingly, her motion is due to be, and hereby is,
DENIED.
DONE and ORDERED this the 31st day of August, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

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