Jackson v. Kelley

Filing 45

ORDER partly adopting as modified and partly declining as moot 39 Recommendation. Objections 42 & 43 overruled. Jackson's amended petition will be dismissed with prejudice. No certificate of appealability will issue. Signed by Judge D. P. Marshall Jr. on 5/26/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
CALVIN EUGENE JACKSON,
ADC #134338

v.

PETITIONER

No. 5:14-cv-388-DPM

WENDY KELLEY, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
1. On de

nova review, the Court adopts as modified the

recommendation on the merits of Jackson's ineffective assistance claims, Ng 39

at 7, and overrules Jackson's objections, Ng 42 & 43. The objections try to raise
claims not included in Jackson's petition or amended petition. Ng 42 at 3-6;
Ng 43 at 3-6. To the extent Jackson's objections are also a motion to amend his
petition, that motion is denied as untimely. This case has progressed too far
to add new claims at this late stage. Cf Williams v. Delo, 82 F.3d 781, 784 (8th
Cir. 1996).
Cutting to the merits, the Court concludes that Jackson's claims fail for
lack of prejudice. Hill v. Lockhart, 474 U.S. 52, 59 (1985); McKinnon v. Lockhart,
921F.2d830, 833 n.7 (8th Cir. 1990) (per curiam). Because the Court resolves
the petition on the merits-and because Jackson's return to state court in 2015

muddied the procedural waters-the Court declines the Martinez/Trevino
portion of the recommendation as moot. NQ 39 at 6-7.
2. Jackson pleaded guilty. To show prejudice, he must therefore show
a reasonable probability that, but for his lawyer's alleged errors, he would
have pleaded not guilty and insisted on going to trial. Hill v. Lockhart, 474
U.S. 52, 59-60 (1985). As the Hill Court explained, assessing prejudice will
often involve predicting whether a different course of action would have
changed counsel's advice about the plea; and that will turn on predicting
whether the alternate course would have changed the outcome of a trial. Ibid.
"[T]hese predictions of the outcome at a possible trial, where necessary,
should be made objectively, without regard for the 'idiosyncrasies of the
particular decisionmaker."' Hill, 474 U.S. at 59-60.
3. The Court construes the amended petition liberally. Jackson says
that his lawyer was ineffective in three ways: (1) counsel let him plead guilty
when the purposeful element of first degree murder wasn't met; (2) similarly,
counsel let Jackson plead guilty even though it wasn't Jackson's intent to kill
the victim; and (3) counsel didn't pursue a defense or lesser charge based on

-2-

extreme emotional disturbance. N!l 32 at 2-5. In light of the record and the
Hill standard, though, Jackson can't clear the prejudice bar.

Jackson's claims are based on his statements that he didn't intend to kill
Mr. Jeffrey.

When the trial court expressed concern about Jackson's

statements, his lawyer explained that the victim's associates had assaulted
someone in Jackson's apartment complex. Jackson encountered thema couple
of hours later. Counsel explained that, though Jackson thought the victim had
brass knuckles, none were found and four or five witnesses would likely
testify that there were none. Counsel said he'd advised Jackson that these
witnesses would testify that "Jackson was just angry in dealing with this most
recent assault. He was angry about the circumstances in which these people
had caused the fear and the harm that they had caused in his apartment
complex where he lived and that out of anger he had approached one of them
and simply pulled a weapon and began shooting[.]" N!l 9-4 at 16-17.
When asked if he agreed with his lawyer's explanation, Jackson said,
"they didn't find an actual weapon that I [saw in the victim's] hand, but I
agree with everything he said." N!l 9-4 at 17. At other points, Jackson stated
that he "under[stood] the law now" and admitted that he "could have

-3-

avoided [the shooting]" and "could have walked away and none of this
would have happened .... " NQ 9-4 at 13-14.
The law's definition of "purpose" and a layman's understanding of
intention and emotional disturbance are different. But the plea colloquy
shows that Jackson's lawyer explained those differences to Jackson before the
plea. And in light of Arkansas precedent and all the material circumstances,
Jackson's plea appears to have been a wise one. E.g., Williamson v. State, 2013
Ark. 347, at 5-6; Kail v. State, 341 Ark. 89, 94, 14 S.W.3d 878, 880-81 (2000).
Further, Jackson received substantial concessions in exchange for his guilty
plea: the State nolle prossed a felon-in-possession charge and withdrew four
sentencing enhancements. NQ 9-4 at 5, 7. The benefits that Jackson received
in exchange for his guilty plea cast doubt on his claim that he wouldn't have
pleaded guilty but for counsel's alleged errors.
Jackson is right that the plea colloquy shows some equivocation. But it
also shows a reasoned choice based on an understanding of the options and
the possible outcomes. It appears Jackson weighed his options and took what
he thought was the best way out of a bad situation: a plea to first degree
murder with a known sentence (228 months' imprisonment, with an

-4-

additional 120 months suspended) instead of a trial and a possible life
sentence. Jackson has regrets now. But he hasn't shown a reasonable
probability that, had his lawyer pursued a different path, it would have
changed his lawyer's ad vice about the plea, Jackson's decision to plead, or the
ultimate result. Jackson's claims therefore fail for lack of prejudice. Hill, 474
U.S. at 58-60.

*

*

*

Recommendation, Ng 39, partly adopted as modified and partly
declined as moot. Objections, Ng 42 & 43, overruled. Jackson's amended
petition will be dismissed with prejudice. No certificate of appealability will
issue. 28 U.S.C. § 2253(c)(1)-(2); Slack v. McDaniel, 529 U.S. 473, 483-84
(2000).
So Ordered.

D .P. Marshall Jr.
United States District Judge

-5-