Jackson v. Hall

Filing 10

ORDER adopting Report and Recommendations re 8 Report and Recommendations. A Certificate of Appealability should not issue. Petitioner has failed to make a substantial showing of the denial of a constitutional right. A Final Judgment dismissing this case with prejudice shall be entered. Signed by District Judge William H. Barbour, Jr on 7/9/13 (Lewis, Nijah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
KENNETH L. JACKSON #47189

PETITIONER

VS.

CIVIL ACTION NO. 3:12-cv-520-WHB-RHW

BERKLEY HALL, Warden
OPINION AND ORDER
This

cause

is

before

the

Court

on

the

Report

and

Recommendation of United States Magistrate Judge Robert H. Walker,
to which no objections have been filed.1

After considering the R

and R and the other pleadings in this case,2 the Court finds it
should be adopted in its entirety.

I.

Discussion

This case arises out of Petitioner, Kenneth L. Jackson’s
(“Jackson”), state law jury convictions and sentences on the
following

charges:

(Count

I)

possession

with

the

intent

to

distribute marijuana enhanced by the possession of a firearm;
(Count II) conspiracy to distribute marijuana; and (Count III)
possession

of

a

firearm

by

a

convicted

felon.

As

to

his

convictions, Jackson was sentenced as follows: (Count I) 35-year
term of imprisonment, with 15 years suspended and 5 years of post-

1

The parties were required to file objections to the R and
R on or before June 3, 2013. No objections have been filed to
date.
2

As Petitioner is proceeding in this case pro se, the
allegations in his pleadings have been liberally construed. See
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

release supervision; (Count II) 10-year term of imprisonment;
(Count III) 10-year term of imprisonment.

All of the sentences

were ordered to run concurrently.
Jackson appealed challenging both the sufficiency of the facts
underlying the search warrant by which his home was searched, and
the

sufficiency

conviction.

of

the

evidence

underlying

the

conspiracy

Jackson also argued that he had received ineffective

assistance of counsel because his trial attorney: (1) failed to
move for a mistrial after a hearsay statement was made to the jury
before his objection was entered, (2) allowed an officer to testify
that the scales and plastic bags found in the home were used to
distribute the marijuana, (3) failed to stipulate that Jackson was
a convicted felon to prevent the State from entering his prior
sentencing order for the sale of cocaine, (4) failed to object to
testimony that several individuals found at the home were arrested
on unrelated outstanding warrants, and (5) made no attempt to sever
the cases against Jackson and his wife.
sentences were affirmed on appeal.

Jackson’s conviction and

See Jackson v. State, 73 So.3d

1176 (Miss. Ct. App. 2011), reh’g denied, 2010 TS 7-COA, slip. op.
(Miss. Ct. App. Aug. 30, 2011), cert. denied, 2010 TS 7-COA, slip.
op. (Miss. Nov. 3, 2011).
In March of 2012, Jackson filed an Application for Leave to
File Motion for Post Conviction Collateral Relief (“Application”).
In his Application, Jackson raised the following claims: (1) the
motion to amend the indictment to charge him as a subsequent
offender, and the order by which the amendment was allowed, were
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defective because the state failed to submit evidence regarding the
date(s) of his prior convictions; and (2) he received ineffective
assistance

of

counsel

during

trial

and

at

sentencing.

The

Application was denied on its merits by the Mississippi Supreme
Court on findings that the indictment had been properly amended,
and that Jackson had failed to meet the ineffective assistance of
counsel standard of Strickland v. Washington, 466 U.S. 668 (1984).
Jackson v. State, 2012-M-00415, slip. op. (Miss Apr. 18, 2012)
(filed in this case at [Docket No. 5], Ex. B).
On or about July 13, 2012, Jackson filed the Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (“Petition”), which is presently before the Court.

In his

Petition, Jackson raises the same claims as were raised in his
Application, namely that (1) the motion to amend the indictment to
charge him as a subsequent offender, and the order by which the
amendment was allowed, were defective because the state failed to
submit evidence regarding the date(s) of his prior convictions; and
(2) he received ineffective assistance of counsel during trial and
at sentencing.

See Petition [Docket No. 1].

The Petition came before United States Magistrate Judge Robert
H.

Walker,

who,

on

May

16,

2013,

entered

a

Report

Recommendation (“R and R”), recommending that it be dismissed.

and
In

his R & R, Judge Walker found that the claims raised in Jackson’s
Petition

had

previously

been

Mississippi Supreme Court.

denied

on

their

merits

by

the

See R & R [Docket No. 8], at 4.

As

Jackson’s claims had previously been adjudicated, Judge Walker
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found that federal habeas relief could be granted only if Jackson
showed that the decision by the Mississippi Supreme Court was (1)
contrary to, or constituted an unreasonable application of, federal
law, or (2) based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding. Id.
(quoting 28 U.S.C. § 2254(d)).

Judge Walker found Jackson had

failed to make the required showing with respect either claim. Id.
at 5-8.
After reviewing the R and R, to which no objections have been
filed, as well as Jackson’s Petition and other pleadings in this
case, the Court agrees that Jackson has failed to make the showing
necessary

to

Accordingly,

obtain
the

federal

Court

will

habeas
adopt

relief
Judge

in

this

Walker’s

R

Court.
and

R

recommending dismissal of this case.
For the foregoing reasons:
IT IS THEREFORE ORDERED that the May 16, 2013, Report and
Recommendation of United States Magistrate Judge Robert H. Walker
[Docket No. 8], is hereby adopted as the ruling of this Court.

A

Final Judgment dismissing this case with prejudice shall be entered
this day.
IT IS FURTHER ORDERED that a Certificate of Appealability
should not issue.

Petitioner has failed to make a substantial

showing of the denial of a constitutional right.
SO ORDERED this the 9th day of July, 2013.
s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

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