Jackson v. Stephens

Filing 18

MEMORANDUM AND OPINION granting 14 MOTION for Summary Judgment with Brief in Support. Jackson's petition for a writ of habeas corpus is DENIED. This case is DISMISSED. Any remaining pending motions are DENIED as moot. A certificate of appealability is DENIED. (Signed by Judge Vanessa D Gilmore) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
June 28, 2017
IN THE UNITED STATES DISTRICT COURT
David J. Bradley, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
KENTHONYJEVELLEJACKSON,
§
(TDCJ-CID #1899546)
§
§
Petitioner,
§
§
VS.
§ CIVIL ACTION NO. H-16-1170
§
LORIE DAVIS,
§
§
Respondent.
§

MEMORANDUM AND OPINION

Petitioner, Kenthony Jevelle Jackson, seeks habeas corpus relief under 28 U.S.C. § 2254,
challenging a conviction in the 85th Judicial District Court of Brazos County, Texas. Respondent
filed a motion for summary judgment, (Docket Entry No. 14), and copies of the state court record.
Jackson has filed his response. (Docket Entry No. 17). After consideration of the motion and
response, the record, and applicable authorities, the court grants respondent's motion. The reasons
for this ruling are stated below.
I.

Background

Jackson pleaded guilty to the felony offense of aggravated robbery. (Cause Number 1100396-CRF-85).

On October 30, 2013, the jury sentenced Jackson to twenty-three years

imprisonment. The Tenth Court of Appeals ofTexas affirmed Jackson's conviction on January 22,
2015. Jackson v. State, No. 10-13-00397-CR, 2015 WL 294684 (Tex. App. --Waco 2015, no
pet.)(not designated for publication). Jackson did not file a petition for discretionary review in the

0 \RAO\VDG\2016\16-1 170 Ill\ wpd

Texas Court of Criminal Appeals. Jackson filed an application for state habeas corpus relief on
October 13, 2015, which the Texas Court of Criminal Appeals denied without written order, on
findings of the trial court, without a hearing on March 9, 2016. (Docket Entry No. 15-18, Ex parte
Jackson, Application No. 84,632-01, p. 1).
On April29, 2016, this court received Jackson's federal petition. Jackson contends that his
conviction is void for the following reasons:
(1)

trial counsel, Jerry L. Gribble, II, rendered ineffective assistance by failing to notifY him of
a five-year plea bargain offer;

(2)

appellate counsel, Calvin D. Parks, rendered ineffective assistance by failing to:
a. argue a claim that counsel thought was meritless; and
b. argue that trial counsel failed to convey the five-year plea offer; and

(3)

the trial court erred in denying his Batson v. Kentucky, 476 U.S. 79 (1986), challenge.

(Docket Entry No. 1, Petition for Writ of Habeas Corpus, pp. 6-7).
Respondent argues that grounds one and two lack merit and that ground three is procedurallybarred. (Docket Entry No. 14, p. 3). In the interest of judicial economy, the court will consider all
three claims on the merits.
II.

The Applicable Legal Standards

This court reviews Jackson's petition for writ of habeas corpus under the federal habeas
statutes, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28
U.S.C. § 2254; Woods v. Cockrell, 307 F.3d 353, 356 (5th Cir. 2002); Nobles v. Johnson, 127 F.3d
409,413 (5th Cir. 1997), citing Lindh v. Murphy, 521 U.S. 320 (1997).

0 \RAO\VDG\2010\16-1170 flll wpd

2

Sections 2254( d)( 1) and (2) of AEDP A set out the standards of review for questions of fact,
questions of law, and mixed questions of fact and law that result in an adjudication on the merits.
An adjudication on the merits "is a term of art that refers to whether a court's disposition ofthe case
is substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). A
state-court determination of questions oflaw and mixed questions oflaw and fact is reviewed under
28 U.S.C. § 2254(d)(l) and receives deference unless it "was contrary to, or involved an
unreasonable application of clearly established Federal law, as determined by the Supreme Court of
the United States." Hill v. Johnson, 210 F.3d 481,485 (5th Cir. 2000). A state-court decision is
"contrary to" Supreme Court precedent if: (1) the state court's conclusion is "opposite to that reached
by [the Supreme Court] on a question of law" or (2) the "state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent" and arrives at an opposite
result. Williams v. Taylor, 529 U.S. 362 (2000). A state court unreasonably applies Supreme Court
precedent if it unreasonably applies the correct legal rule to the facts of a particular case, or it
"unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it
should not apply or unreasonably refuses to extend that principle to a new context where it should
apply." I d. at 407. Questions of fact found by the state court are "presumed to be correct ... and
[receive] deference ... unless it 'was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.'" Hill, 210 F.3d at 485 (quoting 28 U.S.C.
§ 2254( d)(2) ).

A state court's factual findings are entitled to deference on federal habeas corpus review and
are presumed correct under section 2254(e)( 1) unless the petitioner rebuts those findings with "clear
and convincing evidence." Garcia v. Quarterman, 454 F.3d 441,444 (5th Cir. 2006) (citing Hughes

0 IRAO\VDG\20]6\16-1 170 flll

''pd

3

v. Dretke, 412 F.3d 582, 589 (5th Cir. 2005) and 28 U.S.C. § 2254(e)(1)). This deference extends
not only to express findings of fact, but to the implicit findings of the state court as well. Garcia,
454 F.3d at 444-45 (citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005); Young v. Dretke,
356 F.3d 616, 629 (5th Cir. 2004)).
While, "[a]s a general principle, Rule 56 ofthe Federal Rules of Civil Procedure, relating to
summary judgment, applies with equal force in the context of habeas corpus cases," Clark v.
Johnson, 202 F.3d 760,764 (5th Cir.), cert. denied, 531 U.S. 831 (2000), the rule applies only to the
extent that it does not conflict with the habeas rules. Section 2254( e )(1) - which mandates that
findings of fact made by a state court are "presumed to be correct"- overrides the ordinary rule that,
in a summary judgment proceeding, all disputed facts must be construed in the light most favorable
to the nonmoving party. Unless the petitioner can "rebut[] the presumption of correctness by clear
and convincing evidence" as to the state court's findings of fact, those findings must be accepted as
correct. Smith v. Cockrell, 311 F .3d 661, 668 (5th Cir. 2002).
Jackson is proceeding prose. A prose habeas petition is construed liberally and not held to
the same stringent and rigorous standards as pleadings filed by lawyers. See Martin v. Maxey, 98
F.3d 844, 847 n.4 (5th Cir. 1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988); Woodall
v. Foti, 648 F.2d 268,271 (5th Cir. Unit A June 1981 ). This court broadly interprets Jackson's state
and federal habeas petitions. Bledsue v. Johnson, 188 F.3d 250, 255 (5th Cir. 1999).

III.

The Claim of Ineffective Assistance of Trial Counsel
Jackson complains that counsel failed to convey a five-year plea offer. Jackson states that

he never refused the plea in open court because he was never informed of the plea. Jackson states
that he would have accepted the plea of five years if his attorney had properly notified him of the

0 \RAOIVDG\20l(l\l6-1170 flll wpd

4

offer. Jackson states that he repeatedly told counsel that he would accept any plea offer of five to
ten years, but he did not want probation.
To establish an ineffective assistance of counsel claim, a petitioner must show that his
counsel's performance was deficient and that he was actually prejudiced as a result. Strickland v.

Washington, 466 U.S. 668, 687 ( 1984 ). Whether counsel's performance was deficient is determined
by an objective standard of reasonableness. Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999).
"[S]crutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689.
"[C]ounsel is strongly presumed to have rendered adequate assistance and to have made all
significant decisions in the exercise of reasonable professional judgment." !d. at 690. "[S]trategic
choices made after thorough investigation oflaw and facts relevant to plausible options are virtually
unchallengeable." !d. at 690-91; see also United States v. Jones, 287 F.3d 325, 331 (5th
Cir.)("lnformed strategic decisions of counsel are given a heavy measure of deference and should
not be second guessed."), cert. denied, 537 U.S. 1018 (2002); Lockett v. Anderson, 230 F.3d 695,
714 (5th Cir. 2000) (Strickland requires deference to counsel's "informed strategic choices"). "So
long as counsel made an adequate investigation, any strategic decisions made as a result of that
investigation fall within the wide range of objectively reasonable professional assistance." Smith v.

Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (internal quotation marks and citation omitted).
"A conscious and informed decision on trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness." Jones, 287 F.3d at 331. To overcome the deference given to
informed strategic decisions, a petitioner must show that his counsel "blundered through trial,
attempted to put on an unsupported defense, abandoned a trial tactic, failed to pursue a reasonable

0 \RAO\VDG\2016\16-1170 flll wpd

5

alternative course, or surrendered his client." !d.; see also Moore v. Johnson, 194 F.3d 586, 615 (5th
Cir. 1999) ("Strickland does not require deference to those decisions of counsel that, viewed in light
of the facts known at the time of the purported decision, do not serve any conceivable strategic
purpose.").
Even if a petitioner establishes that his counsel's performance was deficient, he must also
establish that "prejudice caused by the deficiency is such that there is a reasonable probability that
the result of the proceedings would have been different." Ransom v. Johnson, 126 F.3d 716, 721 (5th
Cir. 1997). A petitioner must show that the prejudice made the trial outcome "fundamentally unfair
or unreliable." !d. (quoting Lockhart v. Fretwell, 506 U.S. 364 (1993)).
To determine whether counsel's performance is constitutionally deficient, courts "indulge
a strong presumption that counsel's conduct falls within the wide range of reasonable assistance."
Strickland, 466 U.S. at 689. Further, "[t]he reasonableness of counsel's actions may be determined
or substantially influenced by the defendant's own statements or actions." !d. at 691. When a
prisoner challenges his plea based on ineffective assistance of counsel, the "prejudice" requirement
"focuses on whether counsel's constitutionally ineffective performance affected the outcome ofthe
plea process." Hill. 474 U.S. at 58. Reviewing courts must consider the totality of the evidence
before the finder of fact in assessing whether the result would likely have been different absent the
alleged errors of counsel. Strickland, 466 U.S. at 695-96. A failure to establish either prong of the
Strickland test requires a finding that counsel's performance was constitutionally effective. !d. at
696.
The Strickland test applies when a prisoner alleges denial of effective assistance of counsel
in the context of a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). "In a case, such as this,

0 \RAO\VDG\20](,\16-1170 ml wpd

6

where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of
counsel caused him to miss out on a more favorable earlier plea offer, Strickland's inquiry into
whether 'the result of the proceeding would have been different,' 466 U.S. at 694[ ], requires looking
not at whether the defendant would have proceeded to trial absent ineffective assistance but whether
he would have accepted the offer to plead pursuant to the terms earlier proposed." Missouri v. Frye,
566 U.S. 133, 146-149 (2012).
Jackson contends counsel's performance was deficient because counsel failed to inform him
of the State's plea offer, allowing it to expire. Jackson further contends that had he been informed
of the plea offer, he would have accepted the offer. In Missouri v. Frye, 566 U.S. 133, 138-146
(2012) and Lafler v. Cooper, 566 U.S. 156, 162-163 (2012), the Supreme Court held that the Sixth
Amendment right to effective assistance of counsel extends to the negotiation and consideration of
plea offers that lapse or are rejected. In Frye, the Court specifically held that counsel has a "duty to
communicate formal offers from the prosecution to accept a plea," and, in general, where such an
offer is not communicated to the defendant, counsel "[does] not render the effective assistance the
Constitution requires." Frye, 566 U.S. at 144-146. The Court held that defense counsel has a duty
to communicate formal offers from the prosecution to accept a plea on terms that may be favorable
to the accused, prior to the offer's expiration, and that defense counsel's failure to inform a defendant
of a written plea offer before it expired satisfies the deficient performance prong of the standard set
forth in Strickland v. Washington. In Lafler, the defendant went to trial rather than accept a plea deal
as a result of ineffective assistance of counsel during the plea negotiation process. Lafler, 566 U.S.
at 165-167.

0 \RAO\VDG\2016\16-1170 fiJI \\pd

7

In addition to showing a reasonable probability he would have accepted an earlier plea, a
habeas petitioner must also show that "if the prosecution had the discretion to cancel it or if the trial
court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution
nor the trial court would have prevented the offer from being accepted or implemented." Missouri,
566 U.S. at 148.
To show prejudice from ineffective assistance of counsel where a plea offer has lapsed
because of counsel's deficient performance, a defendant must demonstrate a reasonable probability
she would have accepted the earlier plea offer, that the plea would have been accepted by the trial
court, and that it was a plea to a lesser charge or to a sentence of less prison time. !d. at 14 7.
Jackson complains that counsel failed to convey a five-year plea offer. The record provides
no support for this claim. The following exchange took place prior to the punishment phase of trial:
MR. GRIBBLE: Judge, I wanted to get on the record just some matters of how we
got to this point and document some issues that have occurred. Since we are going
to the jury for punishment, I've agreed with the prosecutor that we will discuss or get
on the record the plea offers that were made in this case and also -- made and
rejected. And also an issue has come up-- I'll just start with that. In reviewing this
case, Judge, I met with Kenthony last week on-- it was either Tuesday or Wednesday
and made an arrangement at Kenthony's request and then my request to meet with
the district attorney in their office on Thursday the -- whatever last Thursday was.
MS. ESCUE: I'm not sure. Whatever last Thursday was.
MR. GRIBBLE: Last Thursday. We met at the district attorney's office to review the
evidence. And part of my reasoning in asking to do this was I was trying to explain
to Kenthony what the evidence would be against him so he could intelligently make
a decision today as to whether to plead guilty and let the jury go to sentencing or
plead not guilty and let the jury decide guilt/innocence. Part of the problem was -part of the reason in doing this was the vast majority of the evidence in this case is
physical evidence, such as clothing and other items that were seized right after the
offense. Some of the other evidence was video recordings at the scene of the offense.
Because of the video recordings and all of the physical evidence I thought it would
be best-- and about the only way I could do it was to show Kenthony what I believed

0 \RAO\VDG\2016\16-1170 Ill I \\pd

8

would be presented at trial and how I believed the State would present it at trial. So
we met up at the district attorney's office. I advised Kenthony not to make any
statements at all, to write down any questions he had of me afterwards so I could
meet with him and just to sit and listen. At that point, Ms. Escue and Ms. Assabill
with the district attorney's office sat in the room and were available for me to request
them to present the evidence that I wanted Kenthony to see. At that point I asked
them to show the video and-- on a big screen so that we could see it much better than
me bringing it on a computer out to the jail. I also asked them to produce several
pieces of evidence that I expected would be presented in trial. I did this because
Kenthony wanted to see the evidence that they had against him. And during that
meeting Kenthony never made any statements. I never asked him any questions in
front of the prosecutors or even at the DA's office. But it was my request to present
this evidence to him so that he would be able to make the decision today and I
presented it the way I expected the prosecutor to present all admissible evidence.
After that meeting I have -- I met with Kenthony a couple of times. And it was my
advice to Kenthony to -- based upon the evidence to plead guilty and go to the jury
for punishment. It appears he has followed my advice. I ha":e made no promises to
him as to the outcome on this, but it was-- based upon the evidence and the evidence
I showed him, it was my advice to proceed this way today. And I just wanted to
make a record of what we had done in this case.
THE COURT: Okay. You made mention of plea offers that you wanted to put on the
record?
MR. GRIBBLE: Yes, Judge. Plea offers-- we've had, I believe, two plea offers, one
of five years in the penitentiary and one of 15 years in the penitentiary. There was-there is some dispute about the -- an offer made of shock probation at some point.
Kenthony remembers that; I remember it. I think there was never a written offer on
this, but at some point I did take to him an offer of shock probation. Then there was
an offer of five years and lately since his bond was revoked, a 15-year offer. All of
those offers have been rejected. And the State has, as of some point last week,
withdrawn all offers. That's why we're going to trial.
THE COURT: Very well. Is there anything about that that is inconsistent with the
prosecutors' memory?
MS. ESCUE: Judge, I have nothing in the file to indicate that a shock probation offer
was ever made. Mr. Baker when he initially got the case, because Mr. Jackson had
no criminal history, offered him five years in exchange for his testimony against his
codefendants. I have in the file that that offer was rejected. It was before Mr. Jackson
picked up several other charges in other counties. When I got the case and noticed
the other charges in the other counties I increased the offer to 15 years contingent on
him testifYing against the sole remaining defendant in this case, his brother Ricky

0 \RAO\VDG\2016\16-1170 flJI v.pd

9

Jackson. That offer was refused and last week I withdrew all offers and we were set
for trial.
THE COURT: Okay. You can go ahead and have a seat and we'll begin with the jury
selection.
(Docket Entry No. 15-3, Reporter's Record, Vol. II, pp. 9-13).
The state habeas court found: "4. As to Ground One, the Court finds that trial counsel
conveyed all plea offers to Applicant, which he rejected. Applicant failed to prove deficient
performance under Strickland's first prong." (Docket Entry No. 15-20, Ex parte Jackson,
Application No. 84,632-01, p. 54).
Under the AEDPA, the federal court reviewing a habeas petition defers to the factual findings
of the state habeas court unless those findings "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d)(2). Here, there is evidence in the record to show that trial counsel
presented all plea offers and that Jackson rejected those offers. The determination by the state
habeas court that trial counsel notified and discussed with Jackson all of the offers for plea deals is
based on competent evidence in the record and did not result in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.
Jackson may rely on Missouri v. Frye, 566 U.S. 133 (2012), to argue that trial counsel
rendered deficient performance, but Frye is distinguishable from the case here. In Frye, there was
no indication in the record that trial counsel had ever informed his client of the plea deal. Frye, 566
U.S. at 13 9 (noting that the state court of appeals had found that the "record is void of any evidence
of any effort by trial counsel to communicate the Offer to Frye during the Offer window"). Thus,

0 \RAO\VDG\2H\6\16-\\111 fU\ wpd

10

the Frye Court deferred to the fact findings of the state court, whereas Jackson asks this court to do
the opposite here. Unlike Frye, the state habeas court concluded that trial counsel had presented all
offers to Jackson, and there is competent evidence in the record to support that finding. Under these
circumstances, the Fifth Circuit has upheld the denial of federal habeas relief. See, e.g, Miller, 714
F.3d at 902 (affirming denial of habeas relief and noting that "the state habeas court expressly found
that '(n]othing in the record ... indicate[d] that counsel failed to convey any plea offers from the
State'"); Teague v. Scott, 60 F.3d 1167, 1171 (5th Cir. 1995) (affirming denial of habeas relief and
finding, based on the affidavit of trial counsel and a letter from the defendant, that the record
supported the finding that trial counsel had informed defendant of the plea offers).
Because the state court factual determination that Jackson knew of the offer and rejected it
is adequately supported in the record, the court must presume that it is correct. Teague, 60 F.3d at
1171. From the record before the court, the state habeas court did not unreasonably apply clearly
established federal law when it determined that Jackson had voluntarily and knowingly entered pleas
of guilty because he had been informed of all of the plea offers from the State. See 28 U.S.C.
§ 2254(d)(l). Further, the State's determination that counsel had presented all plea offers and that
the totality ofthe representation provided Jackson with effective assistance of counsel was not based
on an unreasonable determination of the facts in light of the evidence presented. 28
U.S.C. § 2254(d)(2). Accordingly, respondent is entitled to summary judgment, and Jackson is not
entitled to habeas relief because Jackson failed to show that trial counsel's performance fell below
the objective standard required by Strickland.
Under the AEDPA, this court must give proper deference to the state court's determination
that trial counsel rendered effective assistance. See Ladd v. Cockrell, 311 F.3d 349, 351 (5th Cir.

0 \RAO\VDG\2016\16-1170.tlll wpd

11

2002). Because the state court properly identified Strickland as the governing legal principle, the
"unreasonable application" prong of section 2254( d)(l) provides the standard that governs this
court's review of the state court's decision on Jackson's ineffective counsel claims. Bell v. Cone,
535 U.S. 685, 694-695 (2002). This court must determine whether the state court's application of
Strickland was objectively unreasonable. ld.; Neal v. Puckett, 286 F.3d 230,236 (5th Cir. 2002) (en
bane), cert. denied, 537 U.S. 1104 (2003). Under section 2254(d)(1), "[w]e have no authority to
grant habeas corpus relief simply because we conclude, in our independent judgment, that a state
supreme court's application of Strickland is erroneous or incorrect." Catalan v. Cockrell, 315 F .3d
491, 493 (5th Cir. 2002) (quoting Neal, 286 F.3d at 236). "The federal-habeas scheme leaves
primary responsibility with the state courts for these judgments, and authorizes federal-court
intervention only when a state court decision is objectively unreasonable." Woodfordv. Visciotti, 537
U.S. 19, 27 (2002).
The state court's decision as to the effective assistance of counsel reasonably applied the law
to the facts, consistent with clearly established federal law. Jackson has not shown a basis for the
reliefhe seeks. 28 U.S.C. § 2254(d)(l).

IV.

The Claim of Ineffective Assistance of Appellate Counsel
Jackson complains that appellate counsel rendered ineffective assistance by failing to raise

two issues on appeal. (Docket Entry No. 1, Petition for a Writ of Habeas Corpus, p. 6). Persons
convicted of a crime are entitled to effective assistance of counsel on direct appeal. See Evitts v.
Lucey, 469 U.S. 387 (1985). This court reviews counsel's appellate performance under Strickland
v. Washington, 466 U.S. 668 (1984). See Goodwin v. Johnson, 132 F.3d 162, 170 (5th Cir. 1998).
Jackson must allege and present facts that, if proven, would show that his attorney's representation

0 \RAO\VDG\2016\16-1170 ru; wpd

12

was deficient and that the deficient performance caused Jackson prejudice. See Strickland, 466 U.S.
at 687-88, 692; Jones v. Jones, 163 F.3d 285, 300 (5th Cir. 1998).
The Strickland standard also applies to claims of appellate counsel error during appellate
proceedings. See Smith v. Robbins, 528 U.S. 259, 285 (2000). In considering the deficient
performance prong, an attorney's decision not to pursue a certain claim on appeal after considering
the claim and believing it to be without merit falls within the "wide range of professionally
competent assistance" demanded by Strickland. Smith v. Murray, 477 U.S. 527,536 (1986). Indeed,
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."
!d. (quoting Jones v. Barnes, 463 U.S. 745,751-52 (1983)).

The first element requires Jackson to show that his appellate counsel's conduct "fell below
an objective standard ofreasonableness." United States v. Williamson, 183 F.3d 458,463 (5th Cir.
1999)(quoting Strickland, 466 U.S. at 688). This court's review is deferential, presuming that
"counsel's conduct falls within the wide range of reasonable professional assistance." !d. Effective
assistance of appellate counsel does not mean counsel will raise every available nonfrivolous ground
for appeal. See Evitts, 469 U.S. at 394; West v. Johnson, 92 F.3d 1385, 1396 (5th Cir. 1996).
Rather, it means, as it does at trial, that counsel performs in a reasonably effective manner. See
Evitts, 469 U.S. at 394. A reasonable attorney has an obligation to research relevant facts and law

and make informed decisions as to whether avenues will, or will not, prove fruitful. See Strickland,
466 U.S. at 690-91.
To show prejudice, Jackson must demonstrate "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different." Jones, 163

0 \RAO\VOG\20!6\Ifi-1170.f01 \\pd

13

F.3d at 302 (quoting Strickland, 466 U.S. at 694). Such a reasonable probability makes the
proceeding unfair or unreliable, so as to undermine confidence in the outcome. Green v. Johnson,
160 F.3d 1029, 1043 (5th Cir. 1998)(citing Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
Prejudice in a the context of appellate counsel error requires a petitioner to show a reasonable
probability that he would have prevailed on appeal. Robbins, 528 U.S. at 285-86.
The court will consider Jackson's claims of ineffective assistance of appellate counsel.
A.

Failure to Convey the Plea Offer

Jackson contends that appellate counsel failed to raise the issue of whether trial counsel failed
to convey the five-year plea offer. This court has considered and rejected Jackson's claim based on
ineffective assistance of trial counsel for failing to convey a plea offer. See Section III, supra.
Raising this claim on appeal would have been frivolous. Styron v. Johnson, 262 F.3d 438, 449 (5th
Cir. 2001 )(finding that where each of the grounds underlying the alleged errors by counsel on appeal
were found to lack merit, appellate counsel's failure to pursue relief on those bases does not
constitute ineffective assistance of counsel since no prejudice resulted therefrom and because the
reliability of the result of the appeal was not undermined thereby).
The record shows that appellate counsel argued that the trial court committed error in denying
Jackson's Batson challenge following the voir dire examination. (Docket Entry No. 15-15
Appellant's Brief, p. 7). Appellate counsel's decision not to argue that trial counsel failed to convey
a plea offer falls within the wide range of reasonable professional assistance.
There is no showing of a reasonable probability that, even assuming appellate counsel made
unprofessional errors, the result of the proceeding would have been different but for such errors.

0 \RAO\VDG\2016\J(,-1170 tlll wpd

14

Wilson v. Cockrell, 2003 WL 21672834, at *11 (5th Cir. July 17, 2003); Duhamel v. Collins, 955
F.2d 962, 965 (5th Cir. 1992).
B.

Failure to Challenge a Juror's Qualifications

Jackson asserts that appellate counsel should have raised the issue ofwhether a juror lacked
comprehension of the English language, regardless of appellate counsel's personal beliefs about
whether it would be successful.
The following exchange took place after the jury was impaneled:
THE COURT: ... Do any of you have any questions that I can answer for you?
(Juror indicating)
THE COURT: Yes, ma'am?
UNIDENTIFIED JUROR: I'm not sure ifi can assess fairly because English is not
my native language. I don't understand 100 percent of what you're saying. I have to
understand 100 percent to assess fairly.
THE COURT: Ma'am, why didn't you speak up earlier?
UKIDENTIFIED JUROR: I don't know.
THE COURT: You seem to understand just fine.
UNIDENTIFIED JUROR: I don't know.
THE COURT: If you have some difficulty understanding what is being said, if you
will, just raise your hand, I'll tell the lawyers to repeat it again. Okay?
UNIDENTIFIED JUROR: Okay. But I'm also a human being. I have feelings. And
maybe my judgment, you know, depends on my mood, feelings. I cannot judge fairly
to be honest.
THE COURT: Well, you're on the jury now, and I have faith that you'll follow the
oath that you have taken, that you've sworn to make a decision on the basis of the
law given to you by the Court and the evidence that's presented here. I don't have
any reason to believe you would do otherwise. We'll see you tomorrow morning at
9:00.

0 \RAO\VDG\20 ](,\!6-117(l tnl \\pd

15

(Jury recessed)
(Docket Entry No. 15-3, Reporter's Record, Vol. II, pp. 140-41).
The following exchange took place after the jury was recessed:
THE COURT: Anything else?
MR. GRIBBLE: Judge, based upon what Ms. Nomura said to the Court, I believe-if I remember correctly she said English is not my native language, I do not
understand 100 percent of what I hear. She -- I think she went on to say, I have to
understand 100 percent of what I hear to make a decision. Judge, from that point I
raise an objection to the-- I move for a mistrial. We have a jury that is-- we have
a juror, based upon what she told the Court that she cannot-- she said she does not
understand 100 percent and she cannot make a decision based upon that. And I move
for a mistrial.
THE COURT: Denied.
MS. ESCUE: Judge, may I argue? If she's articulated a disability, then we can
proceed with 11 jurors and excuse her as the less harsh alternative of the proceeding
of mistrial.
MR. GRIBBLE: I'm not claiming she has a disability. I'm stating that she may not
be able to read and write the English language because she said she doesn't
understand it completely.
MS. ESCUE: But that's a qualification for a juror. If they are disabled, if you believe
that, we can proceed with 11.
MR. GRIBBLE: I don't want to proceed with 11.
THE COURT: Ruling stands. (Proceedings recessed, 3:45p.m.)
(Docket Entry No. 15-3, Reporter's Record, Vol. II, pp. 142-43).
The following exchange took place outside the presence of the jury on the second day of the
punishment phase:
MS. ESCUE. Ms. Evans, can you tell us what your job here is in the 85th District
Court?

0 \RJ\0\VDG\20l6116-ll7<l flll

\~pd

16

A

I'm the court coordinator for 85th District.

Q
And I guess yesterday did you have an opportunity to hear a conversation
between Juror Noa Nomura and Jamey Glenn, the bailiff of this Court?
A

I did.

Q

Did it concern her prior statements that she had trouble understanding English
and her behavior the first day of jury selection?
A

Yes. She didn't state anything about English but she did apologize.

Q

Okay. Can you tell us what she told the bailiff?

A
I was sitting in my office, and sitting in front of me in the main office was
Jamey Glenn the court substitute bailiff. And the juror walked in-- I can't pronounce
her name -- and looked straight at Jamey and said "I'm sorry for yesterday." And
Jamey kind of acted puzzled. And she said "I'm sorry for how I behaved. It was very
immature of me." And he said "no need. That's not necessary. Thank you, but that's
not necessary." And she said-- reiterated "I'm sorry. It was very immature of me."

Q
Okay. When she was speaking, did she seem to have any trouble articulating
herself in English or understanding English?
A

Oh, no.

MS. ESCUE: Pass the witness.
MR. GRIBBLE: I have no questions, Judge.
THE COURT: All right. You may step down.
(Docket Entry No. 15-5, Reporter's Record, Vol. IV, pp. 7-8).
The state habeas court found:
5. As to Ground Two, the Court finds that appellate counsel made an informed and
reasonable decision not to advance a meritless appellate issue concerning a juror who
claimed she did not understand English, after she had been sworn in as a juror. The
record reflects that the juror did understand English. Moreover, any potential issue
was waived when both parties failed to question jurors during voir dire on their
ability to read and write English. See Stillwell v. State, 466 S.W.3d 908, 912-13 (Tex.

0 \RAOIVDG\20 IC,\16-l 170 fOI \\pd

17

App.-- Fort Worth 2015, no pet.). Applicant failed to prove deficient performance
under Strickland's first prong.
(Docket Entry No. 15-20, Ex parte Jackson, Application No. 84,632-01, p. 54).
The Court of Criminal Appeals explicitly based its denial of habeas relief on this finding.
These credibility determinations are entitled to a presumption of correctness. 28 U.S.C. § 2254(e)( 1).
Jackson has not produced clear and convincing evidence to rebut this finding. The state court's
decision as to the effective assistance of appellate counsel reasonably applied the law to the facts,
consistent with clearly established federal law. Jackson has not shown a basis for the reliefhe seeks.
28 U.S.C. § 2254(d)(l).
V.

The Batson Claim

In claim 3, Jackson alleges that the trial court erred in denying his Batson challenge. The
respondent argues that when Jackson presented this claim in his state habeas application, the Texas
Court of Criminal Appeals refused to consider it on its merits. Specifically, when it declined to
review the merits of this claim in state habeas, the Court of Criminal Appeals did so based on the
findings and conclusions of the trial court. (Docket Entry No. 15-18, Ex parte Jackson, Application
No. 84,632-01, p. 1).
The state habeas court found:
6. As to Ground Three, Applicant's complaint, that the trial court erred in denying
his Batson challenge, was raised and overruled on direct appeal. See Jackson v. State,
No. 10-13-00397-CR, 2015 WL 294684, *1 (Tex. App.- Waco Jan. 22,2015, no
pet.)(not designated for publication)("We cannot say the trial court's decision in
overruling Jackson's Batson challenge was clearly erroneous. Jackson's sole issue
is overruled."). Habeas corpus cannot be used to raise the same contentions that were
raised on appeal but were adjudicated adversely to the petitioner. Ex parte Bland,
228 S.W.2d 170, 171 (Tex. Crim. App. 1950).
(Docket Entry No. 15-20, p. 55).

0 \RAQIVOG\20l(l\l6·l17(J Ill I "Pd

18

The respondent argues that although Jackson presented this claim in his state habeas
application, he did so in a procedurally improper manner; hence the Texas Court of Criminal
Appeals refused to address the merits of the claim. Moreover, Jackson did not raise this claim in a
petition for discretionary review. The respondent argues that this claim is unexhausted because the
federal exhaustion doctrine requires Jackson to have presented this claim to the Texas Court of
Criminal Appeals in a procedurally correct manner.
Under the AEDPA, federal courts lack the power to grant habeas corpus relief on
unexhausted claims. Kunkle v. Dretke, 352 F.3d 980,988 (5th Cir. 2003) ("28 U.S.C. § 2254(b)(l)
requires that federal habeas petitioners fully exhaust remedies available in state court before
proceeding in federal court."), cert. denied, 543 U.S. 835 (2004); Riley v. Cockrell, 339 F.3d 308,
318 (5th Cir. 2003);Anderson v. Johnson, 338 F.3d 382,386 (5th Cir. 2003); Henry v. Cockrell, 327
F.3d 429, 432 (5th Cir. 2003) ("Absent special circumstances, a federal habeas petitioner must
exhaust his state remedies by pressing his claims in state court before he may seek federal habeas
relief."), cert. denied, 540 U.S. 956 (2003); Mercadel v. Johnson, 179 F.3d 271, 276-77 (5th Cir.
1999); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998); Jones v. Jones, 163 F.3d 285, 299
(5th Cir. 1998), cert. denied, 528 U.S. 895 (1999).

However, Title 28 U.S.C. § 2254(b)(2)

empowers a federal habeas court to deny an unexhausted claim on the merits. Pondexter v.

Quarterman, 537 F.3d 511, 527 (5th Cir. 2008), cert. denied, 555 U.S. 1219 (2009); Moreno v.
Dretke, 450 F.3d 158, 166 (5th Cir. 2006), cert. denied, 549 U.S. 1120 (2007); Smith v. Cockrell,
311 F.3d 661,684 (5th Cir. 2002), cert. dism 'd, 541 U.S. 913 (2004); Daniel v. Cockrell, 283 F.3d
697, 701-02 (5th Cir. 2002), cert. denied, 537 U.S. 874 (2002).

0 \RAO\VOG\20161!6·!170 JlJl wpd

19

The exhaustion of all federal claims in state court is a fundamental prerequisite to requesting
federal collateral relief under Title 28 U.S.C. Section 2254. Wilder v. Cockrell, 274 F.3d 255, 259
(5th Cir. 2001); Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995), cert. denied, 516 U.S. 1050
(1996); 28 U.S.C. § 2254(b)(l)(A).
The Fifth Circuit noted that the express language of the federal habeas statute authorizes a
federal court to reach the merits of an unexhausted claim. Mercadel v. Cain, 179 F.3d 271, 276 (5th
Cir. 1999). Section 2254(b )(2) provides: "An application for a writ of habeas corpus may be denied
on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State." This court clarified the meaning of this provision in Mercadel, noting that a
federal court may only deny an unexhausted claim on the merits if the court is convinced the claim
has no merit. 179 F.3d at 276. A claim lacks merit if"'it is perfectly clear that the applicant does
not raise even a colorable federal claim."' !d. at n.4 (quoting Granberry v. Greer, 481 U.S. 129, 135
(1987)). Though Jackson failed to exhaust state court remedies as to his Batson claim, this court is
authorized to deny relief on the merits.
Jackson asserts that the prosecutor used her peremptory strikes to remove African-Americans
from the venirepanel.

He further claims that at least one of the explanations offered by the

prosecutor was pretextual. Jackson notes that Mr. Maxey was challenged by the State on the basis
that several of his family members were formerly prosecuted by the Brazos County District
Attorney's Office. Jackson argues that during voir dire, the State never proffered the question to the
entire venirepanel as to whether anyone ever had a friend or close family member who was charged
and prosecuted in Brazos County. Jackson states that there were no other potential jurors that were
asked to approach the bench and questioned about prior prosecutions of family members.

0 \RAO\VDG\2016\JO-l J7(l Ill l wpd

20

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
forbids a party from challenging potential jurors on the basis of their race. U.S. CONST. amend. XIV;
Batson v. Kentucky, 476 U.S. 79, 89 (1986). A trial court follows a three-step process to evaluate

a claim that a litigant has made a peremptory strike based on race. Snyder v. Louisiana, 552 U.S.
472, 476 (2008). First, a defendant must make a prima facie showing that the State has used a
peremptory challenge to remove a potential juror on account of race. !d.,· Purkett v. Elem, 514 U.S.
765, 767 (1995). A defendant may establish a prima facie case solely on evidence concerning the
State's exercise of peremptory challenges at trial. Batson, 476 U.S. at 96. He must also show that
these facts and any other relevant circumstances raise an inference that the State has excluded
potential jurors from the petit jury on account of their race. !d.
Once the defendant has made a prima facie showing, the burden shifts to the State to come
forward with a race-neutral explanation for challenging the jurors. Snyder, 552 U.S. at 476-77;
Batson, 476 U.S. at 97-98. If the State offers race-neutral reasons for the strikes, the burden shifts

again to the defendant to show that the State's race-neutral explanations for the strikes are contrived
or a pretext to conceal a racially discriminatory intent. Shuffield v. State, 189 S. W.3d 782, 785 (Tex.
Crim. App. 2006); Jasper v. State, 61 S.W.3d 413,421 (Tex. Crim. App. 2001). The credibility of
the prosecutor who offers race-neutral explanations for disparate striking of jurors can be measured
by "the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and
by whether the proffered rationale has some basis in accepted trial strategy." Miller-El v. Cockrell,
537 U.S. 322, 339 (2003).
An appellate court will disturb a trial court's ruling on a Batson motion only if it is "clearly
erroneous." Snyder, 552 U.S. at 477; Guzman v. State, 85 S.W.3d 242,254 (Tex. Crim. App. 2002).

0 \RAO\VOG\2016\\0-: \7() fill wpd

21

Generally, a fact finder's decision is clearly erroneous when it leaves an appellate court with a
"definite and firm conviction that a mistake has been committed." Guzman, 85 S.W.3d at 254. The
appellate court reviews the evidence in the light most favorable to the trial court's ruling and affords
great deference to that ruling. Jasper, 61 S. W.3d at 422. Furthermore, a claim that the proffered race
neutral reasons for strikes are pretextual presents a question of fact, not law, and the trial court is in
the best position to evaluate such claims. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.
2008), cert. denied, 555 U.S. 846 (2008); Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App.
2004 ). The ultimate plausibility of a race-neutral explanation is to be considered in the context of
whether the defendant has satisfied his burden to show that the strike was the product of the
prosecutor's purposeful discrimination. Watkins, 245 S.W.3d at 447.
At trial, counsel made the following Batson challenge:
MR. GRIBBLE: I have a motion, Judge.
THE COURT: All right. Go ahead.
MR. GRIBBLE: Judge, in looking at the State's strikes, just for the record, there was
only one double strike, No. 27, Ms. Desern. Number 27 was a double strike.
Otherwise, within the strike zone, Judge, we had four African-American persons, and
for the record my client is African-American. The State struck three of the four. They
struck No. 6, Ms. Wimbish, No. 8, Mr. Maxey, and No. 9, Ms. Cooks. And in
fairness we had also agreed on No. 10, State and defense agreed on No. 10 prior to
the strikes. That leaves only one African-American male within the strike zone that
was not struck. I move under -- Judge, I make a Batson challenge that the State
struck three of the four African-Americans left within the strike zone.
THE COURT: Who was the fourth one that wound up on the jury?
MR. GRIBBLE: Mr. Robinson, No. 16, an African-American male should be on the
jury. The State exercised one-quarter of its strikes against African-American persons
and struck three out of four of the available African-American persons within the
strike zone. Judge, I think that's significant.

0 \RAOIVDG\2016\16-1170 f!.'l v.pd

22

THE COURT: Your response?
MS. ESCUE: Judge, ifyou want I can give the reasons why each one of them was
struck. Tryphenia Wimbish, she has prior criminal history. She was arrested for
tampering with a government record; unknown disposition. I talked to Grimes
County. She ended up paying back the restitution she owed; they dismissed it. She
was arrested. Furthermore, she answered that the goal of the criminal justice system
should be rehabilitation. You will notice that we struck every single rehabilitation,
except for one because we ran out of strikes. Juror Niashannia Cooks also answered
rehabilitation. She has prior criminal history. She has an arrested -- excuse me, she
pled guilty to theft and received six months deferred adjudication in 1991. She was,
again, arrested for theft in 1992 and it was dismissed. She was convicted of criminal
trespass, which also is an offense that the defendant is charged with and which the
jury will be hearing evidence for; pled guilty and received 12 months probation. Was
arrested for theft by check in 1997 and answered rehabilitation. And Mr. Maxey was
the third African-American juror we struck. Mr. Maxey is related and lived in the
same house as Christopher Maxey. He's also related to several other members of the
Maxey family, which our office has prosecuted and sent to prison. Because of the
familial relationships with numerous members ofhis family, all of which have been
prosecuted by our office, we struck him, including the fact that he lived in the same
house as his uncle who we prosecuted.
THE COURT: Any cross?
MR. GRIBBLE: Judge, I would ask of the 36 people in the strike zone, other than
No.6 and No.9 that Ms. Escue cited as being struck for prior criminal history, were
there any other people you struckMS. ESCUE: Left on the jury with criminal history?
MR. GRIBBLE: -- left on the jury with criminal history, yes?
MS. ESCUE: No.
MR. GRIBBLE: No further question, Judge.
THE COURT: Any argument on your motion?
MR. GRIBBLE: Judge, just under Batson I would argue that we have been-- because
my client is African-American, the prosecutors' actions have denied three ofthe four
possible African-Americans from being on the jury. I do understand that they have
provided race-neutral reasons for that.

0 \RAOIVDG\2016\16-1!70 fO I wpd

23

THE COURT: Motion overruled.
(Docket Entry No. 15-3, Reporter's Record, Vol. II, pp. 132-35).
As noted, the Texas Court of Criminal Appeals found that habeas corpus cannot be used to
raise the same contentions that were raised on appeal but were adjudicated adversely to Jackson.
"When one reasoned state court decision rejects a federal claim, subsequent unexplained orders
upholding that judgment or rejecting the same claim are considered to rest on the same ground as
did the reasoned state judgment." Bledsue v. Johnson, 188 F.3d 250,256 (5th Cir. 1999). This "look
through" doctrine enables a federal habeas court "to ignore-and hence, look through-an
unexplained state court denial and evaluate the last reasoned state court decision." !d.; see also Renz

v. Scott, 28 F.3d 431, 432 (5th Cir. 1994) (finding that the denial of relief"on the findings of the trial
court" by the Texas Court of Criminal Appeals adopts an express finding by the trial court that a
claim was procedurally barred from habeas review); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)
("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained
orders upholding that judgment or rejecting the same claim rest upon the same ground.").
In this case, the Tenth Court of Appeals rejected Jackson's Batson challenge. Because the
Tenth Court of Appeals issued the last reasoned opinion on this matter, this court "looks through"
the Texas Court of Criminal Appeals' order to the appellate court's decision.
The Tenth Court of Appeals found:
Kenthony Jevelle Jackson was convicted of aggravated robbery and sentenced to 23
years in prison. See Tex. Penal Code Ann. § 29.03(2)(B) (West 2011). Jackson
contends in his sole issue that the trial court erred in denying his Batson challenge to
the State's use of a peremptory strike against Juror 8, an African-American man. See
Batson v. Kentucky, 476 U.S. 79,90 L. Ed.2d 69, 106 S. Ct. 1712 (1986). The State
specified that it struck Juror 8 because numerous members of the prospective juror's
family had been prosecuted by the District Attorney's Office and because he had

0 \RAO\VDG\2016\16-1170

f!ll.\~pd

24

lived in the same house with his uncle, who the State had also prosecuted. Jackson
conceded at trial that the State's reasons for striking Juror 8 were race-neutral; and,
once the State proffers race-neutral explanations for its peremptory strikes, the
burden is on the defendant to convince the trial court that the prosecution's reasons
were not race-neutral. Ford v. State, 1 S. W.3d 691, 693 (Tex. Crim. App. 1999). Our
standard of review is whether the trial court's ruling was clearly erroneous. Grant
v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010).
Jackson contends on appeal, however, that the strike was pre-textual because the
State never inquired of the other venire members whether any had family members
that had been prosecuted by the District Attorney's office. In a similar situation, the
Court of Criminal Appeals interpreted United States Supreme Court precedent as not
requiring such further inquiry. See Grant v. State, 325 S.W.3d 655, 661 (Tex. Crim.
App. 201 0). That interpretation is binding on this Court, and therefore the State was
not required to inquire any further to validate or invalidate, confirm or refute the
basis stated for its own peremptory strike. We cannot say the trial court's decision in
overruling Jackson's Batson challenge was clearly erroneous. Jackson's sole issue
is overruled.
We affirm the trial court's judgment.
Jackson v. State, No. 10-13-00397-CR, 2015 WL 294684 (Tex. App. --Waco 2015, no pet.)(not

designated for publication).
The state court's decision was not contrary to clearly established federal law. Jackson is not
entitled to habeas relief. 28 U.S.C. § 2254(d)(1).
VI.

Conclusion
Respondent's Motion for Summary Judgment, (Docket Entry No. 14), is GRANTED.

Jackson's petition for a writ of habeas corpus is DENIED. This case is DISMISSED. Any
remaining pending motions are DENIED as moot.
The Supreme Court has stated that the showing necessary for a Certificate of Appealability
is a substantial showing of the denial of a constitutional right. Hernandez v. Johnson, 213 F .3d 243,
248 (5th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)). Under that standard,
an applicant makes a substantial showing when he demonstrates that his application involves issues

O\RAOIVDG\2016\16-ll70

m: wpd

25

that are debatable among jurists of reason, that another court could resolve the issues differently, or
that the issues are suitable enough to deserve encouragement to proceed further. See Clark v.

Johnson, 202 F.3d 760, 763 (5th Cir. 2000). Where a district court has rejected a prisoner's
constitutional claims on the merits, the applicant must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong. Slack, 529 U.S. 484.
This court denies Jackson's petition after careful consideration of the merits of his
constitutional claims. This court denies a COA because Jackson has not made the necessary showing
for issuance. Accordingly, a certificate of appealability is DENIED.
SIGNED at Houston, Texas, on

.:JlJOre 2-1 ,2017.

VANESSA D. GILMORE
UNITED STATES DISTRICT JUDGE

0 \RAO\VDG\2016\16-1170 tlJI wpd

26