Jackson v. Stephens
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
June 28, 2017
IN THE UNITED STATES DISTRICT COURT
David J. Bradley, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
§ CIVIL ACTION NO. H-16-1170
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.
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
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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:
trial counsel, Jerry L. Gribble, II, rendered ineffective assistance by failing to notifY him of
a five-year plea bargain offer;
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
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.
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).
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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
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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).
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
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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
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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
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
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,
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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.
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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
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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
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
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
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Jackson. That offer was refused and last week I withdrew all offers and we were set
THE COURT: Okay. You can go ahead and have a seat and we'll begin with the jury
(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
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,
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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.
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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).
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
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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
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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.
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.
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Wilson v. Cockrell, 2003 WL 21672834, at *11 (5th Cir. July 17, 2003); Duhamel v. Collins, 955
F.2d 962, 965 (5th Cir. 1992).
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?
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
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(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
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
MS. ESCUE. Ms. Evans, can you tell us what your job here is in the 85th District
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