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Jackson v. Litteral

United States District Court, W.D. Kentucky, Louisville Division

November 6, 2017



          David J. Hale, United States District Court Judge

         Shawntele Cortez Jackson has filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254, alleging various constitutional violations. (Docket No. 1) Respondent Kathy Litteral opposes Jackson's petition. (D.N. 15) The Court referred this matter to Magistrate Judge Dave Whalin, who issued a report and recommendation on May 24, 2017. (D.N. 29) Judge Whalin recommended that the Court deny Jackson's petition. (Id., PageID # 824) He also concluded that Jackson was not entitled to a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c)(1)(B). (Id., PageID # 823-24) After the Court granted Jackson additional time (D.N. 33), he filed objections to Judge Whalin's report on July 14, 2017. (D.N. 34) For the reasons set forth below, Jackson's objections will be overruled. After careful consideration, the Court will adopt in full Judge Whalin's Findings of Fact, Conclusions of Law, and Recommendation.


         In 2007, Jackson was convicted by a jury in Jefferson County, Kentucky, of the murder of Richard Lee Washington. (See D.N. 15-16) The conviction follows from events that occurred in Louisville, Kentucky, on May 16, 2006. That evening, Jackson, D'Angelo Scott, Dora Ditto, and Ditto's boyfriend, Richard Lee Washington, drove together to a convenience store to collect money from an individual indebted to Jackson. See Jackson v. Commonwealth (Jackson I), No. 2007-SC-000392-MR, 2010 WL 252244, at *1 (Ky. Jan. 21, 2010). While at the convenience store, Jackson and Washington began arguing and continued to do so as the group reached the apartment of Jackson's girlfriend, Dominique Rudolph. Id.

         According to Jackson, upon exiting the vehicle, Ditto removed a black handgun from the trunk and handed it to Washington. Id. Washington then approached Jackson and threatened to kill him. Id. Shoving ensued, and eventually the two men struggled for possession of the handgun. Id. Jackson claims that during the entanglement, the gun fired while in Washington's right hand and struck Washington in the back of the head. Id.

         Ditto's version of events differs markedly. Ditto explained that upon exiting the vehicle, Jackson asked Washington for another ride, which Washington refused. Id. at *2. Jackson then hit Washington in the head with a handgun and told him he “ought to kill him.” Id. Ditto asserted that Jackson proceeded to strike Washington again with the gun, causing it to fire and kill Washington. Id. Scott testified similarly, with one notable exception. He testified that although he heard the gun fire, he did not recall seeing either man with a firearm earlier that night. Id.

         There are likewise differing versions as to the subsequent events. According to Jackson, he ran to his girlfriend Rudolph's apartment immediately after the altercation. Id. Jackson asserts that he fell asleep there and did not wake or leave the apartment for thirty-six hours. Id. Ditto, on the other hand, stated that Jackson immediately ran from the scene with the gun still in his possession. Id. Scott testified that he too went to Rudolph's apartment following the altercation but that Jackson arrived there sometime later in the night. Id. At trial, the state also presented the testimony of Amber Baker, Jackson's ex-girlfriend. See Jackson I, 2010 WL 252244, at *2. Baker testified that Jackson arrived at her apartment on the night in question looking scared and watching out her screen door. Baker stated that Jackson continued doing so for twenty minutes before leaving. Id.

         Following Jackson's arrest and indictment by a grand jury, a jury found Jackson guilty of murdering Washington under Ky. Rev. Stat. § 507.020. (See D.N. 15-16) Jackson timely appealed his conviction, raising ten allegations of error on appeal. (See D.N. 15-4) In an opinion issued January 21, 2010, the Supreme Court of Kentucky affirmed Jackson's conviction. Jackson I, 2010 WL 252244, at *13.

         Jackson then filed a pro se collateral attack pursuant to Kentucky Rule of Criminal Procedure 11.42 in the Jefferson Circuit Court, asserting seven claims of ineffective assistance of counsel and a claim of cumulative error. (D.N. 15-8; D.N. 15-9) When Jackson's appointed counsel declined to supplement Jackson's motion, Jackson filed a supplemental pro se motion pursuant to Rule 11.42. There, Jackson raised three additional grounds of ineffective assistance of counsel. (See 15-1, PageID # 137) The Jefferson Circuit Court held an evidentiary hearing and ultimately dismissed Jackson's claims. (D.N. 15-8, PageID # 387-97) Jackson appealed five of his claims to the Kentucky Court of Appeals, which affirmed the state trial court's decision. See Jackson v. Commonwealth (Jackson II), No. 2013-CA-001727-MR, 2015 WL 1648058 (Ky. Ct. App. Apr. 10, 2015). Thereafter, the Kentucky Supreme Court denied Jackson's request for discretionary review. (See D.N. 15-10, PageID # 461)

         Jackson has now filed a petition for habeas corpus relief in this Court, raising the ten claims from his direct appeal, the five claims of ineffective assistance of counsel from his Rule 11.42 motion, and a claim of cumulative error. (See D.N. 1) On May 24, 2017, Magistrate Judge Dave Whalin issued his report and recommendation. (D.N. 29). Jackson timely filed objections to Judge Whalin's findings. (D.N. 34) Judge Whalin based his conclusion on sixteen separate findings (Grounds 1-16). Jackson objects to all but grounds five, fifteen, and sixteen. (Id.) Accordingly, the Court's review will be limited to grounds one through four and six through fourteen. Thomas v. Arn, 474 U.S. 140, 150 (1985) (finding that if a party fails to object, the Court need not “review a magistrate's factual or legal conclusions, under a de novo or any other standard.”)


         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides relief to a habeas petitioner if the underlying state-court decision “was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d). This clause applies “if the state court arrives at a conclusion opposite to that reached by th[e Supreme] Court on a question of law or if the state court decides a case differently than th[e Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). If fair-minded jurists could disagree as to the correctness of the state court's decision, then Jackson will not be entitled to relief. Harrington v. Richter, 562 U.S. 86, 102 (2011).

         The AEDPA also provides relief if the state-court decision “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). This occurs when “the state court identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. Under this clause, Jackson must show that “the state court applied [a Supreme Court case] to the facts of his case in an objectively unreasonable manner.” Woodford v. Visciotti, 537 U.S. 19, 25 (2002).

         When reviewing a report and recommendation, this Court reviews de novo “those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). The Court may adopt without review any portion of the report to which an objection is not made. See Thomas, 474 U.S. at 150. On review, the Court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). Accordingly, the Court will review de novo the portions of Judge Whalin's recommendation to which Jackson objects to determine if relief is warranted under the AEDPA.


         a. Jackson's Claims from Direct Appeal

         1. Failure to Instruct on Self-Protection (Ground One)

         Three of Jackson's claims concern trial errors and the issue of whether the Kentucky Supreme Court was correct to conclude that such errors were “harmless.” A habeas petitioner is not entitled to relief based on trial error unless he can establish that it resulted in “actual prejudice.” See Brecht v. Abrahamson, 507 U.S. 619 (1993). The Court agrees with the Kentucky Supreme Court and Judge Whalin that Jackson has not met this standard.

         At issue in ground one of Jackson's petition is the trial court's failure to instruct the jury on a self-protection defense for the lesser-included offenses of second-degree manslaughter and reckless homicide. (D.N. 1-1, PageID # 49) The Kentucky Supreme Court found that the trial court abused its discretion in failing to so instruct. Jackson I, 2010 WL 252244, at *9. The court held, however, that the error was harmless, given the fact that the jury chose to convict Jackson under the correctly phrased instruction of murder-a charge that placed an additional burden on the state to disprove Jackson's claim of self-protection. Id. at *10.

         In his report and recommendation, Judge Whalin agreed, concluding that Jackson could not prove that the failure to instruct the jury on self-protection prejudiced him. (D.N. 29, PageID # 797) Jackson objects to this conclusion, arguing that the failure effectively denied him from utilizing the self-protection defense against the lesser-included charges. (D.N. 34, PageID # 837-38) Even if this is true, however, this goes to show only that the trial court erred. In his objection, Jackson again fails to show that the error was prejudicial, given that he was ultimately convicted under a correctly worded charge. Accordingly, Jackson has failed to meet his burden under Brecht, and the Court will adopt Judge Whalin's conclusion as to ground one.

         2. Limited Impeachment of Prosecution ...

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