Frank Jackson v. James v. Anderson, Superintendent, Mississippi State Penitentiary

112 F.3d 823, 1997 U.S. App. LEXIS 12990, 1997 WL 221703

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 20, 1997
• Docket: 95-60789
• Status: Published

Opinions

BENAVIDES, Circuit Judge:

Frank Jackson, a Mississippi state prisoner, appeals the denial of federal habeas corpus relief. He argues that he was illegally sentenced to life imprisonment as an habitual offender because the prosecution failed to prove that he had served separate terms of at least one year on each of his two prior felony convictions as required by Miss.Code Ann. § 99-19-83.¹ We affirm.

In 1972, Jackson was convicted of mayhem and received a three-year suspended sentence with five years of probation. In 1976, while still on probation, Jackson pleaded guilty to manslaughter and was sentenced to 20 years imprisonment.² Subsequently, during his incarceration for manslaughter, Jackson’s probation (for mayhem) was revoked. He was sentenced to three years to run consecutively to his 20-year manslaughter sentence. After serving a total of six years, nine months, and twenty-eight days for the manslaughter and mayhem convictions, Jackson was released on parole in 1981. In 1983, he was convicted of the instant offense of burglary of a dwelling and sentenced to life imprisonment without parole as an habitual offender.

On Jackson’s direct criminal appeal he argued that the prison records “showed the time he served covered one period of confinement” and therefore he had been illegally sentenced as a violent habitual offender under § 99-19-83. The Mississippi Supreme Court opined:

that § 99-19-83 was not violated [because Jackson] was convicted twice previously of felonies which were brought and arose out of separate incidents at different times and was sentenced to and did serve one or more years on each offense, one of which (in this instance both crimes) was a crime of violence.

Jackson v. State, 483 So.2d 1353, 1356-57 (Miss.1986) (emphasis added). To make this determination, the Mississippi Supreme Court relied on the testimony of Christine Houston, the Director of Records for the Department of Corrections. Houston testified that Jackson served five years of his twenty-year sentence for manslaughter and one year, nine months, and twenty-eight days for his three-year sentence for mayhem. Id. at 1356. The newly amended federal habeas statute “retain[s] the traditional presumption of correctness afforded to state court factual determinations.” Childress v. Johnson, 103 F.3d 1221, 1225 (5th Cir.1997) (28 U.S.C. § 2254(e)(1)). The amended statute apparently places a more onerous burden on the petitioner in that the petitioner must now rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. (e)(1).³ Further, section 2254(d)(2) prohibits granting the writ in regard to any claim adjudicated on the merits in state court unless the adjudication of that claim “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.”

Jackson challenges the conclusion that he became eligible for parole after he had served five years or one-fourth of his 20-year manslaughter sentence, arguing that under the version of the parole statute in effect at the time of his parole,⁴ a prisoner was required to serve at least one-third of his sentence before becoming eligible for parole. Jackson contends that he was required to serve one-third (six years and eight months) of the 20-year sentence, which left only one month and twenty-eight days to be attributed to the consecutive mayhem sentence. He therefore argues that he could not have served one year on the mayhem conviction.⁵

It is undisputed that Jackson served a total of six years, nine months, and twenty-eight days before he was paroled from his imprisonment for the manslaughter and mayhem convictions. The obvious flaw in Jackson’s analysis is that if he served six years and eight months on the manslaughter conviction, then he would have served only one month and twenty-eight days on his mayhem conviction at the time he was actually paroled. If Jackson’s analysis is applied to the mayhem sentence, then he would have had to serve one year (one-third) of his three-year manslaughter sentence before being eligible for parole. In other words, Jackson’s calculations would have required him to serve a total of seven years and eight months⁶ before being eligible for parole. Because he was paroled prior to serving that amount of time, Jackson’s argument is unavailing. Indeed, his argument highlights the fact that the question is not how much time he should have served under the applicable parole statute, but rather, how much time he actually served.⁷

In any event, we need not determine exactly how the Mississippi Corrections Department computed the time attributed to each of Jackson’s sentences because “[w]e will take the word of the highest court on criminal matters of [Mississippi] as to the interpretation of its law.” Seaton v. Procunier, 750 F.2d 366, 368 (5th Cir.), cert. denied, 474 U.S. 836, 106 S.Ct. 110, 88 L.Ed.2d 90 (1985). “[W]e do not sit to review that state’s interpretation of its own law.” Id. Because the state court’s finding that Jackson served “one or more years on each offense” was not based on an unreasonable determination of the facts presented at the state court proceeding, we are prohibited from granting relief.

Jackson also argues that he was denied effective assistance of counsel because counsel allowed Houston to erroneously testify regarding the time he served on the manslaughter and mayhem sentences. Trial counsel was not responsible for the testimony of Houston and was not unprofessional with respect thereto. Moreover, Jackson failed to establish that Houston’s testimony was erroneous. Because we have rejected Jackson’s claim on the merits, we likewise reject Jackson’s claim of ineffective assistance that is based on the same argument.⁸

AFFIRMED.

1 . In pertinent part, § 99-19-83 provides that:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any ... penal institution ... and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

2 . Initially, Jackson was convicted of capital murder and was sentenced to death. The Mississippi Supreme Court reversed and remanded, establishing procedures for a bifurcated hearing in capital cases. Jackson v. State, 337 So.2d 1242 (Miss. 1976).

3 . The previous statute provided that "the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.” 28 TJ.S.C. § 2254(d).

4 . Miss.Code Ann. § 47-7-3 (1981).

5 . The State has not raised the procedural default bar on appeal. Because the State waived this bar, we decline to reach it. See Reddix v. Thigpen, 805 F.2d 506, 512 (5th Cir. 1986).

6 . Manslaughter time of six years and eight months plus mayhem time of one year equals seven years eight months.

7 . The dissent determines that, as a matter of law, Jackson actually served six years and eight months on the manslaughter conviction, the first period of confinement, and one month and twenty-seven days on the mayhem conviction, the second period of confinement. The dissent's analysis proves too much. If this is a legal question, as opposed to a fact question, then that legal determination would also mean that Jackson served at least one year on the mayhem conviction. Of course, because Jackson served only six years, nine months, and twenty-eight days, both of those conclusions cannot be correct. Under the dissent’s analysis, one of those conclusions must be false. In light of the burden that is on Jackson, it is puzzling that the dissent assumes that the mistake occurred with respect to the calculation of parole eligibility on the second period of confinement. It is equally plausible that such a mistake could have occurred in calculating Jackson’s parole eligibility for his manslaughter conviction, the first period of confinement. Because either scenario is equally plausible, it cannot be said that the state court's decision was based on an unreasonable determination of the facts presented at the state court proceeding.

8 . Jackson also argues that his illegal sentence constitutes an ex post facto violation. Because he raises this for the first time on appeal, we will not review it.