Wilbert Jackson v. A.L. Lockhart, Director, Arkansas Department of Correction

992 F.2d 167, 1993 U.S. App. LEXIS 9097, 1993 WL 126440
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 26, 1993
Docket92-2405
StatusPublished
Cited by4 cases

This text of 992 F.2d 167 (Wilbert Jackson v. A.L. Lockhart, Director, Arkansas Department of Correction) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilbert Jackson v. A.L. Lockhart, Director, Arkansas Department of Correction, 992 F.2d 167, 1993 U.S. App. LEXIS 9097, 1993 WL 126440 (8th Cir. 1993).

Opinions

MAGILL, Circuit Judge.

Wilbert Jackson, an Arkansas prisoner, appeals from the district court’s1 dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We affirm.

I.

Jackson and Glen Christopher were charged with two counts of theft of property. Christopher pleaded guilty at trial and testified he and Jackson committed the offense. Chief Deputy Bobby Freeze testified he received an anonymous tip that some stolen irrigation pipe might be moved through a specific intersection. Freeze set up surveillance near the intersection and eventually saw a truck pulling a load of irrigation pipe. Freeze testified he recognized the occupants of the truck when they stopped to check the load of pipe which was dragging on the ground. After following the truck for a short time, Freeze testified, he stopped the truck because he suspected the pipe was stolen. Freeze then handcuffed Jackson and placed him in the back seat of Freeze’s vehicle. Freeze read Christopher his Miranda rights and questioned him about the pipe. Freeze testified that on the basis of Christopher’s answers, he placed both Christopher and Jackson under arrest. Charles Tyson and Gordon Mattison testified they owned the pipe and the trailer which had been stolen.

At trial, Jackson’s trial counsel moved for acquittal at the close of the State’s case, arguing the State had not sufficiently corroborated the testimony of Jackson’s accomplice as required under Ark.Code Ann. § 16-89-111(e)(1) (Michie 1987).2 The court denied the motion. Jackson’s counsel failed to renew the motion at the close of all the evidence. The jury convicted Jackson as a habitual offender and recommended consecutive terms of six and twenty years.

[169]*169Jackson did not raise a claim of ineffective assistance of counsel in the trial court, but he did file a timely direct appeal. Jackson’s appellate counsel (a different attorney) did not raise ineffective assistance of trial counsel on direct appeal. The Arkansas Court of Appeals affirmed Jackson’s conviction concluding that his argument regarding sufficiency of the corroborating evidence was not properly preserved for appeal because Jackson failed to renew his motion for acquittal at the conclusion of all the evidence. Jackson v. State, No. CACR 90-45, 1990 WL 177166 (Nov. 14, 1990).

According to Arkansas Rule of Criminal Procedure 36.4 as it existed during the relevant time periods for this case, a convicted defendant had to assert a claim of ineffective assistance of counsel within thirty days of judgment. Jackson did not do this.

Jackson’s petition for a writ of habeas corpus in the state courts was denied for failure to state a claim upon which relief could be granted. Jackson then filed this 28 U.S.C. § 2254 petition claiming his trial counsel was ineffective because he failed to move for acquittal at the close of all the evidence and thus failed to preserve the corroboration issue for appeal. Jackson also claimed there was insufficient evidence to corroborate the testimony of his accomplice. The State argued that Jackson had procedurally defaulted on both claims and that he could not use his ineffective assistance claim as cause. The district court concluded that Jackson had not shown adequate cause for failing to raise his claims in state court, and therefore he was procedurally barred from raising them in his petition.

II.

Jackson may raise his current habeas claims only if he can show cause for his failure to raise these issues in the state court proceedings and prejudice. Coleman v. Thompson, — U.S. —, —, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). If he cannot show cause and prejudice, his claims are procedurally defaulted. Id.

Jackson claims that ineffective assistance of counsel was the cause for his failure to raise these claims in state court. Ineffective assistance of counsel in itself may constitute cause to lift the procedural bar. See Dawan v. Lockhart, 980 F.2d 470, 473 (8th Cir.1992); Coleman, — U.S. at —, 111 S.Ct. at 2567. To prevail in his ineffective assistance claim, Jackson must show that his attorney acted professionally unreasonably under the circumstances and that this prejudiced Jackson’s defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). To establish that he was prejudiced by the ineffective assistance of counsel, it is not sufficient for Jackson to show there is a reasonable probability that the result of the trial may have been different. Lockhart v. Fretwell, — U.S. —, —, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). Jackson must show that “counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Id.; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

We note that this court’s duty in a habeas proceeding is not to correct errors of fact, but to determine whether an individual is imprisoned in violation of the Constitution. Herrera v. Collins, — U.S. —, —, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993). We must determine whether Jackson’s constitutional rights have been violated because he was not afforded effective assistance of counsel at trial. We hold that Jackson cannot demonstrate prejudice because the result of his trial was not unreliable nor fundamentally unfair. Therefore, Jackson cannot show ineffective assistance of counsel and thus no cause to overcome the procedural bar.

The trial court had already denied a motion for acquittal at the end of the State’s ease. In the view of the trial judge, the State had presented substantial evidence to corroborate the accomplice’s testimony, i.e., sufficient evidence tending to connect Jackson with the commission of the crime. See Klimas v. State, 259 Ark. 301, 534 S.W.2d 202, 205, cert. denied, 429 U.S. 846, 97 S.Ct. 128, 50 L.Ed.2d 117 (1976). If Jackson’s trial counsel had renewed his motion for acquittal based on sufficiency of the corroborating evidence at the conclusion of all the evidence, it is highly unlikely that the trial court would [170]*170have granted the motion for acquittal. The trial court judge had already denied it once indicating that he thought the evidence presented by the State was sufficient to raise a jury question. Given the quantum of evidence which the State had placed before the court, there is no reason to suspect that the trial judge’s ruling on the motion would have been any different after all the evidence was presented. Therefore, Jackson’s attorney’s failure to move for an acquittal at the conclusion of all the evidence did not render the trial result unreliable or the proceeding fundamentally unfair because in all probability the result would have been the same even if the motion had been made.

If Jackson’s trial counsel had renewed his motion, then he would have preserved the issue of sufficiency of the corroborating evidence for appeal. On direct appeal, Jackson would have argued that the motion for judgment of acquittal should have been granted.

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Bluebook (online)
992 F.2d 167, 1993 U.S. App. LEXIS 9097, 1993 WL 126440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilbert-jackson-v-al-lockhart-director-arkansas-department-of-ca8-1993.