Saturday, February 17, 2007

Jackson v. United States (Maryland U.S.D.C.) (Approved for Publication)

Signed December 27, 2006--Opinion by Chief Judge Benson Everett Legg (Approved for publication.)

In a pro se petition to vacate, set aside, or correct his 2000 conviction for conspiracy to distribute cocaine and 'crack', Jackson sought relief on due process and effective assistance of counsel grounds, after earlier appeals to the Fourth Circuit (decided in 2002) and Supreme Court (in 2002) were unavailing.

Jackson claimed he was denied due process because "false" or "perjured" testimony was used by the grand jury to indict him. Since he had failed to raise those claims on appeal to the Fourth Circuit, the judge found that he is now barred from raising the issue, but went on to note that the claim would have fallen short in any event, since he did not present any "new evidence" that would demonstrate a jury would not be likely to convict him, under the "actual innocence" doctrine, but only a transcript of the grand jury testimony, which had in fact been used at trial.

Under the Strickland standard, ineffective assistance of counsel claims must establish both the deficiency of counsel's performance, and that the deficient performance prejudiced the claimant, in order to succeed, and failure to establish either would cause the claim to fail.

Here, Jackson's claims of error, and the judge's disposition, were as follows:
Counsel failed to move to dismiss the superseding indictment. Based on the alleged false grand jury testimony raised in the due process claim, the judge rejected Jackson's claim, noting further that a facially valid indictment cannot be challenged for evidentiary incompetence, and thus counsel was not incompetent for failing to raise the issue.

Counsel failed to argue forcefully for a continuance. During the trial, the original indictment had been superseded by an amended version that had added specific quantities of drugs involved, as required by the concurrent Supreme Court decision in Apprendi, and deleted the indictments against Jackson's co-conspirators who had pleaded guilty before trial. The judge found this claim to be without merit, since no new crime was added, the facts added to the indictment were known to Jackson and his counsel, and no claim was made that they were ill-prepared for trial.

Counsel failed to argue that the indictment was insufficiently informative. Jackson claimed that the indictment was defective because co-conspirators were unnamed, there was no "statement of facts", and was "too open-ended." The judge found the claims to be without merit, since the Fourth Circuit does not require unindicted co-conspirators to be named, no statement of facts is required, and the indictment stated the period of the conspiracy.

Counsel erred in moving the original indictment into evidence. At trial, Jackson's counsel argued that, rather than the one unitary conspiracy alleged in the superseding indictment, multiple conspiracies were involved, and that the government had failed to establish those multiple conspiracies. To establish the basis for this, Jackson's counsel introduced the original indictment, which included the names of conspirators not named in the superseding indictment. Since the counsel's strategy was reasoned in that it attacked a possible weak point of the government case, it could not be used under Strickland to prove ineffective assistance of counsel merely because it did not prevail.

Counsel failed to object to the admission of facts relating to Jackson's 1995 drug arrest. Rather than being introduced to establish Jackson's "bad character," evidence of Jackson's arrest, including the type and quantity of drugs and drug-related materials, went directly to Jackson's involvement in the alleged conspiracy during the time period the conspiracy was alleged to have been in operation, and was properly admitted.

Counsel failed to raise on appeal Jackson's arraignment at trial. Jackson was arraigned on the superseding indictment during trial. Since he and his counsel had received a copy of the indictment prior to trial, and had in any event plead not guilty, no prejudice under Strickland was shown.

Counsel failed to raise a "speedy trial" claim on appeal. Since Jackson did not explain how his rights under the Speedy Trial Act had been violated, his claim failed.
In sum, the judge denied Jackson's motions, and closed the case.

The Memorandum and Order are available in PDF.

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