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Jackson v. Clarke

United States District Court, W.D. Virginia, Roanoke Division

December 27, 2019

HAROLD W. CLARKE, Director, Respondent.


          Norman K. Moon Senior United States District Judge

         Petitioner Darryl Sylvester Jackson, a Virginia inmate, by counsel, filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his confinement following a judgment rendered by the City of Winchester Circuit Court. In that judgment, he was sentenced to 15 years, with one year suspended, for the following convictions: robbery, conspiracy to commit robbery, use of a firearm in the commission of robbery, and possession of a firearm by a convicted felon.

         In his petition, Jackson asserts seven claims for ineffective assistance of trial counsel. Respondent has filed a motion to dismiss Jackson's § 2254 petition, and Jackson, by counsel, has responded, making the matter ripe for disposition.

         Claim 1 was raised and addressed in Jackson's state habeas proceeding, but the remainder of his claims were not. At the time Jackson filed his state habeas petition, he was not represented by counsel. After the state statute of limitations had run, the Supreme Court of Virginia appointed counsel to represent Jackson. Counsel twice requested leave to amend the petition to raise the additional claims, but the request was denied both times. Therefore, these six claims are procedurally defaulted. Upon review of the record, I conclude that Jackson has raised a “substantial constitutional claim” only in claim 2, so he is unable to overcome the procedural default for the remaining claims, claim 3 through claim 7, and I will grant respondent's motion to dismiss claims 3 through 7 as procedurally defaulted.

         Considering the merits of claim 1, I conclude that the state court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law, nor was the decision based on an unreasonable determination of the facts. On claim 2, Jackson shows that counsel's performance was deficient, but he has not shown that the deficiency had a substantial and injurious effect on the results of the trial. Accordingly, I will grant the respondent's motion to dismiss claims 1 and 2 on the merits.


         The Supreme Court of Virginia accurately set forth the facts presented at trial, in the light most favorable to the state:

[O]n the night of the robbery, while spending time with friends at an apartment, Jackson announced that he was going to “hit a lick, ” meaning to commit a robbery, or, alternatively, he may have said “let's go get some money, ” which those present understood to mean “[j]ust go rob somebody off the street.” Javon Johnson and Dajuan Doleman left with him. Jackson had a weapon with him, which several witnesses described as a gun. Johnson saw the gun, testifying that it was a black and silver handgun. According to Johnson, when the three reached the Caribbean Food Store, Jackson and Doleman went inside, while Johnson waited outside.
The owner of the business, Clifford “Shorty” Farquharson, saw the men burst into his store. The men demanded that he open the register. When Farquharson said he needed to get the key, one of the men slid under the counter, grabbed some money that was under the register, and took some cigarettes and cigars, as well. Farquharson recalled that the robber had a “gun or a knife” in his hand. He also testified he did not initially call the police when the men entered the store because “they had a gun.” When Johnson walked in, he could see Jackson with the gun in his hand saying “give me the money.”
When Jackson returned from the robbery, his gun was in his waistband. The trio returned with cigarettes and money. Nicole Thompson saw the gun when Jackson returned from the robbery. The group divided up the money and cigarettes, and took celebratory photographs. The gun was never found. It is undisputed that Jackson was previously convicted of a felony.

Jackson v. Clarke, Nos. 1415951 and 170843 (Va. May 31, 2018). (Habeas R. 851-52.)[1]

         Defense counsel's theory of the case at trial was that Jackson was not involved in the robbery. (See generally Habeas R. 254-58.) Jackson regularly patronized the store, but the owner could not identify him as one of the robbers; no physical evidence connected him to the crime, and the only evidence placing Jackson at the scene was the testimony of “co-conspirators and accomplices” who had received generous treatment from the state in exchange for their testimony. (Id.)


         On November 18, 2014, a grand jury for the Circuit Court of the City of Winchester indicted Jackson for robbery in violation of Virginia Code section 18.2-58, use or attempt to use a firearm or display it in a threatening manner while committing a felony in violation of Virginia Code section 18.2-53.1, possession of a firearm by a convicted felon in violation of Virginia Code section 18.2-308.2, and conspiracy to commit robbery in violation of Virginia Code sections 18.2-22 & 58. (Habeas R. 439-42.) Jackson elected to be tried by jury on all counts. On March 30, 2015, a duly empaneled jury heard the evidence on three of the charges-conspiracy, robbery, and use of a firearm while committing robbery. At the conclusion of the state's evidence, Jackson's counsel moved to strike the evidence on the grounds that the Commonwealth had failed to prove beyond a reasonable doubt that Jackson was one of the robbers on the night in question and had failed to prove that the robber had a gun. (Habeas R. 235-37.) The defense put on no evidence, and counsel renewed his motion to strike, which the court again overruled. (Id. at 240-41.)

         The court instructed the jury on the law to apply to the case. As pertinent to Jackson's claims in this § 2254 petition, the court's instructions included the following:

         INSTRUCTION No. 5

         The defendant is charged with the crime of using a firearm while committing a robbery. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

(1) That the defendant used a firearm; and
(2) That the use was while committing robbery.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty . . . .

(Id. at 305.)

         INSTRUCTION No. 6

A firearm is an instrument designed, made, and intended to expel a projectile by means of an explosion. It is not necessary that the firearm be operable, capable of being fired, or have the actual capacity to do serious harm.

(Id. at 306 (emphasis added).)

         INSTRUCTION No. 7

Where a victim reasonably perceived a threat or intimidation by a firearm, it is not necessary that the object in question was in fact a firearm.

(Id. at 307.) No. instruction was offered regarding accomplice testimony.

         The jury deliberated for some time, and then sent out a paper with several questions: (1) What was Shorty's answer about the object in the defendant's hand? (2) What was Davon Johnson's statement about use of the firearm? (3) Define “use” while committing robbery. (Id. at 266-67, 456.) Before bringing the jury in to answer their questions, the judge advised counsel that he intended to advise the jurors that he couldn't answer the first two questions, and for define “use” of a firearm, he said, “What that means is it had to be actually an active part of the criminal transaction. In other words, it had to be out and displayed. If it was hidden in a coat or something and not used and not visible it wasn't used even though it was present.” (Id. at 265-66.) Defense counsel stated for the record that he had “no objection to those answers.” (Id. at 266.) The trial court then had the jury returned to the courtroom and advised that he could not answer the first two questions; the jurors would need to rely on their own recollection of the evidence. He answered the final question by telling the jury:

That means the use of a firearm, for instance, that it had to be displayed incident to the crime. In other words, if the victim can't see it, it wasn't a factor. It would have had to have been displayed so that under circumstances that it is probable or in this case beyond a reasonable doubt that the Defendant saw it, the victim saw it. That is what use means. It would have had to have been displayed as part of the crime. That is separate because the victim would never know it was there.

(Id. at 267.) After deliberating further, the jury returned with guilty verdicts on all three charges, and the individual jurors, upon being polled, each affirmed that this was his or her verdict. (Id. at 270-72.)

         The parties and court had agreed that after the first trial, the same jury would hear the trial on the remaining charge, possession of a firearm by a convicted felon. The court indicated that the second trial would be very short, because “we do have something called collateral estoppel.” (Id. at 264.) After the jury had returned verdicts on the first three charges, defense counsel asked the court to proceed with the second trial before having the jury undertake the sentencing phase, so that the jury would need only preside over a single sentencing hearing on all four charges. (Id. at 273.) The court and Commonwealth agreed.

         The second trial was quite brief. Both attorneys delivered one paragraph opening arguments. The Commonwealth's attorney noted that they had already found Jackson guilty of three charges, and then said, “He, as you will see from our evidence today, was previously convicted of a felony, actually felonies. Because of that he is also guilty of (sic) a felon in possession of a firearm and that is all I am going to keep it to today.” (Id. at 276.) Defense counsel, equally brief, said “I would ask you to consider finding him not guilty but I realize what you have already done based on the evidence you have seen so far so I won't repeat the arguments I have made earlier. I would ask you to consider finding him not guilty on this charge.” (Id.) The Commonwealth's only evidence was a set of multiple prior conviction orders, apparently both felonies and misdemeanors. (See Id. at 281.) Defense counsel did not object to the multiple orders and declined the opportunity to stipulate that Jackson was a convicted felon. (Id. at 274.) The defense offered no evidence. Defense counsel made a motion to strike the evidence “for the reasons I stated in the previous case, ” emphasizing the theory that Jackson was not present for the robbery and was not the person with any gun at the robbery. (Id. at 278.) The court denied the motion.

         The court instructed the jury to rely on instructions one, two, and eight through twelve from the prior trial, pertaining to presumption of innocence, circumstantial evidence, defendant's right not to testify, and credibility of witnesses. (Id. at 279.) He notably did not include instructions six and seven from the prior trial, defining “firearm.” He read one new instruction to the jury, instruction thirteen, identifying the elements of possession of a firearm by a convicted felon. (Id. at 280.) After closing arguments even shorter than opening statements, the jury retired to deliberate, and then returned with another guilty verdict.

         The sentencing phase included the same prior conviction orders and the testimony of one defense witness-Jackson's mother. The court instructed the jury on the appropriate sentencing ranges and sent them to deliberate. They returned with a total sentencing recommendation of 15 years, consisting of 6 years for robbery, 1 year for conspiracy, 3 years for use of a firearm in commission of robbery, and 5 years for felon in possession of a firearm. (Id. at 294-95, 457-59.) The court ordered a presentence report and set the matter for hearing on June 8, 2015.

         On June 8, 2015, the court imposed the 15-year sentence and suspended one year of it. (Id. at 460-65.) Jackson then appealed his conviction and sentence, raising a single issue, that the evidence was insufficient to support his convictions. Viewing the evidence in the light most favorable to the prevailing party, the Court of Appeals of Virginia found the evidence sufficient and denied the appeal on November 5, ...

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