Thomas R. Jackson v. United States , 274 F. App'x 748 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 15, 2008
No. 06-13183 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 04-22561-CV-AJ
00-00345-CR-AJ
THOMAS R. JACKSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 15, 2008)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Thomas R. Jackson, a federal prisoner, appeals the district court’s denial of
his pro se motion to vacate, pursuant to 18 U.S.C. § 2255. The district court
granted a limited certificate of appealability on the issue of whether Jackson
received ineffective assistance of counsel when his trial counsel failed to subpoena
and call a particular individual, Corey Jones, as a defense witness during his trial.
On appeal, Jackson argues that Jones was an indispensable witness for his defense
because he possessed letters from Luis Perez, a cooperating government witness
who testified against Jackson at trial, letters which allegedly exculpated him of the
offense conduct. Jackson further asserts that Jones’s testimony could have been
used to impeach Perez, contradicting (1) his explanation at trial that his written
statements and affidavit exculpating Jackson of the offense conduct were only
made out of fear of Jackson, and (2) his other trial testimony that these written
statements and affidavit contained false statements.
Whether counsel was ineffective is a mixed question of law and fact. United
States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). “In a Section 2255
proceeding, we review legal issues de novo and factual findings under a clear error
standard.” Otero v. United States, 499 F.3d 1267, 1269 (11th Cir. 2007) (per
curiam) (internal quotation marks omitted).
A claim of ineffective assistance of counsel is governed by the standards of
2
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Grossman v. McDonough, 466 F.3d 1325, 1344 (11th Cir. 2006). Under
Strickland’s two-part test, petitioner must demonstrate: (1) that “counsel’s
representation fell below an objective standard of reasonableness,” and (2) that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Darden v. Wainwright, 477
U.S. 168, 184, 106 S. Ct. 2464, 2473, 91 L. Ed. 2d 144 (1986) (internal quotation
marks omitted); Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)
(en banc). A reasonable probability is one “sufficient to undermine confidence in
the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Our scrutiny of counsel’s performance is “highly deferential,” and we
indulge a “strong presumption” that counsel’s performance was reasonable.
Chandler, 218 F.3d at 1314 (internal quotation marks omitted). “We must avoid
second-guessing counsel’s performance: It does not follow that any counsel who
takes an approach we would not have chosen is guilty of rendering ineffective
assistance.” Id. (internal quotation marks and brackets omitted). Thus, “[g]iven the
strong presumption in favor of competence, the petitioner’s burden of persuasion
– though the presumption is not insurmountable – is a heavy one.” Id.Jackson failed to satisfy either prong under Strickland. First, the district
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court did not clearly err in finding that trial counsel made reasonable efforts to
contact and interview Jones prior to learning, during a pre-trial hearing, that the
government did not intend to elicit any testimony regarding Jones during Jackson’s
trial. Moreover, trial counsel reasonably ceased in his efforts to contact Jones after
that hearing, since Jones’s testimony no longer appeared to be relevant to his
defense of the case.1 Second, Jackson failed to show that he was prejudiced by
trial counsel’s allegedly deficient performance. As we previously found in
affirming Jackson’s convictions and sentences on direct appeal, even if counsel had
successfully interviewed Jones and had become aware of the letters from Perez
before trial, it would likely not have produced a different result.2
Since Jackson failed to demonstrate either part of the test in Strickland, we
affirm the district court’s denial of his § 2255 motion.
AFFIRMED.
1
Trial counsel was unaware, prior to trial, that Jones would have provided exculpatory
testimony. At the time, counsel reasonably believed that Jones’s only relevance to the trial
strategy was that Jones could rebut testimony from Perez that Jones introduced Perez to Jackson
for the purpose of facilitating a drug deal.
2
At most, the letters were additional impeachment material against Perez, who already
was cross-examined extensively during trial. Moreover, there was sufficient evidence, other
than Perez’s testimony, on which a reasonable juror could have relied to find Jackson guilty of
the offense conduct at trial.
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