United States v. Jackson ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11394
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENNIE JAY JACKSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:95-CV-108 (2:91-CR-22-03)
--------------------
November 10, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Bennie Jay Jackson, federal prisoner # 21718-077, appeals
the district court’s denial of his 28 U.S.C. § 2255 motion. We
AFFIRM.
Jackson argues that counsel was ineffective for failing to
interview and call Tex Preston as a witness. Jackson fails to
make the requisite showing of prejudice. Alexander v. McCotter,
775 F.2d 595, 602 (5th Cir. 1985). Jackson also argues that
counsel was ineffective for failing to interview and call Donnie
Joe Morris as a witness. The Government could have impeached
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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Morris’ testimony with his statement to Officer Hughes that
Jackson was his supplier. Further, Morris’ proposed testimony
would have been contradicted by Teresa Watt’s testimony about
holding the marked money for Jackson. Jackson has not shown that
he was prejudiced by counsel’s failure to call Morris as a
witness.
Jackson also argues that counsel was ineffective for failing
to interview and call Donnie Shanklin and James Jackson as
witnesses. These two witnesses were not considered by the
district court because they were not included in Jackson’s
original or supplemental § 2255 motions. Jackson does not argue
that the district court erred in refusing to consider claims not
raised in the manner authorized. In effect, they are claims that
were not raised in the district court. The burden of raising
grounds for relief falls with the petitioner. See Rule 2(b) of
the Rules Governing Section 2255 Proceedings. The district court
cannot grant § 2255 relief, and does not err in not granting
§ 2255 relief, on a ground that was not presented to it. This
court will not consider new grounds for § 2255 relief raised for
the first time on appeal. United States v. Madkins, 14 F.3d 277,
279 (5th Cir. 1994); United States v. Cates, 952 F.2d 149, 152
(5th Cir. 1992). Further, new claims raised after entry of final
judgment in a § 2255 proceeding are appropriately viewed as a
successive § 2255 motion. See United States v. Rich, 141 F.3d
550, 551-53 (5th Cir. 1998), cert. denied, 119 S. Ct. 1156 (1999)
(§ 2255 case); Behringer v. Johnson, 75 F.3d 189, 190 (5th Cir.
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1996) (§ 2254 case). Thus, we do not consider Jackson’s claims
regarding these two witnesses.
Jackson also argues that counsel was ineffective for failing
to file a motion to dismiss count 12 because it failed to inform
him of the specific date of the crime alleged and that he was
thus unable to prepare a defense. Jackson did not raise this
claim in the district court. We will not consider the claim for
the first time on appeal. Madkins, 14 F.3d at 279; Cates, 952
F.2d at 152.
Jackson states that his counsel was ineffective for failing
to advise him that he should not personally contact potential
witnesses. He proceeds to argue that the charge of obstruction
of justice should have been dismissed because it was clear from
the bond hearing that he did not threaten the witness. He argues
that the evidence was insufficient to support his conviction
under 18 U.S.C. § 1503. Jackson does not argue his claim in the
context of ineffective assistance. Thus, he has abandoned that
claim. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
This court rejected his claim that there was insufficient
evidence to support this conviction on direct appeal and we will
not consider it again in this § 2255 proceeding. See United
States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986) (issue raised
and rejected on direct appeal may not be presented in a
subsequent § 2255 proceeding).
Jackson argues that counsel was ineffective for failing to
challenge the jury panel based on racial composition prior to
voir dire. Counsel did challenge the jury panel after the jury
No. 98-11394
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was selected, but before it was actually sworn and impaneled.
The district court heard evidence and denied the motion
challenging the panel, implicitly ruling that a prima facie
showing of intentional systematic exclusion had not been made.
Thus, any delay in the making of the motion did not prejudice
Jackson.
Jackson argues that counsel was ineffective for failing to
call character witnesses at the sentencing hearing. Jackson was
sentenced to 292 months, the lowest point in the guideline range.
Further, character-related considerations are not ordinarily
relevant to sentencing below the guideline range. See U.S.S.G.
§§ 5H1.2, 5H1.5, 5H1.6, and 5H1.11.
Jackson argues that his appellate counsel was ineffective
for failing to petition the appellate court to correct a
misstatement of fact made in its opinion affirming his conviction
and sentence. Jackson does not identify the alleged misstatement
or state how it might have affected the panel opinion. This
issue is inadequately briefed and is considered abandoned.
Yohey, 985 F.2d at 225.
Jackson argues that appellate counsel was ineffective for
failing to appeal his conviction for engaging in a continuing
criminal enterprise when he was acquitted on the conspiracy
count. The evidence in the trial record sufficiently supports
Jackson’s conviction for engaging in a continuing criminal
enterprise (CCE). Jackson’s acquittal of the conspiracy count
does not affect his conviction on the CCE count. Inconsistent
verdicts are not reviewable, and a defendant may not upset such a
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verdict. United States v. Powell, 469 U.S. 57, 64-66 (1984). In
finding a defendant guilty of conducting a continuing criminal
enterprise, the jury necessarily found Jackson participated in a
conspiracy. United States v. Garcia-Abrego, 141 F.3d 142, 154
(5th Cir. 1998), cert. denied, 119 S. Ct. 182 (1999).
Jackson argues that because he was acquitted of the
conspiracy count, trial counsel should have objected to the PSR
on the ground that he should only have been sentenced for cocaine
and not cocaine base, because cocaine base was not mentioned in
the CCE charge. He argues that appellate counsel should have
appealed on this ground. Jackson’s “acquittal” of the conspiracy
charge did not prevent the district court from finding Jackson
responsible for the full amount of cocaine powder and/or base
involved in the conspiracy. United States v. Watts, 519 U.S.
148, 157 (1997). Neither trial nor appellate counsel were
deficient for failing to raise this issue.
Jackson does not sufficiently brief his argument that the
grand jury and the petit jury were unconstitutionally selected.
He merely refers the court to his argument of ineffective
assistance of counsel. Jackson does not provide any record cites
to the alleged evidence establishing his prima facie case, and,
thus, his briefing of the issue is insufficient. See Grant v.
Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Fed. R. App. P.
28(a)(9)(A); 5th Cir. R. 28.2.3.
Jackson argues that the U.S. Attorney failed to disclose
favorable evidence to his attorney, the evidence being the
pretrial statements of Donnie Joe Morris, at least one of which
No. 98-11394
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contained evidence exonerating Jackson. A review of the record
in this case reveals the government did not suppress Morris’
statement.
Jackson argues that the Government accused his trial counsel
of misconduct toward Teresa Watts, the witness involved in
Jackson’s obstruction conviction, thus causing a conflict of
interest between counsel and Jackson. He contends that the
Government made this false accusation for the sole purpose of
intimidating and distracting defense counsel in his
representation of Jackson. Jackson does not cite to the portion
of the record where these accusations were allegedly made. The
excerpts provided by Jackson in the district court from the
transcript of the bond hearing where the alleged violation
occurred show no accusations of misconduct by the prosecutor
against Jackson’s counsel.
AFFIRMED.