Herman Jackson v. United States ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-1240
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Herman Jackson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: March 3, 1997
Filed: March 7, 1997
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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
A jury convicted Herman Jackson of conspiring to distribute
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and
846. The district court1 sentenced him to 360 months’
imprisonment, five years’ supervised release, and a $1,000 fine.
We affirmed Jackson's conviction and sentence. See United States
v. Jackson, 959 F.2d 81 (8th Cir.), cert. denied, 506 U.S. 852(1992). In a subsequently filed 28 U.S.C. § 2255 motion, Jackson
asserted that his counsel was ineffective in failing to impeach
trial witnesses with their criminal histories and in failing to
investigate and offer testimony concerning an alleged alibi. He
1
The Honorable D. Brook Bartlett, Chief Judge, United States
District Court for the Western District of Missouri.
also argued the court could not rely for sentencing purposes on
conduct underlying charges on which he had been acquitted, or on
unreliable drug-quantity testimony. The district court denied
Jackson's motion, and Jackson appeals.
We review de novo the denial of a section 2255 motion without
an evidentiary hearing and affirm only if the motion, files, and
record conclusively show that the movant is not entitled to relief.
See United States v. Duke, 50 F.3d 571, 576 (8th Cir.), cert.
denied, 116 S. Ct. 224 (1995). We review for abuse of discretion
the district court's decision as to whether an evidentiary hearing
is required. See Engelen v. United States, 68 F.3d 238, 241 (8th
Cir. 1995).
We conclude that the district court correctly determined that
Jackson's ineffective-assistance-of-counsel claims fail because he
did not establish that he was prejudiced by counsel's alleged
deficient performance. See Strickland v. Washington, 466 U.S. 668,
694 (1984). Jackson's counsel challenged the credibility of the
witnesses in question by cross-examining them as to their plea
agreements and expectations of sentencing leniency. In addition,
no prejudice attached to any failure by defense counsel to probe
Jackson's alibi because there is no reasonable probability that the
alibi would have changed the outcome of the trial, given the
strength of the evidence against Jackson.
We also agree with the district court that Jackson's challenge
to the drug-quantity finding was essentially addressed on direct
appeal and may not be relitigated now. See United States v.
Kraemer, 810 F.2d 173, 177 (8th Cir. 1987) (per curiam). Even if
Jackson's challenge is not identical to one he raised on direct
appeal, he could have raised the challenge then and thus is
procedurally barred from raising it now without a showing of both
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cause and prejudice. See Ramey v. United States, 8 F.3d 1313, 1314
(8th Cir. 1993) (per curiam). We are not persuaded that alleged
ineffective assistance excuses Jackson's default, see Ford v.
United States, 983 F.2d 897, 898-99 (8th Cir. 1993) (per curiam)
(movant's summary mention of ineffective assistance as cause to
excuse default is inadequate), and Jackson cannot show prejudice
because, as the United States Supreme Court has recently held, a
sentencing court may consider conduct of which the defendant has
been acquitted. United States v. Watts, 117 S. Ct. 633 (1997).
See also United States v. Galloway, 976 F.2d 414 (8th Cir. 1992)
(en banc), cert. denied, 507 U.S. 974 (1993); United States v.
Dawn, 897 F.2d 1444, 1449-50 (8th Cir.), cert. denied, 498 U.S. 960(1990). Moreover, the district court was entitled at sentencing to
rely on the trial testimony of Jackson's co-conspirators, however
unreliable Jackson may believe that testimony to be. See United
States v. Lowrimore, 923 F.2d 590, 594 (8th Cir.) (district court
may rely on trial testimony when sentencing defendant), cert.
denied, 500 U.S. 919 (1991); United States v. Adipietro, 983 F.2d
1468, 1479 (8th Cir. 1993) (district court's findings as to witness
credibility are virtually unreviewable on appeal).
Finally, Jackson asserts for the first time on appeal that he
should be resentenced because a retroactive Guidelines amendment--
which became effective November 1, 1994--lowers the base offense
level from 40 to 38 in drug cases involving the amount of cocaine
base attributed to Jackson. See U.S. Sentencing Guidelines Manual
App. C, Amend. No. 505 (1995); U.S. Sentencing Guidelines Manual.
§§ 1B1.10(a), 2D1.1(c)(1) (1995). Based on the government's
concession that Jackson's sentence should be reconsidered, we
remand to the district court for this limited purpose. See United
States v. Risch, 87 F.3d 240, 243-33 (8th Cir. 1996). In all other
respects, the judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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