                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2005

Jackson v. Carroll
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-9012




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                                                                    NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No: 04-9012

                            ROBERT W. JACKSON, III,

                                           Appellant


                                           v.

                          *THOMAS CARROLL, Warden

                     (*Amended - See Clerk's Order dated 1/6/05)


                     Appeal from the United States District Court
                             for the District of Delaware
                               (D.C. No. 01-cv-00552)
                     District Judge: Honorable Sue L. Robinson

                               Argued: October 28, 2005

             Before: McKEE, RENDELL and GREENBERG, Circuit Judges.

                               (Filed: December 20, 2005)


THOMAS A. FOLEY, ESQ. (Argued)
1326 King Street
Wilmington, DE 19801

JOHN S. MALIK, ESQ. (Argued)
100 East 14th Street
Wilmington, DE 19801
Attorneys for Appellant

THOMAS E. BROWN (Argued)
Department of Justice
820 North French Street
Carvel Office Building
Wilmington, DE 19801
Attorney for Appellee


                                              OPINION


McKEE, Circuit Judge

       Robert W. Jackson appeals the District Court’s denial of his petition for habeas relief. He

argues that his attorneys were ineffective at trial because they did not have enough time to

adequately prepare a defense, and because they failed to object to certain trial testimony. He also

argues that he was denied a fair trial as a result of the prosecution’s failure to disclose an implicit

promise of immunity to a prosecution witness.

       After denying relief, the District Court explained its grant of a Certificate of Appealability

(“COA”) as follows: “A certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) is granted,

the court finding that this is a capital case under 11 Del. C. § 4202 and that there are ambiguities

in the application of Ring v. Arizona, 536 U.S. 584 (2002), to the facts at bar.”1 However,

Jackson’s brief on appeal neither cites nor argues Ring. Moreover, in response to the defendant’s

request for clarification, the District Court stated: “The court did not identify specific issues for

appeal because of its understanding that, consistent with 28 U.S.C. § 2266(c)(1)(A), the Third

Circuit may review the entire decision of this Court, regardless of this Court’s determination

under 28 U.S.C. § 2253(c)(2).” Given the confusion surrounding this COA, we would normally

vacate the District Court’s order and remand for further consideration of the propriety of issuing



       1
          In Ring, the Supreme Court held that the Sixth Amendment right to trial by jury requires
that a jury find beyond a reasonable any fact that would subject the defendant to the death penalty
as opposed to life imprisonment. Ring, 536 U.S. at 589.

                                                   2
a COA. See Szuchon v. Lehman, 273 F.3d 399, 311 n.5 (3d Cir. 2001). However, inasmuch as

the death penalty is involved, we think it more prudent to vacate the COA and consider Jackson’s

Notice of Appeal as a request for a COA. Id., see also L.A.R. 111.3 ©).         Viewing Jackson’s

Notice of Appeal in that light, for the reasons set forth below, we will deny the request for a

COA.2

                                                   I.

        Because we write primarily for the parties, we recite only the facts and procedural history

that are necessary for the disposition of this appeal. During post-conviction proceedings, the

state court held hearings on Jackson’s claims of ineffective assistance of counsel. At the August

21, 1998 hearing, David A. Ruhnke, a New Jersey attorney with extensive capital trial

experience, provided expert testimony pertaining to the conduct of trial counsel, and concluded

that it fell below that which is appropriate for a capital case. He opined that a reasonably

competent attorney would need at least six months to prepare in a capital case, should inspect the

physical evidence and verify any forensic results with independent experts, and should hire a

private investigator to assist with witness interviews. Ruhnke believed there had been multiple

failures on trial counsel’s part and stated that he did not think an attorney could provide effective

assistance in the time Jackson’s trial counsel had to prepare.

        Defense attorney Levinson explained that he did not ask for a continuance because he felt

it was not necessary, particularly because O’Connell and other attorneys had been preparing the

case for trial. He also testified that he felt comfortable, in light of his trial experience, cross-



        2
         Our review is governed by 28 U.S.C. § 2253. Thus, Jackson is entitled to a COA
“only if [he] has made a substantial showing of the denial of a constitutional right[.]”

                                                    3
examining the state’s forensic experts even though he had not retained independent experts to

assist him. O’Connell testified that although he would have preferred additional time to prepare,

he had adequate time to do so.

                                                  II.

       In order for us to issue a COA, Jackson must “make a substantial showing of the denial of

a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). He attempts to do so

by raising two issues on appeal. Each is considered separately.

                                                  A.

       Jackson argues that his Sixth Amendment rights were violated as a result of his trial

counsel’s prejudicially ineffective assistance. He rests this argument on the time his attorneys

were given to prepare for trial, and on their failure to object to unresponsive testimony of a

prosecution witness.

       Under Strickland v. Washington, 466 U.S. 668 (1984), counsel’s performance must fall

“below an objective standard of reasonableness.” Id. at 688. However, Jackson must also show

that “there is a reasonable probability that, but for counsel’s unprofessional efforts, the result of

the proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694.

       Relying on United States v. Cronic, 466 U.S. 648 (1984), Jackson argues that Levinson’s

appointment sixteen days before jury selection was per se unreasonable. According to Jackson,

the brief time afforded Levinson precluded him from thoroughly investigating this case and

obtaining independent forensic testing. Jackson claims that such testing would have created a

reasonable probability of a different result.


                                                  4
        However, Jackson does not even try to tell us how anything would have been different if

Levinson had more time to prepare. In Cronic, the Court recognized that although a prisoner

alleging ineffective assistance of counsel usually has the burden of proving that counsel’s

performance was unreasonable and that prejudice resulted, “[t]here are . . . circumstances that are

so likely to prejudice the accused that the cost of litigating their effect in a particular case is

unjustified.” Cronic, 466 U.S. at 658. Prejudice will therefore be presumed

                 if the accused is denied counsel at a critical stage of his trial [or] ....
                 if counsel entirely fails to subject the prosecution’s case to
                 meaningful adversarial testing [or] ... when although counsel is
                 available to assist the accused during trial, the likelihood that any
                 lawyer, even a fully competent one, could provide effective
                 assistance is so small that a presumption of prejudice is appropriate
                 without inquiry into the actual conduct of the trial.

Id. at 559-60.

        However, before we will presume prejudice under Cronic, there must be a complete

failure of counsel. “Here, respondent’s argument is not that his counsel failed to oppose the

prosecution . . . as a whole, but that his counsel failed to do so at specific points. For purposes of

distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree

but of kind.” Bell v. Cone, 535 U.S. 685, 697 (2002). We therefore agree with the District

Court’s conclusion that Cronic does not apply here.

        Thus, even if Jackson were able to show that counsel’s performance was lacking because

of insufficient time to prepare, he would not be entitled to relief under Strickland unless he could

demonstrate that things would likely have been different if counsel had additional time. He has

completely failed to satisfy that burden. As noted above, the core of his argument is that he was

prejudiced by counsel’s failure to conduct a complete and thorough investigation and


                                                     5
independently test all physical evidence. Appellant’s Br. at 31. He asserts that counsel could

have performed appropriate forensic tests if given more time, but he is not even able to allege

that the results of any such testing would have been favorable, and nothing on this record

suggests it would have been.

       Moreover, Jackson’s defense counsel never requested a continuance, and both counsel

testified that they thought they had enough time to prepare. In fact, although he is

understandably not anxious to admit it here, before the Delaware Supreme Court, Jackson

conceded that he was “hard pressed to articulate what exactly trial counsel would have

discovered if they had requested and been granted funds for independent forensic tests of the

physical evidence and such tests had been conducted before trial.” Jackson v. State, 770 A.2d

506, 513 (Del. 1994).

       The District Court did provide funds for Jackson to retain a forensic expert, but this

expert – Dr. Hubbard – did not reach any conclusion favorable to Jackson. Jackson v. Carroll,

2004 WL 1192650 at *14 (D. Del. 2000). Although he complains that the District Court’s

award of funds was “too little, too late,” he offers nothing else to satisfy the prejudice prong of

Strickland.

       Although we are troubled by the brief amount of time afforded trial counsel and what

appears to be a rather rigid adherence to expediting a capital case at the risk of affording

inadequate time to prepare, there is nothing here to suggest that Jackson was prejudiced by the

process other than his protests and speculative argument to that effect. That is not enough to

meet the second prong of Strickland even if we assume that counsel was somehow derelict in

not performing independent testing.


                                                  6
                                                 B.

       The second part of Jackson’s ineffective assistance argument centers on counsel’s failure

to object to a non-responsive answer of Anthony Lachette. When the prosecutor asked Lachette:

“What were your thoughts when you and the defendant were talking about doing a burglary, a

house burglary?” J.A. 181; Lachette answered: “I originally wasn’t going to do it. It was

something he did, I don’t want to say as a habit, but it was something that he often did.” J.A.

182. Jackson argues that trial counsel were ineffective for not requesting a mistrial because

Lachette’s “response” was tantamount to inadmissible character evidence.

       In rejecting this claim, the District Court stated:

               A showing of actual prejudice in this case would require a showing
               that an objection would likely have resulted in the ordering of a
               mistrial by the Superior Court. While evidence of petitioner's
               alleged propensity to commit burglary should have been excluded,
               where as here, it resulted from nonresponsive testimony and was
               not further referenced to the jury, it is not probable that a mistrial
               would have been ordered where at most a curative instruction
               would have sufficed. Consequently, because the Delaware
               Supreme Court found the absence of both unreasonable conduct by
               petitioner's trial counsel and prejudice, the Delaware Supreme
               Court's denial of petitioner's ineffective assistance of counsel claim
               was not objectively unreasonable.

Jackson v. Carroll, 2004 WL 1192650 at *15. We agree.3 Thus, this claim fails to satisfy the

substantial showing required by §2253.

       In addition, even if both instances of alleged ineffectiveness are viewed cumulatively as



       3
          We realize, of course, that skilled defense counsel may not have objected or requested a
curative instruction in order to avoid highlighting Lachette’s testimony. However, we can not
speculate that defense counsel was motivated by such tactical considerations in not requesting a
mistrial. Rather, we simply conclude that Lachette’s testimony did not warrant a mistrial, and
defense counsel can not be faulted for failing to make a request that was not likely to be granted.

                                                  7
discussed in Frey v. Fulcomer, 974 F.2d 348, 361 n.12 (3d Cir. 1992), we would still conclude

that Jackson can not establish the prejudice that is required under Strickland, or § 2253.

                                                  C.

       Jackson’s second claim is that he was denied his Sixth Amendment right to a fair trial as

a result of the prosecution’s failure to disclose an implicit promise of immunity to Johnson under

Brady v. Maryland, 373 U.S. 83 (1963).

       In order to show a Brady violation, Jackson must show 1) that the evidence was favorable

to him, 2) that the evidence was suppressed by the state and 3) that prejudice resulted. Strickler

v. Greene, 527 U.S. 263, 281-82 (1999). As the Supreme Court explained in Kyles v. Whitley,

514 U.S. 419, 434 (1995), “[t]he question is not whether the defendant would more likely than

not have received a different verdict with the evidence, but whether in its absence he received a

fair trial, understood as a trial resulting in a verdict worthy of confidence.”

       Given the totality of the evidence here, and the aggressive cross-examination Johnson

was subjected to, we do not believe that Jackson has demonstrated a “reasonable probability of a

different result” id., if the jury had known that Johnson was expecting favorable consideration

from the government in return for his testimony. Although the Delaware Supreme Court found

that there was an implicit promise which the prosecution should have revealed to Jackson and

that the failure to disclose it was “troubling,”and “offensive,” it did not find that this evidence

was sufficient to undermine confidence in the verdict. Jackson v. State, 770 A.2d at 514-15. The

court so concluded because of the overwhelming evidence of Jackson’s guilt, not least of which

was the evidence corroborating Johnson’s testimony. The court explained that “[i]t is difficult to

imagine a more powerfully persuasive set of corroborating circumstances” than Jackson’s letter


                                                   8
to Johnson and the evidence indicating that Jackson sent it. Id. at 517. During oral argument on

appeal, defense counsel attempted to furnish an innocent explanation of the letter Jackson sent.

However, the same arguments could have been made to the jury even absent knowledge of

Johnson’s belief regarding favorable treatment. Moreover, the possibility that the jury may have

viewed Johnson though more jaundiced eyes if it had known of his belief, is speculative at best.4

       Jackson also argues that the Delaware Supreme Court misapplied Kyles. He claims that

the court relied on improper factors outside the record, including Jackson’s lack of an alibi and

the shoe print expert’s report.5 He further claims that while there may be overwhelming evidence

of his involvement in the burglary/robbery, the evidence that he murdered Girardi is far more

tenuous and Johnson’s testimony was therefore more important than the Delaware Supreme

Court and District Court recognized. Jackson maintains that despite the evidence corroborating

Johnson’s testimony “there still exists the real possibility that Andre Johnson (a seasoned inmate)

fabricated the true import of the letter.” Appellant’s Br. at 46.

       Omitting all consideration of the alibi and shoe print issues, and conceding arguendo the

importance of Johnson’s testimony, Jackson has nevertheless provided no support for his

contention that there is a “real possibility” that Johnson fabricated the import of the letter, and as

we have already suggested, any innocent explanations he now provides could have been argued



       4
         Given the common sense that we ask jurors to bring to their deliberations, it strains
credulity to suggest that the jury did not believe that Johnson thought he was going to get
something favorable for his testimony in the first place.
       5
         We are perplexed by the Delaware Supreme Court’s suggestion that the absence of an
alibi could somehow be relevant to Jackson’s guilt. It is axiomatic that a defendant does not have
to prove his innocense, and Jackson was therefore under no obligation to present an alibi.
Accordingly, we can infer nothing from his failure to introduce evidence of an alibi.

                                                  9
to the jury just as forcefully whether or not the jury knew of Johnson’s expectation of reward for

his testimony. The fact that Johnson had a motive to lie does not mean that he did lie. Jackson

has simply not satisfied his burden of showing that a different outcome would have been likely

had the jury had more information about his motive to lie. Thus, Jackson fails to make a

substantial showing that he was denied his Sixth amendment right to a fair trial.

                                         IV. Conclusion


        For the reasons given above, we find that Jackson has not made a substantial showing of

the denial of a constitutional right as required by 28 U.S.C. § 2253. As a result, we cannot issue

a certificate of appealability.




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