     Case: 16-30752      Document: 00514854066         Page: 1    Date Filed: 02/27/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                      No. 16-30752
                                                                                 FILED
                                                                         February 27, 2019
                                                                            Lyle W. Cayce
EDWARD C. JACKSON,                                                               Clerk

              Petitioner - Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:14-CV-396


Before STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT,
Circuit Judges.

PER CURIAM:*
       At the conclusion of his bench trial, in 2006, Appellant, Edward C.
Jackson, Louisiana prisoner #96696, was convicted of armed robbery and being
a felon with a firearm. Initially sentenced to serve 10 years of imprisonment
on each count, Jackson was later re-sentenced, as a habitual offender, to 99
years of imprisonment. State v. Jackson, 19 So. 3d 631, 632, 637 (La. Ct. App.
2009), rev’d in part, 55 So. 3d 767, 773 (La. 2011).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       No. 16-30752
       Having failed to obtain appellate or post-conviction relief in the state
court system, Jackson filed a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, in federal district court. In seeking federal habeas relief,
Jackson argues, amongst other things, that his trial counsel’s failure to
interview the victim, Kenneth Williams; failure to check Williams’ criminal
history; and failure to investigate Williams’ mental history (which would have
revealed a schizophrenia diagnosis) constitute ineffective assistance of
counsel. 1 Absent these errors, Jackson contends, his counsel would have
discovered important exculpatory evidence that likely would have yielded a
different verdict relative to his armed robbery charge.
           In support of this assertion, Jackson points to an affidavit purportedly
executed by Williams in June 2008, which states:
               1) I testified that Defendant Jackson robbed me of $300.00.
            2) Defendant Jackson never took any finances from me
       through threat.
             3) I became angry at Mr. Jackson because he kept $8.00 that
       I had given him and I tried to press into his Motel Room. 2
               3) I owed him right at that amount for a haircut.
            4) I am Medically Diagnosed Schizophrenic, and my disease
       causes me to do things for which I later regret.
             5) Once I filed the complaint against Mr. Jackson, I feared
       to stand up and say he did not take the money from me. 3



       1  Jackson asserted additional grounds for relief in his amended habeas petition. This
court, however, issued a certificate of appealability only as to Jackson’s claim that his trial
counsel was ineffective in not interviewing or investigating the victim.
        2 Jackson’s trial testimony and affidavit (submitted in support of his motion for new

trial for newly discovered evidence) regarding the events of the day in question, November
18, 2005, provide information helpful to understanding the meaning of this sentence.
Williams’ trial testimony, when considered together with his affidavit, also is helpful.
        3 Williams’ affidavit was originally prepared in connection with Jackson’s motion for

a new trial based on newly discovered evidence, which was denied in state court as untimely
filed. See Jackson, 55 So. 3d at 770 n.2. That decision was affirmed by the Louisiana court
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                                      No. 16-30752
Thus, Jackson contends, had his trial attorney interviewed Williams and
conducted an appropriate investigation, he would have discovered the
exculpatory information set forth in Williams’ affidavit.
       Although Jackson expressly references the Williams affidavit in his
§2254 application, and included the document in his exhibits, neither the
“Report and Recommendation of the Magistrate Judge,” nor the district judge’s
Judgment, which adopts the Report and Recommendation, discusses, or even
acknowledges, the Williams affidavit or the information set forth therein.
Moreover, in recommending that Jackson’s § 2254 application be denied, the
magistrate judge stated:
              First, Jackson contends his trial counsel failed to interview
       Williams concerning the robbery. Jackson contends that, had his
       attorney investigated Williams, he would have gotten a statement
       or affidavit that would have shown that Jackson did not rob
       Williams. However, the police report shows that Williams reported
       to the police that Jackson robbed him of $300 at gunpoint. Jackson
       has not alleged or shown that Williams ever gave a statement, an
       affidavit, or testimony that was favorable to him, and the evidence
       does not indicate that Williams would have done so had his trial
       counsel interviewed him. Jackson’s speculation as to what
       Williams might have said in an interview is not enough to prove
       his attorney’s investigation was inadequate. 4

       Thus, on the instant record, it is not entirely clear whether the district
court actually was apprised of the Williams affidavit’s existence and considered
its contents in evaluating Jackson’s §2254 application. Nor can we speculate,
given the stakes at issue, and the already disparate views of the sufficiency of
the evidence reflected in the state court record of Jackson’s direct appeal.
Accordingly, to enable us to properly determine Jackson’s appeal, we must first


of appeal, and Jackson never sought review of that aspect of the court of appeal’s decision.
Id.
       4 See April 5, 2016 Report and Recommendation of Magistrate Judge at 7-8 (emphasis

added).
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                                 No. 16-30752
remand this matter to the district court for its assessment of the Williams
affidavit relative to the merits of Jackson’s § 2254 application.
      We REMAND this matter for the district court for action consistent with
this opinion.




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