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Jackson v. State

United States District Court, D. Utah, Central Division

September 17, 2018

HENRY L. JACKSON, Petitioner,
v.
STATE OF UTAH et al., Respondents.

          MEMORANDUM DECISION & ORDER DENYING HABEAS CORPUS PETITION

          Robert J. Shelby Judge.

         Petitioner Henry L. Jackson was charged with two counts of attempted aggravated murder, one count of assault, and one count of cruelty to an animal. To support the aggravated murder charges, the State alleged that Petitioner had previously been convicted of murder. He was convicted as charged and sentenced on April 21, 2008.

         Petitioner's convictions were affirmed on appeal. State v. Jackson, 243 P.3d 902 (Utah App. 2010), cert. denied, 247 P.3d 774 (2011).

         Petitioner then filed a state post-conviction petition which was denied. Denial of the petition was affirmed on appeal. Jackson v. State, 332 P.3d 393 (Utah App. 2014), cert. denied, 343 P.3d 708 (2015).

         Petitioner filed his current federal habeas petition on April 8, 2015.

         I. Petitioner's Federal Habeas Claims

         Petitioner raises the following claims here:

         A. Destruction of evidence - Petitioner alleges that the state violated his right to due process and a fair trial under the Federal Constitution when it released his vehicle to the lienholder before the defense had the opportunity to investigate its evidentiary value. (Claim 1 is unexhausted because federal constitutional issues were not raised on direct appeal, where the destruction of evidence was addressed; only violations of the Utah State Constitution and Utah Rules of Criminal Procedure were raised. See State v. Jackson, 2010 UT App 328, ¶¶ 19-22 (citing State v. Tiedemann, 2007 UT 49, ¶¶ 41, 44-45 (analyzing evidentiary matter under Utah Rule of Criminal Procedure 16 and Utah Constitution)); Appellant's Brief, State v. Jackson, No. 20080418-CA, at 46-48, Mar. 11, 2009.)

         B. Batson violation - Petitioner alleges that the State violated the Fourteenth Amendment when it used a peremptory challenge to remove from the jury panel what appeared to be its only minority person. (Claim 2 is exhausted because it was addressed by the Utah Court of Appeals in Petitioner's direct appeal and certiorari review was denied. State v. Jackson, 243 P.3d 902 (Utah App 2010), cert. denied, 247 P.3d 774 (2011).)

         C. Jury instructions - Petitioner alleges that the trial court plainly erred when it gave a jury instruction on the affirmative defense of self-defense. (Claim 3 is unexhausted because it was not raised as a standalone issue on direct appeal or on state-post-conviction review; it was properly raised only as an instance of ineffective assistance of appellate counsel. Jackson v. State, 2014 UT App 168, ¶¶ 1-7, cert denied, 343 P.3d 708 (2015); Jackson v. State, No. 110918677, at 9-10 (dismissing “Count VIII: Trial Court Committed Plain Error in Failing to Adequately Instruct the Jury on the State's Burden to Disprove Self-Defense” because it “could have been raised at trial or on appeal but [was] not.”)

         D. Ineffective assistance of trial counsel - Petitioner alleges that he was denied effective assistance of trial counsel because:

1. counsel discouraged him from testifying (raised in state post-conviction petition, but procedurally barred because could have been raised on direct appeal but was not);
2. counsel did not subpoena the victim's prior boyfriend to testify about a similar incident (raised in state post-conviction petition, but procedurally barred because could have been raised on direct appeal but was not);
3. counsel did not suggest to the jury that the victim's injuries were inconsistent with having been run over by a vehicle (unexhausted and procedurally barred);
4. counsel did not call the attending physician or an expert witness to testify as to the victim's injuries (unexhausted and procedurally barred).

         E. Ineffective assistance of appellate counsel - Petitioner alleges that he was denied effective assistance of appellate counsel because:

1. appellate counsel did not argue that trial counsel was ineffective for advising Petitioner not to testify (exhausted because raised in state post-conviction petition);
2. appellate counsel did not argue that trial counsel was ineffective for failing to investigate the prior incident with the victim's prior boyfriend (exhausted because raised in state post-conviction petition); and
3. appellate counsel did not argue that the trial court plainly erred by inadequately instructing the jury on the State's burden of proof to disprove the affirmative defense of self-defense (exhausted because addressed by Utah Court of Appeals).

         II. Analysis

         A. Procedural Default

         Respondent argues that some of the ineffective assistance of counsel grounds are procedurally defaulted. The Court agrees and also concludes that the grounds of destruction-of-evidence and plain error in the self-defense jury instruction are procedurally defaulted. White v. Medina, 464 Fed.Appx. 715, 720 (10th Cir. 2012) (unpublished) (“[D]istrict courts are permitted to raise issues of procedural bar sua sponte.”) (citing Hardiman v. Reynolds, 971 F.2d 500, 502 (10th Cir. 1992)). Petitioner's claims are procedurally defaulted because they were not raised to the highest State court and they either were explicitly barred by the Utah Court of Appeals or would be procedurally barred if Petitioner attempted to now raise them in State court.

         A petitioner is deemed to have exhausted state remedies if either: (1) a state remedy is no longer available; or (2) claims asserted in a federal petition have been presented to the highest state court either on direct appeal from his conviction or in a state post-conviction proceeding. Castille v. Peoples, 489 U.S. 346, 351 (1989); Smith v. Atkins, 678 F.2d 883, ...


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