Final Report and Recommendation — Sherry Peel Jackson v. United States (N.D. Ga., Dkt. 139, August 26, 2010)

Summary

This is a Final Report and Recommendation by Magistrate Judge Gerrilyn G. Brill on Sherry Peel Jackson's motion to vacate under 28 U.S.C. § 2255. Jackson challenges her 48-month sentence, imposed on February 14, 2008, after a jury trial, arguing that she did not voluntarily, knowingly, and intelligently waive her right to counsel at the penalty phase. The report states that she was convicted of four counts of willful failure to file an income tax return, represented herself at sentencing and on appeal, and did not raise the claim in her appeal. It finds the claim procedurally defaulted and rejects her argument that the missing transcript of the January 24, 2008 hearing was cause. It recommends that the motion be denied.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Final Report and Recommendation — Sherry Peel Jackson v. United States (N.D. Ga., Dkt. 139, August 26, 2010).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-07-cr-00108-dkt-139-n-d-ga-dc6dab06b6/, SHA-256 36e34b290f92b611d025cf3a17fba0b0dd22760220a68f1b888eff20d683d68e.

Full text

Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

SHERRY PEEL JACKSON, : CRIMINAL NO.
Movant, : 1:07-CR-0108-ODE-GGB-1
:
v. : CIVIL ACTION NO.
: 1:09-CV-2403-ODE
UNITED STATES OF AMERICA, :
Respondent. : MOTION TO VACATE
: 28 U.S.C. § 2255

FINAL REPORT AND RECOMMENDATION

Movant, Sherry Peel Jackson (“Jackson”), has filed a motion to vacate sentence

pursuant to 28 U.S.C. § 2255. (Doc. 117). Jackson challenges the constitutionality

of her 48-month sentence imposed on February 14, 2008, following a jury trial and

conviction in this Court. Jackson argues that she did not voluntarily, knowingly,

and intelligently waive her right to counsel at the penalty phase of her case. The

government argues that Jackson’s claim is procedurally defaulted because she did not

raise it in the direct appeal of her case. As discussed below, I agree with the

government that Jackson’s claim is procedurally defaulted. I therefore,

RECOMMEND that Jackson’s § 2255 motion be DENIED.

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 2 of 12

I. Background

On April 13, 2007, the United States Attorney for the Northern District of

Georgia filed a criminal information charging Jackson with four counts of willful

failure to file an income tax return for the years 2000 through 2003, in violation of

26 U.S.C. § 7203. (Doc. 1). Jackson retained three private attorneys to represent her

on the criminal charges. (Docs. 11, 17, 18, 41). On April 26, 2007, Jackson was

arraigned and pleaded not guilty. (Doc. 5). Jackson proceeded to a jury trial, and on

October 30, 2007, the jury returned a verdict of guilty on all four counts. (Doc. 45).

Sentencing was scheduled for February 14, 2008.

On January 17, 2008, Jackson’s three retained attorneys filed a joint motion to

withdraw. (Doc. 62). In their motion, the attorneys advised the court that Jackson

told them that she no longer needed their services and that she intended to represent

herself. The Court conducted a hearing on January 24, 2008 to discuss the motion to

withdraw.

The January 24th hearing was attended by Jackson, two of her retained

attorneys,1 and the Assistant United States Attorney assigned to the case. (Doc. 115).

1
One of the out-of-town attorneys was excused from attending, but was
available by telephone.

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 3 of 12

At the hearing, the district judge told Jackson that she was entitled to keep her

retained attorneys to represent her at sentencing, and that the court thought that

Jackson needed a lawyer at sentencing. (Id. at 2-3). Jackson confirmed that she did

not want her retained attorneys to represent her any further. (Id. at 4). Jackson

claimed to have “counsel” named Mr. Thomas, but the court informed Jackson that

because Mr. Thomas was not a lawyer, he would not be able to represent her at

sentencing. (Id. at 2-3).

The court told Jackson that she faced a sentence as high as four years, that her

situation was “very serious” and strongly advised her to have a lawyer. (Doc. 115 at

3). Jackson said that she would represent herself. The court warned Jackson that it

would not postpone the scheduled sentencing if Jackson changed her mind and

decided to hire a lawyer at the last minute. (Id. at 4).

Jackson refused to answer questions about why she wanted to represent herself,

how she would prepare for sentencing, and what arguments she would make at

sentencing. (Doc. 115 at 3). The court then granted the motion to withdraw, and

allowed Jackson to proceed pro se. (Doc. 70).

Jackson’s sentencing hearing was held on February 14, 2008. The court

granted the Government’s motion for an upward departure and sentenced Jackson to

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 4 of 12

twelve months on each of the four counts, to run consecutively, for a total term of 48

months of imprisonment. (Docs. 93, 96). The court advised Jackson of her right to

appeal both her conviction and sentence. (Doc. 101 at 43). The court also told

Jackson that she had the right to be represented by counsel on appeal, and that if she

could not afford counsel, the court would appoint counsel for her. (Id.). The court

told Jackson: “I strongly advise you to have counsel on appeal. It will be very

difficult for you to come up with proper legal arguments that will serve yourself

well.” (Id.). Jackson declined the court’s offer to appoint counsel if she qualified

financially for appointed counsel. (Id.). When the court sought to confirm Jackson’s

desire to forego counsel on appeal by asking, “You do not want counsel?”, Jackson

responded, “No, I don’t want you to assign counsel yet.” (Doc. 101 at 44). The

court then warned Jackson that events in the appeal would happen quickly, thereby

suggesting that Jackson should not delay in obtaining or requesting counsel for the

appeal. (Id.). Jackson never requested counsel and represented herself on appeal.

She did not raise in her appeal any claim that her waiver of counsel at sentencing had

been invalid. On October 10, 2008, the Eleventh Circuit affirmed Jackson’s

convictions and sentences. (Doc. 114).

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 5 of 12

On August 31, 2009, Jackson filed the instant motion to vacate pursuant to 28

U.S.C. § 2255, raising the following grounds for relief:

1. ineffective assistance of counsel at trial; and

2. the Court failed to provide counsel at sentencing and failed to
properly warn Jackson of the risks of representing herself at that
hearing in violation of Faretta v. California, 422 U.S. 806 (1975).

(Doc. 117).

On March 8, 2010, the district court referred the matter to me for an evidentiary

hearing on Jackson’s ineffective assistance of counsel claims, and to appoint counsel

for Jackson if she qualified for appointed counsel. (Doc. 125). I appointed the

Federal Public Defender Program to represent Jackson and gave appointed counsel

an additional fourteen days to file an amended § 2255 motion if counsel chose to do

so.

Whitman Matthew Dodge, an attorney with the Federal Defender Program,

entered an appearance for Jackson. (Doc. 127). Through Mr. Dodge, Jackson filed

a motion to withdraw her claims of ineffective assistance of counsel and to cancel the

evidentiary hearing. (Doc. 132). Jackson expressed her desire to proceed only on her

claim that she did not voluntarily, knowingly and intelligently waive her right to

counsel at the penalty phase of the case. I granted Jackson’s motion (Doc. 135).

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 6 of 12

Jackson elected not to file an amended petition. The government and Jackson’s

appointed counsel filed briefs. (Docs. 132, 134, 137). The matter is now before me

for a Report and Recommendation.

II. Analysis

Congress enacted § 2255, authorizing the filing of motions to correct sentences

that violate federal law, with the intention that the statute serve as the primary method

of collateral attack on federally-imposed sentences. United States v. Jordan, 915 F.2d

622, 625 (11th Cir. 1990). Pursuant to § 2255, individuals sentenced by a federal

court can attack the sentence imposed by claiming one of four different grounds: “(1)

that the sentence was imposed in violation of the Constitution or laws of the United

States; (2) that the court was without jurisdiction to impose such sentence; (3) that

the sentence was in excess of the maximum authorized by law; and (4) that the

sentence is otherwise subject to collateral attack.” Hill v. United States, 368 U.S.

424, 426-27 (1962); see generally United States v. Hayman, 342 U.S. 205 (1952).

As stated above, Jackson’s only remaining claim is that she did not voluntarily,

knowingly and intelligently waive her right to counsel at the penalty phase of the

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 7 of 12

case.2 In support of this claim, she asserts that the district judge did not conduct a

sufficient inquiry into her request to represent herself at sentencing.3 The

Government argues that Jackson is procedurally barred from raising that claim in this

§ 2255 motion because she failed to raise the issue in her direct appeal of her

conviction and sentence.

Generally, a movant must advance an available challenge to her conviction on

direct appeal, or else the Court must consider the challenge procedurally barred in a

§ 2255 proceeding. Mills v. United States, 36 F.3d 1052, 1055-56 (11th Cir. 1994).

2
Jackson and the government refer to Jackson’s claim as a Faretta claim in
reference to Faretta v. California, 422 U.S. 806 (1975). Faretta held that a defendant
in a criminal trial has a constitutional right to proceed without counsel when he
knowingly, voluntarily, and intelligently elects to do so. The phrase “Faretta claim”
is usually used to describe a defendant’s claim that he was denied his right to
represent himself. See e.g. Gamble v. Secretary, Florida Dept. of Corrections 450
F.3d 1245 (11th Cir. 2006). Because Jackson is not claiming that she was denied the
right to represent herself, I will not refer to her claim as a “Faretta claim.” Instead,
I will use the phrase “invalid waiver/right to counsel claim” to describe Jackson’s
claim.
3
“The ultimate test for whether there has been a valid waiver of the right to
counsel ‘is not the trial court's express advice, but rather the defendant's
understanding.’” United States v. Fant, 890 F.2d 408, 409 (11th Cir. 1989). The
Eleventh Circuit has adopted a multifactor test to determine if a criminal defendant’s
waiver of counsel was knowing, voluntary and intelligent. See United States v. Cash,
47 F.3d 1083, 1088-89 (11th Cir.1995). Because, as discussed below, I find that this
claim is procedurally defaulted, I do not reach the merits of Jackson’s claim, and thus
do not discuss this multifactor test.

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 8 of 12

“A defendant can avoid a procedural bar only by establishing one of the two

exceptions to the procedural default rule. Under the first exception, a defendant must

show cause for not raising the claim of error on direct appeal and actual prejudice

from the alleged error.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004)

(citing Bousley v. United States, 523 U.S. 614, 622 (1998)). “Under the second

exception, a court may allow a defendant to proceed with a § 2255 motion despite his

failure to show cause for procedural default if ‘a constitutional violation has

probably resulted in the conviction of one who is actually innocent.’” Lynn, 365 F.3d

at 1234-35 (quoting Mills, 36 F.3d at 1055). Because Jackson does not argue actual

innocence, I will discuss only the first exception to the procedural default rule.

“[T]o show cause for procedural default, [Jackson] must show that some

objective factor external to the defense prevented [Jackson] . . . from raising [her]

claims on direct appeal and that this factor cannot be fairly attributable to [Jackson’s]

own conduct.” Id. at 1235 (citing Smith v. Jones, 256 F.3d 1135, 1145 (11th

Cir.2001)). Cause can be established by “showing that the factual or legal basis for

a claim was not reasonably available . . . or that ‘some interference by officials’ made

compliance impracticable.” Murray v. Carrier, 477 U.S. 478, 488 (1986) (quoting

Brown v. Allen, 344 U.S. 443, 486 (1953)) (internal citations omitted).

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 9 of 12

Jackson never raised the invalid waiver/right to counsel claim in her direct

appeal. Thus, the claim is procedurally defaulted in this Court.

Jackson argues as cause to excuse her procedural default that the facts

supporting her invalid waiver/right to counsel claim were not reasonably available

to her at the time of the direct appeal because the transcript of the January 24, 2008

hearing had not been prepared and was not part of the record on appeal. (Doc. 137

at 4-5). While it is true that the transcript of the January 24, 2008 hearing was not

part of the record on appeal, its absence from the record does not constitute cause for

a procedural default.

The underlying facts supporting Jackson’s invalid waiver/right to counsel

claim were not only available to Jackson at the time of her pro se appeal, but Jackson

knew about them because she was present at the January 24, 2008 hearing. Jackson

could have raised the claim in her appeal and requested the transcript of the

conference as factual support of her claim.

Jackson attempts to shift the blame for the absence of the transcript by

pointing out that she submitted a transcript request form to the court reporter which

checked off the boxes for “trial” and “sentencing.” She argues that the January 24th

hearing should have been included as part of the sentencing hearing. These facts and

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 10 of 12

argument do not support the conclusion that the underlying facts supporting

Jackson’s claim were not reasonably available to her on appeal. Jackson could have

specifically requested the transcript of the January 24th conference in the “other”

category on the request form. (Doc. 99). Moreover, Jackson also could have moved

to supplement the record on appeal once she realized that the transcript of the January

24, 2008 hearing was not included. The court did nothing to hinder Jackson’s ability

to obtain the transcript. Under these circumstances, the absence of the transcript at

the time of Jackson’s appeal does not constitute cause to excuse the procedural

default. See McCoy v. Newsome, 953 F.2d 1252, 1260 (11th Cir.1992) (finding that

petitioner had not established cause because he did not show that he was denied

access to transcript by a factor beyond his control); Hill v. Terry, No. CV 109-010,

2010 WL 2604693, at *4 (S.D. Ga. Feb. 25, 2010) (holding petitioner failed to

demonstrate cause to overcome his procedural default where petitioner did not allege

or make any showing that the state denied a request for the trial transcript). Thus, the

Court is barred from considering the merits of her claim.4

4
Jackson cites Dorman v. Wainwright, 798 F.2d 1358, 1370 (11th Cir. 1986),
in support of her claim that a pro se petitioner may avoid procedural default when she
lacks a transcript on direct appeal. However, Dorman is distinguishable from
Jackson’s case because the petitioner in Dorman had inquired with the trial court
regarding the status of the trial transcript on at least two occasions, and the delay

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 11 of 12

Jackson also contends that this Court “must be more tolerant of a purported

procedural default” because of her pro se status on appeal.5 Jackson suggests that the

district court’s purported insufficient inquiry and advice about her waiver of counsel

for sentencing contributed to Jackson’s decision to waive counsel on appeal. (Doc.

137 at 6). However, the district court strongly advised Jackson that she should have

counsel for her appeal and offered to appoint counsel for her, yet Jackson still

persisted in representing herself. See Webb v. United States, Civil No. 3:08-CV-

0515-D, Crim. No. 3:04-CR-334-D, 2008 WL 4055775 (N.D. Tex. Aug. 20, 2008)

(holding petitioner’s claim that he was denied right to counsel on direct appeal was

foreclosed by the petitioner’s election to proceed pro se on direct appeal). Under

these circumstances, Jackson’s pro se status is insufficient to excuse her failure to

raise her invalid waiver/right to counsel claim claim on appeal. See Jenkins v.

required petitioner to request several extensions of the appellate timetable. The
petitioner ultimately dismissed his direct appeal because of the unreasonable delay
to seek alternative relief. Thus, the state’s failure to timely provide the petitioner in
Dorman with the transcript was out of the petitioner’s control and sufficed as “cause”
for his procedural default.
5
Jackson does not argue that her waiver of counsel on appeal was invalid.
Ground Three of her § 2255 motion, the only ground on which she is proceeding,
specifically limits her argument to her decision to waive her right to counsel at
sentencing. (Doc. 117 at p. 24).

AO 72A
(Rev.8/8
2)
Case 1:07-cr-00108-ODE-GGB Document 139 Filed 08/26/10 Page 12 of 12

Bullard, 210 F. App’x 895, 901 (11th Cir. 2006) (holding the fact that petitioner was

proceeding pro se with his habeas petition was insufficient to establish cause for his

procedural default of particular claims in state court); Harmon v. Barton, 894 F.2d

1268 (11th Cir. 1990) (ignorance of the law fails to establish cause for a procedural

default). Therefore, Jackson’s claim is procedurally defaulted and should not be

considered on the merits.6

III. Conclusion

Based on the foregoing, I RECOMMEND that Movant Sherry Peel Jackson’s

motion to vacate sentence (Doc. 117) be DENIED.

IT IS SO RECOMMENDED, this 26th day of August, 2010.

GERRILYN G. BRILL
UNITED STATES MAGISTRATE JUDGE

6
Jackson also argues that she has suffered “actual prejudice” from her Faretta
claim. However, where a petitioner fails to establish cause, a federal reviewing court
need not examine prejudice. Smith v. Murray, 477 U.S. 527, 533 (1986).

AO 72A
(Rev.8/8
2)

File and source

File: 139.pdf
Size: 65,738 bytes
SHA-256: 36e34b290f92b611d025cf3a17fba0b0dd22760220a68f1b888eff20d683d68e
Our copy: 139.pdf
Original: No public link identified.