Jackson v. State of Utah

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS August 2, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court

HENRY L. JACKSON,

Petitioner - Appellant,

v. No. 18-4154
(D.C. No. 2:15-CV-00237-RJS)
STATE OF UTAH; SCOTT (D. Utah)
CROWTHER, Warden at Utah State
Prison,

Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HOLMES, MATHESON, and EID, Circuit Judges.

Henry L. Jackson, a Utah state prisoner proceeding pro se, 1 seeks a

*
This Order is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

After examining the appellate record, we have determined unanimously that
oral argument would not be of material assistance in the determination of this
matter. See F ED . R. A PP . P. 34(a); 10 TH C IR . R. 34.1(G). The case is therefore
ordered submitted without oral argument.
1
Because Mr. Jackson is proceeding pro se, we construe his filings
liberally, but we may not construct arguments for him. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam); Lankford v. Wagner, 853 F.3d 1119,
1121–22 (10th Cir. 2017).
certificate of appealability (“COA”) to challenge the district court’s denial of his

application for a writ of habeas corpus filed under 28 U.S.C. § 2254. His

application for a COA raises four claims: (A) an alleged Due Process Clause

violation based on the destruction of evidence, (B) an alleged Equal Protection

Clause violation based on the State’s use of its peremptory strikes, (C) an alleged

Sixth Amendment violation based on ineffective assistance of appellate counsel,

and (D) an alleged Sixth Amendment violation based on ineffective assistance of

trial counsel. Exercising jurisdiction under 28 U.S.C. § 1291, we DENY Mr.

Jackson’s application for a COA as to each claim and DISMISS this matter.

I. BACKGROUND

A. Factual Background

Mr. Jackson hit his estranged girlfriend “with his car, rolled back over her

lower leg, and maneuvered the car so it appeared [that he] was going to hit her

again.” State v. Jackson (“Jackson I”), 243 P.3d 902, 906 (Utah Ct. App. 2010),

overruled on other grounds by State v. DeJesus, 395 P.3d 111 (Utah 2017). Her

son, who was nearby, tried to stop Mr. Jackson “by opening the front passenger

door of [Mr. Jackson]’s car and trying to hit him.” Id. Mr. Jackson cut the son

with “a large knife” and stabbed him in the arm, chased the son as he fled, and

then stabbed him in his back and chest. Id. At this point, the estranged girlfriend

released a pit bull that she was holding on to. Id. Mr. Jackson stabbed the pit

2
bull. Id. Mr. Jackson then returned to the estranged girlfriend, picked her up by

her shirt, dragged her toward his car, hit her with the back of his knife, and told

her, “now talk to me bitch.” Id. at 906–07. He then let her go and left the scene.

Id. at 907. The estranged girlfriend’s and her son’s testimony concerning these

events was corroborated by three eyewitnesses. Id.

B. State Procedural Background

The State charged Mr. Jackson with two counts of attempted aggravated

murder, one count of cruelty to animals, and one count of assault. Id. “Prior to

trial, [Mr. Jackson] moved to dismiss the case, claiming that the State had

destroyed evidence by releasing his car to its lienholder, which promptly cleaned

the car and offered it for sale before [Mr. Jackson] was able to examine it.” Id.

Mr. Jackson claimed that testing would have revealed canine blood in the car,

demonstrating that the pit bull attacked him in his car and supporting a self-

defense theory. Id. The state trial court denied the motion, and the case

proceeded to trial. Id.

During voir dire, the prosecutor exercised a peremptory challenge on a

prospective juror who “was the only member of a minority group on the panel.”

Id. Defense counsel challenged the strike under Batson v. Kentucky, 476 U.S. 79

(1986). Id. The State claimed that “it struck the prospective juror due to his

hearing problem and because he seemed too young.” Id. It “also pointed out the

3
unlikelihood that the stricken juror would have served in any event, due to his

position within the jury pool as number forty-six.” Id. The trial court denied the

Batson challenge, “apparently” accepting the prosecutor’s proffered

nondiscriminatory justifications. Id.

At trial, Mr. Jackson sought to present a self-defense theory. Id. at 906 n.4.

The trial court gave the jury certain instructions regarding this defense, though

Mr. Jackson—as we discuss below—argues that they were insufficient. Mr.

Jackson did not testify at trial himself “to avoid the introduction of his prior

conviction for murder [of his first wife] as impeachment evidence,” as the trial

court had “rul[ed] that the evidence of his prior conviction would be admissible if

he testified.” Jackson v. State (“Jackson II”), 332 P.3d 398, 400 (Utah Ct. App.

2014). The jury, however, rejected the self-defense theory and convicted Mr.

Jackson on all counts. Jackson I, 243 P.3d at 907. Mr. Jackson’s conviction was

affirmed on direct appeal by the Utah Court of Appeals, id. at 917, and the Utah

Court of Appeals subsequently affirmed the denial of his state petition for

post-conviction relief, Jackson II, 332 P.3d at 400.

C. Federal Procedural Background

Mr. Jackson filed a timely federal habeas petition alleging five claims:

(1) the State violated the Due Process Clause by destroying the evidence in his

car, (2) the State violated the Equal Protection Clause through its use of

4
peremptory challenges, (3) the trial court erred by giving inadequate self-defense

jury instructions, (4) his Sixth Amendment rights were violated through

ineffective assistance of trial counsel, and (5) his Sixth Amendment rights were

violated through ineffective assistance of appellate counsel. The district court

denied Mr. Jackson’s petition and, subsequently, his request for a COA. Mr.

Jackson filed a timely application for a COA in this court. 2

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a COA is a jurisdictional prerequisite to our merits review of a

§ 2254 appeal. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468 F.3d 711,

713 (10th Cir. 2006). A COA may not issue unless an “applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

2
Following the entry of judgment, Mr. Jackson also filed a Rule 60(b)
motion for relief from the judgment. The district court denied the Rule 60(b)
motion after Mr. Jackson noticed his appeal to this court. Because Mr. Jackson
never filed a new or amended notice of appeal with respect to the Rule 60(b)
ruling, it is not properly before us. See F ED . R. A PP . P. 4(a)(4)(B)(ii). Moreover,
the Rule 60(b) motion itself is not in the record on appeal, and Mr. Jackson does
not raise the Rule 60(b) ruling as a basis for relief in his COA application. We
thus do not address further the district court’s resolution of that motion.

5
(2003); accord Grant v. Royal, 886 F.3d 874, 957–58 (10th Cir. 2018), cert.

denied sub nom. Grant v. Carpenter, 139 S. Ct. 925 (2019).

In determining whether to grant a COA, we review the district court’s

“ultimate resolution of [a] claim—that is, its decision to deny it.” Pruitt v.

Parker, 388 F. App’x 841, 845 n.4 (10th Cir. 2010) (unpublished); see United

States v. Pinson, 584 F.3d 972, 975–76 (10th Cir. 2009) (noting that the panel

“cannot embrace the district court’s reasoning,” but nevertheless concluding that

petitioner failed to meet the standard for issuance of a COA); see also Sue v.

Kline, 662 F. App’x 604, 611 n.9 (10th Cir. 2016) (unpublished) (“Suffice it to

say, we decline to follow the particulars of the district court’s analysis here. It is

the district court’s ultimate resolution of [the prisoner’s] habeas petition that is

our focus.” (collecting cases)). Thus, when reasonable jurists could not disagree

with the district court’s denial of a claim, we will deny a COA even if they could

disagree with particulars of the district court’s analysis.

Additionally, in the § 2254 context, our determination of whether

reasonable jurists could disagree with the district court’s resolution of the claim

necessarily implicates the underlying AEDPA framework. See Miller-El, 537

U.S. at 336 (“We look to the District Court’s application of AEDPA to

petitioner’s constitutional claims and ask whether that resolution was debatable

amongst jurists of reason.”); accord Howell v. Trammell, 728 F.3d 1202, 1225

6
(10th Cir. 2013). Under AEDPA,

a petitioner is entitled to federal habeas relief on a claim only if
he can establish that the state court’s adjudication of the claim on
the merits (1) “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law”; or (2) “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”

Littlejohn v. Trammell, 704 F.3d 817, 824 (10th Cir. 2013) (quoting 28 U.S.C.

§ 2254(d)(1)–(2)). This standard is “highly deferential [to] state-court rulings

[and] demands that state-court decisions be given the benefit of the doubt.”

Grant, 886 F.3d at 888 (alterations in original) (quoting Woodford v. Visciotti,

537 U.S. 19, 24 (2002) (per curiam)).

III. DISCUSSION

In this court, Mr. Jackson seeks a COA on four claims: (A) an alleged Due

Process Clause violation based on the destruction of evidence, (B) an alleged

Equal Protection Clause violation based on the State’s use of its peremptory

strikes, (C) an alleged Sixth Amendment violation based on ineffective assistance

of appellate counsel, and (D) an alleged Sixth Amendment violation based on

ineffective assistance of trial counsel. 3 In our following discussion of each of

3
Mr. Jackson concedes that “the district court [was] correct” in ruling
that a fifth claim directly concerning the self-defense jury instructions was not
properly exhausted, and he states that it was “a litigation mistake” to include this
claim as a “standalone issue” in his federal habeas petition. Aplt.’s COA Br. at
9–10. He makes no argument for cause or prejudice and appears to concede that
he is not entitled to a COA on this issue.

7
these claims, we (1) set out the specifics of the claim Mr. Jackson raised in state

and district court, (2) describe the reasoning and conclusion provided by the

district court, and (3) provide our own reasoning on the proper resolution of each

claim. We conclude that reasonable jurists could not disagree with the district

court’s resolution of each of Mr. Jackson’s constitutional claims, and we thus

deny his application for a COA as to each claim.

A. Claim One: Destruction of Evidence Claim

Mr. Jackson argues that the State violated his due-process rights when it

released his car to a lienholder before he had an opportunity to examine it for

potentially exculpatory evidence. We hold that reasonable jurists could not

disagree with the district court’s resolution of this claim, and we thus deny Mr.

Jackson’s request for a COA on this issue.

1. Claim Raised

Mr. Jackson raised his destruction of evidence claim on direct appeal. The

Utah Court of Appeals rejected the claim on its merits. Jackson I, 243 P.3d at

910–11. It concluded that any evidence that could have been found in the car,

e.g., the pit bull’s blood, would not have significantly negated the other strong

evidence of Mr. Jackson’s guilt. Id. He thus was not prejudiced by the

evidence’s destruction. Id. Furthermore, the disposal of the car “suggest[ed]

normal, routine cataloguing and disposition of evidence, not bad faith

8
destruction.” Id. at 911. Mr. Jackson then raised this claim again in his habeas

petition in the district court.

2. District Court Analysis

The district court determined that the claim in Mr. Jackson’s petition had

not been raised before the Utah courts and thus was procedurally defaulted. The

district court found that this default was unexcused and denied the claim without

reaching the merits.

3. Disposition

Although we address the merits of this claim instead of the district court’s

procedural ruling, we conclude that reasonable jurists could not disagree with the

district court’s ultimate resolution of this issue and thus deny a COA. See Sue,

662 F. App’x at 611 n.9 (“It is the district court’s ultimate resolution of [the

prisoner’s] habeas petition that is our focus.” (collecting cases)).

Mr. Jackson frames his destruction of evidence claim as arising under

Brady v. Maryland, 373 U.S. 83 (1963). “There are three components of a true

Brady violation: The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching; that evidence must have

been suppressed by the State, either willfully or inadvertently; and prejudice must

have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The Utah Court

of Appeals concluded that the suppression of any evidence of the dog’s blood in

9
the car would not have prejudiced Mr. Jackson, Jackson I, 243 P.3d at 910–11,

reasoning: “Although [Mr. Jackson] may have been able to demonstrate that pit

bull blood would have been found inside the car had the car not been returned to

the lienholder and cleaned, any such blood within the car could have been

attributed to having come from [Mr. Jackson]’s person after he stabbed the pit

bull in the throat,” id. at 911. Furthermore, “even if pit bull blood was in the car,

the jury still could have concluded beyond a reasonable doubt that [Mr. Jackson]

was guilty because the presence of pit bull blood in the car would not have

significantly negated the other strong evidence supporting that [Mr. Jackson]

became the aggressor when he left the car, that any danger was not immediate

after the son retreated, and that [Mr. Jackson]’s use of force was objectively

unreasonable.” Id.

Mr. Jackson nowhere addresses or interacts with these rationales, let alone

demonstrates how they constitute an unreasonable determination that he suffered

no prejudice under Brady. Because Mr. Jackson fails to establish that the Utah

Court of Appeals unreasonably applied Brady, he cannot succeed in his request

for a COA. 4 Thus, we deny Mr. Jackson’s request for a COA on this claim

4
Furthermore, Mr. Jackson’s claim seemingly would have been more
appropriately styled as a Youngblood claim because he alleges the destruction
rather than the suppression of evidence. See Arizona v. Youngblood, 488 U.S. 51
(1988) (establishing the elements for a destruction-of-evidence claim).
Youngblood requires a showing of bad faith destruction of evidence. Id. at 58;
accord Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003). Mr. Jackson

10
because reasonable jurists could not disagree that the district court’s resolution of

this issue was correct.

B. Claim Two: Batson Claim

Mr. Jackson claims the State violated Batson by using a peremptory strike

on a minority juror. We hold that reasonable jurists could not disagree with the

district court’s resolution of this claim, and we thus deny Mr. Jackson’s request

for a COA on this issue.

1. Claim Raised

Under Batson, state courts use a three-step process for determining whether

a constitutional violation has occurred:

First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race;
second, if that showing has been made, the prosecution must
offer a race-neutral basis for striking the juror in question; and
third, in light of the parties’ submissions, the trial court must
determine whether the defendant has shown purposeful
discrimination.

Foster v. Chatman, --- U.S. ----, 136 S. Ct. 1737, 1747 (2016) (quoting Snyder v.

Louisiana, 552 U.S. 472, 476–77 (2008)); accord Flowers v. Mississippi, --- U.S.

----, 139 S. Ct. 2228, 2241 (2019).

After the prosecution used a peremptory strike on a minority juror at Mr.

Jackson’s trial, his counsel raised a Batson challenge. The trial court “determined

makes no mention of this requirement, nor does he cite Youngblood. Therefore,
we do not consider this matter further.

11
that [Mr. Jackson] had made a prima facie case of racial motivation.” Jackson I,

243 P.3d at 915. The prosecution “then explained that it used a peremptory

challenge on the prospective juror due to his young age and deafness in his right

ear.” Id. The prosecution additionally argued the juror would not have made it

into the jury pool in any event because he was the forty-sixth juror (and this

presumably meant he would not be selected). Id. at 907. “[T]he trial court

apparently accepted these reasons as facially neutral and not given as a pretext”

and rejected the claim. Id. at 915.

Mr. Jackson maintained his Batson challenge in his state direct appeal

brief. The Utah Court of Appeals rejected the claim on the merits. It concluded

that the prosecution had provided race-neutral reasons for striking the juror,

including his hearing impairment and youth. Id. at 913–17. Mr. Jackson then

raised this claim—at least in part, as we explain below—in his federal habeas

petition in district court.

2. District Court Analysis

The federal district court concluded that this claim was exhausted and

proceeded to address the merits of the claim. The court noted that the Utah Court

of Appeals had “properly set forth” the Batson framework. R. at 601 (Mem.

Decision & Order Den. Habeas Corpus Pet., filed Sept. 17, 2018). It then

recounted how the Utah Court of Appeals had “thoroughly” applied that

12
framework, relying on the prosecutor’s identification of race-neutral reasons for

striking the juror, i.e., his youth and hearing impairment. Id. at 603. Finally, it

concluded that the Utah Court of Appeals’s decision was not contrary to or an

unreasonable application of clearly established federal law.

3. Disposition

We discern two arguments in Mr. Jackson’s application for a COA. First,

Mr. Jackson argues that the prosecution’s decision to strike the prospective juror

based on his youth and hearing disability was “prohibited by law in the state of

Utah.” Aplt.’s COA Br. at 8. This argument centers on a footnote that was

originally included in the Utah Court of Appeals’s decision but was partially

removed after the State moved for rehearing. See Jackson I, 243 P.3d at 906 n.1.

The Utah Court of Appeals removed language stating that striking a juror based

on age or disability would no longer be legal under a new state law. Based on the

State’s motion for rehearing, and the subsequent removal of this language, Mr.

Jackson argues that the prosecution “has behaved improperly” and that this

footnote provides “evidence to demonstrate that the [S]tate’s explanation for its

peremptory challenge was a pretext to disguise a racial motive.” Aplt.’s COA Br.

at 8–9.

We need not parse the iterations of this footnote or determine who is

correct about state law because—among other reasons—Mr. Jackson did not make

13
this argument in district court, instead waiting to raise this aspect of his Batson

challenge until he applied for a COA in this court. By failing to present this

argument in district court, Mr. Jackson failed to preserve this component of his

Batson challenge for our review. See Grant, 886 F.3d at 909 (“We conclude that

Mr. Grant has not preserved these three arguments for appellate review because

he failed to raise them in his habeas petition.” (collecting cases)); Stouffer v.

Trammell, 738 F.3d 1205, 1221 n.13 (10th Cir. 2013) (“We do not generally

consider issues that were not raised before the district court as part of the habeas

petition.”).

Mr. Jackson also argues that “[t]he respondent has omitted a critical fact in

petitioner’s marshaled evidence (ie. [sic] he ‘would not have made it into the jury

pool either way because of his listing as no. 46’).” Aplt.’s COA Br. at 8 (citing

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 n.13 (1994)). This argument

does mirror arguments made in state court and in district court, but it fails on the

merits. Mr. Jackson’s argument here references the prosecutor’s statement to the

trial court that the potential juror “would not have made it into the jury pool

either way because of his listing as No. 46.” R. at 196 (Tr. of Jury Trial, filed

July 18, 2016). Interpreted charitably, Mr. Jackson argues that the state court

contradicted J.E.B.’s statement that Batson harm arises whether or not a stricken

juror actually would have been selected. See J.E.B., 511 U.S. at 142 n.13 (“The

14
exclusion of even one juror for impermissible reasons harms that juror and

undermines public confidence in the fairness of the system.”). The argument is

that a state court applies J.E.B. unreasonably by rejecting a claim of

discrimination because a discriminated-against juror would not have been seated.

But any such argument simply has no application to the facts before us.

The Utah Court of Appeals held that Batson was not violated because the

prosecution based its strike on the juror’s hearing deficiency and age. Jackson I,

243 P.3d at 915. It thus determined that the strike was not discriminatory without

relying on the fact that the juror would not have been seated, and so its decision is

not contrary to or an unreasonable application of J.E.B. And while Mr. Jackson

argues that “[t]he respondent has omitted [this] critical fact,” Aplt.’s COA Br. at

8 (emphasis added), the Utah Court of Appeals acknowledged that the prosecutor

had “pointed out the unlikelihood that the stricken juror would have served in any

event, due to his position within the jury pool as number forty-six,” Jackson I,

243 P.3d at 907. Notably, however, while the Utah Court of Appeals

acknowledged this fact, it did not rely on it in concluding that the strike was not

discriminatory. Id. at 907, 915. Mr. Jackson provides no further explanation

about how the respondent’s omission of this fact in its briefing could possibly

result in a state court disposition that involved either a contradiction or

misapplication of clearly established law.

15
 Reasonable jurists could not disagree that the district court correctly

determined that the Utah Court of Appeals’s decision was not contrary to or an

unreasonable application of either Batson or its Supreme Court progeny—in

particular, J.E.B. Thus, we deny Mr. Jackson’s request for a COA on this claim.

C. Claim Three: Ineffective Assistance of Appellate Counsel Claim

Mr. Jackson argues that his appellate counsel was ineffective for failing to

raise several instances of trial counsel’s purported ineffective assistance.

Construed liberally, Lankford, 853 F.3d at 1121–22, his arguments are that

appellate counsel should have argued that trial counsel was ineffective for: failing

to challenge jury instructions concerning self-defense; advising Mr. Jackson not

to testify; not introducing certain evidence supporting Mr. Jackson’s self-defense

theory; and failing to investigate a prior altercation involving the victim and her

son (that also purportedly would have supported the self-defense theory). But, to

the extent Mr. Jackson’s arguments are not procedurally barred, he fails to

demonstrate that the Utah Court of Appeals’s decision was contrary to or an

unreasonable application of clearly established law. Thus, we deny Mr. Jackson’s

request for a COA on this issue.

1. Claim Raised

Mr. Jackson’s ineffective-assistance claims first appear in his post-

conviction briefing before the Utah Court of Appeals. There, he contended that

16
appellate counsel was ineffective for failing to raise trial counsel’s alleged

ineffectiveness in not challenging the self-defense jury instructions—which

ostensibly did not clearly express the proper burden of proof with respect to

issues bearing on his guilt, including his defense of self-defense. Citing Utah

Supreme Court authority, which in turn relied on Strickland v. Washington, 466

U.S. 668 (1984), the Utah Court of Appeals rejected the claim because “the issue

would not have resulted in reversal on direct appeal because the jury instructions

correctly stated that the burden of proof beyond a reasonable doubt remained with

the State.” Jackson II, 332 P.3d at 400. Mr. Jackson then presented this claim in

his habeas briefing in district court.

In the same state-court briefing, Mr. Jackson also claimed that appellate

counsel was ineffective for failing to raise trial counsel’s failure to object to the

trial court’s ruling that the State could introduce evidence of Mr. Jackson’s prior

bad acts if he testified. The Utah Court of Appeals framed this as an argument

“that the trial court inappropriately prevented [Mr. Jackson] from testifying and

that trial and appellate counsel were ineffective for failing to raise the issue.” Id.

It concluded that Mr. Jackson had a choice to refuse to testify (and avoid the

introduction of his prior bad acts as impeachment evidence) or take the witness

stand, and so the trial court’s evidentiary ruling that such prior bad acts would be

admissible if Mr. Jackson chose to testify did not deprive him of due process. Id.

17
And, because it rejected Mr. Jackson’s argument on the merits, “neither trial nor

appellate counsel were ineffective in failing to raise the issue.” Id.

In his federal habeas petition, Mr. Jackson argued that appellate counsel

was ineffective for failing to argue that trial counsel was ineffective for advising

Mr. Jackson not to testify in light of the trial court’s prior-bad-acts ruling. The

emphasis of this claim shifted somewhat from, on the one hand, trial counsel’s

failure to object to the court’s allegedly erroneous prior-bad-acts ruling to, on the

other, trial counsel’s advice to Mr. Jackson not to testify based on that ruling.

Construing Mr. Jackson’s arguments liberally, however, Lankford, 853 F.3d at

1121–22, all of Mr. Jackson’s appellate-ineffectiveness arguments concerning

trial counsel’s alleged responses to the prior-bad-acts ruling (i.e., whether failure

to object or advising Mr. Jackson not to testify) are of one piece. Thus, the same

claim that Mr. Jackson presented to the Utah Court of Appeals was presented in

district court.

However, the aforementioned state-court briefing cannot be read to fairly

raise two related arguments that Mr. Jackson later raised in federal district court.

Namely, he did not make appellate-ineffectiveness arguments concerning failure

to argue that trial counsel was ineffective for not introducing certain evidence

supporting a self-defense theory and for not investigating a prior altercation

involving the victim and her son. Trial counsel’s failure to introduce this

18
evidence or investigate this altercation is nowhere alleged to be deficient in Mr.

Jackson’s briefing before the Utah Court of Appeals. Because these arguments

were not made, the Utah Court of Appeals did not address them.

2. District Court Analysis

The district court held that the Utah Court of Appeals reasonably applied

Strickland in denying Mr. Jackson’s appellate-ineffectiveness claim. As to the

aspect of the claim related to the self-defense jury instructions, the district court

held that Mr. Jackson had failed to “address[] the court of appeals’ conclusion

that there was no prejudice” resulting from any deficiency. R. at 607. And then,

“regarding ineffective assistance of appellate counsel as a whole,” the district

court noted that Mr. Jackson “does not suggest any United States Supreme Court

on-point case law exists that is at odds with the court of appeals’ result.” Id.

Thus, it concluded that, “[b]ased on Strickland, the Utah Court of Appeals was

right to analyze how counsel’s performance may or may not have been deficient

or prejudicial, and, on the basis that it was not, reject Petitioner’s ineffective-

assistance-of-counsel claims.” Id. at 608.

3. Disposition

Reasonable jurists could not disagree with the district court’s resolution of

the appellate-ineffectiveness claim.

Mr. Jackson identifies Strickland as the clearly established law governing

19
this claim. 5 While Strickland can serve as clearly established law, see Williams v.

Taylor, 529 U.S. 362, 391 (2000), “[t]he Strickland standard is a general one, so

the range of reasonable applications is substantial,” Johnson v. Carpenter, 918

F.3d 895, 900 (10th Cir. 2019) (quoting Harrington v. Richter, 562 U.S. 86, 105

(2011)). “A Strickland claim will be sustained only when (1) ‘counsel made

errors so serious that counsel was not functioning as “counsel”’ and (2) ‘the

deficient performance prejudiced the defense.’” Id. (quoting Strickland, 466 U.S.

at 687). This standard is “highly deferential.” Strickland, 466 U.S. at 689. And,

on top of that, AEDPA—more specifically, 28 U.S.C. § 2254(d)(1)—requires us

to ask whether the state court’s application of Strickland was contrary to or an

unreasonable application of that clearly established law.

“Thus, ‘[t]he standards created by Strickland and § 2254(d) are both highly

5
Mr. Jackson cites several other Supreme Court decisions in his
appellate-ineffectiveness argument, but none provides relevant guidance beyond
that provided by Strickland’s general standards. See Williams v. Taylor, 529 U.S.
362, 398–99 (2000) (holding petitioner was entitled to habeas relief because of
ineffective assistance of trial counsel in gathering mitigation evidence for
sentencing); Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (holding petitioner
was not prejudiced by trial counsel’s failure to object to sentencing
enhancement); Murray v. Carrier, 477 U.S. 478, 488–89 (1986) (acknowledging
that ineffective assistance of appellate counsel can serve as cause for a procedural
default but holding that petitioner had not demonstrated ineffectiveness); United
States v. Cronic, 466 U.S. 648, 658–59, 666–67 (1984) (holding that a finding of
ineffective assistance of trial counsel must be based on actual specified errors and
not merely the circumstances surrounding the representation); cf. House v. Hatch,
527 F.3d 1010, 1016 (10th Cir. 2008) (“[C]learly established law consists of
Supreme Court holdings in cases where the facts are at least closely-related or
similar to the case sub judice.”).

20
deferential, and when the two apply in tandem, review is doubly so.’” Johnson,

918 F.3d at 900 (alteration in original) (emphasis added) (quoting Richter, 562

U.S. at 105); accord Ellis v. Raemisch, 872 F.3d 1064, 1084 (10th Cir. 2017),

cert. denied, 138 S. Ct. 978 (2018). More specifically, “[w]hen § 2254(d)

applies, the question is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Ellis, 872 F.3d at 1084 (quoting Richter, 562

U.S. at 104). Under this doubly deferential standard of review, Mr. Jackson has

failed to demonstrate that reasonable jurists could disagree about whether the

Utah Court of Appeals reasonably determined that his appellate counsel’s

performance was not constitutionally deficient. We explain why.

We start with Mr. Jackson’s appellate-ineffectiveness argument concerning

failure to raise trial counsel’s failure to challenge the self-defense jury

instructions. The Utah Court of Appeals rejected this argument because “the jury

instructions correctly stated the . . . burden of proof,” and so appellate counsel

was not ineffective for not arguing that trial counsel was deficient for not

challenging the instructions. Jackson II, 332 P.3d at 400. Moreover, as the

district court observed, Mr. Jackson’s arguments do not call into question the

reasonableness of the Utah Court of Appeals’s related prejudice

determination—that is, its conclusion that appellate counsel was not ineffective

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for failing to raise the instructional claim because appealing “the issue would not

have resulted in reversal.” Id.

Mr. Jackson’s response boils down to only the general argument that “[t]he

instructions were insufficient to convey to the jury . . . the burden of disproving

the asserted self-defense defense.” Aplt.’s COA Br. at 18. Putting aside the fact

that the Utah cases that Mr. Jackson cites have approved of similar instructions,

see, e.g., State v. Knoll, 712 P.2d 211, 215 (Utah 1985), it is not our role under

§ 2254 to second-guess a state appellate court’s determination of the sufficiency

under state law of jury instructions, see, e.g., Bland v. Sirmons, 459 F.3d 999,

1016–17 (10th Cir. 2006); Boyd v. Ward, 179 F.3d 904, 917 (10th Cir. 1999).

Therefore, Mr. Jackson’s response is not sufficient to generate a disagreement

among reasonable jurists concerning the correctness of the district court’s

resolution of this aspect of Mr. Jackson’s appellate-ineffectiveness claim.

Next, we turn to Mr. Jackson’s appellate-ineffectiveness argument

concerning failure to raise trial counsel’s failure to object to the trial court’s

prior-bad-acts ruling and subsequent advice to Mr. Jackson not to testify in his

own defense. Mr. Jackson’s argument that appellate counsel was ineffective on

this score only amounts to a paragraph-long recitation of the facts in the

“Statement of Facts” section of his brief. Aplt.’s COA Br. at 5–6.

In that discussion, he does not address the Utah Court of Appeals’s opinion

22
or provide any argument about how or why that decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law.” 28

U.S.C. § 2254(d)(1). Likewise, while Mr. Jackson’s “Statement of Facts”

concerning his trial-ineffectiveness claim contains a similar factual recitation,

Aplt.’s COA Br. at 4, his substantive arguments pertaining to both his appellate-

and trial-ineffectiveness claims do not mention theories of ineffectiveness related

to trial counsel’s actions in connection with the prior-bad-acts ruling or provide

any authority supporting such theories. Aplt.’s COA Br. at 10–17, 18–21. Thus,

we could hold that Mr. Jackson waived further review of these aspects of his

appellate-ineffectiveness claim. See Tiger v. Workman, 445 F.3d 1265, 1267 n.1

(10th Cir. 2006) (“In his application for a COA, Tiger lists all ten of the issues

presented to the federal district court as ‘[i]ssues to be raised on appeal.’

However, he presents argument only on the two jury instruction issues. Thus, the

other issues are waived.”); United States v. Springfield, 337 F.3d 1175, 1178

(10th Cir. 2003) (holding that the appellant waived his claim on appeal “because

he failed to address that claim in either his application for a COA or his brief on

appeal”); Hill v. Allbaugh, 735 F. App’x 520, 522 n.2 (10th Cir. 2018)

(unpublished) (noting petitioner “has waived appellate review of the other issues

presented in his habeas petition to the district court by failing to address them in

his briefing to this court”).

23
 But even if this briefing was sufficient to preserve Mr. Jackson’s

arguments, it is unavailing on the merits. As the district court noted, Mr. Jackson

“does not effectively address the matter of possible strategy, nor does he address

how his retrospective, subjective perspective of his counsel’s performance . . .

square[s] with the court of appeals’ more objective perspective, as supported by

the record.” R. at 607. Mr. Jackson acknowledged in briefing before the Utah

Court of Appeals that, had he testified that he was acting in self-defense, the trial

court had ruled that the State would be allowed to submit evidence that Mr.

Jackson had murdered his first wife and previously committed domestic violence.

See also Jackson I, 243 P.3d at 912 (noting, in analyzing sentencing issues, that

Mr. Jackson had previously “serv[ed] time for killing his wife and for a parole

violation related to another domestic violence incident”). As Mr. Jackson

concedes, this information would have been very prejudicial in this case involving

violence against an estranged girlfriend.

Applying our doubly-deferential standard of review, we cannot say that

there was no reasonable argument that appellate counsel satisfied Strickland by

not arguing trial counsel was ineffective for failing to object to the trial court’s

prior-bad-acts ruling and for advising Mr. Jackson not to testify in his own

defense. See Ellis, 872 F.3d at 1084; Johnson, 918 F.3d at 900.

Finally, we turn to Mr. Jackson’s appellate-ineffectiveness arguments

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concerning failure to argue that trial counsel was ineffective for not introducing

certain evidence supporting Mr. Jackson’s self-defense theory and for not

investigating a prior altercation involving the victim and her son. These

contentions—which are distinct aspects or sub-claims of Mr. Jackson’s

overarching appellate-ineffectiveness claim—are mentioned only in the

“Statement of Facts” section of Mr. Jackson’s brief, and he presents no argument

or authority in support of them. Thus, we could deem these contentions waived.

See Tiger, 445 F.3d at 1267 n.1; Springfield, 337 F.3d at 1178; Hill, 735 F. App’x

at 522 n.2.

Moreover, because Mr. Jackson did not present these ineffective-assistance

sub-claims in post-conviction briefing to the Utah Court of Appeals, we may

apply an anticipatory procedural bar to them because—like Mr. Jackson’s other

ineffective-assistance claims—they could have been raised in that briefing. See

U TAH C ODE § 78B-9-106(1)(d) (stating that “[a] person is not eligible for relief

under this chapter [i.e., for post-conviction relief] upon any ground that . . .

(d) was raised or addressed in any previous request for post-conviction relief or

could have been, but was not, raised in a previous request for post-conviction

relief” (emphasis added)); Thacker v. Workman, 678 F.3d 820, 841 (10th Cir.

2012) (explaining that the defendant needed to “overcome an ‘anticipatory

procedural bar’ to proceed on his ineffective assistance claim” because if he were

25
“to now return to state court to attempt to exhaust a claim that trial counsel was

ineffective . . . , it would be procedurally barred” under state law); Anderson v.

Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007) (“‘Anticipatory procedural

bar’ occurs when the federal courts apply procedural bar to an unexhausted claim

that would be procedurally barred under state law if the petitioner returned to

state court to exhaust it.” (quoting Moore v. Schoeman, 288 F.3d 1231, 1233 n.3

(10th Cir. 2002))).

“The only way for [Mr. Jackson] to circumvent this anticipatory procedural

bar is by making either of two alternate showings: he may demonstrate ‘cause and

prejudice’ for his failure to raise the claim in his initial application for

post-conviction relief, or he may show that failure to review his claim will result

in a ‘fundamental miscarriage of justice.’” Thacker, 678 F.3d at 841–42 (quoting

Anderson, 476 F.3d at 1140). But Mr. Jackson makes neither argument as to the

additional sub-claims of ineffective assistance at issue, and so these sub-claims

are procedurally barred.

In sum, reasonable jurists could not disagree with the district court’s

determination that, under Strickland, Mr. Jackson has failed to establish that the

Utah Court of Appeals’s decision concerning his appellate-ineffectiveness claim

was contrary to or an unreasonable application of clearly established Supreme

Court law. He is not entitled to a COA on this claim.

26
D. Claim Four: Ineffective Assistance of Trial Counsel Claim

Mr. Jackson also seeks relief on a distinct claim of ineffective assistance of

trial counsel. Namely, Mr. Jackson’s brief in this court—construed liberally,

Lankford, 853 F.3d at 1121–22—argues that trial counsel failed to object to the

self-defense instructions discussed above, improperly discouraged him from

testifying that he acted in self-defense, failed to introduce certain evidence that

would have supported the self-defense theory, and failed to investigate a prior

altercation involving the victim and her son. But this trial-ineffectiveness claim

is partially waived and entirely procedurally barred, and Mr. Jackson cannot

overcome the procedural bar. Therefore, reasonable jurists could not disagree

with the district court’s resolution of this claim. We deny Mr. Jackson’s request

for a COA on this issue.

1. Claim Raised

In post-conviction briefing before the Utah Court of Appeals, Mr. Jackson

raised a claim that trial counsel was ineffective for failing to object to the self-

defense jury instructions. The Utah Court of Appeals rejected this claim because

it could have been raised on direct appeal, and Mr. Jackson failed to demonstrate,

as grounds for overlooking this failure, that his direct-appeal counsel was

ineffective for failing to argue trial counsel’s ineffectiveness. See Jackson II, 332

P.3d at 399–400; see U TAH C ODE § 78B-9-106(1)(c), 3(a) (stating that “[a] person

27
is not eligible for relief under this chapter [i.e., for post-conviction relief] upon

any ground that . . . (c) could have been but was not raised at trial or on appeal”;

but “[n]otwithstanding Subsection (1)(c), a person may be eligible for relief . . . if

the failure to raise that ground was due to ineffective assistance of counsel”).

In federal district court, Mr. Jackson’s petition did not present a stand-

alone trial-ineffectiveness claim on this jury-instructions issue, although it did

reference the alleged “failures of both defense counsel at the jury trial and

appellate counsel” in advancing a related appellate-ineffectiveness argument. R.

at 11–12 (Pet. Under § 2254, filed Apr. 8, 2015). Mr. Jackson’s reply brief in

district court more clearly raised this jury-instructions theory as a distinct trial-

ineffectiveness argument.

As to Mr. Jackson’s other trial-ineffectiveness arguments, we observed

supra that, in the aforementioned post-conviction briefing, Mr. Jackson raised an

appellate-ineffectiveness claim concerning failure to argue that trial counsel

improperly discouraged Mr. Jackson from testifying that he acted in self-defense.

The Utah Court of Appeals concluded that Mr. Jackson’s briefing included a

freestanding contention that trial counsel was ineffective for advising Mr.

Jackson not to take the stand, but it rejected this aspect of Mr. Jackson’s claim.

See Jackson II, 332 P.3d at 400 (“Jackson also argues that the trial court

inappropriately prevented him from testifying and that trial and appellate counsel

28
were ineffective for failing to raise the issue. . . . Because Jackson’s argument

has been rejected, neither trial nor appellate counsel were ineffective in failing to

raise the issue.” (emphases added)). Mr. Jackson’s federal habeas petition

included this trial-ineffectiveness theory.

Finally, Mr. Jackson’s briefing before the Utah Court of Appeals did not

raise sub-claims that trial counsel was ineffective for failing to introduce certain

evidence allegedly supporting the self-defense theory or for failing to investigate

a prior altercation involving the victim and her son. These theories of

ineffectiveness first appeared in Mr. Jackson’s federal habeas petition.

2. District Court Analysis

The district court concluded that “some of the ineffective assistance of

counsel grounds are procedurally defaulted,” but it did not specifically address

the different aspects of Mr. Jackson’s arguments concerning trial counsel’s

ineffectiveness. R. at 595. It generally concluded that Mr. Jackson’s

“procedurally defaulted claims are . . . denied.” Id. at 597.

3. Disposition

Reasonable jurists could not disagree with the district court’s denial of the

trial-ineffectiveness claim because it was partially waived and entirely

procedurally barred.

First, the jury-instructions aspect of the trial-ineffectiveness claim was

29
waived in district court. As we have mentioned, Mr. Jackson’s habeas petition

did not discuss trial counsel’s failure to object to the jury instructions as part of a

trial-ineffectiveness claim; that discussion was only included in a claim

concerning appellate counsel. And because trial- and appellate-ineffectiveness

claims are distinct, that is not good enough to preserve the former for review. See

Milton v. Miller, 812 F.3d 1252, 1264 (10th Cir. 2016) (“We fail to see how a

claim based on trial counsel’s ineffectiveness merely amplifies a claim based on

appellate counsel’s ineffectiveness.”); Manning v. Patton, 639 F. App’x 544, 547

n.1 (10th Cir. 2016) (unpublished) (noting that petitioner “does not point to any

case holding that an ineffective appellate counsel claim carries with it an

ineffective trial counsel claim”). Failure to include this claim in his petition

resulted in waiver of this claim. Owens v. Trammell, 792 F.3d 1234, 1246 (10th

Cir. 2015) (“Because the argument was not raised in his habeas petition, it is

waived on appeal.”); accord Grant, 886 F.3d at 909 (collecting cases).

Second, even if we liberally construe Mr. Jackson’s petition to have

included the jury-instructions aspect of the trial-ineffectiveness claim, the entire

claim must fail because it is procedurally barred. The Utah Court of Appeals

concluded that both the jury-instructions and the advice-not-to-testify aspects of

the trial-ineffectiveness claim were procedurally barred in state court because

they were not brought on direct appeal and because Mr. Jackson failed to

30
demonstrate, as grounds for overlooking this failure, that his direct-appeal

counsel was ineffective for failing to present a trial-ineffectiveness claim. Mr.

Jackson has not made any argument that the procedural bar that the Utah Court of

Appeals invoked is not adequate or independent. See, e.g., Maples v. Thomas,

565 U.S. 266, 280 (2012) (“As a rule, a state prisoner’s habeas claims may not be

entertained by a federal court ‘when (1) “a state court [has] declined to address

[those] claims because the prisoner had failed to meet a state procedural

requirement,” and (2) “the state judgment rests on independent and adequate state

procedural grounds.”’” (alterations in original) (quoting Walker v. Martin, 562

U.S. 307, 316 (2011))).

Consequently, Mr. Jackson must demonstrate cause and prejudice or a

fundamental miscarriage of justice to overcome this bar. See, e.g., Hammon v.

Ward, 466 F.3d 919, 925–26 (10th Cir. 2006); Smallwood v. Gibson, 191 F.3d

1257, 1268 (10th Cir. 1999). He has not done so. As most relevant here, as our

analysis supra makes clear, Mr. Jackson has not demonstrated cause and prejudice

through a meritorious showing of ineffective assistance of appellate counsel. See,

e.g., Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 747 (10th Cir. 2016) (“A claim

of ineffective assistance of appellate counsel can serve as cause and prejudice to

overcome a procedural bar, if it has merit.”).

And while the Utah Court of Appeals did not address the aspects of Mr.

31
Jackson’s trial-ineffectiveness claim concerning failure to introduce evidence

supporting the self-defense theory and failure to investigate a prior altercation

involving the victim and her son, that was only because Mr. Jackson did not

present these aspects of his trial-ineffectiveness claim to that court. Thus, we

apply an anticipatory procedural bar to these aspects of this claim because—like

Mr. Jackson’s other trial-ineffectiveness arguments—they could have been made

on direct appeal but were not. See Thacker, 678 F.3d at 841. And, as above, Mr.

Jackson has not demonstrated cause and prejudice or a fundamental miscarriage

of justice to overcome this bar.

Accordingly, even if Mr. Jackson’s trial-ineffectiveness claim or some

distinct components thereof were adequately presented in district court, the claim

is entirely procedurally barred. Thus, reasonable jurists could not disagree with

the district court’s resolution of this issue, and Mr. Jackson is not entitled to a

COA.

IV. CONCLUSION

For the foregoing reasons, we DENY Mr. Jackson’s application for a COA

as to each claim and DISMISS this matter.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

32