Filed: April 23, 2008
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-3
(2:05-cv-00502-WDK)
KENT JERMAINE JACKSON,
Petitioner - Appellant,
versus
GENE M. JOHNSON, Director, Virginia
Department of Corrections,
Respondent - Appellee.
O R D E R
The court amends its opinion filed April 15, 2008, as follows:
On page 2, first paragraph of opinion text, on lines 3 and 4,
“first-degree” is deleted and replaced with the word “capital,” and
on line 7, “first-degree” is deleted.
On page 4, first paragraph, on line 2, the word “capital,” is
added before the word “premeditated,” and on line 4, following
“attempted robbery,” the language “a violation of Va. Code Ann. §
18.2-31(4) (2004 & Supp. 2007),” is added.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KENT JERMAINE JACKSON,
Petitioner-Appellant,
v.
No. 07-3
GENE M. JOHNSON, Director,
Virginia Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Walter D. Kelly, Jr., District Judge.
(2:05-cv-00502-WDK)
Argued: March 20, 2008
Decided: April 15, 2008
Before WILLIAMS, Chief Judge, and NIEMEYER
and DUNCAN, Circuit Judges.
Affirmed by published opinion. Chief Judge Williams wrote the opin-
ion, in which Judge Niemeyer and Judge Duncan joined.
COUNSEL
ARGUED: Marvin David Miller, Alexandria, Virginia, for Appel-
lant. Steven Andrew Witmer, OFFICE OF THE ATTORNEY GEN-
ERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON
BRIEF: Andrew A. Protogyrou, PROTOGYROU & RIGNEY,
P.L.C., Norfolk, Virginia, for Appellant. Robert F. McDonnell, Attor-
2 JACKSON v. JOHNSON
ney General of Virginia, Jerry P. Slonaker, Senior Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
OPINION
WILLIAMS, Chief Judge:
On April 18, 2000, Petitioner Kent Jermaine Jackson brutally killed
Beulah Mae Kaiser, a 79-year-old woman who lived in the apartment
across the hall from him. A Virginia jury convicted Jackson of capital,
premeditated murder during the commission of a robbery or
attempted robbery, robbery, felony stabbing, and burglary, all in con-
nection with Kaiser’s death. The jury sentenced him to death for the
murder conviction.
After unsuccessfully working his way through Virginia’s direct-
appeal and post-conviction review processes, Jackson filed a petition
under 28 U.S.C.A. § 2254 (West 2006) seeking habeas relief in fed-
eral court. In his federal habeas petition, Jackson raised numerous
claims, including a claim that his trial counsel was ineffective under
Strickland v. Washington, 466 U.S. 668 (1984), for failing to object
to the Commonwealth of Virginia’s closing argument at his sentenc-
ing, an argument that Jackson claims rendered his trial fundamentally
unfair and violated the Due Process Clause of the Fourteenth Amend-
ment. The district court denied Jackson’s petition, and, for the reasons
that follow, we affirm.
I.
A.
The grisly facts of Kaiser’s murder, as recounted by the Supreme
Court of Virginia in its opinion in Jackson’s direct appeal, are as fol-
lows:
On April 18, 2000, the body of Beulah Mae Kaiser, 79 years
of age, was found in her apartment. According to the medi-
JACKSON v. JOHNSON 3
cal examiner, Mrs. Kaiser died from a combination of a stab
wound to her jugular vein, a fractured skull, and asphyxia
caused by blockage of her airway by her tongue. Any one
of these injuries could have been fatal. In addition to these
injuries, Mrs. Kaiser suffered two black eyes, a broken nose,
and multiple abrasions, lacerations, and bruises. She had
five stab wounds to her head and neck, including the wound
to her jugular vein. The medical examiner also testified that
Mrs. Kaiser had been anally sodomized with her walking
cane and that the cane then had been driven into her mouth
with such violence that it knocked out most of her teeth, tore
her tongue and forced it into her airway, fractured her jaw,
and penetrated the left side of her face.
When Mrs. Kaiser’s body was found, her apartment was in
disarray. Personal items were strewn throughout the apart-
ment, blood spatters were on the surfaces of the apartment,
and the contents of Mrs. Kaiser’s purse had been dumped on
the floor. The police were unable, however, to find a
weapon or any fingerprints of value.
The crime went unsolved for over 16 months until DNA
testing of saliva on a cigarette butt found in the apartment
implicated an individual named Cary Gaskins. An interview
with Gaskins led the police to Joseph M. Dorsett and [Kent
Jermaine] Jackson, who had been roommates in an apart-
ment across the hall from Mrs. Kaiser’s apartment at the
time of her death. Following an interview with Dorsett,
Newport News police arrested Dorsett, charging him with
Mrs. Kaiser’s murder, and obtained a warrant for Jackson’s
arrest.
Police arrested Jackson at a girlfriend’s home in King
George County around 4:00 a.m. on August 29, 2001. Dur-
ing an interview with Newport News police detectives at the
King George County jail that afternoon, Jackson confessed
to the murder of Mrs. Kaiser.
Jackson v. Commonwealth, 587 S.E.2d 532, 537-38 (Va. 2003).
4 JACKSON v. JOHNSON
B.
On January 14, 2002, a grand jury in the Circuit Court for the City
of Newport News, Virginia indicted Jackson, charging him with capital,
premeditated murder in the commission of a robbery or attempted rob-
bery, a violation of Va. Code Ann. § 18.2-31(4) (2004 & Supp. 2007), robbery, felony stabbing,
burglary, and object sexual penetration.1 Id. at 538. In December of the same year, a jury
convicted Jackson of all counts except the object sexual penetration count.
Pursuant to Virginia law, a capital sentencing proceeding was held.
Va. Code Ann. § 19.2-264.4 (2004). The jury found "unanimously
and beyond a reasonable doubt that [Jackson’s] conduct in commit-
ting the offense was outrageously or wantonly vile, horrible, or inhu-
man in that it involved torture, depravity of mind or aggravated
battery to the victim beyond the minimum necessary to accomplish
the act of murder." (J.A. at 1090 (tracking language from Va. Code
§ 19.2-264.4(C)).) Based on this finding, the jury recommended that
Jackson be sentenced to death. The trial court accepted the jury’s rec-
ommendation and imposed a death sentence.
Jackson appealed, and the Supreme Court of Virginia unanimously
affirmed his convictions and death sentence, Jackson, 587 S.E.2d at
546. The U.S. Supreme Court later denied his petition for a writ of
certiorari, Jackson v. Virginia, 543 U.S. 842 (2004).
Shortly thereafter, the trial court appointed Jackson new counsel to
represent him in state post-conviction proceedings, and on December
2, 2004, Jackson filed a habeas corpus petition in the Supreme Court
of Virginia, raising a host of federal constitutional claims. One of
Jackson’s claims focused on the Commonwealth’s closing argument
at his sentencing: Jackson argued that, under Strickland, his trial
counsel was ineffective because he did not object to the Common-
wealth’s comparing Jackson to his victim and urging the jury to
choose a death sentence based on this comparison. On July 10, 2005,
the Supreme Court of Virginia denied Jackson’s petition in a lengthy
order, and the U.S. Supreme Court denied Jackson’s attendant certio-
1
The grand jury also indicted Dorsett on the same charges. According
to Jackson’s brief, "Dorsett received multiple terms of years for these
crimes." (Petitioner’s Br. at 9.)
JACKSON v. JOHNSON 5
rari petition on August 26, 2005. Jackson v. True, 545 U.S. 1160
(2005).
Jackson then turned to the federal courts for habeas relief, filing a
28 U.S.C.A. § 2254 petition in the Eastern District of Virginia that
raised essentially the same federal constitutional claims presented in
his state habeas petition. The Commonwealth filed a motion to dis-
miss the petition, and a magistrate judge issued a report and recom-
mendation that the petition be dismissed. On March 30, 2007, the
district court accepted the magistrate judge’s recommendation and
dismissed Jackson’s habeas petition.
Jackson timely appealed, and on October 15, 2007, during the pen-
dency of the appeal, the district court granted Jackson a certificate of
appealability ("COA") on the following issue: whether, under Strick-
land, Jackson’s trial counsel was ineffective for failing to object to the
Commonwealth’s victim-to-defendant comparison at sentencing.2
II.
A.
We review de novo the district court’s denial of Jackson’s § 2254
petition based on the record before the Supreme Court of Virginia,
applying the same standards as did the district court. Robinson v.
Polk, 438 F.3d 350, 354 (4th Cir. 2006). Pursuant to the Anti-
Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.
L. No. 104-132, 110 Stat. 1214 (1996), the scope of our review is
highly constrained. We may grant a petition with respect to any claim
adjudicated on the merits in state court only if the state-court decision
was either contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court. 28
U.S.C.A. § 2254(d)(1).
A decision of a state court is contrary to clearly established federal
law "if the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state court
2
We denied Jackson’s motion to expand the COA beyond this issue.
6 JACKSON v. JOHNSON
decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362,
413 (2000). A state-court adjudication is an unreasonable application
of federal law when the state court "correctly identifies the governing
legal rule [from the Supreme Court’s cases] but applies it unreason-
ably to the facts of a particular . . . case," id. at 407-08, or "applies
a precedent in a context different from the one in which the precedent
was decided and one to which extension of the legal principle of the
precedent is not reasonable [or] fails to apply the principle of a prece-
dent in a context where such failure is unreasonable," Robinson, 438
F.3d at 355 (internal quotation marks and citation omitted). The state
court’s application of clearly established federal law must be "objec-
tively unreasonable," for a "federal habeas court may not issue the
writ simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly established Fed-
eral law erroneously or incorrectly." Williams, 529 U.S. at 409, 411.
The phrase "clearly established federal law" refers "to the holdings,
as opposed to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision." Id. at 412.
In deciding whether a petitioner has demonstrated the deficiency of
the state-court adjudication under § 2254(d), we must presume state-
court findings of fact to be correct unless the petitioner rebuts that
presumption by clear and convincing evidence. 28 U.S.C.A.
§ 2254(e)(1).
B.
1.
This appeal focuses on the Commonwealth’s closing argument at
the sentencing phase of Jackson’s trial. The argument proceeded as
follows:
Ladies and gentlemen, because the Commonwealth has
proved the aggravating factors does not mean that you’re
required to find that death is the appropriate punishment.
You may impose the death penalty. You may.
JACKSON v. JOHNSON 7
What you have to do is weigh the evidence to include the
evidence in mitigation. You’ve taken an oath to take that
into consideration as well. Weigh the evidence to include
the defendant’s evidence in mitigation against the defen-
dant’s conduct in committing the crime; the helplessness of
the victim and the effects that Kent Jackson’s crime has had
on Beulah Mae Kaiser’s family, friends and this community.
That is what the Commonwealth is asking you to do. The
defendant’s conduct we’ve already talked about; clearly hor-
rible, inhuman. Is there any question this was a defenseless
woman? From what you have heard about her, she had
arthritis, she got around on a walker, she probably would
have given Mark Dorsett and Kent Jackson anything they
wanted. There was no need for this. None. It didn’t have to
happen.
What’s the evidence in mitigation against this? You’ve
heard from his family. Kent Jackson came from a very good
family. There’s no doubt about that. The people that took
that stand told the truth about what they know about this
person, and when they looked at the Kaiser family and said
they were remorseful for what he did and that they truly felt
pain for this family, they meant it.
I know that every single one of you felt that. They meant it
from the bottom of their hearts, and the Kaiser family felt
it, too.
What did you see from him? He strolled to this witness
stand with his hands in his pockets. Said Mark Dorsett may
have had an influence on Kent Jackson’s life, but when he
picked up that sharp instrument, he made the decision to
thrust it into Beulah Kaiser’s throat. Mark Dorsett didn’t
make it for him. As she laid there and he was kicking her
on the ground, he made that decision.
Mark Dorsett didn’t make it for him. Mark Dorsett will be
held answerable another day. Today is Kent Jackson’s day
to be answerable for what he chose to do and what he did
8 JACKSON v. JOHNSON
to this woman. Look at the effects that this crime has had
on Beulah Mae Kaiser’s family, friends and on this commu-
nity.
As I listened to this testimony today, I couldn’t help but
realize that what we’re talking about here are two lives that
were completely opposite. You had Beulah Mae Kaiser who
literally during her life lost everything material, just about
everything you can lose, and who only sought to give. She
lost what she had and she wanted to give more.
Then you have Kent Jackson who was given everything and
only sought to take more. This family has lost an incredible
person. I’ve only gotten to know Beulah Kaiser through
talking to family and friends, but from what you have heard
about her, it’s not only clear that this family lost her, we lost
her. People like her don’t come along every day. She was
a gift to the community, and when Kent Jackson went in
there that day and took rings and coins and worthless trin-
kets, he took something far more valuable, something that
can never be replaced.
Weigh the life he had against what he has taken, and when
you do you will know that the appropriate punishment for
capital murder is death.
(J.A. at 1014-1016.)
In his Virginia habeas petition, Jackson contended that his trial
counsel was constitutionally ineffective for failing to object to this
closing argument because the Commonwealth’s comparison of Jack-
son to his victim severely prejudiced the proceedings, thus rendering
the trial fundamentally unfair and violative of the Fourteenth Amend-
ment’s Due Process Clause. Although Jackson acknowledged that the
U.S. Supreme Court approved of the use of victim-impact evidence
in Payne v. Tennessee, 501 U.S. 808 (1991), he argued that our panel
decision in Humphries v. Ozmint, 366 F.3d 266 (4th Cir. 2004), made
clear that Payne does not allow for the kind of victim-to-defendant
comparison that the Commonwealth made during its closing.
JACKSON v. JOHNSON 9
The Supreme Court of Virginia rejected Jackson’s Strickland claim
on the merits. Rendering its decision on Jackson’s habeas petition
after the en banc Humphries court vacated the panel opinion and rein-
stated the death sentence in that case, Humphries v. Ozmint, 397 F.3d
206, 226-27 (4th Cir. 2005)(en banc), the Supreme Court of Virginia
ruled as follows:
The Court holds that [Jackson’s ineffective-assistance]
claim satisfies neither the "performance" nor the "prejudice"
prong of the two-part test enunciated in Strickland. This
Court has previously held that "victim impact testimony is
relevant to punishment in a capital murder prosecution in
Virginia." Weeks v. Commonwealth, 450 S.E.2d 379, 389-90
(1994). The record, including the trial transcript, demon-
strates that the Commonwealth’s comments about the victim
and petitioner were based on evidence already in the record.
Petitioner does not argue that the comments, standing alone,
were factually inaccurate or unsupported by the record. Peti-
tioner concedes that the United States Supreme Court
approved the use of victim impact evidence in Payne v. Ten-
nessee, 501 U.S. 808 (1991), but argues there is a judicial
movement towards recognizing that victim impact state-
ments and argument could be "so unduly prejudicial that it
renders the trial fundamentally unfair." Id. at 825. In support
of this argument, petitioner asks this Court to consider Hum-
phries v. Ozmint, 366 F.3d 266 (4th Cir. 2004). The United
States Court of Appeals, however, has since vacated that
panel opinion and affirmed the judgment of the district
court, holding that the South Carolina Supreme Court did
not err when it held that the solicitor’s comparison of the
defendant’s life to that of the victim in closing argument
during the sentencing phase did not render the trial funda-
mentally unfair. Humphries v. Ozmint, 397 F.3d 206, 226
(4th Cir. 2005)(en banc). Thus, petitioner has failed to dem-
onstrate that counsel’s performance was deficient or that
there is a reasonable probability that, but for counsel’s
alleged error, the result of the proceeding would have been
different.
(J.A. at 1613-14.)
10 JACKSON v. JOHNSON
2.
We do not have before us, as we would on direct appeal, the ques-
tion of whether the victim-to-defendant comparison made by the
Commonwealth at Jackson’s trial violated the Due Process Clause of
the Fourteenth Amendment. The only question before us—nothing
more, nothing less—is whether the Supreme Court of Virginia unrea-
sonably applied Strickland in denying Jackson habeas relief on his
ineffective assistance claim.
To show that counsel rendered ineffective assistance, a defendant
must satisfy the two-pronged standard set forth in Strickland. First,
the defendant must show that his counsel’s performance "fell below
an objective standard of reasonableness" in light of the prevailing pro-
fessional norms. Strickland, 466 U.S. at 688. Second, the defendant
must show that "there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would have
been different." Id. at 694.
The Supreme Court has admonished that courts "must indulge a
strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance." Id. at 689; see also id. (direct-
ing that "[j]udicial scrutiny of counsel’s performance must be highly
deferential"). "Given this strong presumption of reasonable perfor-
mance, it is no wonder that we have stated that the showing required
under Strickland’s first prong is a ‘difficult’ one to make." Lawrence
v. Branker, ___ F.3d ___, 07-2 slip op. at 10 (4th Cir. Feb. 22, 2008)
(citing James v. Harrison, 389 F.3d 450, 457 (4th Cir. 2004)). "More-
over, even if a petitioner is able to show that his counsel’s perfor-
mance fell below an objectively reasonable standard, he has won only
half the battle, for he must also show that, absent his counsel’s errors,
there is a reasonable probability that the outcome of the proceeding
would have been different." Id.
Thus, in order for Jackson to prevail on his Strickland claim, he
must show both that his trial counsel’s failure to object to the Com-
monwealth’s closing argument fell below an objective standard of
reasonableness and that, but for this failure, there is a reasonably
probability that the jury would not have sentenced him to death.
Moreover, in order to prevail in this federal habeas petition, he must
JACKSON v. JOHNSON 11
show that the Supreme Court of Virginia was unreasonable in its
application of Strickland.
3.
The parties agree that the U.S. Supreme Court’s decision in Payne
v. Tennessee is the pivotal precedent here. Faced with the question of
what evidence should be allowed at the sentencing phase of capital
trials, the Payne Court held that states "may legitimately conclude
that evidence about the victim and about the impact of the murder on
the victim’s family is relevant to the jury’s decision as to whether or
not the death penalty should be imposed." 501 U.S. at 827. If a state
permits this type of victim-impact evidence at the sentencing phase
of capital trials, the Court held that "the Eighth Amendment erects no
per se bar." Id. Subsequent to the Payne decision, the Commonwealth
of Virginia has approved of the admission of victim-impact evidence
at the sentencing phase of capital trials. Weeks v. Commonwealth, 450
S.E.2d 379, 389-90 (Va. 1994).
Jackson concedes, as he did before the Supreme Court of Virginia,
that Payne permits the admission of victim-impact evidence at capital
trials, but he claims that Payne clearly established that arguments of
the sort made by the Commonwealth at his trial—those he styles as
comparing the worth of the victim to the defendant—render capital
trials fundamentally unfair in violation of the Due Process Clause of
the Fourteenth Amendment.
Our en banc court has previously rejected this very characterization
of Payne. See Humphries, 397 F.3d at 224. In Humphries, we stated
what is obvious from the Payne opinion itself: "the Payne Court did
not disapprove of comparisons between the defendant and the vic-
tim." Id. at 224. The Payne Court did allow for the possibility that a
petitioner could make out a Fourteenth Amendment due-process
claim "[i]n the event that [victim-impact] evidence is introduced that
is so unduly prejudicial that it renders the trial fundamentally unfair,"
501 U.S. at 825, but it did not "set the parameters of what type of
victim-impact evidence would render a trial fundamentally unfair
under the Due Process Clause of the Fourteenth Amendment," Hum-
phries, 397 F.3d at 218. See also id. at 231 (Luttig, J., concur-
ring)(noting that Payne does not address victim-to-defendant
12 JACKSON v. JOHNSON
comparisons); Humphries v. State, 570 S.E.2d 160, 167 (S.C. 2002)
("Payne does not indicate any concern about comparisons between
the victim and the defendant."). Indeed, as the Humphries en banc
court pointed out, Payne’s only reference to comparative worth argu-
ments was its observation that, as a general matter, victim impact evi-
dence is not offered to make victim-to-victim comparisons.
Humphries, 397 F.3d at 224 (citing Payne, 501 U.S. at 823). Because
Payne does not expressly disapprove of victim-to-defendant compari-
sons at trial, we held in Humphries that the South Carolina Supreme
Court did not unreasonably apply Strickland in concluding that Hum-
phries’s trial counsel was constitutionally effective despite not object-
ing to the comparisons between Humphries and his victim.
Humphries, 397 F.3d at 222-23.
The same reasoning holds true in this case. In light of Payne’s
silence regarding victim-to-defendant comparisons, we cannot say
that the Supreme Court of Virginia unreasonably applied Payne in
rejecting Jackson’s purported comparative-worth argument. More to
the point, we believe that a reasonable attorney in the shoes of Jack-
son’s trial counsel would not have felt compelled by Payne to object
on the ground that the Commonwealth’s closing argument violated
Due Process. Even assuming arguendo that Jackson’s counsel should
have objected to the Commonwealth’s closing argument, however,
Jackson has not demonstrated a reasonable probability that the objec-
tion would have led to a result other than a death sentence. As was
true in Humphries, the evidence concerning the appropriate sentence
for Jackson was "not close." Humphries, 397 F.3d at 222. Jackson
confessed to murdering Beulah Mae Kaiser, and the autopsy revealed
the brutality of the murder. The Commonwealth’s closing argument
surely "did not inflame [the jury’s] passions more than did the facts
of the crime." Payne, 501 U.S. at 831 (O’Connor, J., concurring).
III.
In sum, we cannot say that the Supreme Court of Virginia incor-
rectly, let alone unreasonably, applied Strickland in denying Jackson
habeas relief. Accordingly, for the aforesaid reasons, the judgment of
the district court is
AFFIRMED.