No Ineffective Assistance of Appellate Counsel

Jackson v. State, Minn.S.Ct., 8/1/2012.  A jury convicted Mr. Jackson of multiple counts of homicide.  The Supreme Court affirmed his conviction.  For the facts and the direct appeal, go here.  Mr. Jackson eventually got around to filing a state post conviction petition, alleging that appellate counsel had provided ineffective assistance of counsel.  The post conviction court denied the petition summarily and Mr. Jackson appealed that denial to the supreme court.

Justice Paul H. Anderson, Jr. affirms the post conviction court for a unanimous court.  Mr. Jackson had asserted in his petition that appellate counsel had not properly raised objections to the introduction of evidence that the state had introduced to prove that he had committed the crimes for the benefit of a gang.

First, Mr. Jackson said that appellate counsel had been ineffective by failing to argue that the trial court had erred by admitting the gang affiliation evidence.  Mr. Jackson conceded that appellate counsel had argued that the admission of this evidence had been unfairly prejudicial.  His point was that appellate counsel should separately have argued that the admission of this evidence was error on its own.  Justice Anderson ducks this issue by concluding that Mr. Jackson could not show that he was prejudiced by this alleged omission by appellate counsel; the Justice said that the court would have affirmed his conviction in any event.

Second, Mr. Jackson said that appellate counsel had been ineffective by failing to argue that the admission of the gang affiliation evidence violated his due process rights.  Appellate counsel had argued, Mr. Jackson again conceded, that the admission of this evidence had been unfairly prejudicial but counsel did not specifically claim a due process violation.  Once again, the court said that Mr. Jackson could not show prejudice by this alleged error so there was no need to decide if there were an error.

Third, Mr. Jackson said that appellate counsel had failed to preserve any federal constitutional claims, with the result that he could not pursue a federal habeas claim.  The court says that there is no duty of appellate counsel to raise federal constitutional issues to a state appellate court “simply to preserve those issues for federal habeas review.”  Rather, appellate counsel has the discretion to argue “only the most meritorious claims.”  Nunn v. State, 753 N.W.2d 657 (Minn. 2008).  Justice Anderson backtracks from that (at least embarrassing) assertion – how hard is it to throw in, “and it violates due process, or something in the constitution” – by also saying that, again, Mr. Jackson doesn’t point to a specific constitutional claim that appellate counsel unreasonably failed to raise and then demonstrate just how that failure prejudiced him.  More troubling is that the court’s ambivalent reliance on Nunn – did appellate counsel’s failure to raise a claim of prosecutorial misconduct create a reasonable probability that the outcome of his direct appeal would have been different – suggests that the court doesn’t seem concerned about what the federal court would have done with Mr. Jackson’s federal issues had they been preserved for federal habeas review.