State v. Jamey Lamont Jackson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 2, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2306 Cir. Ct. No. 2014CF2307

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JAMEY LAMONT JACKSON,

DEFENDANT-APPELLANT.

APPEAL from orders of the circuit court for Milwaukee County:
JANET C. PROTASIEWICZ, Judge. Affirmed.

Before Brash, C.J., Graham and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Jamey Lamont Jackson, pro se, appeals from
orders of the circuit court that denied his motions for a new trial and for
No. 2019AP2306

reconsideration. Jackson asserts that a federal district court ruling in proceedings
he initiated constitutes newly discovered evidence. We affirm the orders.

¶2 In 2014, Jackson was charged with one count of possession of a
firearm by a felon following a shootout that killed an elementary school student in
the crossfire. The Milwaukee Police Department organized a live lineup with
Jackson as one of the subjects. Three witnesses identified Jackson through the
lineup. The case was tried to a jury, which convicted Jackson.

¶3 With the assistance of counsel, Jackson filed a postconviction
motion for a new trial. He alleged that trial counsel was ineffective for failing to
challenge the lineup on two grounds: (1) his Sixth Amendment right to counsel
was violated when he was not afforded counsel for the lineup, and (2) the lineup
was impermissibly suggestive. That motion was denied.1 Jackson appealed but
did not revisit his Sixth Amendment claim. We affirmed the judgment of
conviction and the order denying his postconviction motion. See State v. Jackson,
No. 2017AP968-CR, unpublished slip op. (WI App Mar. 6, 2018). The supreme
court later denied Jackson’s petition for review.

¶4 While his appeal was pending, Jackson filed a civil suit in federal
district court pursuant to 42 U.S.C. § 1983.2 He named several police officers as
defendants and asserted that they had violated his Sixth Amendment right to

1
The Honorable Daniel L. Konkol presided at trial and sentencing. The Honorable
M. Joseph Donald denied the original postconviction motion. The Honorable Janet C.
Protasiewicz denied the motions that are the subject of this appeal, and will be referred to as the
circuit court.
2
Title 42 U.S.C. § 1983 authorizes private parties to bring suit against government
entities and officials who violate their federal constitutional rights while acting under color of
state law.

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No. 2019AP2306

counsel during the lineup. The officers moved for judgment on the pleadings. In
its decision, the district court noted that at least two other district courts within the
Seventh Circuit had determined that the right to counsel attaches when, as
frequently happens in Milwaukee County and had happened in Jackson’s case, a
court commissioner signs a probable cause determination form. See Jackson v.
Devalkenaere, No. 18-CV-446-JPS, 2019 WL 4415719, at *3 (E.D. Wis. Sept. 16,
2019). Wisconsin state courts, however, have rejected that view, so the district
court concluded that it “was not clearly established that the right to counsel
attaches after the commissioner’s probable cause determination[.]” See id. Thus,
the district court granted the officers’ motion for judgment and dismissed the case
on qualified immunity grounds. See id. at *4.

¶5 In the course of issuing its order, the district court had noted that the
officers “do not dispute that [Jackson’s] Sixth Amendment rights were violated
when he was denied counsel at the police lineup.” See id. at *2. Based on this
observation, Jackson filed the underlying postconviction motion in the circuit
court, seeking a new trial based on “newly discovered evidence”—namely, the
“admission” by officers in the federal case that his rights had been violated.
Jackson also claimed that his trial and postconviction counsel were ineffective
because they “should have known” he had a Sixth Amendment claim.

¶6 The circuit court denied the motion. It explained that the district
court’s decision “does not hold that [Jackson] was denied his sixth amendment
right to counsel at the lineup”; rather, the district court had “merely assumed his
allegations are true for purposes of determining whether he can proceed with his
civil case.” Thus, the circuit court concluded, the decision “is not newly
discovered evidence; it is not evidence at all.” The circuit court further noted that
this same Sixth Amendment claim had already been addressed by way of his

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No. 2019AP2306

original postconviction motion, foreclosing Jackson from further litigation of this
issue, pursuant to State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512 (Ct.
App. 1991). The circuit court also noted that to the extent that Jackson was
attempting to challenge his appellate attorney’s performance for not pursuing the
issue on appeal, claims of ineffective appellate counsel must be raised in this court
by way of a habeas corpus petition under State v. Knight, 168 Wis. 2d 509, 484
N.W.2d 540 (1992). After the circuit court denied his motion, Jackson moved for
reconsideration. The circuit court denied that motion as well. Jackson appeals.

¶7 Although Jackson’s various materials highlight a discrepancy
between state and federal courts regarding exactly when the Sixth Amendment
right to counsel attaches, that conflict is not the issue before us on appeal. Rather,
the question is whether the circuit court erred when it concluded that Jackson had
failed to present newly discovered evidence and was not entitled to a new trial.3

¶8 The decision to grant a motion for a new trial based on newly
discovered evidence rests in the circuit court’s discretion. State v. Plude, 2008 WI
58, ¶31, 310 Wis. 2d 28, 750 N.W.2d 42. A defendant seeking a new trial based
on newly discovered evidence must establish “‘by clear and convincing evidence,
that: (1) the evidence was discovered after conviction; (2) the defendant was not
negligent in seeking [the] evidence; (3) the evidence is material to an issue in the
case; and (4) the evidence is not merely cumulative.’” State v. Armstrong, 2005
WI 119, ¶161, 283 Wis. 2d 639, 700 N.W.2d 98 (citation omitted). If the

3
We observe that while Jackson urges us to follow the federal court’s approach to this
Sixth Amendment issue, he does not engage in any newly discovered evidence analysis on
appeal. We may decline to consider undeveloped arguments. See State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W. 633 (Ct. App. 1992).

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No. 2019AP2306

defendant satisfies these requirements, “‘the circuit court must determine whether
a reasonable probability exists that a different result would be reached in a [new]
trial.’” Id. (citation omitted). “A reasonable probability of a different outcome
exists if ‘there is a reasonable probability that a jury, looking at both the old
evidence and the new evidence, would have a reasonable doubt as to the
defendant’s guilt.’” State v. Love, 2005 WI 116, ¶44, 284 Wis. 2d 111, 700
N.W.2d 62 (citation and two sets of brackets omitted).

¶9 We agree with the circuit court and the State that the federal court
ruling and the police “admission” are not evidence. Evidence is “[s]omething
(including testimony, documents, and tangible objects) that tends to prove or
disprove the existence of an alleged fact[.]” Evidence, BLACK’S LAW
DICTIONARY (10th ed. 2014); see also WIS. STAT. § 904.01 (2019-20)4 (defining
“relevant evidence” as “having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence”). Only relevant evidence is
admissible. See WIS. STAT. § 904.02. Whether police violated Jackson’s Sixth
Amendment rights during a lineup does not make it more or less probable that
Jackson had a prior felony conviction and possessed a firearm. See WIS. STAT.
§ 941.29(2) (2013-14). The federal court’s opinion is therefore irrelevant and
inadmissible, and inadmissible evidence cannot be used to challenge a conviction.
See State v. Bembenek, 140 Wis. 2d 248, 253, 409 N.W.2d 432 (Ct. App. 1987).
Thus, the circuit court properly concluded that Jackson had failed to present newly
discovered evidence. See id. (“Because [the] polygraph evidence would be

4
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2019AP2306

inadmissible at a new trial, it cannot form the basis of a due process challenge to
[the] conviction. The trial court, therefore, was correct in refusing to consider it as
newly discovered evidence.”).

¶10 Further, although trial counsel did not move to suppress the lineup
on Sixth Amendment grounds, postconviction counsel did bring the claim to the
trial court’s attention through the postconviction motion alleging that trial counsel
was ineffective for not seeking such suppression. Thus, the question of whether
Jackson was entitled to counsel for the lineup under Wisconsin law has already
been litigated.5 The circuit court thus properly concluded that the issue is
procedurally barred from relitigation. See Witkowski, 163 Wis. 2d at 990 (“A
matter once litigated may not be relitigated in a subsequent postconviction
proceeding no matter how artfully the defendant may rephrase the issue.”).

¶11 Finally, to the extent that Jackson intended to argue that his appellate
attorney was ineffective for abandoning the lineup issue and not pursuing it further
on appeal, the circuit court correctly noted that claims of ineffective appellate
counsel must be addressed to this court by way of a petition for a writ of habeas
corpus. See Knight, 168 Wis. 2d at 520; see also State ex rel. Warren v. Meisner,

5
As the postconviction court explained:

[T]he defendant’s Sixth Amendment right to counsel did not
attach until he was charged either by complaint or information
(not when bail was set). See State v. Lale, 141 Wis. 2d 480,
486[, 415 N.W.2d 847] (Ct. App. 1987) (holding that when a
defendant has been arrested, but has not been charged either by
complaint or information, he is not entitled to Sixth Amendment
protection as a matter of constitutional right). Therefore, [trial]
counsel cannot be deemed ineffective for failing to file a
suppression motion on this basis.

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No. 2019AP2306

2020 WI 55, ¶¶33-36, 392 Wis. 2d 1, 944 N.W.2d 588. Accordingly, the circuit
court did not err when it denied Jackson’s motions.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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