Present: All the Justices 

PARADICE CARNELL JACKSON, II 

 OPINION BY 

v. Record No. 042130 JUSTICE LAWRENCE L. KOONTZ, JR. 

 September 16, 2005 

GERALD K. WASHINGTON, WARDEN, 

 BUCKINGHAM CORRECTIONAL CENTER 

FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

James W. Haley, Jr., Judge 

This appeal arises from a judgment of the Circuit Court of 

Stafford County dismissing a petition for a writ of habeas 

corpus filed by Paradice Carnell Jackson, II. The sole issue we 

consider is whether the circuit court erred in denying Jackson’s 

claim in the petition that his trial counsel rendered 

ineffective assistance of counsel by failing to object to 

Jackson being tried before a jury while wearing a jail-issued 

“jumpsuit.” 

BACKGROUND 

On April 3, 2000, Jackson was indicted by the grand jury of 

Stafford County on two counts of statutory burglary, Code 

§ 18.2-91, and two counts of grand larceny, Code § 18.2-95, 

arising from the breaking and entering on two occasions in March 

2000 of a home in Stafford County owned by Darlene A. Kenyon and 

previously occupied by her friend, Cheryl England. Personal 

property belonging to each woman had been taken during the 

burglaries. The larceny indictments were subsequently amended 
2

to charge Jackson with the felony offenses of petit larceny, 

third or subsequent offense under Code § 18.2-96. 

While he was being held in jail awaiting trial, jail 

personnel misplaced Jackson’s civilian clothes. Jackson 

unsuccessfully attempted to utilize the administrative 

procedures of the jail to have his clothes returned to him or to 

be compensated for their loss prior to his trial. Jackson was 

advised by the jail superintendent that the staff was attempting 

to locate his clothes and that upon his “release or transfer” he 

would be compensated for their loss, if still missing at that 

time. 

Jackson also discussed with his court-appointed counsel his 

desire to obtain civilian clothes to wear during his trial and, 

in that regard, advised counsel to contact his mother. Counsel 

“made several attempts to contact [Jackson’s] mother, but never 

received any response from her.” Jackson was ultimately tried 

on the indictments before a jury in the Circuit Court of 

Stafford County (the trial court) beginning on April 12, 2001. 

The record of Jackson’s jury trial does not contain a 

description of the jail-issued jumpsuit that Jackson wore 

throughout his trial. It is not disputed, however, that the 

jumpsuit was readily identifiable as jail clothing. 

Additionally, it is undisputed that Jackson’s counsel did not 

object to Jackson being required to appear before the jury in 
3

the jumpsuit, request a cautionary instruction from the trial 

court, or seek a continuance of the trial so that Jackson could 

obtain civilian clothes to wear at trial. 

During the trial, the Commonwealth presented a strong 

evidentiary case, although largely circumstantial, in support of 

Jackson’s guilt of the charges asserted in the indictments. For 

purposes of our resolution of this appeal, a detailed summary of 

that evidence is unnecessary. Jackson’s credibility as a 

witness in his own defense, however, ultimately became a 

critical issue to be considered by the jury. 

The Commonwealth’s evidence established that Kenyon, the 

owner of the home in question, lived in Alexandria and visited 

her home in Stafford County “approximately every two weeks.” 

Until early in March 2000, she had permitted England to occupy 

the home. Kenyon’s home was burglarized on or about March 9 and 

again on March 26. During this time, England was in the final 

stage of removing her personal property from the home to another 

residence where she then actually resided. Various items of 

personal property, including televisions, stereos, an answering 

machine, and a vacuum cleaner, belonging to Kenyon or England 

were taken during the two burglaries. 

On the night of the March 26 burglary, neighbors observed 

“lights blink on” in Kenyon’s home and then a vehicle leaving 

the driveway of the home without its lights activated. 
4

Suspecting a burglary had taken place, the neighbors promptly 

contacted the local sheriff’s department and provided a 

description of the vehicle and its license tag number. A deputy 

sheriff en route to investigate the possible burglary 

encountered the vehicle described by the neighbors. The deputy 

stopped the vehicle and questioned the three male occupants, 

including Jackson, who occupied the back seat. Property in the 

vehicle, subsequently identified as having been taken from 

Kenyon’s home, was impounded. The three occupants of the 

vehicle were not arrested at that time. 

In the course of investigating the burglaries, a sheriff’s 

detective interviewed Jackson and subsequently found more 

property that had been taken from the home in his possession. 

It was further determined that earlier Jackson had pawned a 

television set that had been taken from the home. 

Jackson testified at length at his trial, asserting his 

innocence of the charges against him. Essentially, he 

maintained that until the vehicle in which he was a passenger 

was stopped by the deputy sheriff on March 26, he was unaware 

that the burglaries had occurred and that the personal property 

in question had been stolen. He further maintained that he had 

only been to Kenyon’s home on March 26 and at that time he did 

not enter the home although he thought that because it was 

unoccupied the property had been “abandoned.” Additionally, 
5

Jackson maintained that he had mistakenly thought that the 

property he had pawned belonged to a friend who had asked him to 

sell it. In sum, Jackson asked the jury to believe that he was 

an innocent bystander to the crimes committed by his two 

companions.1

The jury returned verdicts convicting Jackson of all the 

charges against him and recommended prison sentences of seven 

years for each of the burglary convictions and three years for 

each larceny conviction. Prior to his sentencing hearing, 

Jackson filed a pro se motion to set aside the jury’s verdicts 

in which he argued, inter alia, that his counsel had been 

ineffective in “fail[ing] to object to [Jackson’s] being forced 

to wear a jail issue jump suit before the jury.” The trial 

court denied this motion and imposed sentence in accord with the 

jury’s verdicts. 

Jackson challenged his convictions on direct appeal to the 

Court of Appeals, asserting, inter alia, that in the trial court 

he had erroneously been compelled to appear before the jury in 

the jail-issued jumpsuit. In an unpublished opinion, the Court 

of Appeals affirmed Jackson’s convictions, holding that the 

 

1

 On brief, we are told by Jackson’s habeas counsel that 

Jackson’s companions had been convicted of these crimes prior to 

Jackson’s trial. The Commonwealth did not call either of them 

as a witness at Jackson’s trial. 
6

issue whether Jackson had been improperly required to appear 

before the jury in jail clothes was barred by his counsel’s 

failure to make an objection in the trial court, Rule 5A:18. 

Jackson v. Commonwealth, Record No.1675-01-4, slip op. at 2 

(October 29, 2002). Jackson’s petition for appeal to this Court 

was refused. Jackson v. Commonwealth, Record No. 022798 (May 

28, 2003). 

On October 14, 2003, Jackson filed a pro se petition for a 

writ of habeas corpus in the Circuit Court of Stafford County 

(the circuit court) against Gerald K. Washington, Warden of the 

Buckingham Correctional Center. In his petition Jackson 

asserted that his trial counsel had been ineffective in failing 

to object to his “being tried in front of a jury in a prison 

‘jumpsuit’ after the jail lost my civilian clothes.” 

The Commonwealth, on behalf of the warden, filed a motion 

to dismiss Jackson’s petition on the ground that Jackson’s trial 

counsel was not “constitutionally obligated to object” to the 

fact that Jackson was required to wear jail clothes during his 

jury trial. The Commonwealth further contended that even if 

counsel’s performance had been deficient, Jackson had failed to 

demonstrate any prejudice arising from counsel’s deficient 

performance because there was no “reasonable probability of a 

different result at trial” had Jackson appeared in civilian 

clothes. In an affidavit from Jackson’s trial counsel obtained 
7

by the Commonwealth in support of its motion to dismiss, counsel 

conceded that Jackson had expressed a desire not to appear 

before the jury in jail clothes, but maintained that at the time 

of trial Jackson “was most anxious to have these matters 

resolved quickly.” Although counsel opined that Jackson’s 

“appearance in a jail jumpsuit was not prejudicial nor did it 

. . . impact the jury’s impression of [him],” she did not 

indicate that her failure to object to the trial proceeding 

under those circumstances was based upon a trial strategy. 

The circuit court reviewed Jackson’s petition on the record 

without conducting a hearing. As relevant to this appeal, in an 

order dated June 18, 2004, the circuit court dismissed Jackson’s 

petition, finding that “trial counsel reasonably chose not to 

object to Jackson being tried in a [jail] jumpsuit” as a 

“tactical decision” which did not “prejudice Jackson within the 

meaning of Strickland [v. Washington, 466 U.S. 668 (1984)].” We 

awarded Jackson this appeal. 

DISCUSSION 

Beyond question, an accused, consistent with the 

constitutional right to a fair trial, may not be compelled to 

stand trial before a jury wearing clearly identifiable jail or 

prison clothes. Estelle v. Williams, 425 U.S. 501, 504-05 

(1976). This is so because being compelled to appear before a 

jury in clearly identifiable jail or prison clothes may 
8

undermine the fairness of the fact-finding process and, thus, 

violate the accused’s fundamental right to a presumption of 

innocence while furthering no essential state interest. Id. 

Additionally, because “compelling the accused to stand trial in 

jail garb operates usually against only those who cannot post 

bail prior to trial [it is] repugnant to the concept of equal 

justice embodied in the Fourteenth Amendment.” Id. at 505-06. 

Whether an accused’s due process rights have been violated 

turns on the determination whether his being made to appear 

before the jury in jail or prison clothes is the result of 

actual state compulsion, a determination the reviewing court 

makes on a case-by-case basis. Id. at 512-13. In the absence 

of a per se rule, it has been held in one case that when the 

accused’s civilian clothes are lost while in the possession of 

the state, and he is not afforded the opportunity to obtain 

replacement clothes, the state effectively compels the accused 

to stand trial in prison clothes. Felts v. Estelle, 875 F.2d 

785, 786 (9th Cir. 1989). 

When the issue is raised in a direct appeal, however, 

courts applying Estelle v. Williams have generally held that if 

the accused did not formally object to standing trial in jail or 

prison clothes or otherwise make known to the trial court that 

he desired to wear civilian clothes during his trial, he was not 

compelled to stand trial in jail clothes. See, e.g., Smith v. 
9

United States, 182 F.3d 1023, 1025 (8th Cir. 1999); United 

States v. Martin, 964 F.2d 714, 719 (7th Cir. 1992). In other 

words, “[b]ecause the ‘particular evil proscribed’ is 

compulsion,” a defendant must properly object to being compelled 

to appear before the jury in prison clothes, and the failure to 

do so in a timely fashion will constitute a waiver of the issue 

for the purposes of trial and direct appeal. United States v. 

Hurtado, 47 F.3d 577, 581 (2d Cir. 1995) (citing Estelle v. 

Williams, 425 U.S. at 507-10); see also Martin, 964 F.2d at 719. 

The issue presented in this habeas proceeding is not 

whether Jackson waived an objection to being compelled to stand 

trial before the jury in jail clothes. Rather, the issue is 

whether the representation of Jackson’s counsel “fell below an 

objective standard of reasonableness” and that counsel’s errors 

were “so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and, 

if so, whether that “deficient performance prejudiced the 

defense,” meaning that “counsel’s errors were so serious as to 

deprive the defendant of a fair trial.” Strickland, 466 U.S. at 

687-88. Thus, the fact that counsel’s failure to object to 

Jackson’s appearing before the jury in jail clothes acted as a 

waiver of that issue on direct appeal does not preclude this 

habeas appeal. 
10

In Estelle v. Williams, the issue whether the failure of 

the accused’s counsel to object to the accused standing trial in 

jail clothes fell below an objective standard of reasonableness 

for effective representation was not at issue. But see 425 U.S. 

at 534-35 (Brennan, J., dissenting) (noting that issue of 

ineffective assistance of counsel was raised, but not addressed, 

by the lower courts). Nonetheless, the Supreme Court opined 

that an accused and his counsel might affirmatively choose to 

have the accused appear in jail clothes as a tactical decision 

in the hope of eliciting sympathy from the jury. Under such 

circumstances, the resulting waiver of the accused’s right not 

to be required to stand trial in jail clothes would be 

objectively reasonable. Estelle v. Williams, 425 U.S. at 508. 

Claims for habeas relief also have been denied on the basis 

that the record reflected an affirmative decision by counsel 

and/or the accused to have the accused appear before the jury in 

jail clothes. See, e.g., Demurjian v. State, 727 So.2d 324, 327 

(Fla. Ct. App. 1999); see also Garcia v. Beto, 452 F.2d 655, 656 

(5th Cir. 1971) (pre-Estelle v. Williams decision holding that 

counsel’s affirmative decision to have accused appear before 

jury in jail clothes was objectively reasonable); State v. 

Buttner, 489 So.2d 970, 975 (La. Ct. App. 1986) (denying 

ineffective assistance claim on direct appeal based on trial 

strategy of having accused appear before jury in jail clothes). 
11

However, where the record does not disclose an affirmative 

decision for the accused to appear before the jury in jail 

clothes as part of a trial strategy, the failure of counsel to 

object to that circumstance has been held to fall below the 

objective standard for reasonableness for effective legal 

representation. See, e.g., Felts, 875 F.2d at 786; Gaito v. 

Brierly, 485 F.2d 86, 88-90 & n.3 (3rd Cir. 1973); Lewis v. 

State, 864 So.2d 1211, 1212 (Fla. Ct. App. 2004); Ex parte 

Clark, 545 S.W.2d 175, 177 (Tex. Crim. App. 1977); see also

Hernandez v. Beto, 443 F.2d 634, 637 (5th Cir. 1971) (preEstelle v. Williams decision rejecting “strategic decision” 

argument and awarding habeas relief where record did not support 

government’s contention that accused affirmatively refused to 

wear civilian clothes). 

We find no support in the record of the present case for 

the circuit court’s conclusion that Jackson’s counsel 

affirmatively chose not to object to Jackson being tried before 

the jury in a jail-issued jumpsuit. Counsel’s affidavit merely 

states that she perceived that Jackson was “most anxious to have 

these matters resolved quickly.” However, counsel was also 

aware that Jackson was equally anxious to have civilian clothes 

to wear at his trial. Moreover, it is clear that Jackson 

intended to testify and that his credibility would be at issue. 

Accordingly, we conclude that the decision to permit the trial 
12

to go forward without objecting to Jackson being attired in jail 

clothes was not the result of a strategic decision reached by 

counsel after consultation with her client. 

The record in this case affirmatively establishes that jail 

personnel misplaced Jackson’s civilian clothes, failed to locate 

them, and failed to provide him with the means to obtain 

civilian clothes prior to his trial. Those circumstances 

coupled with the nominal effort, at best, of his counsel to 

obtain civilian clothes for Jackson despite her awareness of his 

desire not to stand trial before the jury in jail clothes, 

clearly mandate the conclusion that Jackson was unlawfully 

compelled to stand trial before the jury in jail clothes. In 

light of the well-established law under Estelle v. Williams, its 

precursors and its progeny, that an accused has the 

constitutional right not to be compelled to stand trial before a 

jury in jail clothes such as those worn by Jackson in this case, 

it is self-evident that the failure of Jackson’s counsel to 

raise an objection at the outset of Jackson’s trial fell below 

the objective standard of reasonableness for effective 

assistance of counsel as provided by the Sixth Amendment. 

Accordingly, we hold that Jackson has satisfied the 

“performance” prong of the test under Strickland. 

Under Strickland, of course, a finding that counsel’s 

representation of a defendant fell below the objective standard 
13

of reasonableness, standing alone, is insufficient to warrant 

the granting of habeas relief. Rather, “[e]ven if a defendant 

shows that particular errors of counsel were unreasonable . . . 

the defendant must show that they actually had an adverse effect 

on the defense.” Strickland, 466 U.S. at 693; accord Hedrick v. 

Warden, 264 Va. 486, 496, 570 S.E.2d 840, 847 (2002); Moore v. 

Hinkle, 259 Va. 479, 487, 527 S.E.2d 419, 423 (2000); Murray v. 

Griffith, 243 Va. 384, 388, 416 S.E.2d 219, 221 (1992). 

Accordingly, we turn now to consider whether under the 

particular circumstances of this case Jackson has satisfied the 

so-called “prejudice” prong of the test under Strickland. 

The Commonwealth contends that the evidence of Jackson’s 

guilt was so overwhelming as to overcome any prejudice resulting 

from his being compelled to appear before the jury in the jailissued jumpsuit. We disagree. The Commonwealth’s case was 

based primarily on the circumstantial evidence of Jackson being 

in possession of property recently stolen from Kenyon’s home and 

his presence at or near that home on one occasion. Standing 

alone, this evidence would have been sufficient for the jury to 

have reasonably concluded that Jackson unlawfully broke and 

entered Kenyon’s home and stole the items of personal property 

belonging to Kenyon and England that were subsequently found in 

his possession. The Commonwealth’s evidence, however, did not 

stand alone. Granting Jackson a presumption of innocence, the 
14

jury was required to consider all of the evidence, including 

Jackson’s trial testimony that, if accepted as truthful, would 

have established an innocent explanation for his presence at 

Kenyon’s home and his subsequent possession of the stolen 

property. In this context, Jackson’s credibility before the 

jury was a critical issue in the necessary determination of his 

guilt beyond a reasonable doubt. Indeed, his entire defense 

depended upon the jury’s favorable consideration of his 

credibility. 

We have not previously had occasion to consider the impact 

upon a criminal trial of an accused being compelled to stand 

trial before a jury in jail or prison clothes.2

 That fact alone 

suggests the sensitivity and respect by the bench and bar of 

this Commonwealth for an accused’s right to a fair trial and, 

thus, that the incidence of such an occurrence is rightfully 

rare. Nevertheless, we find ample guidance in our resolution of 

this case, again from Estelle v. Williams. Our task is not to 

independently weigh the evidence presented by the Commonwealth 

 

2

 We have, however, recognized that requiring an accused to 

appear before a jury in shackles may impermissibly prejudice an 

accused’s right to a fair trial. See, e.g., Frye v. 

Commonwealth, 231 Va. 370, 381, 345 S.E.2d 267, 276 (1986). 

Additionally, the Court of Appeals has addressed the issue of an 

accused’s appearance in shackles as affecting the accused’s 

presumption of innocence. Martin v. Commonwealth, 11 Va. App. 

397, 404, 399 S.E.2d 623, 627 (1990); Miller v. Commonwealth, 7 

Va. App. 367, 371, 373 S.E.2d 721, 723 (1988). 
15

and Jackson at the trial. We do not attempt to determine 

whether Jackson would have been a credible witness if he had not 

been compelled to appear before the jury in the jail-issued 

jumpsuit. Rather, we evaluate the likely effect of compelling 

Jackson to appear before the jury in that attire “based on 

reason, principle, and common human experience.” Estelle v. 

Williams, 425 U.S. at 504. 

It is difficult to conceive of a circumstance more likely 

to disadvantage an accused than compelling him to testify in his 

own defense to the jury while wearing jail clothes. Reason and 

common human experience dictate, at a minimum, that the 

accused’s appearance in jail clothes is such a badge of guilt 

that it would render an accused’s assertion of innocence less 

than fully credible to the jury. Beyond question, in our view, 

such an occurrence “is so likely to be a continuing influence 

throughout the trial that . . . an unacceptable risk is 

presented of impermissible factors coming into play.” Id. at 

505. Such an unacceptable risk in the form of denying Jackson a 

presumption of innocence is almost palpable under the 

circumstances of Jackson’s case. 

Thus, under the specific facts of this case, we hold that 

counsel’s failure to object to Jackson being compelled to stand 

trial before the jury in jail clothes satisfies the prejudice 
16

prong of the test under Strickland in that counsel’s failure 

prejudiced Jackson’s right to a fair trial.3

CONCLUSION 

For these reasons, we hold that the circuit court erred in 

dismissing Jackson’s petition for a writ of habeas corpus. 

Accordingly, we will reverse the judgment appealed from, set 

aside Jackson’s convictions, and remand the case to the circuit 

court with directions to issue the writ of habeas corpus and 

grant Jackson a new trial on the indictments at issue if the 

Commonwealth be so advised. 

Reversed and remanded. 

JUSTICE KINSER, with whom JUSTICE AGEE joins, dissenting. 

To prevail on a claim of ineffective assistance of counsel 

in a petition for a writ of habeas corpus, a convicted defendant 

must satisfy the two-part test set out in Strickland v. 

Washington, 466 U.S. 668, 687 (1984), i.e., “that counsel’s 

performance was deficient” and “that the deficient performance 

prejudiced the defense.” Id. I conclude that the convicted 

defendant in this case, Paradice Carnell Jackson, II, failed to 

establish the prejudice prong of the Strickland test. Jackson 

 

3

 Because we conclude that Jackson’s right to a fair trial 

was unlawfully prejudiced during the guilt-determination phase 

of his trial, we need not consider whether that constitutional 

right was infringed upon during the sentencing phase of 

Jackson’s trial. 
17

did not prove “that there is a reasonable probability that, but 

for counsel’s [alleged] unprofessional error[], the result of 

the proceeding would have been different.” Id. at 694. Thus, I 

respectfully dissent. 

In deciding a claim of ineffective assistance of counsel, 

it is not always necessary to decide “whether counsel’s 

performance was deficient before” determining whether a 

defendant suffered prejudice as a result of counsel’s alleged 

errors. Id. at 697. As the Supreme Court stated in Strickland, 

“[i]f it is easier to dispose of an ineffectiveness claim on the 

ground of lack of sufficient prejudice, . . . that course should 

be followed.” Id.; see also Yarbrough v. Warden, 269 Va. 184, 

197, 609 S.E.2d 30, 38 (2005). Because that is true in this 

case, I will address only the prejudice prong of the Strickland

two-part test. 

The majority holds that counsel’s failure to object to 

Jackson’s being tried before a jury while wearing “jail clothes” 

satisfies the prejudice prong of the Strickland test. The 

majority reaches that conclusion by “evaluat[ing] the likely 

effect of compelling Jackson to appear before the jury in that 

attire ‘based on reason, principle, and common human 

experience’ ” (quoting Estelle v. Williams, 425 U.S. 501, 504 

(1976)). The appropriate test for prejudice, however, is not 

the “likely effect” of counsel’s alleged deficient performance 
18

but whether “there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694. This well-established test 

enunciated in Strickland is the one I will apply, as this Court 

has done on many occasions. See, e.g. Yarbrough, 269 Va. at 

196, 609 S.E.2d at 37; Lovitt v. Warden, 266 Va. 216, 249, 585 

S.E.2d 801, 820 (2003), cert. denied, 541 U.S. 1006 (2004); 

Sheikh v. Buckingham Corr. Ctr., 264 Va. 558, 564, 570 S.E.2d 

785, 788 (2002); Williams v. Warden, 254 Va. 16, 23, 487 S.E.2d 

194, 198 (1997). 

Since Jackson challenges his convictions, “the question,” 

in assessing prejudice, “is whether there is a reasonable 

probability that, absent the errors, the factfinder would have 

had a reasonable doubt respecting guilt.” Strickland, 466 U.S. 

at 695. In answering that question, “a court hearing an 

ineffectiveness claim must consider the totality of the evidence 

before the judge or jury,” id., and “must ask if the defendant 

has met the burden of showing that the decision reached would 

reasonably likely have been different absent the errors.” Id.

at 696. The burden of a convicted defendant attacking a 

judgment of conviction in a habeas corpus proceeding is to prove 

the allegations asserted in the petition by a preponderance of 
19

the evidence. Green v. Young, 264 Va. 604, 608, 571 S.E.2d 135, 

138 (2002); Curo v. Becker, 254 Va. 486, 489, 493 S.E.2d 368, 

369 (1997). 

In the case before us, the overwhelming evidence of 

Jackson’s guilt demonstrates that there is not a reasonable 

probability that, but for his counsel’s failure to object to his 

wearing of “jail clothes,” the jury’s verdict would have been 

different. The evidence at trial showed that the home of 

Darlene A. Kenyon was burglarized on two occasions in March 

2000. Pawnshop records containing Jackson’s signature and 

physical description established that, on March 8, 2000, he sold 

a television to the pawnshop operator. A deputy sheriff later 

determined that the television had been stolen from the Kenyon 

home. 

In the early morning hours of March 9, 2000, another deputy 

sheriff, C. W. Reed, attempted to stop a vehicle for traveling 

at a rate of speed in excess of the posted speed limit. Deputy 

Reed had to pursue the vehicle for approximately ten miles 

before it stopped. The driver then fled on foot until he was 

apprehended about 100 yards from the vehicle. Jackson was later 

identified as the driver. The vehicle was impounded and 

subsequently searched pursuant to a search warrant. During the 

search, items of personal property were found in the vehicle’s 

trunk. Several of those items were identified as having been 
20

stolen from the Kenyon home and belonging to either Kenyon or 

her friend, Cheryl England. Some of the personal property in 

the trunk that did not belong to either woman included a pair of 

black gloves, two flashlights, two screwdrivers, and a pair of 

pliers, which were obviously tools that could be used in a 

burglary. 

Continuing, on the evening of March 26, 2000, Michael G. 

Hunt, who lived next to the Kenyon residence, saw lights blink 

on and off a couple of times in the Kenyon house and then heard 

“banging” noises coming from it. Hunt then walked toward the 

house with a flashlight and wrote down the license plate number 

of a vehicle that was sitting in the Kenyon driveway. As his 

wife was calling the police to report what Hunt had observed, 

the vehicle backed out of the driveway and proceeded along a 

road with its lights off. 

About 10 minutes after receiving a police dispatch to be on 

the lookout for the vehicle Hunt had seen in the Kenyon 

driveway, Deputy David M. Stout, Jr., executed a traffic stop on 

that same vehicle. Jackson was sitting in the back seat of the 

vehicle next to a “really big” box speaker. Kenyon later 

identified that speaker along with another speaker and a vacuum 

cleaner, which were both found in the trunk of the vehicle, as 

property stolen from her home. 
21

The evidence against Jackson does not end here. He also 

confessed to the crimes, a fact the majority does not mention. 

After the impounded vehicle had been searched and some of the 

stolen property recovered, a police detective, John W. Shelton, 

III, talked with Jackson and asked him where the remaining 

stolen property was located. Jackson responded that “the only 

. . . stolen property that he was aware of was the stolen 

property that was in he [sic] and [the] other person’s 

possession the night they were pulled over and stopped by Deputy 

Stout.” During that interview, Jackson changed his version of 

the events several times when confronted with inaccuracies in 

his statements. He eventually confessed, orally and in a 

written statement, to stealing two speakers, a vacuum cleaner, 

an answering machine, two televisions, and two video-cassette 

recorders. He also admitted to entering the Kenyon home on the 

second occasion.∗

At trial, Jackson denied knowing that the television he 

sold at the pawnshop and the items found in the two vehicles 

were stolen. He also claimed that he did not enter the Kenyon 

home on March 26, 2000 but merely sat in a vehicle outside the 

 

∗

 Jackson also maintained that he did not know anyone lived 

at the Kenyon home and thought it was abandoned. His assertion 

that he entered the home through the unlocked front door was not 

consistent with the physical evidence showing that the home had 
22

house. When asked why he thought he and his companions were at 

that particular residence, Jackson responded, “I was just out 

trying to clear my head, because I had had an altercation with 

the female that I was with at the time.” Finally, he testified 

that he gave four different statements to Detective Shelton 

“[o]ut of fear.” 

Given this evidence of Jackson’s guilt and the nature of 

his explanations for why he was in possession of stolen property 

and present at the Kenyon house, Jackson’s credibility, contrary 

to the majority’s view, was not “a critical issue in the 

necessary determination of his guilt beyond a reasonable doubt.” 

Considering the totality of the evidence before the jury, I 

conclude that Jackson did not carry his burden to show that, 

absent his counsel’s alleged error, “the decision reached would 

reasonably likely have been different.” Strickland, 466 U.S. at 

696; see also, French v. State, 778 N.E.2d 816, 826 (Ind. 2002) 

(evidence against the defendant was clear and he was therefore 

not prejudiced by appearing in jail clothes); State v. King, 804 

So. 2d 57, 61 (La. Ct. App. 2001) (defendant was unable to show 

that counsel’s failure to object to his wearing prison clothing 

amounted to prejudice where evidence of his guilt was 

overwhelming); State v. Kachovee, 2001 Ohio 2382, at *13–14 

 

been broken into. The basement door had a broken window, and 
23

(Ohio Ct. App. 2001) (failure of counsel to object to defendant 

wearing prison clothing did not meet the prejudice standard in 

Strickland where there was ample evidence to support his 

conviction); Humbert v. South Carolina, 548 S.E.2d 862, 865-66 

(S.C. 2001) (due to the overwhelming evidence against the 

defendant, he was not prejudiced under Strickland when counsel 

allowed him to appear at trial in a prison jumpsuit). 

Likewise, Jackson did not show that there was a reasonable 

probability that, but for his counsel’s alleged error, the 

result of the sentencing phase of his trial would have been 

different. Jackson had an extensive criminal history consisting 

of multiple prior felony and misdemeanor convictions. Notably, 

Jackson had been found guilty of rape, arson, burglary, petit 

larceny, brandishing a firearm and the unauthorized use of a 

vehicle. At the time of the commission of the crimes at issue, 

Jackson was on a probationary period requiring good behavior. 

In sentencing Jackson in accordance with the jury verdict, the 

trial court found that the sentence fixed by the jury was not 

disproportionate compared to the seriousness of the crimes, 

“particularly in light of Mr. Jackson’s criminal history.” 

 

the garage door had a missing panel on the bottom. 
24

For the these reasons, I respectfully dissent and would 

affirm the judgment of the circuit court dismissing Jackson’s 

petition for a writ of habeas corpus.