### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 30752

EDWARD C. JACKSON,

Petitioner

- Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent

- Appellee

Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:14

- CV

- 396

Before STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT, Circuit Judges.

PER CURIAM: *

At the conclusion of his bench trial

, in 2006, Appellant, Edward C.
Jackson, Louisiana prisoner # 96696, was convicted of arm ed robbery and being

a felon with a firearm . Initially se ntenced to serve 10 years of imprisonment

on each count , Jackson was later re

- sentenced

, as a habitual offender

, to 99 years of imprisonment. State v. Jackson , 19 So. 3d 631, 632, 637 (La. Ct. App.
2009), rev’d in part , 55 So. 3d 767, 773 (La. 2011).

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 27, 2019 Lyle W. Cayce Clerk Case: 16-30752 Document: 00514854066 Page: 1 Date Filed: 02/27/2019No. 16

- 30752

2 Having failed to obtain appellate or post

- conviction relief in the state

court system, Jackson filed a petition for a writ of habeas corpus, pu rsuant to 28 U.S.C. § 2254 , in federal district court

. In seekin g federal habeas relief,
Jackson argues , amongst other things, that his trial counsel’s failure to

interview the victim, Kenneth Williams ; failure to check Williams’ criminal
history ; and failure to investigate Williams’ mental history ( which would have
revealed a schizophrenia diagnos is ) constitute ineffective assistance of

counsel. 1 Absent th ese error s , Jackson contends, his coun sel would have

discovered important exculpatory evidence that likely wo uld have yielded a

differ ent verdict relative to his armed robbery charge.

In s u p port of this assertion, Jackson points to a n affidavit purportedly
executed by Williams in June 2008 , which states:
1) I testified that Defendant Jackson robbed me of $ 300.00. 2) Defendant Jackson never took any finances from me through threat

. 3 ) I became angry at Mr. J ackson because he kept $8.00 that I had given him and I tried to press into his Motel Room. 2
3) I owed him right at that amount for a haircut.
4) I am M edically Diagnosed S c hizophrenic, and my disease

cau ses me to do thing s for which I later regret

. 5) Once I filed the complaint against Mr. Jackson, I feared to stand up and say he did not take the money from me. 3

1 Jackson asserted additional grounds for relief in his amended habeas petition. Th is
court
, however, issued a certificate of appealability only as to Jackson’s claim that his trial counsel was ineffective in not interviewing or investigating the victim.

2 Jackson’s t rial testimony and affidavit ( submitted in support of his motion for new trial for newly discovered evidence ) regarding the events of the day in question, November 18, 2005, provide information helpful to understanding the meaning of this sentence. Williams’ trial testimony, when considered together with his affidavit, also is helpful.

3 Williams’ affidavit was originally prepare d in connection with Jackson’s motion for a new trial based on newly discovered evidence, which was denied in state court as untimely filed. See J ackson , 55 So. 3d at 770 n.2. That decision was affirmed by the Louisiana court Case: 16-30752 Document: 00514854066 Page: 2 Date Filed: 02/27/2019No. 16

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3 Thus, Jackson contends, had his trial attorney interviewed Williams and

conducted an appropriate investigation, he would have discovered the
exculpat ory information set forth in Williams ’ affidavit.

A lthough Jackson expressly reference s the Williams affidavit in his
§2254 application, and inc luded the document in his exhibit s , neither the

“ Report and Recommendation of the Magistrate Judg e , ” nor the d istrict ju dge’s
Judgment , which adopts the R eport and R ecommendation, discusses, or even
acknowledges, the Williams affidavit or the information s et forth therein

. Moreover, in recommending that Jack s on’s § 2254 application be den ied, the
magistrate judge stated : First, Jackson contends his trial counsel failed to interview Williams concerning the robbery. Jackson contends that, had his attorney i nvestigated Williams, he would have gotten a statement or affidavit that would have shown that Jackson did not rob Williams. However, the police report shows that Williams reported to the police that Jackson robbed him of $300 at gunpoint. Jackson has not alleged or shown that Williams ever gave a statement, an affidavit, or t estimony that was favorable to him

, and the evidence does not indicate that Williams would have done so had his t rial counsel interviewed him. Jackson’s speculation as to what Williams might have said in an interview is not enough to prove his attorney’s investig ation was inadequate

. 4

Thus, on the instant record, it is not entirely clear whether the district

court actually was apprised of the Williams affidavit ’s existence and considered
its contents in evaluating Jackson’ s §2254 application

. Nor can we speculate,
giv en the stakes at issue, and the already disparate views of the sufficiency of

the evidence reflected in the state court record of Jackson’s direct appeal.

Accordi ngly, to enable us to properly determine Jackson’s appeal, we must first

of appeal, and Jackson never sought review of that aspect of the court of appeal’s decision. Id.

4 See April 5, 2016 Report and Recommendation of Magistrate Judge at 7

- 8 (emphasis added). Case: 16-30752 Document: 00514854066 Page: 3 Date Filed: 02/27/2019No. 16

- 30752

4 remand this matter to the district court for its assessment of the Williams

affi davit rel ative to the merits of Jackson ’ s § 2254 application.

We REMAND this matter for the district court for action consistent with
this opinion. Case: 16-30752 Document: 00514854066 Page: 4 Date Filed: 02/27/2019