Jenkins v. Allen

Filing 53

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/31/2015. (JLC)

FILED
2015 Mar-31 PM 01:56
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MARK ALLEN JENKINS,

)
)
Petitioner,
)
)
v.
) Case no. 4:08-00869-VEH-SGC
)
RICHARD ALLEN, Commissioner, )
Alabama Department of Corrections, )
)
Respondent.
)
__________________________________________________________________
MEMORANDUM OPINION
The petitioner, Mark Allen Jenkins (“Jenkins”), is an Alabama state inmate
sentenced to death. Before the court is Jenkins’s motion for an evidentiary hearing
on the claim that he is mentally retarded under Atkins v. Virginia, 536 U.S. 304
(2002). (Doc. 49). For the following reasons, the petitioner’s Atkins claim is without
merit, and he is not entitled to an evidentiary hearing on this claim.
I. PROCEDURAL HISTORY
In June 1989, Jenkins was indicted in the St. Clair County Circuit Court on two
counts of capital murder for the strangling death of Tammy Ruth Hogeland. (C.R.
Vol. 10, Tab 27 at 23).1 The indictment charged that Jenkins intentionally killed Ms.
1

The court will utilize the following method of citation to the record. References to specific pages
of the court record on direct appeal are designated “(C.R.__ )” and references to the transcript on
direct appeal are designated “(R.__ ).” References to the court record of the Rule 32 proceedings

Hogeland during the course of a robbery2 and kidnapping.3 Jenkins was represented
at trial by Douglas Scofield and Stan Downey. The guilt phase of the trial
commenced on March 12, 1991. (C.R. Vol. 45, Tab 73 at 1). On March 19, 1991,
Jenkins was convicted as charged. (Id.). After a twenty-minute recess, the court
proceeded with the penalty phase of the trial.4 (Id.). Later that day, the jury
recommended by a vote of 10-2 that Jenkins be sentenced to death. (Id.; R. Vol. 9,
Tab 24 at 1763). At the April 10, 1991 sentencing hearing,5 the trial court followed
the jury’s recommendation and sentenced Jenkins to death. (R. Vol. 9, Tab 26 at
1795).
Jenkins was represented by Douglas Scofield on direct appeal. He raised a
variety of issues on appeal, including: (1) insufficiency of the evidence; (2) the

are designated “(Rule 32 C.R. __ )” and references to the transcript of the Rule 32 hearing are
designated “(Rule 32 R. __ ).” The court will strive to list any page number associated with the court
records by reference to the numbers at the bottom of each page of a particular document, if said
numbers are the most readily discoverable for purposes of expedient examination of that part of the
record. Otherwise, the page numbers shall correspond with those listed at the upper right hand
corner of the record. Additionally, the court has cited to any easily identifiable tab numbers close
to any cited material for the reader’s benefit.
2

See Ala. Code § 13A-5-40(a)(2) (1975).

3

See Ala. Code § 13A-5-40(a)(1) (1975).

4

Jenkins’s friend Lonnie Seal was the only witness at the penalty phase. She testified that Jenkins
was a good friend, who was helpful, generou,s and kind. Seal further testified that he trusted
Jenkins, even with his wife and baby. (R. Vol. 9, Tab 19 at 1718-27).
5

The transcript of the sentencing hearing is located at R. Vol. 9, Tabs 25-26.
2

court’s failure to suppress physical evidence; (3) the admission of testimony from
several prosecution witnesses; (4) the selection of the jury; (5) alleged violations of
Batson v. Kentucky, 476 U.S. 79 (1986); (6) the court’s findings on aggravating and
mitigating circumstances; (7) prosecutorial misconduct during closing arguments in
the guilt and sentencing phases; and (8) the court’s jury instructions. (C.R. Vol. 12,
Tabs 28, 30, 32). The Alabama Court of Criminal Appeals affirmed Jenkins’s
convictions and sentence on February 28, 1992. Jenkins v. State, 627 So. 2d 1034
(Ala. Crim. App. 1992). On May 28, 1993, the Alabama Supreme Court affirmed
Jenkins’s capital murder convictions and death sentence. Ex parte Jenkins, 627 So.
2d 1054 (Ala. 1993). On March 28, 1994, the United States Supreme Court denied
Jenkins’s petition for a writ of certiorari. Jenkins v. Alabama, 511 U.S. 1012 (1994).
On May 26, 1995, Jenkins, through counsel,6 filed a Rule 32 petition in the St.
Clair County Circuit Court. (Rule 32 C.R. Vol. 17, Tab. 42). Jenkins filed an
amended petition on November 26, 1996.

(Rule 32 C.R. Vol. 18, Tab 47).

Evidentiary hearings were held on December 10, 1996, and January 20-21, 1997.
(Rule 32 R. Vol. 19, Tab 48; Rule 32 R. Vol. 22). On December 31, 1997, the trial
court denied the petition. (Rule 32 R. Vol. 45, Tab 77).

6

Jenkins was represented by his current counsel, Joseph T. Flood, Esq.
3

Jenkins appealed the denial of his Rule 32 petition to the Alabama Court of
Criminal Appeals, which affirmed the trial court on February 27, 2004. In affirming,
the Court of Criminal Appeals specifically found that Jenkins’s death sentence did
not violate Atkins. Jenkins v. State, 972 So. 2d 111, 154-55 (Ala. Crim. App. 2004).
The Alabama Court of Criminal Appeals denied Jenkins’s application for rehearing
on May 21, 2004. Jenkins v. State, 972 So. 2d 111 (Ala. Crim. App. 2004). On April
8, 2005, the Alabama Supreme Court affirmed the Court of Criminal Appeals’
affirmance of the trial court’s denial of the Atkins claim.7 Ex parte Jenkins, 972 So.
2d 159 (Ala. 2005). The United States Supreme Court denied Jenkins’s petition for
a writ of certiorari on January 22, 2008. Jenkins v. Alabama, 552 U.S. 1167 (2008).
On August 11, 2008, Jenkins, through counsel, filed an amended § 2254
petition in this court. (Doc. 12). The respondent filed an answer to the amended
petition on October 29, 2008. (Doc. 20). On November 12, 2008, the action was
stayed to allow the petitioner to pursue a second state Rule 32 petition based upon Ex
Parte Burgess, 21 So.3d 746 (Ala. 2008). (Doc. 25). On June 20, 2013, Jenkins filed
an amended petition raising his newly exhausted juror misconduct claim. (Doc. 36).
The respondent filed an answer to the amendment on September 3, 2013. (Doc. 40).
Jenkins filed a reply brief on November 14, 2013. (Doc. 48).
7

The Alabama Supreme Court reversed the judgment of the Alabama Court of Criminal Appeals
on an unrelated claim and remanded the case for further proceedings on that claim. Id.
4

On November 14, 2013, Jenkins filed a Motion for an Evidentiary Hearing on
his Atkins claim. (Doc. 49). The respondent filed an opposition to the motion on
September 22, 2014. (Doc. 51). On October 8, 2014, Jenkins filed a reply to the
respondent’s opposition. (Doc. 52). The matter is now ripe for resolution.
II. THE MOTION
In his motion, Jenkins requests that the court “issue a writ of habeas corpus on
his Atkins claim” or, in the alternative, hold an evidentiary hearing allowing him “to
present evidence in support of his claim that he is mentally retarded under Atkins v.
Virginia.” (Doc. 49 at 11). Jenkins argues “the evidence introduced during the Rule
32 proceedings in support of his claims of ineffective assistance of counsel
conclusively establishes his mental retardation.” (Id. at 5-6). Jenkins only requests
an evidentiary hearing to the extent this court finds the record insufficient to grant
relief, “as he was diligent in requesting a hearing in state court.” (Id. at 6).
III. PRESENTATION OF THE CLAIM IN STATE COURT
A. Pre-Atkins Review
Jenkins’s trial took place in 1991, more than a decade prior to the Atkins
decision in June 2002. Jenkins made no argument concerning his mental capacity at
trial. However, in his amended Rule 32 petition, filed May 25, 1995, Jenkins argued
trial counsel was ineffective for failing to investigate and present mitigating evidence
5

showing: (1) he was developmentally impaired since birth; (2) he possessed learning
disabilities, low intelligence, poor comprehension, and retarded socialization skills
that prevented him from achieving academically and forming normal relationships;
and (3) he had a long history of mental health problems. (Rule 32 C.R. Vol. 18, Tab
47 at 16-17).
The trial court conducted evidentiary hearings on December 10, 1996, and
January 20-21, 1997. (Rule 32 R. Vol. 19, Tab 48; Rule 32 R. Vol. 22). Among the
witnesses at the hearings were two mental health experts, Dr. David Lisak and Dr.
Karl Kirkland. On December 31, 1997, the trial court denied the petition. (Rule 32
R. Vol. 45, Tab 77). The mental health evidence presented to the trial court is
summarized below.
1. Dr. Lisak: Jenkins’s Mental Health Expert
Dr. David Lisak, the clinical psychologist8 retained by Jenkins, testified at the
Rule 32 hearing that he evaluated Jenkins from August 22-23, 1996, and again on
October 11, 1996, for a total of at least 12 hours. (Rule 32 R. Vol. 21 at 432-33). Dr.
Lisak also reviewed the transcript of the witnesses who testified earlier in the
evidentiary hearing. He also interviewed: Lonnie and Sherry Seal (friends Jenkins
lived with when he first moved to Alabama); Virginia Price and Bonnie Adams (the
8

Dr. Lisak testified that his area of research and expertise is psychological trauma, the study of the
impact of traumatic events on individuals. (Rule 32 R. Vol. 21 at 440).
6

guards who watched over Jenkins while he was in the St. Clair County Jail); Betty
Delavega (Jenkins’s second cousin); Anna Clark (a family friend); Sharon Roberts
(Jenkins’s aunt); Steven Michael Jenkins (Jenkins’s brother); Donna Jo Jenkins
(Jenkins’s mother); Steven Jenkins, Sr. (Jenkins’s step-father); Jerry White (Jenkins’s
step-father’s sister); Eva Dano (a family friend); and Dorothy Hodge (Jenkins’s stepfather’s mother). (Id. at 432-34).
Dr. Lisak also reviewed various records in preparation for the hearing,
including: Jenkins’s birth certificate; hospital records from Jenkins’s birth; Jenkins’s
juvenile records; records from the San Bernardino Department of Mental Health;
school records for both Jenkins and his siblings; records from Jenkins’s time at
Taylor Hardin Secure Medical Facility; Jenkins’s medical records from Holman
Prison; records from the Department of Corrections; the psychiatric records of
Jenkins’s sister, Pammy Jo Montez; the Lunacy Commission’s Report on Jenkins; the
pre-sentence investigation report on Jenkins; large portions of original trial transcript;
newspaper reports concerning Jenkins’s crime; the District Attorney’s file; the police
report regarding an interview with Jenkins while in custody at the Los Angeles
County Jail; and the transcript of the earlier portion of the evidentiary hearing. (Id.
at 435-38).

7

Dr. Lisak did not perform any psychiatric testing. (Rule 32 R. Vol. 21 at 46768). Rather, he explained that he evaluated Jenkins for the purpose of constructing
a developmental history and “to evaluate the abuse he had suffered and describe and
interpret for his attorneys the impact of those traumas on his development.” (Rule 32
R. Vol. 22 at 575). Dr. Lisak determined Jenkins: (1) was a slow learner; (2) was
physically, emotionally, and sexually abused; (3) was neglected both medically and
in terms of nurturing and basic loving and care; and (4) suffered from pervasive
adverse impacts to his cognitive development due to chronic and severe trauma
suffered during childhood. (Rule 32 R. Vol. 21 at 443-49). Further, based upon his
interviews of third-parties, review of the records, and evaluation of Jenkins, Dr. Lisak
concluded Jenkins: (1) had suffered from emotional, psychiatric, and psychological
disturbances all his life; (2) was severely depressed for much of his life; and (3)
suffered post-traumatic stress symptoms throughout his life. (Rule 32 R. Vol. 22 at
486-492). Finally, Dr. Lisak testified that he did not diagnose Jenkins as suffering
from any mental disease or defect because he was not asked to make a diagnosis. (Id.
at 571). However, Dr. Lisak concurred with Dr. Kirkland’s test results indicating
Jenkins had borderline intellectual capacity. (Rule 32 R. Vol. 21 at 467-68).

8

2. Dr. Kirkland: The State’s Mental Health Expert
Dr. Karl Kirkland, a licensed psychologist retained by the state to evaluate
Jenkins, testified that he performed a “general post conviction appeal evaluation” of
Jenkins. (Rule 32 R. Vol. 22 at 610-11, 618). In conjunction with the evaluation, Dr.
Kirkland reviewed the Rule 32 petition, the original trial transcript, and
administrative and medical records from the Department of Corrections. Dr. Kirkland
also attended the earlier portion of the evidentiary hearing on the Rule 32 petition,
observed Jenkins’s prison cell, and spoke with Jenkins’s therapist. (Id. at 618). On
September 5, 1996, Dr. Kirkland met with Jenkins at Holman Prison and administered
a number of psychological tests over a four or five hour period. (Id. at 619). Dr.
Kirkland found that Jenkins: (1) maintained a clean and organized cell; (2) had good
relationships with guards; (3) was depressed; and (4) was taking a mild tranquilizer
and anti-depressant. (Id. at 619-21). Dr. Kirkland stated that, although Jenkins did
not seem to trust him, he seemed to understand who he was and why he was there.
(Id. at 620-21).
Dr. Kirkland administered a Bach Depression Inventory test, which is a
questionnaire relating to symptoms of depression in numerous categories. (Id. at 62122). The results of the Bach Depression Inventory test showed severe depression.
(Id. at 622).
9

Dr. Kirkland explained that the Minnesota Multiphasic Personality Inventory
test is a 399-item self-reported true-false inventory. When scored, it produces a
profile that can be used to evaluate the subject’s validity or test-taking attitude,
clinical characteristics, as well as past and current emotional functioning. (Id. at 62223).9 Dr. Kirkland testified Jenkins produced an invalid profile on this test “in that
he answered the questions in a way that tended to over-emphasize psycho-pathology,
much like he did on the Bach Depression Inventory.” (Id. at 623). Dr. Kirkland
indicated the results did not match Jenkins’s clinical presentation. (Id.)
Dr. Kirkland also performed a Competency to Stand Trial Assessment on
Jenkins. It is a structured interview that assesses a person’s understanding of the trial
process and the legal system. The results indicated that Jenkins “had an adequate
understanding of the trial process and did not evidence a mental disorder that would
interfere with that process.” (Id. at 623-24).
The Wechsler Adult Intelligence Scale is an intelligence test commonly
administered and accepted in the field. (Id. at 624). Jenkins “scored in the range of
borderline intellectual functioning which is between mild mental retardation and low
average intellectual functioning.” (Id. at 624, 670). Jenkins’s overall IQ score was
76. (Id.). Dr. Kirkland opined that Jenkins “cooperated and was not malingering or
9

Because Jenkins reads at a third grade level, Dr. Kirkland had to read the test questions to him. (Id.
at 641).
10

trying to throw the results a certain way,” which was “consistent with his school
records that Dr. Lisak testified about and consistent with other reports of his
difficulties with academic functioning.” (Id. at 624). Further, Dr. Kirkland noted in
the following testimony that an IQ of 76 is two standard deviations below the norm,
placing Jenkins in the bottom ten percent of the population:
Q: What is [Jenkins’s] IQ?
A: Borderline range.
Q: Did you testify it was 76?
A: Yes.
Q: Is IQ a measurement of intelligence or intelligence potential that [is]
fairly constant over a lifetime?
A: It tends to be, yes.
Q: Do you know how many standard deviations with an IQ of 76 is
below that?
A: Two.
Q: Approximately two standard deviations – that would place [Jenkins]
in what percentile of the population?
A: Under ten percent – it is getting pretty low.
Q: Do you know what the cut-off for being considered mentally retarded
is?
A: Under seventy.
11

Q: Is that the only standards [sic] ? Are there national standards that
recognizes [sic] mental retardation at 75 and below?
A: I’m not aware of that. The other standard would be integrating,
social and adaptive behavior into that, which I did not do in this case.
That is really not what I was looking for.
Q: Would it be fair to characterize [Jenkins’s] performance on this
testing as consistently in the bottom percentile?
A: Yes.
(Id. at 670-71).
The RAT-3 is a test of achieved knowledge or actual academic achievement.
On this test, Dr. Kirkland found Jenkins was “functioning on a third grade level in
both reading, spelling and arithmetic, which placed him at the first percentile,” which
is “generally consistent with the [WAIS-R] Results and generally consistent with his
clinical presentation and also consistent with his history.” (Id. at 625; see 669). Dr.
Kirkland concluded Jenkins was “not technically learning disabled, as much as he is
just a slow learner overall.” (Id.).
The Short Category Test Booklet Format is used as a neuro-psychological
screening instrument. It is a shortened version of a much longer neuro-psychological
test that is part of a battery of tests. (Id. at 626). This test measures brain damage,
flexibility, and problem solving ability. (Id. at 669-70). Jenkins scored at the first

12

percentile on this test, which is in an impaired range. (Id. at 626, 669). Dr. Kirkland
testified that in his experience “often inmates that have been incarcerated for a while
tend to have difficulty with this particular test, not necessarily because of brain
damage, but because they have trouble shifting gears and get easily frustrated with
the task.” (Id. at 626).
Finally, Dr. Kirkland administered the Forensic Assessment of Criminal
Responsibility Procedure on Jenkins. (Id.). It is “a procedure that involves or is
present in any mental state at the time of offense or forensic evaluation that involves
assigning some type of criminal responsibility.” (Id.). It involves reviewing “trial
transcripts or the D.A. file, taking a statement from the defendant about his feelings,
actions, and behavior surrounding the time of the offense as well as post-offense
behavior which would in this case include leaving the State and requesting an alibi
if one assumes those facts are true.” (Id. at 627). From his review of the D.A. file,
Dr. Kirkland concluded Jenkins’s behavior showed an “awareness of wrongfulness
or criminality after the offense and that his behavior was not entirely consistent with
what [Jenkins] told [Dr. Kirkland] about being in a black-out the entire time.” (Id.).
Dr. Kirkland also reviewed Jenkins’s records from Taylor Hardin, including
the diagnosis reached by the Lunacy Commission. He summarized the findings of the
Lunacy Commission as follows:
13

They basically concluded that he was capable of proceeding toward trial,
and they did not find the presence of a disorder that would have
detracted from criminal responsibility. At least two of the three people
suggested that was their finding.10
(Id. at 634). Dr. Kirkland noted the Lunacy Commission conducted its evaluations
approximately fourteen months after the offense. This was significant to Dr. Kirkland
because it is “a lot easier to do a retrospective analysis fourteen months after an
offense rather than several years after an offense.” (Id. at 635).
Dr. Kirkland’s opinion ultimately was that Jenkins did not suffer from a mental
disease or disorder at the time of the murder that would have detracted from his
ability to appreciate the criminality of his acts. (Id. at 636, 687). Dr. Kirkland added
that, because Jenkins’s IQ and achievement scores are roughly in the same vicinity,
Jenkins does not have a learning disability but is a slow learner.11 (Id. at 675-76).
B. Post-Atkins Review
10

The Lunacy Commission’s evaluations took place in 1990, the year after the murder was
committed. Dr. Wolfram Glaser found that Jenkins suffered no substantial cognitive impairment.
Dr. Glaser further found an Axis II diagnosis of borderline intellectual functioning. (Rule 32 C.R.
Vol. 25 at 557-63). Dr. James F. Hooper also found no evidence of any significant cognitive
impairments but did not reach an Axis II diagnosis. (Id. at 564-68). The third member of the
commission, Dr. Kamal A. Nagi, was unable to make an assessment of Jenkins, who announced to
Dr. Nagi that he was “getting tired of talking about the same damn thing” and was not going to talk
any more. (Id. at 556). Additionally, in the admission summary prepared at Taylor Hardin, staff
social worker Carol Williams and Dr. Glaser noted that Jenkins displayed no obvious cognitive
impairment but that he appeared to be of limited intellectual capabilities and possibly had borderline
intellectual functioning. (Id. at 545-55).
11

However, Dr. Kirkland went on to state that he did not test Jenkins for dyslexia and would not
refute that diagnosis if school records revealed Jenkins was dyslexic. (Id. at 676).
14

Jenkins appealed the denial of his Rule 32 petition to the Alabama Court of
Criminal Appeals. Both sides briefed the issues raised by Jenkins and argued them
before the appellate court. On June 20, 2002, before the Alabama Court of Criminal
Appeals issued an opinion, the United States Supreme Court handed down its opinion
in Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the Court held that the
execution of mentally retarded criminals violates the Eighth Amendment’s
prohibition of cruel and unusual punishment. Thus, while Jenkins’s collateral appeal
was still pending, the Alabama Court of Criminal Appeals ordered the parties to file
supplemental briefs, addressing the possible impact of Atkins on Jenkins’s case.12
The parties both submitted supplemental briefs on August 15, 2002. The State
contended any claim by Jenkins that he is mentally retarded is procedurally barred
and that Jenkins is not mentally retarded. (Appellee’s Supplemental Brief, Rule 32
C.R. Vol. 39, Tab 55). Jenkins argued that, because his mental retardation is
supported by the record and because Alabama has no procedure for adjudicating
mental retardation in capital cases, the court should either: (1) stay his appeal until
the Alabama Legislature enacts appropriate legislation in light of Atkins; or (2) vacate
his death sentence and remand the case to the trial court with directions to stay the
case until the legislature enacts such legislation. (Appellant’s Supplemental Brief,
12

The Atkins decision announced a new rule of constitutional law made retroactive to cases on
collateral review. See In re Holladay, 331 F.3d 1169, 1172 (1lth Cir. 2003).
15

Rule 32 C.R. Vol. 39, Tab 56). The state submitted a reply brief on September 19,
2002. (Appellee’s Supplemental Reply Brief, Rule 32 C.R. Vol. 39, Tab 57).
Simultaneously, Jenkins submitted a supplemental reply brief, arguing: (1) his Atkins
claim was not procedurally barred; (2) his case should be stayed pending the
enactment of appropriate Atkins legislation; and (3) it would be cruel and unusual
punishment to execute Jenkins because he is mentally retarded. (Appellant’s
Supplemental Reply Brief, Rule 32 C.R. Vol. 39, Tab 58).
The Alabama Court of Criminal Appeals affirmed the trial court’s denial of
Jenkins’s amended Rule 32 petition on February 27, 2004. Jenkins v. State, 972 So.
2d 111 (Ala. Crim. App. 2004). With regard to Jenkins’s Atkins claim, the court
found the following:
Neither is there any indication that Jenkins’s death sentence
violates the United States Supreme Court’s holding in Atkins v. Virginia,
536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The United
States Supreme Court held in Atkins v. Virginia, that it was cruel and
unusual punishment in violation of the Eighth Amendment to execute a
mentally retarded individual. Though Alabama has not enacted
legislation addressing the holding in Atkins, our Supreme Court in Ex
parte Perkins, 808 So.2d 1143 (Ala.2001), has applied the most liberal
view of mental retardation. To be considered mentally retarded a
defendant must have a significantly subaverage intellectual functioning
(an IQ score of 70 or below), significant deficits in adaptive behavior,
and the problems must have manifested themselves before the defendant
reached the age of 18. Perkins.

16

Dr. Kirkland testified that he performed psychological tests on
Jenkins and that Jenkins’s IQ was 76. There was evidence presented at
Jenkins’s trial indicating that Jenkins maintained relationships with
other individuals and that he had been employed by P.S. Edwards
Landscaping Company, Cotton Lowe 76 Service Station, and Paramount
Painting Company. The record fails to show that Jenkins meets the most
liberal view of mental retardation adopted by the Alabama Supreme
Court in Perkins. Jenkins’s death sentence does not violate Atkins v.
Virginia.
Id. at 154-55.
Jenkins next raised the claim in an application for rehearing. (Brief in Support
of Petition for Writ of Certiorari, Rule 32 C.R. Vol. 39, Tab 59 at 58). The Alabama
Court of Criminal Appeals denied his application for rehearing on May 21, 2004.
Jenkins v. State, 972 So. 2d 111 (Ala. Crim. App. 2004). Jenkins then presented the
claim to the Alabama Supreme Court in a petition for writ of certiorari, arguing that
because he made a prima facie showing of mental retardation, it was unreasonable for
the Alabama Court of Criminal Appeals to refuse to remand his case to the trial court
for an evidentiary hearing. (Petition for Writ of Certiorari, Rule 32 C.R. Vol. 40, Tab
60 at 57; Brief in Support of Petition for Writ of Certiorari, Rule 32 C.R. Vol. 40,
Tab 61 at 109). On April 8, 2005, the Alabama Supreme Court affirmed the Court of
Criminal Appeals’ affirmance of the trial court’s denial of this claim. Ex parte
Jenkins, 972 So. 2d 159 (Ala. 2005).

17

IV. THE HABEAS CLAIM
Jenkins contends he is mentally retarded and ineligible for execution under
Atkins. Because this claim was denied on the merits in the state court, this court must
first determine whether the state court’s decision can survive review under 28 U.S.C.
§ 2254(d). Unless Jenkins prevails on his claim under § 2254(d), he is not entitled
to present new evidence to this court and is not entitled to an evidentiary hearing on
his mental retardation claim. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398-99
(2011). The review of Jenkins’s Atkins claim in this court is “limited to the record
that was before the state court that adjudicated the claim on the merits.” Id. at 1398.
Further, the “backward-looking language” of the statute requires an examination of
the state court’s decision on the date it was made. Id.
A. Title 28 U.S.C. § 2244(d)
“By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits
in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington v. Richter, 131 S. Ct. 770, 784 (2011)(internal quotations omitted).13
Those sections provide that when a state court has made a decision on a petitioner’s
constitutional claim, habeas relief cannot be granted unless the state court’s
adjudication of the claim either:
13

It does not matter whether the state court decision contains a lengthy analysis of the claim or is a
summary ruling “unaccompanied by explanation.” Id.
18

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
The “contrary to” and “unreasonable application” clauses of § 2254(d) have
been interpreted as “independent statutory modes of analysis.” Alderman v. Terry,
468 F.3d 775, 791 (11th Cir. 2006) (citing Williams, 529 U.S. at 405-07).14 When
considering a state court’s adjudication of a petitioner’s claim, therefore, the habeas
court must not conflate the two modes of analysis.
1. The meaning of § 2254(d)(1)’s “contrary to” clause
A state-court determination can be “contrary to” clearly established Supreme
Court precedent in at least two ways:
First, a state-court decision is contrary to this Court’s precedent if the
state court arrives at a conclusion opposite to that reached by this Court
on a question of law. Second, a state-court decision is also contrary to
this Court’s precedent if the state court confronts facts that are
14

See also Williams, 529 U.S. at 404 (O’Connor, J., majority opinion) (“Section 2254(d)(1) defines
two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a
claim adjudicated on the merits in state court. Under the statute, a federal court may grant a writ of
habeas corpus if the relevant state-court decision was either (1) ‘contrary to . . . clearly established
Federal law, as determined by the Supreme Court of the United States,’ or (2) ‘involved an
unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court
of the United States.’”) (emphasis supplied).
19

materially indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite to ours.
Williams, 529 U.S. at 405 (emphasis added); see also, e.g., Brown v. Payton, 544 U.S.
133, 141 (2005) (same); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (same);
Putman v. Head, 268 F.3d 1223, 1240-41 (11th Cir. 2001) (same).
The Eleventh Circuit has observed that the majority opinion in Williams does
not limit the construction of § 2254(d)(1)’s “contrary to” clause to the two examples
set forth above.15 Instead, the statutory language “simply implies that ‘the state
court’s decision must be substantially different from the relevant precedent of [the
15

Indeed, as one commentator has observed, the possible permutations are not just two, but at least
four in number:
The word “contrary” denotes incompatibility or logical inconsistency. Two
propositions are incompatible with one another if both cannot be true or correct.
Thus, a state court decision is contrary to federal law if that decision and the
applicable federal law cannot both be true or correct. Given this premise, there
appear to be four possible combinations of state court adjudications and resulting
decisions that are pertinent to this textual inquiry:
•

the state court applies the correct federal standard and arrives at a correct
outcome;

•

the state court applies an incorrect federal standard and arrives at an incorrect
outcome;

•

the state court applies an incorrect federal standard and arrives at a correct
outcome; and

•

the state court applies the correct federal standard and arrives at an incorrect
outcome.

Allan Ides, Habeas Standards of Review Under 28 U.S.C. § 2254(d)(1): A Commentary on Statutory
Text and Supreme Court Precedent, 60 WASH. & LEE L. REV. 677, 685 (2003) (footnotes omitted).
20

Supreme] Court.’” Alderman, 468 F.3d at 791 (quoting Williams, 529 U.S. at 405)
(alteration supplied).
2. The meaning of § 2254(d)(1)’s “unreasonable application” clause
A state court’s determination of a federal constitutional claim can result in an
“unreasonable application” of clearly established Supreme Court precedent in either
of two ways:
First, a state-court decision involves an unreasonable application of this
Court’s precedent if the state court identifies the correct governing legal
rule from this Court’s cases but unreasonably applies it to the facts of
the particular state prisoner’s case. Second, a state-court decision also
involves an unreasonable application of this Court’s precedent if the
state court either unreasonably extends a legal principle from our
precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.
Williams, 529 U.S. at 407 (emphasis added) see also, e.g., Putman, 268 F.3d at 124041 (same).
It is important to note that “an unreasonable application of federal law is
different from an incorrect application.” Williams, 529 U.S. at 410 (emphasis in
original). 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 federal law erroneously or incorrectly. Rather, that application
must also be unreasonable.” Id. at 411 (emphasis added).

21

In other words, the question is not whether the state court “correctly” applied
Supreme Court precedent when deciding the federal constitutional issue but whether
the state court’s determination was “unreasonable.” Id. at 409 (“[A] federal habeas
court making the ‘unreasonable application’ inquiry should ask whether the state
court’s application of clearly established federal law was objectively unreasonable.”);
see also, e.g., Bell, 535 U.S. at 694 (observing the “focus” of the inquiry into the
reasonableness of a state court’s determination of a federal constitutional issue “is on
whether the state court’s application of clearly established federal law is objectively
unreasonable,” and stating that “an unreasonable application is different from an
incorrect one”); Harrington v. Richter, 131 S. Ct. 770, 785-87 (2011) (same).16
In order to demonstrate that a state court’s application of clearly established
federal law was “objectively unreasonable,” the habeas petitioner “must show that
the state court’s ruling on the claim being presented in federal court was so lacking

16

The Eleventh Circuit has observed that § 2254(d)(1)’s “unreasonable application” provision is the
proper statutory lens for viewing the “run-of-the-mill state-court decision applying the correct legal
rule.” Alderman v. Terry, 468 F.3d 775, 791 (11th Cir. 2006).
In other words, if the state court identified the correct legal principle but
unreasonably applied it to the facts of a petitioner’s case, then the federal court
should look to § 2254(d)(1)’s “unreasonable application” clause for guidance. “A
federal habeas court making the ‘unreasonable application’ inquiry should ask
whether the state court’s application of clearly established federal law was objectively
unreasonable.”
Id. (quoting Williams, 529 U.S. at 409) (emphasis in original).
22

in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Id. at 786-87 (emphasis
added). Stated another way, if the state-court’s resolution of a claim is debatable
among fairminded jurists, it is not “objectively unreasonable.”
“By its very language, [the phrase] ‘unreasonable application’ refers to mixed
questions of law and fact, when a state court has ‘unreasonably’ applied clear
Supreme Court precedent to the facts of a given case.” Neelley v. Nagle, 138 F.3d
917, 924 (11th Cir. 1998) (citation and footnote omitted). Mixed questions of
constitutional law and fact are those decisions “which require the application of a
legal standard to the historical-fact determinations.” Townsend v. Sain, 372 U.S. 293,
309 n.6 (1963).
3. The meaning of § 2254(d)(2)’s clause addressing an “unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding”
“28 U.S.C. § 2254(d)(2) imposes a ‘daunting standard — one that will be
satisfied in relatively few cases.’” Cash v. Maxwell, 132 S. Ct. 611, 612 (2012)
(quoting Maxwell v. Roe, 628 F.3d 486, 500 (9th Cir. 2010) (internal quotation marks
omitted in original)).
As we have observed in related contexts, “[t]he term ‘unreasonable’ is
no doubt difficult to define.” Williams v. Taylor, 529 U.S. 362, 410, 120
S. Ct. 1495, 146 L. Ed. 2d 389 (2000). It suffices to say, however, that
23

a state-court factual determination is not unreasonable merely because
the federal habeas court would have reached a different conclusion in
the first instance. Cf. Id., at 411, 120 S. Ct. 1495.
Wood v. Allen, 558 U.S. 290, 301 (2010). Therefore, “even if reasonable minds
reviewing the record might disagree about the finding in question, on habeas review
that does not suffice to supersede the trial court’s . . . determination.” Id. (quoting
Rice v. Collins, 546 U.S. 333, 341-42 (2006)) (punctuation omitted). Conversely:
when a state court’s adjudication of a habeas claim results in a decision
that is based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding, this Court is not bound
to defer to unreasonably-found facts or to the legal conclusions that flow
from them.
Atkins v. Warden, Holman Correctional Facility, 710 F.3d 1241, 1249-50 (11th Cir.
2013) (quoting Jones v. Walker, 540 F.3d 1277, 1288 n.5 (11th Cir. 2008) (en banc)
(punctuation omitted)).
Jenkins maintains the state court’s adjudication of his mental retardation claim
resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established federal law and was an unreasonable determination of the facts
in light of the evidence presented in state court. (Jenkins’ Amended Petition, Doc.
12 at 24; Jenkins’ Reply Brief, Doc. 48 at 23).
B. The Perkins Standard

24

Alabama uses the definition of mental retardation adopted by the Alabama
Supreme Court in Ex parte Perkins, 851 So.2d 453 (Ala. 2002). Perkins held that to
be considered mentally retarded for purposes of the Eighth Amendment’s prohibition
on execution, a defendant “must have significantly subaverage intellectual
functioning (an IQ of 70 or below), and significant or substantial deficits in adaptive
behavior” that “manifested themselves during the developmental period (i.e., before
the defendant reached age 18).” Id. at 456. Later, in Smith v. State, No. 1060427,
2007 WL 1519869 at *8 (Ala. May 25, 2007), the Alabama Supreme Court
“reaffirmed the definition of mental retardation it identified in Perkins” and “clarified
that it is implicit in that definition that the IQ and deficits in adaptive behavior exist
not only prior to the age of eighteen but also both at the time of the crime and
currently.” Powell v. Allen, 602 F.3d 1263, 1272 (11th Cir. 2010) (citing Smith,
2007 WL 1519869 at *8).
Jenkins contends the state appellate court’s use of the Perkins standard in
rejecting his Atkins claim was either contrary to, or an unreasonable application of,
clearly established federal law:
In denying relief on this claim, the state applied an erroneous legal
standard that violated Atkins and the prevailing clinical standards, and
constitutes an unreasonable application of federal law. See Id. at 398
(“Our difference is as to the cases in which, at first blush, a state-court
judgment seems entirely reasonable, but thorough analysis by a federal
25

court produces a firm conviction that that judgment is infected by
constitutional error. In our view, such an erroneous judgment is
‘unreasonable’ within the meaning of the Act even though that
conclusion was not immediately apparent.”).
Rather than apply the “broadest definition of mental retardation,”
as required, see Jenkins II, 972 So.2d at 154, the CCA erroneously used
an IQ cutoff of 70, in violation of the prevailing scientific standards
which were expressly relied upon by Atkins. 536 U.S. at 309 n. 3, 318;
see footnote 8, supra, at 23. In defining mental retardation Atkins did
so without implementing a specific IQ cut-off and it drew extensively
from clinical sources that reject such cut-offs and expressly require IQ
be expressed within a “confidence interval.” See Atkins, 536 U.S. at
318, 309 n.3, 309 n.5 (citing Kaplan & Sadock’s Comprehensive
Textbook of Psychiatry, at 2952). Specifically, the creators of WAIS-R,
the very test utilized by Dr. Kirkland, advised its instruments are not
capable of giving bright line scores and instead employ a confidence
interval of 95% with a Standard Error of Measurement of + or – five
points. David Wechsler, WAIS-R Manual; Wechsler Adult intelligence
Scale 0 Revised 31 (1981); see WAIS-IV Administrative and Scoring
Manual Tables A.3-A.7, at 220-25. This is so because the instrument is
not capable of providing a bright-line Full Scale IQ score. Id.
Accordingly, the WAIS technical manual provides:
The standard error of measurement is used to calculate the
confidence interval, or the band of scores, around the
observed score in which the individual’s true score is likely
to fall. . . . The examiner can use confidence intervals to
report an individual score as an interval that is likely to
contain the individual’s true score. Confidence intervals
also serve as a reminder that measurement error is inherent
in all test scores and that the observed test score is only an
estimate of true ability.
Wechsler, WAIS-R Manual, at 31 (emphasis added).
...
26

No reasonable interpretation of Atkins would allow the use of a
particular standardized intelligence test to assess intellectual disability
divorced from the very Technical Manual created for scoring and
interpreting that test. The WAIS-R, selected by the State’s expert to test
Mr. Jenkins, is a very precise instrument and for it to be effective and
the results to be reliable, it must be administered and interpreted as
designed. The test administrator must take into account the SEM.
Currently no testing instrument has been created that measures IQ with
so much precision that confidence intervals can be ignored. Thus, the
Alabama courts erred in inventing out of whole cloth a bright line cutoff
for determining mental retardation where no instrument exists that can
measure IQ with that level of precision. Indeed, the state courts
unreasonably ignored that the instrument utilized by the State’s expert
expressly prohibits that practice. The State of Alabama may not make
standardized IQ results more precise than the test’s creators determined
is reasonable; to do so is both unscientific and unreasonable.
While the Court in Atkins indicated that states would be allowed
leeway in crafting appropriate procedures to implement the
constitutional restriction against executing the mentally retarded, see
Atkins, 536 U.S. at 342, it did not authorize the use of definitions
unmoored from sound science and accepted clinical practice. In Atkins
itself, the Court acknowledged a lack of precision in IQ testing and the
need for confidence intervals implicitly rejecting a hard cutoff. For
instance, the Court stated that “[m]ild” mental retardation is typically
used to describe people with an IQ level of 50-55 to approximately 70.”
Id. at 308 n.3 (citing DSM-IV, at 42-43 (2000)). Even more significant,
the Court noted “an IQ between 70 and 75 or lower . . . is typically
considered the cutoff IQ score for the intellectual function prong of the
mental retardation definition.” Id. at 309 n.5. Nowhere in Atkins did the
Court allow states to alter the clinical definition of mental retardation by
eliminating the use of the SEM and confidence intervals which the
creators of the WAIS-R have consistently stated are necessary for the
proper interpretation of the test. By applying the wrong standard, one
that contained a strict IQ cut-off, the state court unreasonably

27

determined Mr. Jenkins was not mentally retarded. Jenkins II, 972 So.
2d at 155.
(Jenkins’s Reply Brief, Doc. 48 at 35-38) (parentheticals and footnote omitted).
Jenkins further alleges that Smith v. State, clarifying that the IQ and deficits in
adaptive behavior must also be present at the time of the crime and at the time the
Atkins claim is raised, is unconstitutional and was improperly applied to his case.17
(Id. at 23, n.8).
“Although the Atkins Court alluded to clinical definitions propounded by the
American Association on Mental Retardation18 (‘AAMR’) and the American
Psychiatric Association (‘APA’), it left to the states the development of standards for
courts to employ in making a determination of whether an offender is mentally
retarded.” Thomas v. Allen, 607 F.3d 749, 752 (11th Cir. 2010)(citing Atkins, 536
U.S. at 317)(footnote added).19 The Eleventh Circuit has repeatedly applied the
17

The court notes that Smith v. State was not applied to Jenkins’s case since it was not decided until
2007, well after the Alabama Court of Criminal Appeals’ 2004 opinion on his Atkins claim.
18

The American Association on Mental Retardation is now known as the American Association on
Intellectual and Developmental Disabilities.
19

The Atkins court noted:
The American Association on Mental Retardation (AAMR) defines mental
retardation as follows: “Mental retardation refers to substantial limitations in present
functioning. It is characterized by significantly subaverage intellectual functioning,
existing concurrently with related limitations in two or more of the following
applicable adaptive skill areas: communication, self-care, home living, social skills,
community use, self-direction, health and safety, functional academics, leisure, and
work. Mental retardation manifests before age 18.” Mental Retardation: Definition,
28

Alabama standard. In doing so, it has never indicated that any of that standard’s
regarding deficits in IQ and adaptive behavior are inconsistent with Atkins or
otherwise unconstitutional. See Id. at 752, 756-57; Burgess v. Comm’r, Ala. Dept. of
Corr., 723 F.3d 1308, 1314, 1321 (11th Cir. 2013); Powell v. Allen, 602 F.3d 1263,
1272 (11th Cir. 2010); Holladay v. Allen, 555 F.3d 1346, 1353, 1357 (11th Cir.
2009); Wood v. Allen, 542 F.3d 1281, 1285-86 (2008).

Therefore, this court finds

Alabama’s standard for establishing mental retardation applies to Jenkins’s case.
Jenkins has offered nothing to show the state appellate court’s use of Alabama’s
mental retardation standard was contrary to, or an unreasonable application of, clearly
established federal law.
C. Application of Atkins and Perkins

Classification, and Systems of Supports 5 (9th ed. 1992). The American Psychiatric
Association’s definition is similar: “The essential feature of Mental Retardation is
significantly subaverage general intellectual functioning (Criterion A) that is
accompanied by significant limitations in adaptive functioning in at least two of the
following skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work,
leisure, health, and safety (Criterion B). The onset must occur before age 18 years
(Criterion C). Mental Retardation has many different etiologies and may be seen as
a final common pathway of various pathological processes that affect the functioning
of the central nervous system.” Diagnostic and Statistical Manual of Mental
Disorders 41 (4th ed.2000). “Mild” mental retardation is typically used to describe
people with an IQ level of 50-55 to approximately 70. Id., at 42-43.
Atkins, 536 U.S. at 308 n.3.
29

Jenkins maintains the Alabama Court of Criminal Appeals’ decision that he is
not mentally retarded is contrary to, and involved an unreasonable application of,
clearly established federal law. Jenkins further contends this decision was an
unreasonable determination of the facts in light of the evidence presented in state
court. Jenkins divides his arguments among the three criteria for determining mental
retardation: (1) significantly subaverage intellectual functioning (an IQ of 70 or
below); (2) significant or substantial deficits in adaptive behavior; and (3) the
manifestation of those deficits before the age of eighteen.
1. Intellectual Functioning
Jenkins acknowledges that Dr. Karl Kirkland administered the Wechsler Adult
Intelligence Scale to him in 1996, resulting in a IQ of 76. (Jenkins’s Reply Brief,
Doc. 48 at 24). He emphasizes that Dr. Kirkland stated Jenkins’s IQ score was two
standard deviations below the mean. (Id.). Jenkins argues that when “the “Flynn
Effect’20 and standard error of measurement21 are considered, Mr. Jenkins’s actual IQ
20

The Flynn Effect is “a method that recognizes the fact that IQ scores have been increasing over
time” and “acknowledges that as an intelligence test ages, or moves farther from the date on which
it was standardized, or formed, the mean score of the population as a whole on that assessment
instrument increases, thereby artificially inflating the IQ scores of individual test subjects.” Thomas
v. Allen, 607 F.3d 749, 753 (11th Cir. 2010).
21

The Standard Error of Measurement (“SEM”) is an index of the variability of test scores produced
by persons forming the normative sample.
In other words, the SEM is a statistical measure that allows the evaluator to know the
amount of error that could be present in any test. The AAMR acknowledges that the
30

is between 65 and 75 . . . and satisfies even Alabama’s unconstitutionally rigorous
interpretation of Atkins’s first prong.” (Id.).
This court finds Jenkins has failed to provide clear and convincing evidence
to overcome the presumption of correctness that attaches to the state appellate court’s
factual findings. Jenkins also has not demonstrated that the state court unreasonably
applied federal law in connection with the assessment of his intellectual functioning
or that the decision was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceedings. Further, Jenkins did not
raise his Flynn Effect argument in the state court.
a. The Flynn Effect
As previously stated, when a state court has adjudicated a claim on the merits,
this court must judge the decision on the record before that court. Since Jenkins did
not raise the Flynn Effect as an issue during collateral review, this court cannot now
consider it. However, even if Jenkins had raised the Flynn Effect as a concern on
collateral review, neither Atkins nor Alabama law requires that a court take the
phenomenon into account when evaluating a defendant’s IQ test scores. The cases
SEM has been estimated to be three to five points for well-standardized measures of
general intellectual functioning. Hence, the IQ standard score is bounded by a range
that would be approximately three to four points above and below the obtained
scores.
Thomas, 607 F.3d at 753.
31

cited by Jenkins in support of the Flynn Effect22 are not binding authorities of the
Supreme Court, Eleventh Circuit, or State of Alabama, and none of them have held
that the Flynn Effect must be taken into account when examining an IQ test score.
Moreover, this court finds that, to the extent the appellate courts of the State of
Alabama have discussed the Flynn Effect, they have stated that consideration of the
phenomenon lies in the discretion of the trial judge. For example, the Alabama Court
of Criminal Appeals observed in its 2009 opinion in the case of Beckworth v. State,
No. CR-07-0051, 2009 WL 1164994 (Ala. Crim. App. May 1, 2009), that it had not
previously
addressed the “Flynn effect,” see James R. Flynn, Tethering the
Elephant: Capital Cases, IQ, and the Flynn Effect, 12 Psych., Pub.
Pol’y, & L., 170-78 (2006), which posits that IQ scores increase over
time in certain populations. However, the Texas Court of Appeals
recently stated: “We have previously refrained from applying the Flynn
effect . . . noting that it is an ‘unexamined scientific concept’ that does
not provide a reliable basis for concluding that an appellant has
significant sub-average general intellectual functioning.” Neal v. State,
256 S.W.3d 264, 273 (Tex. Crim. App. 2008).
Beckworth, 2009 WL 1164994 at *38 n.5 (some citations omitted), reversed on other
grounds, Ex parte Beckworth, No. 1091780, 2013 WL 3336983 (Ala. July 3, 2013).
A more recent decision of the Alabama Court of Criminal Appeals, Albarran
v. State, 96 So. 3d 131 (Ala. Crim. App. 2011), makes it clear that consideration of
22

(Jenkins’s Reply Brief, Doc. 48 at 24-26).
32

the Flynn Effect is not a requirement when applying Alabama’s criteria for
determining whether a criminal defendant suffers from mental retardation. That
opinion states:
First, this Court cannot, based on the record, say that the circuit court
abused its discretion in determining that Albarran failed to meet the
definition of mental retardation adopted by the Alabama Supreme Court
in Perkins based on Albarran’s IQ score. Although Dr. Weinstein also
testified that, when adjusted for the “Flynn effect,” Albarran’s IQ was
around 68, the circuit court could have reasonably rejected the “Flynn
effect” and determined that Albarran’s IQ was 71. Gray v. Epps, 616
F.3d 436, 446 n.9 (5th Cir. 2010) (quoting In re Mathis, 483 F.3d 395,
398 n.1 (5th Cir. 2007) (“[T]he Flynn Effect ‘has not been accepted in
this Circuit as scientifically valid.’”)); Bowling v. Commonwealth, 163
S.W.3d 361, 375 (Ky. 2005) (holding that “Atkins did not discuss
margins of error or the ‘Flynn effect’ and held that the definition [of
mental retardation] in KRS 532.130(2) ‘generally conform[ed]’ to the
approved clinical definitions” so the court could not consider the Flynn
effect); Thomas v. Allen, 607 F.3d 749, 758 (11th Cir. 2010) [(observing
that:] “[T]here is no uniform consensus regarding the application of the
Flynn effect in determining a capital offender’s intellectual functioning,
and there is no Alabama precedent specifically discounting a court’s
application of the Flynn effect . . . .”). Because the circuit court could
have reasonably determined that Albarran’s IQ was 71, a score that
places him outside the Alabama Supreme Court’s definition of mental
retardation, this Court cannot say that the circuit court abused its
discretion in denying Albarran’s Atkins motion.
Albarran, 96 So.3d at 199-200 (second alteration supplied, all others in original,
footnote omitted).
b. Standard Error of Measurement

33

Jenkins argued to the Alabama Court of Criminal Appeals that, given the
Standard Error of Measurement (“SEM”) of plus or minus five points, Jenkins meets
the threshold for mental retardation. (Appellant’s Supplemental Reply Brief, Rule 32
C.R. Vol. 39, Tab 58). However, neither the appellate court nor Dr. Kirkland
indicated that they took the SEM into account.
It is undisputed that Jenkins scored 76 on the IQ test administered by Dr.
Kirkland. Thus, considering the SEM, Jenkins’s IQ falls within a range of 71-81,
which is still above the threshold established in Perkins. Further, the record of the
Rule 32 proceedings indicates that testing performed on Jenkins in 1980, when he
was twelve years old, calculated his IQ at 90 on the Peabody Picture Vocabulary Test
and Raven Progressive Matrices Test, and 83 on the Wechsler Intelligence Scale for
Children - Revised.23 The record of the Rule 32 proceedings also indicates that
testing performed in 1981, when Jenkins was fourteen years old, calculated his IQ at

23

The preparer of the Re-Evaluation Report prepared in conjunction with the 1980 testing noted that
Jenkins is dyslexic. Additionally, the preparer of the report rated Jenkins’s intellectual capacity as
average as opposed to below average or borderline and offered the following comments:
Frequent moves, changes in schools and family instability have made it difficult for
[Jenkins] to achieve success in academic subjects. Low ability coupled with a
specific learning disability add to his problems so that, at times, behavior is reflection
of inferiority feelings, rejection by peers and general lack of success in school life.
Lack of responsibility for self control and poor use of time contribute to lack of
learning as well as some social problems.
(Rule 32 C.R. Vol. 27 at 955-58).
34

81 on the Shipley Institute of Living Scale, and 86 on the Peabody Picture
Vocabulary Test.24 (Rule 32 C.R. Vol. 27 at 845-48; 955-58). Furthermore, Jenkins’s
school records consistently indicate that his poor performance was a result of
excessive absences, late assignments, and lacking fundamental skills in math, reading
and language. (Id. at 877-964).

24

The psychological report prepared by the San Bernardino County, California Probation
Department, in conjunction with the 1981 testing, concluded that:
[Jenkins] is functioning in the Dull-Normal range of intelligence according
to the Shipely [sic] Institute of Living Scale and the Peabody Picture Vocabulary
Test. [Jenkins] appears to be suffering from a definite learning disability. It is
important to note that [his] scores on his testing reflect a wide discrepancy in his
performance level. He appears to have erratic comprehension in the verbal/reading
skills and to be easily distracted on tasks which require sustained concentration. A
full-scale Wechsler Intelligence Test and a Nebraska Psychoneurological Battery is
recommended to better define [his] specific learning disabilities. [Jenkins] is in need
of special education designed for the emotionally disturbed adolescent with definite
learning disabilities.
...
Testing indicates that [Jenkins] is a very emotionally disturbed adolescent.
[He] does not appear to be psychotic but to be functioning at a marginal, borderline
state of emotional adjustment. It is important to note, that [he] is presently under
psychiatric care and receiving medication for bedwetting (Elavil). The possible
benefit of medication needs to be noted in regards to testing results. [Jenkins’s]
testing data indicates strong fluctuations in consistency, he performs well on some
tasks and extremely poor on others. Testing suggests an innate dull normal or lower
level of average normal intelligence. However, his difficulty with verbal
comprehension and ability to concentrate suggest a learning disability, possibly a
factor of emotional interference in his cognitive processes. Therefore, in his present
emotional state, he may appear to be less intelligent than is actually the case.
(Rule 32 C. R. Vol. 27 at 846-47).
35

None of the mental health experts who have evaluated Jenkins over the course
of his life has concluded Jenkins has significant limitations in his intellectual
functioning or that he is mentally retarded. Further, none of his IQ scores, adjusted
for the SEM, puts Jenkins below a 71 IQ score. Thus, the state appellate court’s
finding that Jenkins’s IQ does not meet the Perkins standard for “significantly
subaverage intellectual functioning (an IQ of 70 or below)” is not unreasonable.
c. Two Standard Deviations Below the Mean
Jenkins also argues that Dr. Kirkland’s conclusion that Jenkins’s IQ is two
standard deviations below the mean is enough, on its own, to establish the
“sufficiently subaverage intellectual functioning” prong of the Perkins test.
(Jenkins’s Motion for an Evidentiary Hearing, Doc. 49 at 3). However, it is apparent
that Dr. Kirkland simply misspoke when he made this statement. According to the
AAMR, an IQ of 100 is the mean IQ score, and the standard deviation is fifteen.
AAMR, Mental Retardation 36-67 (9th ed. 1992). Thus, two deviations from the
mean (30) indicates an IQ score of 70. Dr. Kirkland clearly stated that Jenkins’s IQ
is 76.
2. Adaptive Behavior
Because Jenkins’s IQ test scores fall within the SEM, he must also “be able to
present additional evidence of intellectual disability, including testimony regarding
36

adaptive deficits.” Hall v. Florida, 134 S. Ct. 1986, 2001 (2014). “The AAMR
defines the term ‘adaptive behavior’ as the collection of conceptual, social, and
practical skills that people learn in order to function in their everyday lives.” Thomas
v. Allen, 607 F.3d 749, 754 (11th Cir. 2010) (citing Holladay v. Allen, 555 F.3d 1346,
1353 (11th Cir. 2009). “[S]ignificant or substantial deficits in adaptive behavior are
defined as ‘concurrent deficits or impairments in present adaptive functioning in at
least two of the following skill areas: communication, self-care, home living,
social/interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health and safety.’” Holladay, 555 F.3d at 1353. “The
American Association on Mental Retardation (AAMR) defines mental retardation as
follows: ‘Mental retardation refers to substantial limitations in present functioning.’”
Atkins, 536 U.S. at 308 n. 3. Therefore, in order for Jenkins to be considered mentally
retarded in the Atkins context, he must currently (at the time the Atkins claim was
adjudicated) exhibit deficits in adaptive behavior. Moreover, these problems must
have manifested themselves before the age of eighteen.
In concluding that Jenkins did not exhibit significant or substantial deficits in
his adaptive behavior, the Alabama Court of Criminal Appeals stated there was
“evidence presented at Jenkins’s trial indicating that Jenkins maintained relationships
with other individuals and that he had been employed by P.S. Edwards Landscaping
37

Company, Cotton Lowe 76 Service Station, and Paramount Painting Company.”
Jenkins, 972 So. 2d at 955. Jenkins argues that the state court’s “focus on only two
skill areas was an unreasonable application of Atkins.” (Jenkins’s Response to the
State’s Opposition to Motion for Evidentiary Hearing, Doc. 52 at 11).
Jenkins maintains that the state court record contains overwhelming evidence
of his significant adaptive deficits in the areas of functional academic skills,
communication skills, self-care, home living, social/interpersonal skills, use of
community resources, and self-direction. (Jenkins’s Reply Brief, Doc. 48 at 28-34).
With respect to functional academic skills, Jenkins notes the following:
Mr. Jenkins exhibited absolute failure in school, placing him
consistently several grade levels behind, despite a demonstrated and
concerted effort. Despite his diligence Mr. Jenkins’s grades were
always poor prompting his fifth grade teacher to note that he “work[s]
very hard,” “always tries to get his work done on time,” “but most of the
time finds it very difficult.” (RHCC, vol. 27, p. 940.) A county health
care services report observed that “[i]n spite of his academic failures,”
he “expressed liking for school and intends to graduate.” (Id. at 846.)
Yet, his secondary school records showed very poor grades, mostly Ds
and Fs in fifth and sixth grade academic classes and noted he was below
grade level in all the major subjects. (Id. at 883, 887, 940, 944.) His
fifth grade test scores fell in the very low percentiles, including the fifth
percentile in math concepts and fourth percentile in math application.
His seventh grade scores on the California Test of Basic Skills (CTBS)
also fell in the very low percentiles, including the fourth percentile in
reading comprehension. (Id. at 895, 936.) One teacher sent letters home
to his parents indicating Mr. Jenkins was failing for several reasons,
including deficiencies in his oral work. (Id. at 927, 931.) In addition,
Mr. Jenkins was held back multiple times and never completed the
38

seventh grade. (RHCC, Tab #R-48, TR. 470; vol. 27, pp. 846, 883, 886,
895, 902, 905, 915, 916, 922, 927, 931, 940, 944, 958, 962, 973.)
State expert Dr. Kirkland confirmed this bleak picture, noting that
Mr. Jenkins had very poor problem solving abilities, was functioning in
the bottom one percentile in the most important academic subjects, and
was a very slow learner. (RHCC, Tab #R-48, TR. 624-25, 670.)
Kirkland administered the Wide Range Achievement Test, a test of
academic achievement, and found that at age 29, Mr. Jenkins was only
functioning at the third grade level in reading, spelling, and arithmetic.
(Id. at 624-25.) Kirkland’s testing corroborates the observation of one
of Mr. Jenkins’s teachers who observed some twenty years earlier that
he lacked the “fundamental skills in reading, math, and language,” to be
successful, was scoring in the bottom percentiles in virtually every
category, that “[t]he work is too hard for” him and that “[g]rading him
isn’t fair.” (RHCC, vol. 27, pp. 895, 905, 940, 944.)
(Id. at 28-30).25
With respect to communication skills, Jenkins argues the following:
Mr. Jenkins has significant cognitive deficits as well as poor
reading skills. His cognitive deficits prevented him from concentrating
and sitting still as a child. (RHCC, Tab #R-48, TR. 94,26 470; vol. 27, p.
941.) A county health care services report described his concentration
and attention spans as “poor.” (Id. at 846-47.) Another report noted that
he was “quite concrete in his thinking.” (Id.; see also vol. 25, p. 566.)
Throughout his limited schooling Mr. Jenkins’s teachers consistently
noted that he had poor reading skills, erratic comprehension. (Id. at 895,
25

However, the state court record lacks any finding that Jenkins’s performance in school was below
borderline and generally reflected that his poor performance was at least partially attributable to his
abysmal family life, frequent moves, changes in schools, frequent absences from school, and
dyslexia. (Rule 32 C.R. Vol. 27 at 877-964). Additionally, both Dr. Lisak and Dr. Kirkland
concluded that Jenkins functioned at a borderline intelligence level. (Rule 32 R. Vol. 21 at 467-68;
Rule 32 R. Vol. 22 at 624).
26

This cite refers to the portion of the testimony of Michael Jenkins, Jr., Jenkins’s brother, stating
Jenkins could not sit still while his father was beating him because it hurt.
39

902, 940, 944.) One teacher made clear to his parents that Mr. Jenkins
was failing in school partially due to his lack of verbal communication
skills. (Id. at 927, 931.) Likewise, by the seventh grade, Mr. Jenkins
scores on a standardized test revealed that his reading comprehension
was in the bottom fourth percentile. (Id. at 846, 936, 895.) At the time
of his evaluation in 1996, Mr. Jenkins’s reading skills were so poor that
Dr. Kirkland had to read aloud all of the tests he administered to insure
that he understood them. (RHCC, Tab #R-48, TR. 641.) Dr. Kirkland
estimated he was reading at a third grade level at the time of his
evaluation, consistent with his academic records and deficits in the area
of communication. (Id.)
(Jenkins’s Reply Brief, Doc. 48 at 30).
With respect to self-care, Jenkins argues:
The unrebutted evidence presented in Rule 32 shows Mr. Jenkins
has significant deficits in self-care skills. For instance, as a child Mr.
Jenkins was filthy, lived in a filthy room, wet the bed and regularly
defecated in his underwear. His bladder and bowel control problems
persisted into adulthood and created significant problems for him
socially. (RHCC, Tab #R-48, TR. 86, 89, 91, 104-10, 113, 117-18, 171,
197-200, 230-231; vol. 27, pp. 859, 891, 934-35.27) Indeed, when he was
living with Sharon and Lonnie Seal in Alabama as a nineteen year-old
and it appeared that they would discover that he wet the bed, Mr.
Jenkins left their trailer to avoid having his enuresis found out. This
decision led to a rapid deterioration in his life and overall mental health
as he began to use drugs and alcohol to the degree that it severely
impaired his functioning and evidenced profound limitations in the area

27

No part of the record cited here by Jenkins supports his claim that, “[h]is bladder and bowel
control problems persisted into adulthood and created significant problems for him socially.”
Rather, all of the evidence cited pertains to Jenkins’s childhood.
40

of self-care. (RHCC, Tab #R-48, TR. 58-5928, 48629; vol. 25, p. 56530;
vol. 26, p. 76031; vol. 27, pp. 859, 860.32)
(Jenkins’s Reply Brief, Doc. no. 48 at 30-31).
With respect to home living, Jenkins notes:
In addition to living in filth as a child, Mr. Jenkins was dependent
upon others to provide shelter. As a child he fled his home, rather than
28

Sherry Seal testified that while Jenkins was living with her family, she noticed that he wet the bed
several times. She discussed the problem with Jenkins and offered to help if she could. The Seals
had told Jenkins that when their baby was born, they wanted to switch bedrooms with him because
he had the largest bedroom, which was closest to the bathroom and the front door. Jenkins moved
out shortly after the Seals planned to swap bedrooms with him. When asked at the Rule 32 hearing
if Jenkins moved out because he wanted to be near the bathroom, Sherry Seal replied, “That could
be. I couldn’t say exactly what his reasons were.” Id. at 57-59. There is nothing in the record
indicating that Jenkins moved out of the Seals’ home to avoid their discovery of his enuresis. In fact,
Sherry Seal testified that she knew about Jenkins’s problem and discussed it with him before he
moved out.
29

This cite references the following testimony from Dr. David Lisak:
Q. Is there anything from the events following [Jenkins] leaving the Seals that
supports your conclusions here today?
A. I think when he left the Seals, and that being a very positive environment for him,
he moved back into a lifestyle that began to mimic more and more the kind of
lifestyle he had in California. He drank more and started using drugs more. He was
around people who did not have the kind of positive influence on him that Lonnie
Seal had.

30

This cite references the following portion of the June 8, 1997 Lunacy Commission report:
It is noted from prior records that the patient has a very significant history of alcohol
dependence with alcoholic blackouts in the last several years prior to his arrest. In
addition, he has used heroin, speed, inhalants, LSD, and PCP.

31

This cite references a page from a probation report prepared on May 11, 1983, when Jenkins was
16 years old.
32

This cite references a page from a probation report prepared on September 21, 1981, when
Jenkins was 14 years old.
41

be abused, and ended up being homeless because he lacked skills to
locate lodging. (RHCC, Tab #R-48, TR. 118-24, 200; vol. 25, pp. 546,
573, 574, 575; vol. 26, p. 760; vol. 27, pp. 804, 822, 844, 845, 847, 857,
860.) While living with the Seals, he contributed where he was able but
had no significant home living responsibilities such as taking care of the
home, paying bills, buying groceries or other chores.33 After fleeing the
safety of their trailer when he feared that they might discover he was a
bed-wetter, he lived in squalor – taking up residence in a filthy mess of
a[] dwelling that had been provided by an employer, thereby confirming
his lack of home living skills and that his life totally deteriorated
without the limited structure of the Seals[’] home. (RHCC, Tab #R-48,
TR. 58-59, 486.)34
(Jenkins’s Reply Brief, Doc. 48 at 31).
With respect to social and interpersonal skills, Jenkins maintains that:
Mr. Jenkins suffers significant deficits in social and interpersonal
skills. He was a social outcast who was rejected and exploited by his
peers. (RHCC, Tab #R-48, TR. 108, 110, 124, 184, 194; vol. 27, pp.
847, 891, 935.) Mr. Jenkins had no friends during childhood. (RHCC,
Tab #R-48, TR. 108, 494.) In addition, because he often urinated and
defecated in his pants, Mr. Jenkins’s peers ostracized and ridiculed him.
(Id. at 110, 111.) Even his own family treated him differently. (Id. at
110, 192.) His parents never showed him any affection. (Id. at 111, 192.)
During much of his early life, Mr. Jenkins’s parents physically
prevented him from communicating by regularly “lock[ing him] in his
room” and “not allow[ing him] to be around anybody.” (Id. at 112.)

33

Jenkins offers nothing to support this statement. However, Lonnie Seal testified at the sentencing
phase of Jenkins’s trial that Jenkins contributed to the rent and other household expenses such as
groceries. (R. Vol. 9, Tab 19 at 1721-22).
34

These cites in no way support Jenkins’s statements that: “After fleeing the safety of their trailer
when he feared that they might discover he was a bed-wetter, he lived in squalor – taking up
residence in a filthy mess of a[] dwelling that had been provided by an employer, thereby confirming
his lack of home living skills and that his life totally deteriorated without the limited structure of the
Seal[‘]s home.”
42

Others took advantage of him all the time. (Id. at 60.)35 In response to
the ostracism and exploitation, Mr. Jenkins did not stand up for himself.
When beaten, he would cower, cry, and apologize, but would not fight
back or run. (Id. at 193.) When asked to contribute on different
occasions, Mr. Jenkins would “always give more than anybody else,”
and when others asked for help, often “he would end up doing the whole
job.” (Id. at 60.) He also did not receive fair wages at his job and was
always working extended hours. (Id. at 61.) Mr. Jenkins was gullible and
easily exploited. Mr. Jenkins’s social isolation was a lifelong
experience. He lacked the basic foundation for establishing peer
relationships and had poor relationships with his family throughout his
life. (RHCC, Tab #R-48, TR. 100-04, 112-14, 184-186, 192-96, 232,
452.) Notes from his elementary school records reveal that Mr. Jenkins
was socially as well as mentally retarded with one evaluator opining that
at age 12, Mr. Jenkins was five years behind the social level of his peers.
(RHCC, vol. 27, pp. 879, 883, 944, 946, 955.) Indeed, the fact that Mr.
Jenkins was isolated and rejected by his family of origin did not prevent
the family from exploiting him. The evidence introduced in Rule 32
show that his mother extorted money from him while he was a homeless
teenager, in exchange for her commitment not to report him to
authorities. (RHCC, Tab #R-48, TR. 483.) According to the AAMR,
“victimization of people with mental retardation, observed in social and
economic exploitation, is ‘a more central (and generally more subtle)
problem that goes to the heart of why people with mental retardation are
considered to need that label.’” AAIDD MANUAL at 84 (citing Stephen
Greenspan, A Contextualist Perspective on Adaptive Behavior, in
Adaptive Behavior and Its Measurement: Implications for the Field of
Mental Retardation 69 (R.L. Schalock, ed., 1999)).
(Jenkins’s Reply Brief, Doc. 48 at 31-33).
With respect to use of community resources and self-direction, Jenkins offers
the following:

35

The record does not supports Jenkins’s assertion that people took advantage of him “all the time.”
43

Mr. Jenkins has significant deficits in the area of use of
community resources and self-direction. Specifically, Mr. Jenkins could
not protect himself and failed to succeed without considerable
assistance. From a very young age, Mr. Jenkins suffered “severe” abuse,
which escalated throughout his childhood and included at least one
instance of sexual abuse from his grandfather. (RHCC, Tab #R-48, TR.
187-88, 454, 458, 462.) When Mr. Jenkins was abused, he would “ball”
up, instead of fighting back. (Id. at 93, 96, 193.) Mr. Jenkins also ran
away from home and lived on the streets. (Id. at 122.) In response to his
troubles in school and at home, a county health care services report
recommended that Mr. Jenkins, who was a ward of the court, stay in a
structured special education program. (RHCC, vol. 27, pp. 844, 846,
847.) The report also noted that Mr. Jenkins would “have to deal with
his feelings of rejection and worthlessness that he has received from his
family and work to improv[e] his self-image.” (Id.)
As evidenced by the testimony and records presented at the Rule
32 hearing, Mr. Jenkins did not utilize community resources after
becoming homeless as a child – such as a homeless shelter or juvenile
facility – and instead lived in the streets. (RHCC, Tab #R-48, TR.
118-24, 200.) Likewise, although his bladder and bowel control
problems and chemical dependency significantly interfered with any
efforts he made at normalcy, he was unable to avail himself to resources
that would have assisted with these issues. Indeed, rather than be
discovered as a bedwetter, Mr. Jenkins left the Seals’ home. As an adult,
Mr. Jenkins’s peers took advantage of him regularly, which required him
to subsist in the streets or rely on others. (Id. at 60, 61.36) During one of
36

This cite references the testimony of Sherry Brown Seal, who stated that after Jenkins moved out
of her house, he was taken advantage of on several occasions. She elaborated:
A. On several occasions, when asked to contribute for different occasions, whether
it was a meal or whatever, he would always give more than anybody else. There
were times people would ask for help, and he would end up doing the whole job.
Q. In his employment, was he taken advantage of?
A. The employment in California, I don’t know about. The employment while he
was employed in Alabama, yes, he was.
Q. Tell me how he was taken advantage of.
A. He was not receiving fair wages. He was asked to work extended hours.
44

the periods in which Mr. Jenkins had no place to live, he followed a
family he befriended to Alabama and depended on them for
transportation and lodging. (RHCC, Tab #R-9, TR. 1726; Tab #R- 48,
TR. 151.)37 Those with mental retardation tend to be “followers,” and
rely on others for direction and support. Atkins, 536 U.S. at 318. Further
indicative of lack of his self direction, Mr. Jenkins found only “odd and
ends” work doing painting, landscaping, and assisting a mechanic.
(RHCC, vol. 29, p. 1255.)
(Jenkins’s Reply Brief, Doc. no. 48 at 33-34).
The respondent maintains the evidence before the state court reveals that
Jenkins does not have significant limitations in adaptive functioning. (Respondent’s
Opposition to Motion for Evidentiary Hearing, Doc. 51 at 19). The respondent first
argues that Lonnie Seal’s testimony at the penalty phase of the trial supports a finding
that Jenkins does not have significant limitations in adaptive functioning:
Mr. Seal testified that he met Jenkins when he started working at the
garage where Jenkins was employed in California. (Vol. 9, p. 1719.) Mr.
Seal described their job duties as consisting of “mostly heavy engine
work,” and he stated that Jenkins did whatever their boss needed him to
do, from driving a wrecker to installing engines. Id. at 1720. He testified
that they became “well acquainted” and added that Jenkins regularly
stopped by his home to visit with him, his wife, and their child. Id.

Seal indicated that she did not believe Jenkins was paid enough for the hours he worked.
37

Lonnie Seal testified at the sentencing phase of Jenkins’s trial that he invited Jenkins to move to
Alabama with his family and offered to let Jenkins live with him until he could obtain his own
lodging, or if he did not like Alabama, he would help him “get a bus ticket back.” He testified that
Jenkins helped with the move by driving the Seals’ truck to Alabama while Lonnie Seal drove his
car with his wife and child. He further testified that it took him several weeks to find a job, while
Jenkins found a job in two days, which allowed Jenkins to pay rent and contribute to household
expenses such as groceries. (R. Vol. 9, Tab 19 at 1721-22).
45

Mr. Seal testified that he and his wife decided to move to
Alabama to be closer to relatives after they discovered that she was
pregnant with their second child. Id. at 1721. Jenkins volunteered to
assist them with their move. Id. Jenkins drove their truck and attached
trailer from California to Alabama while Mr. Seal drove himself, his
wife, and their child to Alabama in his wife’s car. Id. Once they arrived
in Alabama, the Seals invited Jenkins to stay with them, and he accepted
their offer. Id. at 1722. It took Mr. Seal “several weeks” to find a job,
but Jenkins obtained a job just two days after they arrived in Alabama.
Id.
When he was asked whether Jenkins paid rent and otherwise
contributed to their household, Mr. Seal responded, “Yes, sir. He paid
us about thirty dollars a week rent, and then he was constantly
contributing, buying groceries, do whatever he could do. He was always
offering more.” Id. at 1722-1723. Mr. Seal recalled that Jenkins lived
with them for approximately three weeks and then moved out of their
residence because “he got his own mobile home in Vandiver.” Id. at
1723. When he was asked whether they had close contact with Jenkins
after he left their home, Mr. Seal replied, “Yes, sir. I saw Mark about
every day.” Id. Mr. Seal explained that Jenkins stopped by their home
almost every day in the evening after his work shift to visit with them.
Id. When he was asked whether Jenkins had any contact with their
eight-month-old child during those visits, Mr. Seal testified, “Yes, sir,
he always did. He would go in his room and sit in the floor and play
with him. Every time Mark come to the house, he would bring
something, you know. If Mark ate lunch at Hardees, or something, he
would get the little toy, like the little raisin man or something, and bring
it home. Every time Mark come to the house he had something. If it was
just a sucker or candy, he would always spend time with Lon.” Id. at
1724.
Mr. Seal’s testimony reveals that Jenkins has good adaptive
functioning in the areas of communication, self-care, home living, social
and personal skills, use of community resources, and self-direction.
Jenkins volunteered to drive Mr. Seal’s truck and attached trailer from
California to Alabama and successfully completed that task. He then
46

wisely accepted the Seals’ offer to live with them until he found a home
of his own, which he did just three weeks after arriving in Alabama.
Unlike Mr. Seal, who had to spend weeks searching for a job, Jenkins
found a job just two days after they arrived in Alabama, and he used the
money that he earned from that job to pay rent, buy groceries, and
otherwise support the household that he shared with the Seals. Jenkins
stayed in close contact with Mr. and Mrs. Seal after he moved into his
own home, visiting them in the evenings after completing his work
duties. Jenkins interacted well with their young child during these visits
and remembered to bring gifts, such as the toy from Hardees, to the
child. Thus, Mr. Seal’s testimony reveals that Jenkins not only could but
did live independently, that he provided for his own needs and the needs
of others, and that he had no difficulties in the areas of self-care,
self-direction, social, personal, and home living skills, communication,
and use of community resources.
(Id. at 19-22).
The respondent further argues the facts surrounding Jenkins’s crime also reveal
that he does not have significant deficits in adaptive functioning:
In the early-morning hours of April 18, 1989, Jenkins kidnapped,
robbed, and murdered Tammy Hogeland. (Vol. 3, pp. 522-526; Vol. 4,
pp. 672-673.) Later that morning, Jenkins approached Michael Brooks,
who was working as a mechanic at the Alford Avenue Shell in
Birmingham, and asked Brooks if he was willing to buy his car for $100
because, as he explained, he needed to travel to California to visit his
ailing mother. (Vol. 6, pp. 1026, 1032.) After Brooks agreed to purchase
the car for $80, Jenkins produced a bill of sale and signed the car over
to him. Id. at 1026-1032. Jenkins’s exchange with Brooks shows that he
was able to fabricate a plausible reason for needing money and
demonstrates that he understands proper sales transactions in light of the
fact that he had the bill of sale with him and signed it over to the
purchaser. Jenkins’s encounter with Brooks also demonstrates his ability
and willingness to bargain over a price to achieve what he wanted – in
this case, cash that he could use to escape Alabama.
47

Jenkins next persuaded Reba Wood, who also worked at the
Alford Avenue Chevron, to take him to the Greyhound Bus Station.
(Vol. 6, pp. 1035-1039.) At that time, Jenkins had with him a blue
suitcase, a paper sack, and a duffel bag. Id. Jenkins boarded a bus
leaving Birmingham at approximately 12:00 p.m. Id. On the following
day, Jenkins awakened in Houston, Texas, and realized that his bus
ticket was at the end of its use. Id. at 1157-1158. So, Jenkins proceeded
to hitchhike to Los Angeles, California, where he ultimately was
arrested some 22 days after the offense. Id. at 1106.
Jenkins’s flight from Alabama to California and his ability to
avoid arrest for nearly three weeks after he committed the crime
demonstrate that he, perhaps regrettably, has good adaptive functioning.
By way of example, Jenkins’s encounters with Brooks and Wood and
the fact that he successfully hitchhiked from Texas to California
demonstrate good adaptive functioning in the areas of communication,
social and personal skills, and self-direction. And, Jenkins’s use of a bus
to flee Alabama demonstrates his ability to use community resources.
Because the evidence in the state-court record demonstrates that
he does not have significant limitations in his adaptive functioning,
Jenkins cannot satisfy his burden of showing that he is mentally retarded
and, therefore, ineligible for the death penalty under Atkins.
(Id. at 22-24).
Additionally, there was testimony at the evidentiary hearing concerning
Jenkins’s most recent adaptive behavior while he was incarcerated. Bonnie Adams,
a jailer for the St. Clair County Sheriff, testified that while Jenkins was in the county
jail from 1989 through 1991, she had constant contact with him. (Rule 32 R. Vol. 19,
Tab 48 at 13-17). Ms. Adams stated that Jenkins was a model inmate, the best she
ever supervised, who never complained about anything or caused trouble while he
48

was in jail. (Id. at 18-27). Virginia Price, another jailer for the St. Clair County
Sheriff, also testified that Jenkins was the model inmate, always polite and respectful.
(Id. at 35-41). Finally, Dr. Kirkland testified that he reviewed Jenkins’s cell and met
with Jenkins at Holman Prison for several hours. (Rule 32 R. Vol. 22 at 618-19). Dr.
Kirkland testified that Jenkins’s cell was organized and clean and that Jenkins had
good relationships with guards. (Id.).
Jenkins argues he has significant limitations in adaptive functioning in the
following skill areas: academic, communication, self-care, home living,
social/interpersonal, community resources, and self-direction. Almost all of the
evidence cited by Jenkins pertains to his childhood. It is indisputable that Jenkins
had a horrible childhood in which he was seriously abused, ignored, and mistreated
by his parents. However, Jenkins’s school records indicate his poor academic
performance was due at least in part to his family problems, including frequent moves
and multiple absences from school.

(Rule 32 C.R. Vol. 27

at 877-964).

Additionally, many of the behavioral deficits Jenkins now claims to possess were in
no way attributable to Jenkins or his adaptive ability. Rather, they were the result of
the way Jenkins was treated by his parents since his birth.38
38

Jenkins’s brother, Michael Jenkins, Jr., testified to the following: Jenkins was regularly beaten as
a child; he was often beaten for lying or messing in his bed; he was made to wear his soiled
underwear to school or on his head; his father made Jenkins hang his soiled sheets on the fence for
the neighbors to see; his father rubbed feces on Jenkins’s face and made him eat feces; his father beat
49

With the exception of academic skills, the respondent provides facts to support
an argument that Jenkins did not have significant limitations in adaptive functioning
in other skill areas during both the time period leading up to the murder and time
following the murder. Further, as the appellate court noted in its opinion on Jenkins’s
collateral appeal, there was testimony at trial indicating that during the time period
surrounding the murder, Jenkins maintained relationships with others and was
employed by a landscaping company, service station, and painting company.
Jenkins, 972 So. 2d at 155.
him more severely if he tried to run away or hide from beatings; he and Jenkins were forced to help
their father work all night, holding lights for him to work in the dark; they often were too tired to go
to school because of being required to stay up all night helping their father; Jenkins was never treated
with affection; Jenkins was locked in his room with two dogs who were not house-trained and was
required to clean up after the dogs who used his bedroom as their bathroom; Jenkins was locked in
his room during meals, so he had to eat dog biscuits and other scraps that were thrown to the dogs;
Jenkins and his siblings ran away regularly; he called Child Protective Services once, but his father
threatened to kill him if he ever called them again; and their parents regularly used “speed or crystal
methamphetamines.” (Rule 32 R. Vol. 20 at 81-172).
Jenkins’s cousin, Tammy Lynn Pitts testified to the following: she is five years older than
Jenkins and lived with Jenkins and his family until she was in her twenties; Jenkins was beaten and
mistreated as a child; his mother hid him from the family because his father was Mexican or Puerto
Rican; his mother did not change his diapers regularly, so he was forced to sit in soiled diapers for
several days at a time; he suffered bad diaper rash; his mother never bathed him; while he was a
baby, his mother smacked and tossed him around like he was nothing; things got worse when
Jenkins’s step-father was released from prison; his step-father beat him daily until he left home;
Jenkins tried to hide his soiled sheets and put clean sheets on his bed to avoid beatings; Jenkins’s
parents called him names such as “Puerto Rican puke” and “Bastard” and gave him no affection; he
was forced to attend school in his soiled clothing; Jenkins begged his father not to beat him, telling
him he loved him; Jenkins was locked in his room, filthy with dog feces and dirty clothes that were
never washed, and was not let out of his bedroom except to go to school or do chores; after the
family ate, they threw food into his bedroom for him, or he ate out of a trash can or ate dog food; his
siblings were treated better than he was; he was forced to wear diapers at age 9; his parents drank
a lot and used drugs; the living conditions in the home were filthy with dirty dishes and clothes; and
the dogs destroyed the house and urinated inside. (Id. at 182-225).
50

Jenkins argues that the appellate court’s “focus on only two skill areas was an
unreasonable application of Atkins.” (Jenkins’s Response to the State’s Opposition
to Motion for Evidentiary Hearing, Doc. 52 at 11). However, the fact that the
appellate court mentioned only two skill areas in its opinion does not necessarily
mean that no other skill areas were considered. See Harrington v. Richter, 562 U.S.
86, 98 (2011) (“Where a state court’s decision is unaccompanied by an explanation,
the habeas petitioner’s burden still must be met by showing there was no reasonable
basis for the state court to deny relief. This is so whether or not the state court reveals
which of the elements in a multipart claim it found insufficient, for § 2254(d) applies
when a ‘claim,’ not a component of one, has been adjudicated.”).
The state record is replete with evidence pertaining to the various skill areas.
The evidence cited by Jenkins in support of his claim that he lacked skills in a number
of areas pertains mainly to his childhood, which was unquestionably terrible.
However, the record shows that Jenkins’s deficit in academic skills was in part a
result of matters that were beyond his control, such as his poor family life, frequent
moves and changes in schools, and frequent absences. Similarly, the deficits Jenkins
claims existed in other behaviors were in large part the result of the way his family
abused, ignored, and mistreated him. Further, the evidence pertaining to the time of
the offense and adjudication of the Atkins claim indicates Jenkins did not have
51

significant or substantial deficits in adaptive behavior during that period of time.
Given the evidence before the state court, Jenkins is unable to establish that the
Alabama Court of Criminal Appeals’ decision–that Jenkins did not possess
significant or substantial deficits in adaptive behavior–resulted in: (1) a decision that
was contrary to, or involved an unreasonable application of, clearly established
federal law; or (2) a decision based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
3. Onset Before Age Eighteen
The final requirement in proving an Atkins claim is that the alleged mental
retardation (significantly subaverage intellectual functioning and significant or
substantial deficits in adaptive behavior) must have been present before the petitioner
turned eighteen. Perkins, 851 So. 2d at 456. Jenkins argues that “all relevant
evidence shows [his] mental retardation manifested before the age of eighteen and is
a lifelong condition.” (Jenkins’s Reply Brief, Doc. 48 at 34). However, taking all
evidence into account, Jenkins cannot demonstrate his alleged mental retardation
manifested before he attained the age of eighteen.
School records clearly show Jenkins’s poor performance in school was due in
part to excessive absences, late assignments, and lack of fundamental skills in math,
reading, and language. (Rule 32 C.R. Vol. 27 at 877-964). At age 12, officials
52

determined through extensive intelligence and adaptive functioning testing that
Jenkins’s intellectual capacity was average and that he was dyslexic, which impaired
his ability to read. (Id. at 955). Officials noted that frequent moves, changes in
schools, family problems, and a learning disability (dyslexia) all contributed to
Jenkins’s “problems.” (Id. at 958). Additional testing performed when Jenkins was
14 years old concluded that he functioned in the dull-normal range of intelligence and
was suffering from a “definite learning disability.” (Id. at 846). School and court
officials clearly determined that Jenkins’s intelligence scores and adaptive
functioning skills were attributable to his learning disability and other circumstances
in his life, rather than mental retardation. Thus, Jenkins is unable to establish that the
decision by the Alabama Court of Criminal Appeals–that his alleged mental
retardation manifested itself before he was eighteen years old–was contrary to clearly
established federal law. Neither can Jenkins show the Alabama Court of Criminal
Appeals’ decision either unreasonably applied clearly established federal law or was
based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding.
V. CONCLUSION
Jenkins has failed to establish that the Alabama Court of Criminal Appeals’
decision that he is not mentally retarded under Atkins was contrary to, or involved an
53

unreasonable application of, clearly established federal law, or resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. Thus, his Atkins claim is due to be DENIED.
Because he cannot prevail on his Atkins claim, Jenkins is not entitled to an
evidentiary hearing on that claim. See Cullen v. Pinholster, 131 S. Ct. at 1398-99.
Thus, Jenkins’s Motion for an Evidentiary Hearing on his Atkins claims (Doc. 49) is
due to be DENIED.
An appropriate order will follow.
DONE this the 31st day of March, 2015.

VIRGINIA EMERSON HOPKINS
United States District Judge

54